1.00. Present petition under Article 227 of the Constitution of India has been preferred by the petitioners herein – original accused to quash and set aside the impugned order dtd.15/12/2004 passed by the learned Additional Sessions Judge, Vadodara below Ex.1 in Inquiry Case No.12 of 1998 by which the learned Judge has not accepted/rejected B/C Summary Report submitted by the investigating officer and has observed that process is required to be issued against the accused persons and with such observations he has sent the entire proceedings to the Court of learned Judicial Magistrate (First Class), Karjan to proceed further in accordance with law. 2.00. Facts leading to the present petition, in nutshell, are as under :-
2.01. That the father of the original complainant – Thakorbhai Chhitabhai Rathod, who was in the police custody at Karjan, died in police station on 25/3/1998. According to the concerned police officers, said Thakorbhai Rathod died due to snake biting. It appears that one Rameshbhai Thakorbhai Rathodiya - original complainant appeared before the Sessions Court, Vadodara with a complaint in writing alleging commission of offences punishable under sections 302, 325, 341, 504, 506, 114 of Indian Penal Code and under section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The same was numbered as Inquiry Case No.7 of 1998. It appears that as it was the case of custodial death, the same was sent to Dy.S.P., Dabhoi Division, Vadodara for inquiry under section 174 of the Code of Criminal Procedure and the concerned Dy.S.P. submitted B-Summary Report. It appears that thereafter the said case was numbered as Inquiry Case No.12 of 1998, pending in the court of learned Sessions Court, Vadodara and B-Summary Report submitted by the concerned investigating officer i.e. Dy.S.P., submitted under section 173 of the Code of Criminal Procedure was submitted before the learned Additional Sessions Judge, Vadodara, who by his order dtd.15/4/1999 did not accept the B-Summary Report. However, considering the fact that it was the case of custodial death, directed C.I.D. (Crimes) to carry out investigation and submit report before him. It appears that thereafter, after investigation the investigating officer i.e. C.I.D.(Crimes), Ahmedabad submitted C-Summary Report and the same was placed before the learned Sessions Court, Vadodara as per his earlier order dtd.15/4/1999. That the original complainant submitted objections against the C-Summary Report submitted by the investigating officer and thereafter considering the same, by impugned order the learned Additional Sessions Judge, Vadodara has rejected/not accepted the B/C Summary Reports submitted by the investigating officer and has opined that process is required to be issued against the petitioners herein – original accused in the said complaint. However, having realised that process can be issued by the concerned Magistrate only and thereafter the case is required to be committed to the learned Sessions Court, by the impugned order the learned Additional Sessions Judge has sent the case to the court of learned Judicial Magistrate (First Class), Karjan for passing appropriate order and to proceed further in accordance with law and on merits. Being aggrieved by and dissatisfied with the impugned order dtd.15/12/2004 passed by the learned Additional Sessions Judge below Ex.1 in Inquiry Case No.12 of 1998, petitioners herein – original accused have preferred the present petition under Article 227 of the Constitution of India.
3.00. Mr.Arpit Kapadia, learned advocate appearing on behalf of the petitioners has vehemently submitted that the procedure adopted by the learned Sessions Court is unknown to the scheme and procedure to be followed under the Code of Criminal Procedure. It is submitted that as such straightway complaint before the learned Sessions Court was not maintainable and even the learned Additional Sessions Judge has also observed so in the impugned order, still has passed an order opining that process is required to be issued against the petitioners herein, while not accepting B/C Summary Reports submitted by the investigating officer. It is submitted that any report under section 173 of the Code of Criminal Procedure is required to be considered first by the learned Magistrate and it is for the learned Magistrate to consider the said report submitted under section 173 of the Code of Criminal Procedure whether to accept the same or not. It is submitted that if the Magistrate is of the opinion that report submitted by the investigating officer is not to be accepted, he may direct to issue process against the accused persons and if the case is triable by the Court of Sessions, he is required to commit the case to the learned Sessions Court. It is submitted that in case the learned Magistrate is of the opinion that Summary Report submitted under section 173 is to be accepted, in that case he is required to issue notice upon the complainant and thereafter after giving an opportunity to the complainant to submit objection, learned Magistrate may pass an order whether to accept the report submitted by the investigating officer or not. It is submitted that there are no such powers vested in the Sessions Court to straightway consider Summary Report submitted under section 173 of the Code of Criminal Procedure. Therefore, it is submitted that as such, the learned Additional Sessions Judge, Vadodara has materially erred in passing an order below Ex.1 and in not accepting B/C Summary Reports submitted by the investigating officer and giving finding that process is required to be issued against the accused persons in the said complaint. Therefore, it is submitted that the entire procedure adopted by the learned Sessions Court is unknown to the provisions of the Code of Criminal Procedure and scheme under the Code of Criminal Procedure. Therefore, it is requested to quash and set aside the impugned order and in the alternative to direct the concerned investigating officer to submit B/C Summary report submitted under section 173 of the Code of Criminal Procedure in the court of learned Judicial Magistrate (First Class), Karjan for considering the same in accordance with law and on merits.
4.00. Mr.J.K. Shah, learned Additional Public Prosecutor has submitted that as such the concerned investigating officer submitted B/C Summary report before the concerned Sessions Court as per the earlier order passed by the learned Additional Sessions Judge, Vadodara dtd.15/4/1999. However, has supported Mr.Kapadia, learned advocate appearing on behalf of the petitioners that as such report under section 173 of the Code of Criminal Procedure is first required to be considered by the concerned Magistrate having jurisdiction to try the case and only thereafter after following the procedure as required and if the Magistrate is of the opinion that B/C Summary Report is not to be accepted and he may direct to issue process and thereafter if the case is triable by the Court of Sessions, the learned Magistrate is required to commit the case to the learned Sessions Court. He has fairly conceded that the learned Sessions Court has no jurisdiction to consider the report submitted under section 173 of the Code of Criminal Procedure, however, has requested to remand the matter to the learned Judicial Magistrate (First Class), Karjan for considering the B/C Summary Report submitted by the investigating officer in accordance with law and on merits and after following due procedure as required.
5.00. Though served nobody appears on behalf of the respondent No.2 – original complainant.
6.00. Heard Mr.Kapadia, learned advocate appearing on behalf of the petitioners - original accused and Mr.J.K. Shah, learned Additional Public Prosecutor appearing on behalf of the State and investigating officer at length.
6.01. At the outset, it is required to be noted that in the present case the respondent No.2 – original complainant straightway filed the complaint under section 190 of the Code of Criminal Procedure before the learned Sessions Court, Vadodara, which was numbered as Inquiry Case No.7 of 1998. Initially the learned Additional Sessions Judge did not entertain the said complaint and disposed of the said complaint by observing that the complainant may approach Dy.S.P. Harijan Cell, Vadodara and concerned Dy.S.P. shall inquire into the case. It appears that thereafter the Dy.S.P. Harijan Cell, Vadodara inquired into the matter and after investigation submitted B-Summary report which was sent to the court of learned Additional Sessions Judge, Vadodara and on the said report the Additional Sessions Judge passed order dtd.15/4/1999 rejecting B-Summary Report submitted by the prosecution and directed CID (Crimes), Ahmedabad to hold fresh inquiry and thereafter CID (Crimes), Ahmedabad after investigation submitted C-Summary Report in the court of learned Additional Sessions Judge, Vadodara. Therefore, the investigating officer submitted either to accept B-Summary Report submitted earlier and/or in the alternative to accept C- Summary Report. That the learned Additional Sessions Judge, Vadodara issued notice upon the original complainant and the original complainant submitted objections against the said reports and the learned Additional Sessions Judge by the impugned order has rejected B and C Summary Reports submitted by the investigating officers and has observed that process is to be issued against the accused persons for the offences alleged in the complaint and with the said observations has sent the matter to the learned Judicial Magistrate (First Class), Karjan for proceeding further with the same. From the aforesaid it appears that the procedure adopted by the concerned investigating officer - CID (Crimes) while submitting C-Summary Report and the procedure adopted by the Dy.S.P. Harijan Cell, Vadodara submitting B- Summary Report straightway before the learned Additional Sessions Court, Vadodara and even the impugned order passed by the learned Additional Sessions Judge, Vadodara, considering the aforesaid reports and rejecting the same are just contrary to the provisions of the Code of Criminal Procedure and the Scheme of the Code of Criminal Procedure.
6.02. As per section 193 of the Code of Criminal Procedure except as otherwise expressly provided by the Code of Criminal Procedure or by any other law for the time being in force in the court of Session shall not take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by the Magistrate under the Code of Criminal Procedure. In a case where a complainant has filed a private complaint under section 190 of the Code of Criminal Procedure before the concerned Magistrate, in that case the concerned Magistrate is required to follow the procedure as required under section 200 to 204 of the Code of Criminal Procedure. After following the procedure as required under section 200 of the Code of Criminal Procedure, any Magistrate on receipt of complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 of the Code of Criminal Procedure, may postpone the issue of process against the accused and either inquire into by himself or direct the investigation to be made by a police officer or by such other persons as he thinks it. For the purpose of deciding whether or not there is sufficient ground for proceeding further under section 202 of the Code of Criminal Procedure, the concerned Magistrate may pass order or inquiry by himself and/or by any other police officer or even may send the complaint for police investigation to the concerned police station under section 156(3) of the Code of Criminal Procedure, which will be thereafter numbered as M.Case. In a case where the learned Magistrate passes an order for inquiry by himself or by any officer under section 202 of the Code of Criminal Procedure, thereafter holding necessary inquiry, learned Magistrate may take an appropriate decision whether to issue process or not and either may dismiss the complaint as provided under section 203 of the Code of Criminal Procedure by recording reasons for so doing. In case, if in the opinion of the Magistrate for a cognizance of the offence there is sufficient ground for proceedings, in that case, Magistrate may issue process and issue process for the attendance of the case in case of a summons case and in case of a warrant case, may issue warrant considering section 204(1)(b) of the Code of Criminal Procedure. However, if the Magistrate has sent the complaint for police investigation under section 156(3) of the Code of Criminal Procedure, in that case the concerned investigating officer, after investigation is concluded, is required to submit report as provided under section 173 of the Code of Criminal Procedure before the concerned Magistrate. After investigation is concluded, if the investigating officer is of the opinion that no case is made out against the accused and/or there is no material / evidence against the accused for prosecuting the accused and/or investigating officer is of the opinion that the dispute is of a civil nature and/or that the accused has committed offence but is not available, investigating officer may submit appropriate report before the concerned Magistrate which is called A-Summary, B- Summary and C-Summary. If the investigating officer is of the opinion that the concerned accused has committed offence, then in that case, chargesheet is to be filed against the accused before the concerned Magistrate. As per the settled law, the learned Magistrate is not bound to accept either A- Summary Report, B-Summary Report or C-Summary Report and after considering the report and the material on record, the learned Magistrate may reject the said report and direct to issue process against the accused persons for the offences alleged. In case, the learned Magistrate is prima facie of the opinion that such A-Summary report, B-Summary Report or C- Summary Report is to be accepted, in that case, the learned Magistrate is required to issue notice upon the complainant and is required to give opportunity to the complainant to submit protest application / objections against such report and thereafter, considering such objection submitted by the complainant, the Magistrate may take appropriate decision whether to accept the report or not. Thereafter, if the case is triable by the Court of Sessions, the Magistrate is required to commit the case to the Sessions Court. Therefore, under the provisions of the Code of Criminal procedure, reports are to be sent to the concerned Magistrate only and there is no provision under the Code of Criminal Procedure that such report after investigation can be straightway sent to the learned Court of Sessions. Under the provisions of the Code of Criminal Procedure, the concerned Sessions Court has no jurisdiction to consider the report under section 169 or under section 173 of the Code of Criminal Procedure, submitted by the investigating officer straightway and directly, without submitting the same before the concerned Magistrate. Under the circumstances, the B and C Summary Reports submitted by the investigating officers straightway before the learned Additional Sessions Judge, Vadodara and thereafter to consider the same by the learned Additional Sessions Judge, Vadodara and rejecting the same by the learned Additional Sessions Judge and opining that the process is required to be issued against the accused persons, is without jurisdiction. The learned Additional Sessions Judge could not have straightway considered the reports submitted by the investigating officers and could not have passed an order rejecting B and C Summary Reports submitted by the investigating officers. It is also required to be noted that even the learned Additional Sessions Judge was also conscious of the fact that straightway complaint under section 190 of the Code of Criminal Procedure was not maintainable before him and he has no jurisdiction to issue process and therefore, he has sent the matter to the learned Judicial Magistrate (First Class), Karjan for issuing process against the accused and for considering the same in accordance with law. However, as stated above, the learned Additional Sessions Judge could not have straightway considered the Summary Reports and could not have rejected the same as under the provisions of the Code of Criminal Procedure, as referred to hereinabove, it is for the learned Magistrate to consider the Summary Reports as provided under section 173 of the Code of Criminal Procedure. Under the circumstances, the impugned orders passed by the learned Additional Sessions Judge, Vadodara passed below Ex.1 in Inquiry Case No.12 of 1998 dtd.15/12/2004 deserves to be quashed and set aside and matter is to be remanded to the learned Judicial Magistrate (First Class), Karjan for considering the B and C Summary Reports by him, in accordance with the provisions of section 173 of the Code of Criminal Procedure and after following due procedure as required. If the learned Magistrate is of the opinion that said B and C Summary Reports are to be rejected, in that case he is not bound to accept the said reports and can take his own independent decision considering the material on record and may direct to issue process against the accused persons and consequently may reject the B and C Summary Reports. However, if the learned Magistrate, on considering the material on record and Reports, is of the opinion that the said reports are to be accepted, in that case, he is required to give an opportunity of being heard to the original complainant to submit protest application / objections and consider the objections raised by the original complainant which are already on record and which were considered by the learned Additional Sessions Judge, and considering the same he is required to take appropriate decision whether to accept the said reports or not. However, aforesaid exercise is required to be done by the learned Judicial Magistrate (First Class), Karjan and not by the learned Additional Sessions Judge.
7.00. In view of the above and for the reasons stated above present petition succeeds in part. The impugned order dtd.15/12/2004 passed by the learned Additional Sessions Judge, Vadodara below Ex.1 in Inquiry Case No.12 of 1998 is hereby quashed and set aside and the matter is remanded to the learned Judicial Magistrate (First Class), Karjan who shall take appropriate decision on the B and C Summary Reports submitted by the concerned investigating officers in accordance with law and on merits and after following due procedure as required as stated hereinabove and for that the learned Sessions Court is hereby directed to sent the entire record and proceedings of the Inquiry Case No.12 of 1998 to the learned Judicial Magistrate (First Class), Karjan, inclusive of the B and C Summary Reports submitted by the investigating officers and objections raised by the original complainant within a period of four weeks from the date of receipt of writ of this judgement and order, if the same are with the learned Sessions Court and not sent so far. Thereafter the learned Judicial Magistrate (First Class), Karjan to complete the aforesaid exercise and take appropriate decisions on B and C Summary Reports submitted by the investigating officer as provided under section 173 of the Code of Criminal Procedure in accordance with law and on merits, and after following due procedure as required, at the earliest but not later than six months from the date of receipt of writ of this order an receipt of the record and proceedings of the case from the Sessions Court, Vadodara. Rule is made absolute to the aforesaid extent.
[M.R. SHAH, J.] rafik