Kuldip N Sharma Ipss vs State Of Gujarat & 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1467 of 2011 For Approval and Signature:

HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

========================================================= KULDIP N SHARMA - IPS - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance :

MR SV RAJU, SR.ADVOCATE with MR IH SYED for Applicant(s) : 1, MR PK JANI, PUBLIC PROSECUTOR with MR JK SHAH, APP for Respondent(s) : 1, MR SP HASURKAR for MR BHARGAV HASURKAR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 11/05/2012 CAV JUDGMENT By way of this petition under Article 226/227 of the Constitution of India, the petitioner, an IPS officer, seeks to challenge the order dated 3rd May 2011 passed by the Additional Chief Judicial Magistrate, Anand in Court Inquiry No.93 of 2002 below Exh.1, thereby the Additional Chief Judicial Magistrate, Anand, ordered issuance of process against the petitioner-accused for the offences punishable under Sections 341, 342 and 500 of the Indian Penal Code, after a lapse of 11 years from the date of filing of the complaint.

Facts relevant for the purpose of deciding this petition can be summarised as under :

(1) The petitioner is an officer of the rank of IPS. On 1st July 2002, respondent no.2-original complainant who is also a police officer, lodged a private complaint before the Court of learned JMFC, Anand for the incident which occurred on 23rd October 2001, against the the petitioner herein and one another person, also a police officer, for the offences punishable under Sections 341, 342, 447, 500, 504, 506 read with Sections 114 and 34 of IPC. On the very same day i.e. on 1st July 2002, the learned JMFC, Anand, took cognizance upon the complaint and ordered magisterial inquiry under Section 202 of the Code of Criminal Procedure (for short, 'the Code'). The same was registered as Court Inquiry No.93 of 2002.

(2) Record reveals that after the inquiry under Section 202 of the Code was initiated, for the first time after 9 years, the complainant appeared before the learned JMFC along with his witnesses. The learned JMFC, Anand, examined the complainant and his witnesses on oath and thereafter passed an order for issuance of process for the offences punishable under Section 341 i.e. - wrongful restraint, Section 343 – wrongful confinement, Section 500 – defamation. It deserves to be noted that the learned JMFC thought fit to issue process only against the petitioner herein and no process was issued against the co- accused named in the complaint.

I. Nature of the Complaint :

It is the case of respondent no.2 – original complainant that on 22nd November 2001 he was serving as Deputy Superintendent of Police at Bhuj. For a period from 7th February 1997 to 30th December 2000 he served as Police Inspector, DCB at Vadodara and at that point of time the petitioner herein was the Police Commissioner of the city of Vadodara. He has alleged that since then the petitioner used to keep personal spite against him and, on one pretext or the other, used to harass the complainant. It is also his case that he was transferred from Vadodara to Junagadh and since the transfer was malafide, the complainant preferred a civil suit and obtained injunction against his transfer. The petitioner herein who, at the relevant point of time was the Police Commissioner of the city of Vadodara, preferred Misc. Civil Appeal No.277 of 1998 in the District Court against the order passed by the learned Civil Judge granting injunction in favour of the complainant.

It is the case of the complainant that the District Court dismissed the Misc. Civil Appeal, against which Civil Revision Application preferred before the High Court of Gujarat also was rejected and thereby the injunction granted by the Civil Judge against the order of transfer was confirmed. It is also alleged by the complainant that thereafter the petitioner passed an order of suspension against the complainant dated 2nd October 1998 on the basis of one false complaint. According to the complainant, the suspension order was challenged before the High Court of Gujarat by way of Special Civil Application No.8465 of 1998 and the High Court quashed the order of suspension and also directed that the period of suspension be treated as on duty. It is also alleged by the complainant that because of personal ill-will, the petitioner made some remarks in the confidential report of the complainant with a view to see that the complainant is not promoted from the post of Police Inspector to the post of Deputy Superintendent of Police.

It is also the case of the complainant that a complaint was lodged against him for the offences punishable under the provisions of the Prevention of Corruption Act, which was registered as ACB Case No.9 of 1999. ACB case No.9 of 1999 was tried by Special Judge at Vadodara and the Special Judge acquitted the complainant of all the charges by passing strictures against the petitioner herein. It is also alleged in the complaint that the petitioner, having failed at all stages, once again tried to harass the complainant by reopening investigation of one offence which was registered against the complainant, in which the police had filed report of 'C' Summary and which was also accepted by the trial Court. According to the complainant, one FIR came to be registered against him with Anand Rural Police Station vide CR II No.3031 of 2000 filed by one Jayantibhai Ramanbhai Patel for the offences punishable under Sections 504 and 506 of IPC on 31st March 2000. The said FIR was investigated by the police officers of the Anand Rural Police Station and since no offence was divulged against the complainant herein, the Investigating Officer submitted a report of 'C' Summary before the JMFC, Anand. The learned JMFC, Anand, issued notice to the complainant i.e. Jayantibhai R.Patel of that FIR, and the first informant of that FIR appeared before the learned JMFC, Anand and gave a purshis to the effect that he has no objection if 'C' Summary as prayed for is granted. Accordingly, the learned JMFC, Anand, vide order dated 1st May 2001, granted 'C' Summary.

It is the case of the complainant herein that he was due for promotion as Deputy Superintendent of Police as 17 officers junior to him were already promoted. The petitioner herein, keeping personal spite against the complainant, ordered reinvestigation of the case being CR II No.3031 of 2000 of Anand Rural Police Station by communication dated 7th August 2001.

On the basis of the said order passed by the petitioner herein, the Deputy Superintendent of Police preferred an application before the learned JMFC, Anand on 9th August 2001, requesting the learned Magistrate to handover the papers of investigation which were submitted before the learned Magistrate at the time when 'C' Summary was sought for, so that he could proceed with the further investigation under Section 173(8) of the Code as ordered by the petitioner.

It is the case of the complainant that he approached this High Court by way of Special Criminal Application No.833 of 2001, challenging the action of the petitioner in passing an order of reopening of investigation which was already concluded by filing of 'C' Summary report and which was accepted by the concerned Magistrate as even the complainant of that FIR had no objection. According to the complainant, the learned Single Judge of this High Court, vide order dated 24th October 2001 passed in Special Criminal Application No.833 of 2001, allowed the petition and quashed the order dated 7th August 2001 passed by the petitioner herein, whereby he had ordered reinvestigation into CR II No.3031 of 2000. However, it is the case of the complainant that on 23rd October 2001 i.e. a day before the learned Single Judge of this High Court quashed the order passed by the petitioner herein ordering reinvestigation into CR II No.3031 of 2000, the co-accused named in the complaint Shri Kuberbhai Karshanbhai Patel, the then Deputy Superintendent of Police, reached the residential premises of the complainant at around 4 O'clock in the morning on the strength of the order which was passed by the petitioner herein for reinvestigation of CR II No.3031 of 2000 with other Police Constables.

It is alleged that the co-accused along with other Police Constables armed with revolver, rifles and sticks entered the compound of the residence of the complainant and cordoned the whole area. It is also the case of the complainant that he immediately informed the police control room in this regard. In response to the same, the police party headed by the co-accused was informed to stop the proceeding till the High Court decides Special Criminal Application No.833 of 2001 which was preferred by the complainant to quash the order of reinvestigation. It is alleged that inspite of this message being received, the police party remained at the house of the complainant upto 8 O'clock in the morning. It is also alleged that the co-accused and other police officers restrained the complainant from going out of his residential premises and thereby caused lot of mental pain and agony. The complainant once again informed the control room complaining that he and his wife have been wrongfully restrained and confined at one place. He also alleged that his wife being a heart patient experienced pain, as a result of which one Dr.Rajguru had to be called for giving treatment to her.

According to the complainant, thereafter on the very next day, the matter was taken up for hearing by the learned Single Judge and the order of reinvestigation passed by the petitioner herein was quashed.

The picture that emerges from the plain reading of the complaint is that the petitioner herein ordered reinvestigation of one offence, which was registered against the complainant herein, in which 'C' Summary report was filed and was accepted by the concerned Magistrate. The co-accused who has been named in the complaint proceeded to the residential house of the complainant for the purpose of reinvestigation on the strength of the order which was passed by the petitioner, and according to the complainant, he was thereby wrongfully restrained and confined at his residential place. According to the complainant, this is how the petitioner herein and the co-accused, the then Deputy Superintendent of Police, have committed an offence punishable under Sections 341, 342 and 500 IPC.

It deserves to be noted that on completion of the magisterial inquiry, the learned JMFC, Anand, thought fit to issue process only against the petitioner herein and not against the co-accused who actually is alleged to have been present at the time of commission of the alleged offence.

Be that as it may, the fact is that the petitioner herein indisputably was not present when the alleged offence is said to have occurred on 23rd October 2001.

II. Contentions on behalf of the petitioner :

Mr.S.V.Raju, the learned senior counsel appearing for the petitioner submitted that the impugned order under challenge passed by the learned Magistrate issuing process against the petitioner herein for the offences punishable under Sections 341, 342 and 500 IPC is erroneous, contrary to the provisions of the Code and suffers from the vice of non-application of mind.

Learned counsel further submitted that plain reading of the complaint would suggest that none of the ingredients to constitute the offences punishable under Sections 341, 342 and 500 IPC are disclosed. According to the learned counsel, the Magistrate owed a duty to look into this important aspect before ordering issuance of process as to whether the basic ingredients to constitute the offence are made out or not. According to Mr.Raju, an order of process cannot be passed mechanically.

He further submitted that there is a fundamental defect and infirmity in the order passed by the learned Magistrate. He submitted that the record reveals that the Magistrate failed to record verification of the complainant on oath as mandatorily required under Section 200 of the Code. According to Mr.Raju, in absence of recording of verification of the complainant on oath, the Magistrate could not have passed an order of inquiry under Section 202 of the Code. According to Mr.Raju, when the learned Magistrate orders inquiry under Section 202, he can be said to have taken cognizance upon the complaint but only postpones issuance of process. When recording verification of the complainant on oath is a mandatory requirement under Section 200 of the Code, then absence of the same will render all further proceedings undertaken vitiated.

Mr.Raju vehemently submitted that the Legislature has thought fit to use the word “shall” in Section 200 of the Code. According to Mr.Raju, the word “shall” denotes the mandatory character. According to Mr.Raju, the use of the word “shall” in a statute, ordinarily speaking, means that the statutory provision is mandatory. He has submitted that it is construed as such unless there is something in the context in which the word is used which would justify a departure from this meaning. According to Mr.Raju, there is nothing in the language of the provision of Section 200 of the Code which would justify such departure.

Mr.Raju further submitted that the Magistrate could not have issued process for the offence punishable under Section 500 IPC i.e. defamation, in view of bar of Section 199(2) of the Code in this regard. According to Mr.Raju, Section 199(2) of the Code provides that, notwithstanding anything contained in the Code, when any offence falling under Chapter 21 of IPC is alleged to have been committed against a person who, at the time of such commission, is a public servant employed in connection with the affairs of a State, in respect of his conduct in the discharge of his public functions, it is only the Court of Sessions which may take cognizance of such offence, without the case being committed to it and that too upon a complaint in writing made by the Public Prosecutor.

Mr.Raju, learned counsel for the petitioner further submitted that there is a gross delay of 11 years in issuing process for the offences punishable under Sections 341, 342 and 500 IPC against the petitioner-accused from the date of order of inquiry under Section 202 of the Code which has caused grave prejudice to the petitioner- accused. He submitted that even from the date of the alleged incident, there is a delay of 9 months in lodging the complaint. The alleged incident is said to have occurred on 23rd October 2001, for which the private complaint came to be lodged on 1st July 2002.

Mr.Raju levelled serious allegations against the State Government, more particularly, the Chief Minister of the State who, according to Mr.Raju, has personal scores to settle with the petitioner. According to Mr.Raju, over a period of time the Government is out and out to ruin the career of the petitioner as the petitioner refused to act on the illegal dictates of the Government. Mr.Raju alleged that all this is happening only because of the insistence of the State Government.

Mr.Raju submitted that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Mr.Raju submitted that the concerned Magistrate has failed to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof.

III. Contentions on behalf of respondent no.2 – Original Complainant :

Mr.Hasurkar, learned advocate appearing for the original complainant, submitted that upon due consideration of the prima facie evidence collected during the course of inquiry under Section 202 of the Code, the Magistrate in his discretion has thought fit to issue process against the petitioner herein. According to Mr.Hasurkar, no error much less an error of law can be said to have been committed by the learned Magistrate in issuing process against the petitioner herein. He submitted that just because the learned Magistrate has not thought fit to issue process against the co-accused who was actually present at the time of commission of the alleged offence, will not by itself render the order of issuance of process against the petitioner vulnerable.

Mr.Hasurkar further submitted that the scope of inquiry under Section 202 of the Code is very limited and is restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine, whether the process should be issued or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code, on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. Mr.Hasurkar submitted that the inquiry at that stage does not partake the character of a full dress trial which can only take place after the process is issued under Section 204 of the Code, calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Mr.Hasurkar submitted that the question, whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry contemplated under Section 202 of the Code. In other words, according to Mr.Hasurkar, during the course of inquiry under Section 202 of the Code, the Inquiry Officer has to satisfy himself simply on the evidence adduced by the complainant, whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed inquiry is called for during the course of such inquiry.

Mr.Hasurkar further submitted that it is true that there is a failure on the part of the Magistrate in recording verification of the complainant on oath before passing order of inquiry under Section 202 of the Code, but that by itself will not vitiate the entire proceeding. According to Mr.Hasurkar, this can be termed as an irregularity which will not render the order of issuance of process nonest. According to Mr.Hasurkar if there is violation of any mandatory provision of procedural law, then unless and until the accused is able to show grave prejudice caused to him, such violation will not render the proceedings bad.

Mr.Hasurkar vehemently submitted that the word “shall”, though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the Legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. Mr.Hasurkar submitted that assuming for the moment that Section 200 of the Code is held to be mandatory but still non-compliance or violation of each and every mandatory provision of law may not vitiate the proceedings or may not render the order nonest. In the present case, according to Mr.Hasurkar, the issue of Section 200 being mandatory or directory is of no significance because there is no prejudice caused to the petitioner as, according to Mr.Hasurkar, process has been issued only after a full-fledged magisterial inquiry under Section 202. According to Mr.Hasurkar, it would have been a different situation if without holding any magisterial inquiry under Section 202, the Magistrate would have thought fit to straightway issue process under Section 204 of the Code. In that situation, perhaps according to Mr.Hasurkar the accused may complain that without proper verification of the facts and the allegations the Magistrate ought not to have issued process straightway under Section 204 of the Code.

Mr.Hasurkar submitted that plain reading of the complaint and the examination of the complainant on oath along with his witnesses would suggest that the necessary ingredients to constitute the offences punishable under Sections 341, 342 and 500 IPC are made out in the present case.

Mr.Hasurkar further submitted that delay of 11 years in passing the order of issuance of process by itself would not vitiate the proceedings. According to him, delay may not be solely attributed to the complainant. If there is a delay on the part of the concerned Court in taking up the matter, then in that case, the complainant should not suffer and cannot be imputed with the charge of being negligent or careless. Mr.Hasurkar strenuously urged that this Court may not take the aspect of delay very seriously. Mr.Hasurkar submitted that till the completion of the magisterial inquiry under Section 202 of the Code, the petitioner was not in picture as though named in the complaint as an accused but till the time the Magistrate passed an order of issuance of process, the petitioner could not have been said to be an accused. The sum and substance of Mr.Hasurkar's contentions is that had it been the case of long and inordinate delay after the process is issued, then it would be altogether a different situation but, in the present case, when the accused has no right to participate in the magisterial inquiry under Section 202 of the Code or has no right to put forward his defence, then he cannot complain as regards the delay in completion of the inquiry under Section 202 of the Code because no prejudice can be said to have been caused as a result of the delay. Mr.Hasurkar, therefore, submitted that there is no merit in this petition and the same deserves to be rejected with costs.

Having heard learned counsel for the respective parties and having gone through the materials on record, I am of the view that the following issues fall for my consideration in this petition :

(1) Whether the failure or omission on the part of the learned Magistrate in recording verification of the complainant on oath as per the mandate of Section 200 of the Code will vitiate the proceedings including the order of issuance of process.

(2) Whether Section 200 of the Code is mandatory and non- compliance of the same would cause grave prejudice to the accused, ultimately vitiating the entire proceedings.

(3) Whether in the facts and circumstances of the present case, more particularly, having regard to the nature of the allegations levelled in the complaint, could it be said that the necessary ingredients to constitute the offences punishable under Sections 341, 342 and 500 IPC are disclosed so as to justify issuance of order of process.

(4) Whether the delay of 11 years in passing the order of issuance of process against the accused herein can be said to be fatal and whether the order of issuance of process can be quashed on the ground of delay.

(5) Having regard to the report received by this Court from the learned JMFC, Anand, as regards the delay, can it be said that the complainant was vigilant about his case and no delay can be attributed to the complainant.

IV. Analysis :

I shall first deal with the contentions as regards non-compliance of the provisions of Section 200 of the Code and its ultimate effect.

In the present case, it is not disputed that the learned Magistrate, at the relevant point of time, failed to record the verification of the complainant on oath before taking cognizance upon the complaint and passing order of magisterial inquiry under Section 200 of the Code. Section 200 reads as under :

“200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also, by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.”

Plain reading of Section 200 is suggestive of the fact that upon taking cognizance of an offence on complaint, the Magistrate shall examine on oath the complainant and the witnesses present, if any, and the substance of such examination has to be reduced to writing which shall be signed by the complainant and the witnesses, and also, by the Magistrate. The significance in Section 200 is of the word “shall”. Whether the word “shall” by itself will make the provision mandatory and, non-compliance of the same, would render or vitiate the proceedings. This is one important issue which arises in this matter and over a period of time there has been a lot of debate on this issue. One more important aspect I have noticed in Section 200 is that the examination of the complainant is after the taking of cognizance i.e. cognizance is not dependent on examination of complainant. In other words, a Magistrate does not get initial jurisdiction to take cognizance only upon examination of the complainant but the examination of the complainant follows after the cognizance is taken. There is a procedure prescribed as to how a Magistrate should proceed once he takes cognizance of an offence on complaint. To understand the true effect of the word “shall” which has been used in Section 200, it is important to know as to what is the object of Section 200.

The question as to whether a particular provision of an enactment is mandatory or merely directory often arises for consideration. In cases where the legislature has not specifically provided that failure to comply with a provision of law will entail penal consequences and consequent invalidity of the act done, the duty of the Courts is to examine the scope and object of the particular enactment in order to determine as to whether the legislature intended the provision of law to be mandatory or otherwise. This rule of construction was effectively stated by Lord Penzance in Howard v. Bodington, reported in (1877)2 PD 203 in the following words :-

"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject- matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."

In the same case Lord Penzance observed as follows :-

"Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminster. I am not sure that it is the most fortunate language that could have been adopted to express the idea that it is intended to convey; but still that is the recognised language, and I propose to adhere to it. The real question in all these cases is this; A thing has been ordered by the legislature to be done. What it the consequence if it is not done : In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions la respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end."

Lord Campbell in Liverpool Borough Bank v. Turner, reported in (1860) 29 LJ Ch 827, observed :

"No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed."

These observations by Lord Campbell were quoted with approval in (1877) 2 PD 203 (supra) and by Jagannadhadas, J., speaking for the Court in H.N. Rishbud v. State of Delhi, reported in AIR 1955 SC 196 at p. 200 : (1955 Cri LJ 526).

Similarly in Banwari Lal v. State of Bihar, reported in AIR 1961 SC 849 at p. 851, it was held that :

"As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only directory, i.e., a direction that non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the Court has to decide the legislative intent. Did the legislature intend in making the statutory provision that non-observance of this would entail invalidity or did it not ? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same."

Another useful rule of construction was laid down in the House of Lords decision in Justices of Middlesex v. The Queen, reported in (1884) 9 AC 757 by Lord Blackburn in the following words :-

"....there is a numerous class of cases in which it has been held that certain provisions in Acts of Parliament are directory in the sense that they were not meant to be a condition precedent to a grant or whatever it may be, but a condition subsequent; a condition as to which the responsible persons may be blameable and punishable if they do not act upon it, but their not acting upon it shall not invalidate what they have done, third persons having nothing to do with that."

Similar views have been expressed by Sir Arthur Channell in Montreal Street Rly. Co. v. Normandin, reported in AIR 1917 PC 142, wherein it has been stated that :

"The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

The above mentioned principles enunciated in Montreal Street Rly Co., AIR 1917 PC 142 (supra) were applied with approval by the Federal Court in Biswanath Khemka v. Emperor, reported in AIR 1945 FC 67.

The law on the subject has been stated by Crawford in "The Construction of Statutes" 1940 Edition page 529 thus :-

"As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience, and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form, or if nothing is stated regarding the consequences or effect of non-compliance, the indication is all the stronger that it should not be considered mandatory."

A similar view was expressed by the Supreme Court in Dattatraya Moreshwar v. State of Bombay, reported in AIR 1952 SC 181 in the following words :

"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provision of a Statute relate to the performance of a public duty and the case is such that to hold null aim void acts done in neglect of this duly would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

The observations of the Federal Court in AIR 1945 FC 67 (supra) were quoted with approval by the Supreme Court in State of U.P. v. Manbedhan Lal Srivastava, AIR 1957 SC 912.

I am of the view that before addressing on the main issue as to whether Section 200 of the Code is mandatory or not, and whether non-compliance of the provision of Section 200 will render the proceedings vitiated, one needs to look into the object of Section 200. The question, whether a particular provision of a statute which, on the face of it appears mandatory – inasmuch as it used the word “shall” or is merely directory, cannot be resolved by laying down any general rule and depends upon the facts of each case, and for that purpose, the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.

On plain reading of Section 200 and more particularly, the entire scheme of Chapter XV of the Code, the procedure laid down in Section 200 ought to be strictly complied with. It is a very valuable safeguard which the Legislature has provided and must be scrupulously observed and insisted upon. The objects of an examination in this section are as follows :

(i) To ascertain the facts constituting the offence, where they are not given in the written complaint;

(ii) To ascertain whether there is any prima facie case and sufficient grounds for proceedings;

(iii) To correct and elucidate doubtful points therein. In such cases, it is the duty of the Magistrate even to explain to the complainant the procedure and then ask him to state definitely the charge he intends to make;

(iv) To separate unfounded allegations from substantial cases at the outset, and to prevent innocent persons from being brought into the police custody and subjected to the annoyance of frivolous charges;

(v) To help the Magistrate to judge if there are sufficient grounds calling for investigation and for proceeding with the case.

The objects as stated above are illustrative and not exhaustive. However, the legislative intent behind Section 200 and more particularly the procedure of examining the complainant on oath i.e. recording of verification of the complainant on oath before proceeding further is an important step as process of law cannot be permitted to be abused at the instance of an unscrupulous complainant and thereby putting the liberty of an innocent person in jeopardy.

Why the Legislature has thought fit to provide for a proviso to Section 200, which provides that when a complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint, the Magistrate need not examine the complainant and the witnesses. The reason is plain and simple. Where the complainant is a public servant or Court, clause (a) of the proviso to Section 200 of the Code raises an implied statutory presumption that the complaint has been made reasonably and bonafidely and not falsely or vexatiously. On account of such implied presumption, when the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process. From this, it can be clearly culled out that the object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused.

I have no doubt in my mind that Section 200 in so far as it obliges a Magistrate taking cognizance of an offence on complaint to record the verification of the complainant before proceeding further is mandatory.

I am fortified in my view by a decision of the Supreme Court. In the case of Associated Cement Co. Ltd. v/s. Keshvanand, reported in (1998)1 SCC 687, the Supreme Court held as under :

"22.Chapter XV of the new Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant...". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.”

However, the important question which now arises for my consideration is as to whether the entire proceedings of inquiry under Section 202 of the Code and the consequential order of process issued under Section 204 of the Code will be rendered illegal only on the count that the Magistrate failed or there was an omission on the part of the Magistrate in recording verification of the complainant on oath before proceeding with the inquiry under Section 202 of the Code. Ordinarily, once a provision is held to be mandatory, the breach of the same will vitiate the proceedings but it all depends on the nature of the proceedings and the effect of such omission by applying the test of prejudice. In the present case, I have come to the conclusion that Section 200 in so far as it obliges the Magistrate to record the verification of the complainant on oath upon taking cognizance is mandatory, but the question is whether really the petitioner is prejudiced and will it vitiate the proceedings. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public, without much furthering the object of enactment, the same should be construed as directory, but all the same, it would not mean that the language used in the provision would be ignored altogether. I am of the firm view that had it been the case where the Magistrate would have issued the order of process under Section 204 of the Code straightway without recording the verification of the complainant on oath, then in that case, the proceedings would definitely stand vitiated because the accused would definitely get prejudiced but, like in the present case, though there was failure to record the verification of the complainant on oath, the Magistrate did not proceed to straightway issue the order of process under Section 204 but, rather thought fit to initiate magisterial inquiry under section 202 of the Code and by ordering such inquiry, the Magistrate recorded the sworn-in statement of the complainant and his witnesses to ascertain as to whether there was a prima facie case for the purpose of proceeding against the person against whom complaint came to be lodged.

In short, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases, say for example, as I have stated above that the Magistrate, without recording the verification of the complainant on oath, straightway issues process under Section 204 of the Code, then in that case, the prejudice is self-evident. No proof of prejudice as such need be called for in such a case. In a case of a procedural provision, which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set-aside only where such violation has occasioned prejudice to the accused. In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest.

An almost identical issue came up for consideration before the Supreme Court in the case of Shivjee Singh v/s. Nagendra Tiwary and others, reported in (2010)7 SCC 578. In Shivjee Singh's case (supra), the issue before the Supreme Court was as to whether the provision of Section 202(2) proviso is mandatory and what would be the effect of violation of Section 202(2) proviso of the Code. Under Section 202(2) the Magistrate making an inquiry finds that the offence complained of is triable exclusively by the Court of Sessions, then in that case, he shall call upon the complainant to produce all his witnesses and examine them on oath. The issue before the Supreme Court was as to whether the use of word “shall” in the proviso to Section 202(2) of the Code is mandatory or directory and what would be the effect of non-compliance of the proviso to Section 202(2) of the Code. The Supreme Court proceeded to answer this issue by observing as under :

“The use of the word 'shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word 'all' appearing in proviso to Section 202(2) is qualified by the word 'his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process.”

Keeping in mind the principle of law as explained by the Supreme Court in Shivjee Singh (supra), I have no hesitation in coming to the conclusion that in the facts of the present case non- examination of the complainant on oath or omission to record the verification of the complainant on oath before proceeding with the magisterial inquiry under Section 202 of the Code by itself will not render the order of process illegal and will not vitiate the proceedings.

I am taking this view for the simple reason that the object of Section 200 of the Code is not frustrated in the present case, because the care which the Magistrate ought to have taken at the stage of Section 200 has been taken care of at the stage of inquiry under Section 202 of the Code. I repeat that had it been a case that the Magistrate would have issued process straightway without any inquiry under Section 202 of the Code in the absence of verification of the complainant on oath, then in that case, I would have been left with no other option but to quash the order of process only on this ground and remand the matter for fresh consideration before the concerned Magistrate.

I should not be understood to suggest that the examination of the complainant under Section 200 of the Code is not essential or important. It is a very valuable safeguard that the Legislature has provided and must be scrupulously observed and insisted upon. The petitions of complaint are not drafted by the complainants themselves and it is, therefore, necessary that before action is taken upon written complaints filed in Court, the complainants should be examined on oath, under Section 200, but under exceptional circumstances like the present case, omission may not vitiate further proceeding or the trial, if any.

It is regrettable that at this distance of time the express provision in the Code and the repeated pronouncements of the Supreme Court, of this High Court and other High Courts of the country should be ever violated by Magistrates. The attention of the Magistrate concerned should be expressly drawn to it that his disregard of the primary procedure in the Code has led to so much of confusion and waste of time.

I, therefore, hold that so far as the first contention of Mr.Raju is concerned, I am unable to accept the same and quash the order of process solely on the ground of non-compliance of Section 200 of the Code.

Issue nos.1 and 2 are answered accordingly.

Issue No.3 :

Whether the offences punishable under Sections 341 and 342

i.e. wrongful restraint and wrongful confinement, are made out considering the evidence on record and the nature of allegations.

Section 339 of IPC defines and explains as to what is 'wrongful restraint'.

“S.339. Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

Exception.- The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.”

The essential ingredients to constitute the offence of 'wrongful restraint' are as under :

“(a) Essential Ingredients.- In order to constitute an offence of wrongful restraint the following ingredients must be established; (1) that there is an obstruction; (2) that the obstruction prevents a person from proceeding in any direction, and (3) that the person so proceeding must have a right to proceed in the direction concerned.”

Section 340 of IPC defines and explains as to what is 'wrongful confinement'.

“S.340. Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said 'wrongfully to confine' that person.”

The essential ingredients to constitute the offence of 'wrongful confinement' are as under :

“(a) Essential Ingredients.- The section requires -

(i) Wrongful restraint of a person;

(ii) Such restraint must prevent that person from proceeding beyond certain circumscribing limits.”

'Wrongful restraint' means the keeping a man out of a place where he wishes to be, and has a right to be. Thus, 'wrongful restraint' implies abridgment of the liberty of a person against his will. On the other hand, 'wrongful confinement' is a species of 'wrongful restraint'. 'Wrongful confinement' can be distinguished from 'wrongful restraint' in that whereas, in 'wrongful restraint' there is only a partial suspension of liberty of a person and he is restrained from proceeding in a particular direction. In 'wrongful confinement', such prevention is total and the person is restrained from proceeding in any direction. The distinction between 'wrongful restraint' and 'wrongful confinement' may be clearly understood:

(i) Whereas wrongful restraint keeps a man out of place where he wishes to be or has right to go, wrongful confinement keeps him within limits out of which he cannot go;

(ii) In the former, a person is restrained from proceeding in a particular direction, while in the latter, he is restrained from proceeding in any direction;

(iii) In wrongful restraint, the curtailment of liberty is partial but in wrongful confinement, curtailment of liberty is total;

(iv) The former is less serious offence, but the latter is more serious offence;

(v) The punishment prescribed for wrongful restraint is less than the one prescribed for wrongful confinement.

Mr.Hasurkar, learned counsel appearing for the complainant submitted that to support a charge of 'wrongful confinement', proof of actual physical obstruction is not essential. According to Mr.Hasurkar, it is sufficient if a person is able to show prima facie that there was atleast an impression produced in the mind of the person confined, as to lead him, reasonably to believe, that he was not free to depart, and that he would be forthwith restrained if he attempted to do so. According to Mr.Hasurkar, what is of importance in such cases is the reasonable apprehension of force rather than its actual use. The line of argument is that the coercion of the mind can, in certain circumstances, be as effective as coercion of the body, in order to bring the conduct of the wrong-doer within the ambit of Section 341 or of Section 342 IPC. Such a restraint may arise out of words, acts, gestures or the like sufficient to induce a reasonable apprehension that failure to submit will result in the use of force. Mr.Hasurkar also submitted that it is not necessary to constitute the offence under Section 341 or under Section 342, that the person to be deprived of his liberty, should be touched or assaulted or actually arrested. Mr.Hasurkar, relying on a judgment of the Madras High Court in the case of Madala Peraiah and others v/s. Voruganti Chendriah, reported in 1954 Cri.L.J. 283 (Madras), contended that the physical presence of the obstructer is not necessary. In Madala Peraiah (supra), the learned Single Judge of Madras High Court has taken the following view :

“The offence of wrongful restraint is linear in its scope; while wrongful confinement is circular in its character. Wrongful restraint is keeping a man out of a place where he wishes to be and has a right to be. A person may obstruct another by causing it to appear to that other that it is impossible, difficult or dangerous to proceed as well as by causing it actually to be impossible, difficult or dangerous for that other to proceed. The obstruction must be physical. A verbal prohibition or demonstrance does not amount to such obstruction. The offence is the abridgment of the liberty of a person against his will.

In a wrongful restraint there need not be any stoppage of the movement; it may be directed into a channel different from the direction in which the victim intends to move. Physical presence of the obstructer is not necessary; nor is any actual assault necessary and fear of immediate harm restraining a man out of a place where he wishes to be and has a right to be is sufficient.”

In the first part of the judgment, I have exhaustively noted the facts of the case and more particularly the nature of allegations levelled by the complainant. However, before I proceed to consider this issue which, according to me, is very important, I find it necessary to once again take note of the following undisputed facts :-

(1) One FIR was registered against the complainant with Anand (Rural) Police Station vide CR II No.3031 of 2000 filed by one Jayantibhai Ramanbhai Patel for the offences punishable under Sections 504 and 506 of IPC on 31st March 2000.

(2) The FIR was investigated by the concerned police station and at the end of the investigation, 'C' Summary report was filed before the concerned Court of JMFC, Anand.

(3) The JMFC, Anand issued notice to the complainant calling upon him to lodge his objections, if any, to the 'C' Summary report filed by the Investigating Agency.

(4) The complainant, for any reason, thought fit to pass a purshis saying that he had no objection if 'C' Summary as prayed for by the police is granted.

(5) The concerned Magistrate accordingly, vide order dated 1st May 2001, accepted the 'C' Summary and closed the proceedings.

(6) The petitioner herein ordered reinvestigation of CR II No.3031 of 2000 by communication dated 7th August 2001.

(7) On the basis of the order passed by the petitioner herein, the Deputy Superintendent of Police requested the Magistrate to handover the papers of investigation which were submitted before the learned Magistrate at the time when 'C' Summary was prayed for to enable him to proceed further with further investigation under Section 173(8) of the Code.

(8) Papers were handed over by the Magistrate and accordingly on 23rd October 2001 the Deputy Superintendent of Police i.e. accused no.2 named in the complaint against whom no process is issued, is said to have reached the residential house of the complainant herein with other police officers for the purpose of further investigation.

(9) On reaching the residential house, as alleged by the complainant, he was made to believe that he cannot get out of the house and accordingly the complainant felt that he was wrongfully confined in the house and thereby was also wrongfully restrained from going out of the house.

It is in this background of the facts that I now proceed to examine as to whether the necessary ingredients to constitute the offence of 'wrongful restraint' or 'wrongful confinement' are disclosed even if the entire case of the complainant is accepted as true. I am not going into the controversy at this stage as to whether the petitioner had any personal grudge against the complainant herein or not. It is true that the order of further investigation was ultimately quashed by the High Court on 24th October 2001.

It is not disputed by the complainant as well as by the State that the petitioner, in his capacity as Special Inspector General of Police, had the jurisdiction and powers to order further investigation under Section 173(8) of the Code.

What I find from the record available is that the petitioner ordered for further investigation substantially on the following grounds:

(1) Investigation was not conducted in the manner in which it ought to have been conducted;

(2) Investigating Officer had not investigated with regard to the land situated at Salatwada;

(3) Investigation Officer had not collected the telephone number from which the threats were received by the complainant on his mobile phone and whether signatures were tallying or not; and

(4) Lastly, C-Summary denotes a civil dispute. C-Summary was wrongly prayed for as if the complaint was false. If it was the case of the Investigating Officer that the complaint was false, then he ought to have prayed for B-Summary and not C- Summary.

However, it appears that while quashing the order of further investigation, the High Court formed an opinion that all the above grounds are irrelevant factors for reopening the investigation in a concluded case. Therefore, on merits, the High Court thought fit to quash the order of further investigation without observing anything more. At the same time, the High Court also observed as under :

“In view of the aforesaid state of affairs, I am of the opinion that the order passed by the learned Magistrate granting C summary has become final and without questioning the said order in an appropriate forum respondent No.3 cannot reopen the said case in exercise of powers under Section 173 (8) of the Code.”

“The sum and substance of the aforesaid discussion is that the police have power under section 173 (8) of the Code to make further investigation, obtain further evidence both oral and documentary and forward a report or reports to the Magistrate if the case before the Magistrate or Court has not been concluded. Even in a case where the case is concluded by accepting the summary without informing the original complainant/informant or without giving audience to him or to raise his objection, the case can be reopened for further investigation after getting order from the Court concerned which has granted the summary. In other words, the learned Magistrate before whom any type of summary is prayed for in favour of the original accused cannot proceed with the hearing of the summary without informing the original complainant/informant and if proceeded and passed any order without informing the complainant/informant, the same is liable to be quashed and set aside at the instance of the proceeding initiated by the original complainant/informant.”

“It may be appreciated that the order does not question the supervisory function of the Special Inspector General of Police, respondent No.3, but due to the aforesaid reasons, the order cannot be sustained.”

However, the fact remains that pursuant to the order of further investigation passed by the petitioner herein, the Deputy Superintendent of Police, Anand, reached the house of the complainant on early morning of 23rd October 2001. At least on 23rd October 2001 the order of further investigation was very much in force and it was open for the police to look into the matter afresh. It is a different thing that on the next day, the matter was taken up by the High Court and the order of further investigation was quashed. I am unable to understand the nature of the order passed by the Magistrate. It is not disputed by any of the parties that the petitioner herein was not present along with the team of officers who had reached the house of the complainant on early morning of 23rd October 2001. The case is plain and simple that on the strength of an order of further investigation passed by the petitioner, respondent no.2 named in the complaint who, at the relevant point of time, was a Deputy Superintendent of Police, reached the house of the complainant along with other officers. There is no case of any criminal conspiracy put forward by the complainant and there is no process issued against accused no.2 named in the complaint. The Magistrate seems to have proceeded on the footing that since the police party went to the house of the complainant herein at the instance of the petitioner, it is the petitioner who is said to have committed the offence of 'wrongful confinement' and 'wrongful restraint' punishable under Sections 341 and 342 of the Code.

What is 'wrongful restraint' has been succinctly explained by the Supreme Court in the case of Keki Hormusji Gharda and others v/s. Mehervan Rustom Irani and another, reported in (2009) 6 SCC 475. The principle as propounded by the Supreme Court on the true interpretation of the term 'wrongful restraint' as defined under Section 339 of IPC is that the obstruction should be direct and most importantly it should be a physical one. Paragraphs 12, 13, 14 and 15 of the said judgment are important. They are as under:

“'12. Wrongful restraint' has been defined under Section 339 of the IPC in the following words :

"339. Wrongful restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

Exception. - The obstruction of a private way over land or water which a person in good-faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this Section."

The essential ingredients of the aforementioned provision are :

(1) Accused obstructs voluntarily;

(2) The victim is prevented from proceeding in any direction;

(3) Such victim has every right to proceed in that direction.

13. Section 341 of the IPC provides that:

“341. Punishment for wrongful restraint.-Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.”

14. The word 'voluntary' is significant. It connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction.

15. The appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents.”

It is very difficult for me to accept the contention of Mr.Hasurkar, learned advocate appearing for the complainant that the petitioner herein even sitting fine at his home or office, can be said to have committed an offence of 'wrongful restraint' and 'wrongful confinement', more particularly, in light of the fact that the Magistrate has not thought fit to issue process against the person who was actually present at the time of the alleged incident.

I have no hesitation in coming to the conclusion that no case is made out so far as the offence of 'wrongful restraint' or 'wrongful confinement' is concerned. Even if I believe that the order of reinvestigation which was passed by the petitioner herein was malafide and was only to harass the complainant herein, even in that case, no offence of 'wrongful restraint' or 'wrongful confinement' can be said to have been committed in the facts of the case.

It is true, as contended by Mr.Hasurkar, that the scope of inquiry under Section 202 of the Code is very limited and is restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether the process should be issued or not, under Section 204 of the Code. However, when the stage comes for the Magistrate to decide as to whether process should be issued against the accused on the basis of prima facie evidence collected during the course of inquiry under Section 202 of the Code, the Magistrate owes a duty to consider as to whether the evidence on record constitutes an offence, meaning to say, whether the necessary ingredients to constitute the offence are disclosed or not. Magistrate has not to issue process mechanically merely on the basis of the allegations but, such allegations must constitute an offence on the basis of which process can be issued under Section 204 of the Code.

It is now a well-settled position of law that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. In Pepsi Foods Limited v/s. Special Judicial Magistrate, reported in (1998)5 SCC 749, the Supreme Court held in paragraph 28 as under :

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In the above conspectus of the entire matter and more particularly taking into consideration the order passed by the Magistrate upon conclusion of the magisterial inquiry under Section 202 of the Code, I am of the view that the order of process is erroneous in law. To this extent, I have no hesitation in accepting the contention of Mr.Raju, learned counsel appearing for the petitioner.

V. Delay in passing the order of process :

I have also examined the conduct of the complainant, which I find to be lacking in bonafides. From the conduct of the complainant, I find that he was least interested in proceeding further after lodging of the complaint. However, abruptly, out of the blue, the complainant started showing keen interest. I find some substance in the allegations levelled by Mr.Raju that as his client has strained relations with the State Government, it is the State Government who is now taking keen interest to see that on one ground or the other, the petitioner is harassed and that is how the present complainant has been made a stooge. It is important for me to make note of certain dates:

(1) The date of the offence is 23rd October 2001.

(2) The date of filing private complaint is 1st July 2002 i.e. exactly after nine months; however, it is the case of the complainant that he had approached the police station immediately but the FIR was not registered.

(3) I have noticed that even the so-called FIR which was tried to be lodged with the concerned police station is dated 12th June 2002. I have also noticed that in the said complaint, which was given first in point of time to the concerned police station, the complainant has stated that delay has occasioned because he was unable to collect necessary documents for the purpose of lodging the FIR. I fail to understand what documents are required for the purpose of filing an FIR. Be that as it may, the fact remains that after a period of nine months from the date of the alleged offence, the complaint came to be lodged.

(4) The concerned Magistrate passed an order to initiate magisterial inquiry under Section 202 of the Code on 1st July 2002, and after a period of 11 years i.e. on 3rd May 2011, the order of issuance of process came to be passed by the Magistrate.

(5) Taking into consideration the long and inordinate delay in passing the order of issuance of process, I thought fit to call upon the Magistrate to explain as to why it took 11 odd years to complete the inquiry. In response to the order which was passed by me on 14th July 2011, the Magistrate In-charge of the Court as on today sent a detailed report as to how the inquiry proceeded. On plain reading of the report, it is manifest that the complainant kept on praying for time and never appeared with his witnesses for the purpose of inquiry under Section 202 of the Code. I deem fit and proper to incorporate the entire report in this judgment so as to make the position clear:

“E.O. No.283/2011 3rd Addl.Civil Court, Anand. Date : 26/07/2011 From : A.A.Nanavati, 3rd Addl.Sr.Civil Judge & Addl.Chief Judicial Magistrate, Anand.

To : The Hon'ble Registrar General Saheb, High Court of Gujarat, Sola, Ahmedabad.

Through : Hon'ble Principal District Judge Saheb, Anand.

Sub : Submission of Report in respect to Court Inquiry No.93/2002 (Criminal Case No.1633/2011).

Ref : Hon'ble High Court's Order Passed in Special Criminal Application No.1467/2011 in the matter of Kuldip N.Sharma – IPS (Petitioner) v/s. State of Gujarat & 1 Opponent(s) Respected Sir, In view of the subject and reference above mentioned, I have the honour to submit that the Hon'ble High Court has asked a report explaining as to what transpired during the interregnum period i.e. between 2002 and 2011 and why it took nine odd years for the court to complete inquiry. Therefore, I most humbly beg to submit that after having perused the entire proceedings of the original file of Court Inquiry No.93/2002, I am submitting herewith my report most respectfully as under :

1. It is respectfully submitted that as transpires from the original record of Court Inquiry No.93/2002, a Private Complaint was filed in the Court of 2nd Joint Judicial Magistrate First Class, Anand on 01/07/2002. It also transpires from the record that on the same day the then learned 2nd Joint J.M.F.C. Passed an order under complaint Ex.1 and after taking cognizance, the matter was kept for Court Inquiry as per Section 202 of the Cr.P.C. It also appears that on the said date, the then learned 2nd Joint J.M.F.C., Anand also ordered the complainant to remain present on 20/07/2002 with his oral and written evidences. It may further be submitted that as per the Rojnama, there is no mention about any proceedings on 20/07/2002 and thereafter as it reveals from the record further date was fixed 21/09/2002. Thereafter, as it appears from the record on that date, the stage shown in the proceeding is Service of Notice on date 21/12/2002. It may further be submitted that from date 21/12/2002 to date 23/05/2003, the matter was being adjourned for issue of notice to the complainant and lastly on date 23/05/2003, the matter was again adjourned for the same reason and next date for Notice was fixed on 29/05/2003.

2. I further humbly beg to submit that in the above premise and as per the record, the Court Inquiry No.93/2002 appears to have remained sine die from date 23/05/2003 as nothing is coming out from the Rojnama after the date 23/05/2003 on which the matter was adjourned for 29/08/2003.

3. I further humbly beg to submit that as per the record, after date 23/05/2003 to date 23/11/2007, no proceedings took place in the matter and on date 23/11/2007, the then learned Chief Judicial Magistrate, Anand took up the matter on hand and issued a notice to the complainant. Since then, the matter was again adjourned from time to time for service of notice to the complainant and on date 19/12/2007, the complainant and his learned advocate appeared in the matter. It is further submitted that thereafter, on quite a number of occasions, adjournments were sought by the complainant on various grounds and the concerned Presiding Officer had granted the prayers for adjournment from time to time.

4. I further humbly beg to submit that in the above premise, the Court Inquiry No.93/2002 was transferred to the undersigned in the Court of 2nd Additional Senior Civil Judge & Addl.Chief Judicial Magistrate, Anand – by virtue of an Office Order dated 21/12/2010 by the then Learned Principal District Judge, Anand on administrative grounds. Copy of the said Office Order is submitted herewith as Annexure-”A”.

5. Therefore, I most respectfully beg to submit that after receiving the Court Inquiry No.93/2002 in my Court, regular proceedings took place in the matter and during the period from 21/12/2010 to 03/05/2011, total 6 witnesses were examined and 20 different documents were also placed on record on the part of the complainant. It is kindly submitted that after having perused the entire evidence, arguments were heard and finally the Court Inquiry No.93/2002 was concluded and the Order was pronounced on 03/05/2011 by the undersigned.

So, above is the report in compliance with direction of the Hon'ble High Court with a sincere request to your honour to place the same before the Hon'ble High Court.

Thanking your honour, With extreme regards.

Sd/- (A.A.Nanavati) 3rd Addl.Sr.Civil Judge & Addl.Chief Judicial Magistrate, Anand.”

The question that falls for my consideration in so far as the aspect of delay is concerned, is as to whether the delay in completion of inquiry under Section 202 of the Code will offend Article 21 of the Constitution of India. The learned senior counsel Mr.S.V.Raju appearing for the petitioner vehemently submitted that speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India. Mr.Raju submitted that right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution of India. This right is applicable not only to the actual proceedings in Court but also includes within its sweep the preceding magisterial inquiry as well. According to Mr.Raju, the right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. Mr.Raju vehemently submitted that though the petitioner accused does not have any locus standi at the stage of magisterial inquiry under Section 202 of the Code but that does not mean that the Court can keep the sword of Damocles hanging perilously over the head of the petitioner for over 11 years before it takes decision to proceed against the petitioner-accused by issuing process under Section 204 of the Code.

Mr.Raju has a very novel argument to canvass. Mr.Raju submitted that though the petitioner-accused would strictly be termed as an accused only after the issuance of process but, nevertheless, the period during which the inquiry is conducted, also deserves to be taken into consideration. According to Mr.Raju, right to live in peace is an integral part of the right of personal liberty guaranteed by Article 21 of the Constitution of India and the right to live in peace includes the right not to be proceeded against in any criminal proceeding unless there be sufficient ground required by law for implicating any person as accused in any proceeding. According to Mr.Raju, for 11 years the accused herein had to suffer the ordeal of tension, which has affected his right to live in peace. According to Mr.Raju, long and inordinate delay in completing the inquiry under Section 202 has also caused prejudice to the accused so far as his right of defending himself is concerned.

In the present case, the complaint was filed by the complainant in the year 2002, to be precise, on 1st July 2002, and the inquiry under Section 202 of the Code was completed in 2011. The petitioner- accused, after completion of the inquiry, has been summoned to face trial under Section 204 of the Code, by the impugned order dated 3rd May 2011.

The relevant consideration is as to whether the accused is in any way affected by the long and inordinate delay in completion of the inquiry, and whether the delay has infringed the right of the petitioner to speedy trial.

I am afraid, none of the contentions canvassed by Mr.Raju in this regard can be accepted. I am of the view that till summons under Section 204 of the Code is not issued to the accused person to face trial, such an accused person will not have any locus standi in the case. There is no doubt that such delay is deplorable and deserves to be deprecated. A fine distinction can be drawn between a person who is arrayed as an accused in a complaint case vis-a-vis one who is an accused in a police case. In a police case, if accusation is made against a person, discloses a cognizable offence, he immediately becomes an accused and is liable to be arrested also. Thus, in a police case, right to speedy trial accrues with apprehension of actual restraint imposed by arrest and consequent incarceration at the stage of investigation, inquiry, trial, appeal and revision. In such circumstances, a person is subjected to all possible prejudice that may result from impermissible and unavoidable delay from the time of commission of offence till it consummates in finality. In complaint case, a person becomes, subject to aforesaid restraint, only after issuance of summons under Section 204 of the Code. Thus, in my view, only because the sword of Damocles was kept hanging perilously over the head of the petitioner-accused for over 11 years before the Court decided to issue summons against the petitioner- accused under Section 204 of the Code by itself is not sufficient to quash the order of process.

I may only say that practice of keeping a complaint case pending for a long period, awaiting the complainant to appear before the Court with his witnesses for the purpose of inquiry under Section 202 of the Code is seriously deprecated.

After filing a compliant, if the Magistrate has thought fit to initiate inquiry under Section 202 of the Code, then it is the duty of the complainant to appear before the Court along with his witnesses for the purpose of inquiry and thereby assist the Court in taking a decision as to whether process should be issued or not. Complainant cannot at his own sweet will appear after a delay of 11 years like in the present case and then tell the Court to record his sworn-in statement along with his witnesses. This will definitely amount to gross abuse and misuse of the process of the Court. In appropriate case, where the Magistrate finds that complainant does not seem to be interested in appearing or producing his witnesses, then the Magistrate need not wait any further and may wind up the inquiry and pass appropriate order on the basis of materials already on record. It is only in very exceptional cases like serious sickness or other circumstances beyond the control of the complainant to appear before the Court concerned that the Court may grant reasonable time to the complianant.

Issue No.3 as regards the delay is also answered accordingly.

In the aforesaid view of the matter, this petition should succeed solely on the ground that considering the nature of the allegations and the materials on record, none of the ingredients to constitute the offences punishable under Sections 341 and 342 of IPC are disclosed to justify issuance of process against the petitioner-accused under Section 204 of the Code. Same would be the case so far as Section 500 of IPC is concerned.

In the aforesaid view of the matter, this petition is allowed. The order dated 3rd May 2011 passed by the Additional Chief Judicial Magistrate, Anand in Court Inquiry No.93 of 2002 below Exh.1 is hereby quashed.

(J.B.Pardiwala, J.)

After the judgement was pronounced today, Mr. S.P. Hasurkar, learned counsel appearing on behalf of respondent No.2, requested the Court to stay the operation of the judgment and order for a period of four weeks. For the reasons recorded in the judgment, the request is rejected.

(J.B.Pardiwala, J.)

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