IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 13245 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH =========================================
========================================= REHANA S KADRI Applicant(s) Versus STATE OF GUJARAT & 3 Respondent(s) ========================================= Appearance :
MR AB PANDYA for Applicant(s) : 1, MR SHREYANSH PANDYA for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2 4.
========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/02/2012 CAV JUDGMENT [1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) has been preferred by the applicant herein – original complainant to quash and set aside the impugned order dated 23.07.2010 passed by the learned Judicial Magistrate, First Class, Surat below Exh.1 in the Criminal Inquiry Case No.4/2010 by which the learned JMFC has stayed the further proceedings of the said Criminal Inquiry Case No.4/2010 in exercise of powers under Section 210(1) of the CrPC, till any report is submitted by the concerned police officer of Varachha Police Station on the complaint made by the applicant dated 18.11.2009.
[1.1] It is also further prayed for an appropriate order directing the concerned police officer of the Varachha Police Station to register her complaint dated 18.11.2009 (Annexure H) as FIR. Number of other prayers have also been made. However, all those prayers are general in nature and therefore, this Court has thought it fit not to consider other prayers made in the application except the prayers in terms of para 24(1) and 24(3) recorded herein above.
[2.0] Facts leading to filing of the present application in nut shell are as under:
[2.1] It is the case on behalf of the applicant that she has made various complaints to various police authorities in the State inclusive of Varachha Police Station for the murder of one Mukesh Ravjibhai Gajera. It is the case on behalf of the applicant that though in fact the death of Mukesh Ravjibhai Gajera though was a murder by highly influential persons, the same was registered as Accidental Death Case No.40/2008 dated 08.04.2008. Therefore, the applicant filed the complaints before various State authorities more particularly the complaint dated 18.11.2009 with Varachha Police Station for the offences under Sections 33, 34, 114, 120(A B), 302, 386, 506(2) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) for the murder of the aforesaid Mukesh Ravjibhai Gajera. However, the said complaint has not been registered as FIR under Section 154 of the CrPC. That thereafter the applicant has filed a private complaint in the Court of learned JMFC, Surat under Section 190 of the CrPC for an appropriate order directing the concerned police officer of Varachha Police Station to register her complaint dated 18.11.2009 as FIR, in exercise of powers under Section 156(3) of the CrPC and to investigate the same. That as some inquiry has been going on by the Varachha Police Station in connection with the complaint of the applicant dated 18.11.2009, the learned Magistrate has passed an order to stay the said complaint which is subsequently registered as Criminal Inquiry Case No.4/2010 in exercise of powers under Section 210(1) of the CrPC and directed to call the report from the concerned Police Inspector of Varachha Police Station and to submit the report of investigation carried out in connection with the complaint of the applicant dated 18.11.2009. That as no report was submitted by the concerned Police Inspector of Varachha Police Station despite the earlier direction by the learned Magistrate dated 11.02.2010, the applicant submitted an application and requested to vacate the earlier order of staying further proceedings of Criminal Inquiry Case No.4/2010, which was passed in exercise of powers under Section 210(1) of the CrPC. However, the learned Additional Chief Judicial Magistrate, Surat has rejected the prayer of the applicant to vacate the earlier order of staying further proceedings of Criminal Inquiry Case No.4/2010 under Section 210 of the CrPC. Hence, the applicant has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC for the aforesaid reliefs.
[3.0] Shri A.B. Pandya, learned advocate has appeared on behalf of the applicant. It is vehemently submitted by Shri Pandya, learned advocate appearing on behalf of the applicant that the order passed by the learned Magistrate to stay further proceedings of Criminal Inquiry Case No.4/2010 passed in exercise of powers under section 210(1) of the CrPC is absolutely illegal and contrary to the provisions and scheme of the CrPC. It is submitted that the learned Magistrate has materially erred in staying further proceedings of inquiry case pending before him, in exercise of powers under Section 210 of the CrPC as “no investigation” pursuant to which any FIR was pending before the Varachha Police Station. It is submitted that merely because some inquiry was pending before the Varachha Police Station, on the complaint made by the applicant, without registering the complaint of the applicant as FIR under Section 154 of the CrPC, the learned Magistrate is not justified in staying further proceedings before him in exercise of powers under Section 210 of the CrPC. It is submitted that only in a case instituted otherwise than on a police report (complaint case), it is made to appear to the Magistrate during the course of inquiry or trial held by him, that “investigation” by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him then and then only the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It is submitted that investigation by the concerned police officer can be only after registering the complaint as FIR under Section 154 of the CrPC. Therefore, it is submitted that section 210 of the CrPC would not be applicable in a case where some inquiry, may be a preliminary inquiry, is being held / conducted by the concerned police officer with respect to the complaint which is not registered as FIR, as such an inquiry cannot be said to be an “investigation”. It is submitted that in the present case, the complaint given by the applicant dated 18.11.2009 submitted before the Varachha Police Station is as such not registered as FIR and some inquiry is being held by the concerned police officer of the Varachha Police Station on the said complaint which cannot be said to “investigation” carried out by him and therefore, the learned Magistrate has materially erred in staying further proceedings of the Criminal Inquiry Case No.4/2010 in exercise of powers under Section 210 of the CrPC.
[4.0] Shri S.V. Raju and Shri P.M. Thakkar, learned Senior Advocates were requested to assist the Court on the point as it is a pure question of law whether in all cases pending inquiry on the complaint (though not registered as FIR) and/or only when the investigation is carried out by the concerned police officer after registering the complaint as FIR, the learned Magistrate is required to exercise powers under section 210 of the CrPC and stay the further inquiry and/or trial before him ?
[4.1] Shri S.V. Raju, learned Senior Advocate has submitted that only when it is found by the concerned Magistrate during the inquiry and/or trial of a complaint in a complaint case that with respect to the very offence, the investigation is being carried out by the police officer, the learned Magistrate is required to stay the proceedings before him in exercise of powers under Section 210 of the CrPC. It is submitted that the “investigation” as mentioned in Section 210 of the CrPC would be investigation by the concerned police officer after registering the complaint as FIR and it can never be either a preliminary inquiry before registering the complaint as FIR or any other inquiry without registering the complaint as FIR. It is submitted that “investigation” can be said to be in progress only under Chapter 12 of the Code of Criminal Procedure, 1973. It is further submitted that as such the inquiry / preliminary inquiry without registering the complaint as FIR is as such unknown to the scheme of the CrPC and as such the said question is referred to the larger bench by the Hon'ble Supreme Court.
[4.2] Shri Raju, learned Senior Advocate has relied upon the observations made by the Hon'ble Supreme Court in the case of Sankaran Moitra v. Sadhna Das & Anr. reported in (2006)4 SCC 584 (Para 79) and has submitted that as observed by the Hon'ble Supreme Court, before Section 210 of the CrPC can be invoked, the following conditions must be satisfied.
(i) there must be a complaint pending for inquiry or trial.
(ii) Investigation by the police must be in progress in relation to the same offence;
(iii) a report must have been made by the police officer under Section 173; and
(iv) the Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
Therefore, it is submitted that a report by the police officer under Section 173 of the CrPC can only be after the complaint is registered as FIR and thereafter the investigation has been conducted by the I.O.. It is submitted that any report by the Police Officer on inquiry in any complaint without registering the complaint as FIR cannot be said to be a report under Section 173 of the CrPC. Therefore, it is submitted that only in a case where the investigation is being conducted by the concerned police officer after registering the same as FIR with respect to the very offence which is the subject matter of inquiry and/or trial before the Magistrate in a complaint case, the learned Magistrate is required to invoke powers under Section 210 of the CrPC.
[4.3] Shri Raju, learned Senior Advocate has also relied upon the decision of the Orissa High Court in the case of Smt. Sabita Praharaj v. Smt. Gitarani Praharaj and others reported in 2004 Cri.L.J. 3975 as well as the decision of the Hon'ble Supreme Court in the case of State of Bihar v. Murad Ali Khan and Others reported in (1988)4 SCC 655 in support of his above submissions.
[5.0] Shri P.M. Thakkar, learned Senior Advocate who has was also requested to assist the court has also submitted that not with respect to any inquiry on the complaint without registering the same as FIR, the Magistrate can invoke the powers under Section 210 of the CrPC. He has further submitted that under Chapter 12, the proceedings at the stage of Section 156 CrPC would be at pre cognizable stage and any proceedings at the stage of Section 202 of the CrPC would be postcognizable stage except in a case where the learned Magistrate has passed an order of police investigation under Section 156(3) of the CrPC, while passing the order under Section 202 of the CrPC. Therefore, it is submitted that the powers under Section 210 of the CrPC exercised by the learned Magistrate would be at postcognizable stage. Therefore, Shri Thakkar, learned Senior Advocate has also as such submitted that only when in a complaint case it appears to the learned Magistrate during the course of inquiry/trial held by him that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him (investigation which is being carried out by the concerned police officer after registering the complaint as FIR), the Magistrate can invoke powers under Section 210 of the CrPC.
[6.0] Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has submitted that before any complaint is registered as FIR to hold the preliminary inquiry so as to satisfy whether there is some substance in the complaint which is required to be registered as FIR, is permissible. Therefore, it is submitted that in such a situation even in a case when an inquiry/preliminary inquiry is being conducted by the concerned police officer with respect to the very offence for which the complaint case is filed and inquiry/trial is pending before the concerned Magistrate, the Magistrate is required to stay the proceedings before him and is required to invoke Section 210 of the CrPC. Shri Dabhi, learned APP has relied upon the decision of the Hon'ble Supreme Court in the case of Rajinder Singh Katoch v. Chandigarh Administration & Ors. reported in 2008 Cri.L.J. 356.
[7.0] Heard the learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is, at what stage the learned Magistrate is justified in passing the order under Section 210 of the CrPC and to stay the proceedings of any inquiry or trial before him? The question posed for consideration before this Court is, whether the learned Magistrate is bound to stay the proceedings before him in exercise of powers under Section 210 of the CrPC pending any inquiry of the complaint by the police officer despite the fact that the said inquiry is not in pursuance to any complaint registered as FIR under Section 154 of the CrPC?
[7.1] Before considering the aforesaid questions in detail, relevant provisions of the CrPC are required to be referred to which are as under:
2(d)"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
2(h)"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
2(r) "police report" means a report forwarded by a police officer to a Magistrate under subsection (2) of section 173;
154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
156. Police officers power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.
157. Procedure for investigation. (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay.
[(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.]
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
[(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860).] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subjectmatter of the proceedings or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in subsection (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub section (2).
190.Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub section (1) of such offences as are within his competence to inquire into or try.
210.Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subjectmatter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
[7.2] A bare reading of the above provisions make it clear that during the inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for report on the matter of the police officer conducting the investigation. As observed by the Hon'ble Supreme Court in the case of Sankaran Moitra (Supra), the object of enacting Section 210 of the CrPC is threefold.
(i) it is intended to ensure that private complaints do not interfere with the course of justice;
(ii) it prevents harassment to the accused twice; and
(iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once.
In the said decision, the Hon'ble Supreme Court also considered the observations made by the Joint Committee of the Parliament in para 78 of the said judgment which reads as under:
78. The Joint Committee of Parliament observed:
"It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice."
(emphasis supplied) [7.3] As observed by the Hon'ble Supreme Court in the said decision, before Section 210 CrPC can be invoked, following conditions must be satisfied.
(i) There must be a complaint pending for inquiry or trial;
(ii) Investigation by the police must be in progress in relation to the same offence;
(iii) A report must have been made by the police officer under Section 173; and
(iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
Therefore, before Section 210 is invoked by the learned Magistrate, there must be an investigation by the police in progress in relation to the same offence.
[7.4] As observed by the Hon'ble Supreme Court in the case of Shashikant v. Central Bureau of Investigation & Ors. reported in (2007) 1 SCC 630, “registration of a case is a sine qua non for starting investigation”. Therefore, before any investigation is conducted by the police officer with respect to any offence, it must be after the said complaint is registered as FIR as provided under Section 154 of the CrPC. There cannot be any “investigation” by a police officer of an offence unless accusation/complaint is registered as FIR. Considering the Chapter XII of the Criminal Procedure Code, 1973 before any investigation is conducted by any police officer, with respect to any information relating to the commission of cognizable offence, it must be reduced in writing by him which is known as FIR and a copy of the said information is required to be send to the concerned Magistrate having jurisdiction. After the said information is registered as FIR, the concerned police officer shall have the power to investigate the said cognizable offences without the order of a Magistrate and investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Therefore, only in a case where any “investigation” is in progress by the police after registering the information as FIR and in relation with the same offence, the complaint under Section 190 of the CrPC is pending for inquiry or trial before the concerned Magistrate, in that case, only the learned Magistrate can invoke the provisions under section 210 of the CrPC and he has to wait till a report on the matter is received from the police officer conducting the investigation. At this stage it is required to be noted that a report by the concerned police officer after conducting the investigation would be as provided under Section 173/169 of the CrPC and a police report after investigation as provided under Section 173/169 of the CrPC would be only after the information/complaint with respect to any offence is registered by the concerned police officer as FIR as provided under Section 154 of the CrPC and investigation with respect to same is carried out. Any inquiry by any police officer with respect to any offence cannot be said to be “investigation” and any report on any inquiry by police officer without registering the complaint as FIR cannot be said to be a police report as provided under Section 173/169 of the CrPC. Therefore, if any inquiry is going on by any police officer with respect to any complaint or offence without registering the same as FIR, the Magistrate cannot invoke the powers under Section 210 of the CrPC. Therefore, only in a case where it is made to appear to the Magistrate in a complaint case (complaint under Section 190 CrPC) during the course of inquiry or trial held by him with respect to the said complaint, that an investigation by the police is in progress in relation to the offence which is a subject matter of inquiry or trial held by him, after registering the complaint as FIR under Section 154 of the CrPC or any investigation carried out by the concerned police officer pursuant to the order passed by the learned Magistrate for police investigation under Section 156(3) of the CrPC in those cases only, the Magistrate is required to stay the inquiry/trial held by him and has to call for police report on the matter from police officer conducting the investigation which would be under Section 173 of the CrPC and thereafter has to proceed further in accordance with Section 210 of the CrPC.
[7.5] In the present case, as stated herein above, there is no investigation by the police officer with respect to the offence in progress in relation to the same offence, which was the subject matter of inquiry before the learned Magistrate, after registering the information/complaint dated 18.11.2009 as FIR by the concerned police officer or the investigation being carried out by the concerned police officer pursuant to the order passed by the learned Magistrate for police investigation under Section 156(3) of the CrPC and only some inquiry is being conducted by the concerned police officer and therefore, the learned Magistrate is not justified in invoking powers under Section 210 of the CrPC and to stay further inquiry with respect to the Criminal Inquiry Case No.4/2010. As there was no investigation by the concerned police officer after registering the information dated 18.11.2009 as FIR, there is no question of learned Magistrate calling for the police report on the matter from the police officer conducting investigation as any report on inquiry (not being the investigation of an offence after registering the same as FIR) cannot be said to be police report as contemplated under Section 173/169 of the CrPC. Therefore, the learned Magistrate has materially erred in invoking Section 210 of the CrPC and staying the further inquiry by him and thereafter not vacating the said order.
[7.6] “Investigation” has been defined in subsection (h) of section 2 of the CrPC. According to this definition, “investigation” includes all the proceedings under the Code for collection of evidence as conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf. So investigation is a systematic, minute and thorough attempt to learn the facts about something complex or hidden; it if often formal and final. Under the Code of Criminal Procedure, “investigation” consists of the following steps:
(i) proceeding to the spot
(ii) ascertainment of the facts and circumstances of the case
(iii) discovery and arrest of the suspected offender
(iv) collection of evidence relating to the commission of the offence which may consist of the examination of various persons (including the accused) and the reduction of their statement into writing, if the officer thinks fit; search of places and seizure of things considered necessary for investigation and for production at the trial; and
(v) formation of the opinion as to whether on the materials collected there is a case to place the accused before the Magistrate for trial and, if so, taking necessary steps for the same by filing a charge sheet u/S.173, CrPC. Thus, the purpose of investigation is to find out whether materials exist to place the accused before the Magistrate for trial.
[7.7] Now, so far as the submissions made on behalf of the learned APP with respect to holding the preliminary inquiry before registering the complaint as FIR is concerned, this Court is not required to consider the aforesaid aspect as that is not the controversy in the present petition. The question is whether pending any inquiry/preliminary inquiry before registering the complaint as FIR, the learned Magistrate can invoke powers under section 210 of the CrPC or not?
[7.8] While conducting any inquiry by the concerned police officer with respect to any complaint/offence without registering the same as FIR, the concerned police officer has no such powers of arrest without search of places and seizure of the things and/or collection of evidence relating to the commission of offence. Even while conducting such an inquiry, at the most he can form an opinion whether the complaint is required to be registered as FIR or not and such an opinion on inquiry can be said to be forming an opinion as to whether on the materials collected during such inquiry, there is a case to place the accused before the Magistrate for trial and it cannot be said that the said inquiry can be said to be taken necessary steps by filing a chargesheet under Section 173 of the CrPC. Such inquiry/preliminary inquiry does not entails submission of any report under Section 173 of the Code or forwarding accused before a Magistrate for trial. Therefore, the inquiry into the incident conducted by the police officer does not amount to investigation as contemplated under section 2(h) of the CrPC and therefore, the same cannot be said to be an investigation carried out by the concerned police officer during which the Magistrate can invoke the powers under Section 210 of the CrPC. Any inquiry and/or preliminary inquiry by any police officer with respect to the incident for which the complaint is pending before the learned Magistrate does not amount to any investigation by the police, and so the present situation do not come within the provisions of Section 210 of the CrPC. In the aforesaid situation, there was no scope for the learned JMFC to stay the proceedings of the complaint case filed by the applicant herein.
[8.0] In view of the above and for the reasons stated above, the learned Magistrate has committed an error in invoking Section 210 of the CrPC and in staying further inquiry and/or to stay further proceedings of the complaint being Inquiry Case No.4/2010 and has further materially erred in not vacating the stay of further proceedings of Inquiry Case No.4/2010 and has materially erred in rejecting the application Exh.1 submitted by the applicant.
[8.1] In view of the above and for the reasons stated above, present application succeeds and the impugned order passed by the learned Chief Judicial Magistrate, Surat dated 23.07.2010 passed below Exh.1 in Inquiry Case No.4/2010 as well as the order passed by the learned Magistrate dated 11.02.2010 to stay further proceedings of Inquiry Case No.4/2010 are hereby quashed and set aside and the learned Magistrate is hereby directed to proceed further with the said Criminal Inquiry Case No.4/2010 in accordance with law and on merits at the earliest. Rule is made absolute to the aforesaid extent.
[9.0] Before parting with the present order, this Court appreciates the assistance rendered by Shri P.M. Thakkar and Shri S.V. Raju, learned Senior Advocates.
(M.R. Shah, J.) *menon