1. The present application u/s.482 of the Code of Criminal Procedure has been preferred by the applicants herein – original accused Nos.1 to 6 to quash and set aside the order dated 06/11/2007 passed by learned Judicial Magistrate, First Class, 2nd Court, Surat directing investigation u/s.156(3) of the Code of Criminal Procedure in Inquiry Case No.59 of 2005.
2. Respondent No.2 herein – original complainant filed Criminal Complaint against the applicants herein in the Court of learned Judicial Magistrate, First Class, Surat for the offences punishable under Sections 406, 420, 467, 468, 471, 120(B) and 114 of the Indian Penal Code and the same is registered as Inquiry Case No.59 of 2005. That learned Magistrate by order dated 06/12/2005 passed an order to hold inquiry u/s.202 of the Code of Criminal Procedure and directed the Police Inspector, Katargam Police Station to submit the report. It appears that thereafter the concerned Police Officer/Investigating Officer submitted report in the Court of learned Judicial Magistrate, First Class, Surat by submitting that Civil Suits/Civil proceedings are pending between the parties. That the complainant opposed the said report and requested the learned Magistrate to send the said complaint for police investigation u/s.156(3) of the Code of Criminal Procedure. Learned Magistrate accepted the same and by impugned order dated 06/11/2007 has directed to send the said complaint for police instigation u/s.156(3) of the Code of Criminal Procedure. Being aggrieved by and dissatisfied with the impugned order passed by learned Judicial Magistrate, First Class, Surat dated 06/11/2007 in Inquiry Case No.59 of 2005 directing to send the said complaint for police investigation u/s.156(3) of the Code of Criminal Procedure, the applicants herein – original accused have preferred the present application u/s.482 of the Code of Criminal Procedure.
3. Mr.Rushabh Shah, learned advocate appearing on behalf of the applicants herein has vehemently submitted that the impugned order passed by learned Magistrate sending the said complaint for investigation u/s.156(3) of the Code of Criminal Procedure is absolutely illegal and without jurisdiction. It is submitted that once the learned Magistrate passed an order for inquiry u/s.202 of the Code of Criminal Procedure directing the Police Inspector to hold inquiry and submit the report and thereafter when the concerned Police Officer submitted the report, thereafter it was not open for the learned Magistrate to send the said complaint for the investigation u/s.156(3) of the Code of Criminal Procedure. Mr.Rushabh Shah, learned advocate appearing on behalf of the applicant has relied upon the decision of the Hon'ble Supreme Court rendered in the case of Devarapalli Lakshminarayana Reddy and others V/s. Narayana Reddy and others reported in AIR 1976 SC 1672. It is submitted that as held by Hon'ble Supreme Court in the aforesaid decision, in the case of complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if once he takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3) of the Code of Criminal Procedure.
By making above submissions and relying upon above decision, it is requested to allow the present application.
4. The present application is opposed by Ms.Kruti Shah, learned advocate appearing on behalf of respondent No.2 herein - original complainant. It is submitted by her that as such initial order passed by learned Magistrate dated 06/12/2005 for inquiry u/s.202 of the Code of Criminal Procedure itself is illegal. It is submitted that as such at the relevant time, learned Magistrate passed an order of inquiry u/s.202 of the Code of Criminal Procedure without following any procedure as required u/s.200 of the Code of Criminal Procedure. It is submitted that there is no verification of the complainant on oath as recorded by learned Magistrate, which is required u/s.200 of the Code of Criminal Procedure. It is submitted that thereafter in absence of verification of complainant on oath, learned Magistrate ought not to have and could not to have passed an order of inquiry u/s.202 of the Code of Criminal Procedure. Therefore, it is submitted that when earlier order passed by learned Magistrate for inquiry under Section 202 of the Code of Criminal Procedure itself was illegal and nullity, there was no bar for the learned Magistrate to pass an order for police investigation u/s.156(3) of the Code of Criminal Procedure. It is further submitted that in the facts and circumstances of the case, the complaint was required to be sent for police investigation u/s.156(3) of the Code of Criminal Procedure and, therefore, no such illegality has been committed by the learned Magistrate in sending complaint for police investigation u/s.156(3) of the Code of Criminal Procedure. By making above submissions, it is requested to dismiss the present application.
In reply, Mr.Rushabh Shah, learned advocate appearing on behalf of the applicants has submitted that as such the complainant has not challenged the earlier order passed by learned Magistrate dated 06/12/2005 ordering inquiry u/s.202 of the Code of Criminal Procedure. Therefore, it is submitted that it is now not open for the respondent No.2 herein – original complainant to contend that the earlier order passed by learned Magistrate dated 06/12/2005 ordering inquiry u/s.202 of the Code of Criminal Procedure is illegal. To the aforesaid. Ms.Kruti Shah, learned advocate appearing on behalf of respondent No.2 herein – original complainant has submitted that in that case, a liberty may be reserved in favour of respondent No.2 herein - original complainant to challenge the earlier order dated 06/12/2005 passed by learned Judicial Magistrate, First Class, Surat.
5. Heard learned advocates appearing on behalf of the respective parties at length. The short question, which is posed for consideration is that Whether in a case where learned Magistrate has passed an order in private complaint to inquire into the complaint by holding inquiry u/s.202 of the Code of Criminal Procedure and has directed the concerned Police Officer to inquire into the complaint and submit the report and thereafter the concerned Police Officer has submitted the report, is it open for the learned Magistrate thereafter to send the complaint for police investigation u/s.156(3) of the Code of Criminal Procedure?
Looking to the provisions of the Code of Criminal Procedure and considering the decision of the Hon'ble Supreme Court in the case of Devarapalli Lakshminarayana Reddy and others (supra), it is not open for the learned Magistrate to switch back to the pre-cognizance stage and send the complaint for police investigation u/s.156(3) of the Code of Criminal Procedure once he has already taken cognizance of the offence and has passed an order for inquiry u/s.202 of the Code of Criminal Procedure.
Ms.Kruti Shah, learned advocate appearing on behalf of respondent No.2 herein – original complainant is not in a position to satisfy the Court how the impugned order passed by learned Magistrate directing police investigation u/s.156(3) of the Code of Criminal Procedure is justified after learned Magistrate resorted to the provisions of Section 202 of the Code of Criminal Procedure and passed an order to hold inquiry u/s.202 of the Code of Criminal Procedure. Only contention on behalf of respondent No.2 herein – original complainant is that an initial order dated 06/12/2005 passed by learned Magistrate directing to hold inquiry u/s.202 of the Code of Criminal Procedure itself is illegal and without following due procedure as required u/s.200 of the Code of Criminal Procedure, in as much as there is no verification of the complainant on oath, which was required under Section 200 of the Code of Criminal Procedure. However, it is required to be noted that as such the original complainant has not challenged the earlier order dated 06/12/2005 passed by learned Magistrate. The present application is filed by the applicants herein challenging the subsequent order passed by learned Magistrate directing to send the complaint for police investigation u/s.156(3) of the Code of Criminal Procedure. Under the circumstances, in absence of any challenge to the earlier order passed by learned Magistrate dated 06/12/2005 by the original complainant in the present application, the aforesaid cannot be considered.
6. In view of the above and for the reasons stated hereinabove, the impugned order dated 06/11/2007 passed by learned Judicial Magistrate, First Class, Surat directing to send the complaint for police investigation u/s.156(3) of the Code of Criminal Procedure after he has passed an order of inquiry u/s.202 of the Code of Criminal Procedure and after submission of the report by the concerned Police Officer of inquiry u/s.202 of the Code of Criminal Procedure, cannot be sustained and the same deserves to be dismissed and is accordingly dismissed. However, it will be open for respondent No.2 herein – original complainant to challenge the earlier order dated 06/12/2005 passed by learned Judicial Magistrate, First Class, Surat directing to hold inquiry u/s.202 of the Code of Criminal Procedure and as and when such proceedings are initiated, the same be considered in accordance with law and on merits, if permissible. Rule is made absolute to the aforesaid extent.
[M.R.SHAH,J] *dipti