The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India and also under the provisions of the Criminal Procedure Code (no section is mentioned) challenging the impugned order passed by the Metropolitan Magistrate, Court No.20, Ahmedabad in Inquiry Case No.3/2012 dated 01.02.2012 on the grounds stated in the petition.
Heard learned counsel, Mr.Nayan Parekh for the petitioner.
Learned counsel, Mr.Parekh has stated that the learned Metropolitan Magistrate has grossly erred in considering the application of the petitioner as if it was complaint under Section 190 of the Criminal Procedure Code and, thereafter, the proceeding with the order of inquiry. He submitted that in light of the judgment of the Hon'ble Apex Court in case of Lalita Kumari Vs. Government of Uttar Pradesh & Ors., reported in (2011) 11 SCC 331, order under Section 202 of the Criminal Procedure Code could not have been issued and the Magistrate ought to have given direction as prayed for in the application. He, therefore, submitted that the order passed for inquiry under Section 202 of the Criminal Procedure Code is erroneous. He again submitted that the Magistrate could not have treated the application submitted by the petitioner as under Section 190 of the Criminal Procedure Code in light to the judgment of the Hon'ble Apex Court in case of Lalita Kumari (supra).
Though the submissions have been made referring to the judgment of the Hon'ble Apex Court in case of Lalita Kumari (supra), the judgment of the Hon'ble Apex Court is required to be read in context of the facts and in fact, the guidelines issued pursuant to the said judgment are also required to be noted. The emphasize is that whenever a complaint is made, it has to be attended. However, it does not in any way affect the right and obligation of the Magistrate under the Criminal Procedure Code. The Hon'ble Apex Court in a subsequent judgment in case of Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr., reported in AIR 2012 SC 1747 has referred to the scope of Section 190 as well as 202 of the Criminal Procedure Code and making discussion about the same, it has been observed that the Magistrate is required to apply a judicial mind with the averments in the complaint whether it constitutes a cognizable offence or not and it has also referred to the scope of Section 482 of the Criminal Procedure Code.
Therefore, when the statutory provisions in Criminal Procedure Code referred to the procedure, which can be followed on being satisfied by the Presiding Officer/Magistrate, the person like the present petitioner cannot resort to any extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India or inherent jurisdiction under Section 482 of the Criminal Procedure Code. The impugned order, therefore, cannot be said to be without jurisdiction or erroneous, which would call for exercise of either inherent jurisdiction or the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
It is required to be mentioned that even bare reading of the application of the so-called complaint of Inquiry Case No.3/2012 itself is sufficient to justify such order regarding the inquiry as the same cannot be treated as gospel truth. The submission that there was non-application of mind and Section 154 of the Criminal Procedure Code has not been considered and the order passed by the Magistrate under Section 202 of the Criminal Procedure Code is erroneous is misconceived.
Therefore, the present application deserves to be dismissed and accordingly stands dismissed.
Sd/-
(RAJESH H.SHUKLA, J.) /patil Top