1 Challenge in this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] is to the order dated 20thApril2010 passed by the learned Metropolitan Magistrate, Court No.4, Ahmedabad, in Enquiry Case No.5 of 2009, refusing to accede to the request of the complainant to exercise power under Section 156(3) of the Code.
2 At the outset, Mr. P.R. Nanavati, learned counsel for the petitioner would submit that, considering the nature of allegations and accusations levelled against the accused, the learned Magistrate was duty bound to order investigation under Section 156(3) of the Code. It is also submitted that judicial discretion vested into the Magistrate if exercised with irregularity then also the Court exercising power under Article 226 of the Constitution of India can take remedial measure and direct the Magistrate to act in accordance with law, meaning thereby, direct investigation under Section 156(3) of the Code.
3 As against this, Mr. A.J. Yagnik, learned counsel for respondent Nos. 2 and 3, relying on the decision of the Apex Court in the case of Mona Panwar vs. High Court of Judicature of Allahabad, reported in (2011) 3 SCC 496, has submitted that, once the Magistrate takes cognizance of the offence and passed an order under Section 202 of the Code, he cannot switch over to power under Section 156(3) of the Code. In the order impugned dated 20.4.2010, it is clear that the Magistrate had ordered inquiry under Section 202 of the Code directing the concerned Police Inspector to submit a report within 60 days. Therefore, the decision of the Apex Court in the case of Mona Panwar [supra] is squarely applicable in the facts of this case.
4 Having heard the learned counsels appearing for the parties and on perusal of the record and the observations made by the Apex Court in the case of Mona Panwar [supra] in paragraphs 22 and 23 that:
"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of the High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before her she had exercised the judicial discretion. In such circumstances, this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of the Code.
23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code."
in the facts of the present case, it cannot be said that the discretion exercised by the learned Magistrate needs any substitution by this Court in exercise of power under Article 226 of the Constitution of India.
5 Considering the above, this petition is rejected. Notice is discharged. The interim relief is vacated.
(ANANT S. DAVE, J.) (swamy) Top