Heard Mr.C.R.Abhichandani, learned advocate for the applicants, Mr.Dipen Desai, learned advocate for the respondent no.1-original complainant and Mr.K.P.Raval, learned Additional Public Prosecutor for the respondent no.2-State, so also considering the order dated 04.08.2009, passed by the learned Metropolitan Magistrate, Court No.2, Ahmedabad, it transpires that after the respondent no.1-original complainant filed a private complaint against eight accused persons including five applicants herein, the Trial Court on 02.12.2006, passed the order directing the concerned Police Officer to inquire into the matter under Section 202 of the Code of Criminal Procedure. It transpires that the concerned Police Officer, thereafter, filed report on 13.04.2007, before the Trial Court regarding inquiry conducted under Section 202 of the Code of Criminal Procedure. The Trial Court vide impugned order dated 04.08.2009, passed under Section 204 of the Code of Criminal Procedure, issued necessary processes against all the eight accused person including five applicants herein. Perusing the order dated 04.08.2009, so also considering the papers annexed by the respondent no.1-original complainant along with his reply affidavit, it transpires that the police recorded the statement of complainant and recorded three other statements who are none other than the accused themselves. In the order dated 04.08.2009, it appears that while passing the order under Section 204 of the Code of Criminal Procedure regarding the issuance of processes against the accused persons, the Trial Court took into consideration the statements of certain accused persons recorded by the police to the extent that some of the accused persons whose statements came to be recorded, admitted certain facts. It has been further commented in the order dated 04.08.2009 by the Trial Court that the concerned Inquiry Officer who conducted the inquiry under Section 202 of the Code of Criminal Procedure did not make any attempt to explain certain aspects involved in this matter.
In the above view of the matter, it transpires that the Trail Court, instead of either further directing the Police Officer to conduct further inquiry under Section 202 of the Code of Criminal Procedure or considering the nature of dispute and the intricacies involved in the dispute, taking up the inquiry by itself under Section 202 of the Code of Criminal Procedure, straightway appears to have issued processes against the accused persons under Section 204 of the Code of Criminal Procedure by the impugned order dated 04.08.2009.
In the above view of the matter, this Court is of the opinion that the order dated 04.08.2009, cannot be said to be just, proper and legal.
As stated above, considering the nature of dispute involved in this matter , it would be rather in the interest of justice of both the sides, if the concerned Trial Court is directed to conduct inquiry under Section 202 of the Code of Criminal Procedure.
For the foregoing reasons, order dated 04.08.2009, passed by learned Metropolitan Magistrate, Court No.2, Ahmedabad in Inquiry Case No.53/06 is quashed and set aside and the concerned Trial Court is directed to hold inquiry under Section 202 of the Code of Criminal Procedure in accordance with law. Since the main matter is of the Year-2006, the Trial Court is directed to complete the above inquiry under Section 202 of the Code of Criminal Procedure, preferably within two months from the date of communication of this order. Needless to say that since the order dated 04.08.2009, passed by the Trial Court is quashed and set aside, the cause for the instant application, therefore, at this stage, does not survive. However, in future, in case of any difficulty, the parties shall be at liberty to move appropriate forum. This application stands disposed of accordingly. Direct service is permitted.
(J.C.UPADHYAYA,J.) Girish Top