Heard learned advocates for the parties.
The petitioner by way of this petition has approached this Court under Article 226 of the Constitution read with section 482 of Criminal Procedure Code, with following prayers:
"8.
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned orders dated 23rd June 2011 passed by the learned Chief Judicial Magistrate, Jamnagar below exh. 49 in Criminal Case No. 2370/06 and further be pleased to quash and set aside the order passed by the learned 2nd Additional Sessions Court, Jamnagar in Criminal Revision Application No. 56 of 2011 dated 10.10.2011.
(B) Pending the hearing and final disposal of this petition, Your Lordships may be pleased to stay and suspend further proceedings of the Criminal Case No. 2370 of 2006 arising out of the Criminal Inquiry Case No. 129 of 2004 and further be pleased to stay and suspend the implementation, execution and operations of the orders dated 23rd June 2011 passed by the learned Chief Judicial Magistrate, Jamnagar below exh. 49 in Criminal Case No. 2370/06 and order passed by the learned Sessions Court in Criminal Revision Application No. 56 of 2011 dated 10.10.2011."
The facts in brief leading to filing this petition deserve to be set out as under.
The respondent no.2 filed a complaint in the nature of private complaint against the present petitioner alleging commission of offence by him punishable under section 323, 325, 504, 506(1) and 114 of Indian Penal Code, which was registered as Criminal Inquiry Case No. 129/2004. In this matter initially learned Magistrate ordered inquiry under section 202 Cr.P.C. vide order dated 28/9/2004. Thereafter on 5/4/2006 process is issued against the petitioner.
Petitioner filed application below exhibit-19 urging the court to take into consideration the aspect of provision of section 197 Cr.P.C. and lack of sanction from the competent authority to take cognizance. Said application was rejected vide order dated 3/2/2007. Being aggrieved and dissatisfied with the said order, petitioner preferred writ petition before this Court being Special Criminal Application No. 345 of 2007, wherein this Court (Coram: P.P. Bhatt, J) after hearing all the concerned passed order directing as under.
"8.0 In view of the above, the application is allowed. The order passed by th learned Chief Judicial Magistrate dated 3rd February 2007 and order dated 5th April 2006 qua the present petitioner (original accused no.1) are quashed and set aside. The learned Chief Judicial Magistrate shall decide the matter de novo taking into consideration Annexure'C' , 'D' and 'E' of the present petition i.e. Special Criminal Application No. 345 of 2007 and any other material, which may be produced before him. The petitioner is directed to place the above referred papers/documents before the trial Court.
9.0 Rule is made absolute to the aforesaid extent with no order as to costs. Direct service permitted."
Apropos the aforesaid direction issued by this Court, the petitioner preferred one more application under exhibit-49 for compliance with the directions of this Court taking into consideration the documents which were ordered to be taken into consideration.
At this stage it is required to be noted that the order passed by this Court in Special Criminal Application No. 345/2007 was not challenged by any one in any other forum and thus it has attained finality. Accordingly it was duty cast upon the concerned court to take into consideration the directions issued by this Court and comply there with in deciding the complaint and procedure of issuing process "de novo" as ordered.
Learned Chief Judicial Magistrate rejected exhibit-49 application vide order dated 23/6/2011.Being aggrieved and dissatisfied with the said order Criminal Misc. Application No. 56/2011 came to be filed before the Sessions Court, which also rejected vide order dated 10/10/201. Hence the present petition as stated herein above.
Learned advocate for the petitioner vehemently contended that learned Magistrate as well as learned Sessions Judge did not appreciate the directions issued by this Court in letter & spirit. The issuance of process vide order dated 5/4/2006 itself was quashed and learned Magistrate was ordered to decide the issue afresh and de novo in light of the submissions that may be canvassed. Therefore it was learned Magistrate's duty to take matter and decide it in light of the submissions canvassed. Instead thereof and without deciding application exhibit-19, learned Magistrate passed order cursorily without appreciating the purport of the directions issued by this Court.
Learned advocate for the petitioner further contended that it is indeed unfortunate that said order is confirmed by the Sessions Court and even Sessions Court has not appreciated as to what is directed by this Court while quashing the process. Therefore the petition is required to be allowed and the matter is required to be remanded back to the concerned Magistrate to comply with the directions issued by this Court in its letter & spirit.
Learned APP submitted that the question of sanction under 197 Cr.P.C. is a matter which could be decided at anytime and hence the Court may pass appropriate order. However he could not controvert the fact that the order impugned does not in any way specify as to when the process is quashed by this Court, how the proceedings could be proceeded further without there being a fresh process or a process de novo.
Learned advocate Shri Buddhbhatti appearing for the complainant in all fairness submitted that the question of sanction or no sanction is not subject matter of this proceedings at this stage, but the fact remains that the word "de novo" employed by this Court in the order dated 7/3/2011 left no choice to the Magistrate but to decide the question from stage of issuance of process afresh in light of the submissions canvassed and documents which were to be adduced and considered. He submitted that therefore there cannot be any objection if the matter is remanded back to learned Magistrate, so that learned Magistrate may decide the question whether the process is required to be issued or not. Thus learned Magistrate is to undertake the exercise of considering as to whether the process is required to be issued considering the submissions made by petitioner's advocate in respect of section 197 Cr.P.C., and the documents which have been ordered to be considered by this Court in earlier order dated 7/3/2011.
This Court is of the considered view that plain reading of order passed by this Court and portion whereof is extracted herein above would leave no room of doubt in any manner to any one. The Court specifically ordered as under:
(1) The process i.e. the order of learned Magistrate issued on 5/4/2006 where under process is said to have been issued and cognizance is taken was quashed and set aside.
(2) After quashing and stetting aside that order under which process was issued on 5/4/2006, the matter was remanded back to the Magistrate to reconsider the issuance of process in light of the documents referred to in that order which were not there before the Magistrate when the process came to be issued on 5/4/2006 and decide the matter afresh & de novo.
Now, in light of the aforesaid clear directions, if one looks at the order passed by learned Magistrate, one could come to the conclusion that unfortunately these directions have not been considered at all and to say the least, the entire matter is dealt with in a haste and without adverting to the clear and unequivocal directions issued by this Court. The order of learned Magistrate therefore, in my view, suffered serious infirmity which cannot be condoned or overlooked by this Court. However, as this is not the stage or forum in which this Court need to express anything further in the matter, suffice it to say that, deciding that application and losing sight of the fact that the very process is quashed, therefore, even if assuming for the sake of examining without holding that learned Magistrate was justified in his opinion that sanction is not warranted, then also, his duty was not getting over and learned Magistrate was under an obligation to atleast complete the formality of issuing fresh process as the date on which application was decided or thereafter the process is not in existence at all. Therefore, in my view, one can safely conclude that learned Magistrate has missed the purport and spirit of the order and failed in complying there with. Therefore, this matter is required to be remanded.
It is still unfortunate that learned Sessions Court also did not appreciate this fact and confirmed the order of learned Magistrate. Had there been an appropriate attention to the directions passed by this Court, then, it would have been absolutely clear to both the Courts as to that process is no more in existence and therefore learned Magistrate was to undertake exercise of decision making as to whether the process is required to be issued and if it is required to be issued then he has to come to a specific conclusion as to whether sanction is required to be there or not in the case before him if sanction was not required then process could be issued. Now, when this is the specific issue pressed into, in my view both the Courts have missed this issue and therefore this requires to be dealt with in appropriate perspective. The petition is therefore allowed only on the limited aspect that there exists non compliance with the directions of this Court. Therefore the matter is remanded with the following directions.
(1) Learned Chief Judicial Magistrate, Jamnagar shall decide Criminal Misc. Application qua issuance of process "de novo" / afresh after taking into consideration the direction issued by this Court in Special Criminal Application No. 345 of 2007 dated 7/3/2011, extract of which have been reproduced herein above.
(2) Any inquiry under section 202 Cr.P.C. is not to be held again, and it is to be proceeded as if the stage of section 202 Cr.P.C. is over, and at that stage learned Magistrate is to consider as to whether the process is to be issued or not, bearing in mind the provision of section 197 Cr.P.C. and the documents which have been ordered to be taken into consideration.
[ S.R. BRAHMBHATT, J ] /vgn Top