1. Heard learned advocates for the parties.
2. The challenge in this application under Section 482 of the Code of Criminal Procedure, 1973 is issuance of summons on 21.10.2011 by the learned J.M.F.C. on the complaint filed by the officer under Section 172 and 177 of the Indian Penal Code.
3. Mr.
Mihir Joshi, learned senior advocate submits that at the outset section 172 of Indian Penal Code in Chapter X of Indian Penal Code is under the heading of 'absconding to avoid service of summons or other proceedings' and section 177 is about furnishing false information when a person is legally bound to furnish such information on any subject as sought for.
3.1. According to learned senior advocate on 19th September, 2011 the applicant remained present as required but the officer who had summoned the applicant was not at the place since he was busy with bandobast/arrangement etc. Not only that applicant had left a communication to contact him to fix another mutually convenient date leaving his mobile number. It is also submitted that on the next of 30th September, 2011, the applicant was to attend proceedings before the Inquiry Commission consisting of Hon'ble Mr. Justice Nanavati and Hon'ble Mr. Justice Mehta but on that date the applicant came to know that he could not participate in the said proceedings of 'in camera' in nature and, therefore, a communication was addressed accordingly.
3.2. In view of th above, the complaint does not disclose of any offence of issuance of summons by learned JMFC.
4. Against this, Mr. P.K. Jani, learned PP submits that there is nothing on the record which would indicate the applicant remained present on 19.9.2011 and even prior thereto also summons were issued and served since August, 2011, the applicant never remained present. It is also submitted that on 30th September, 2011 a false information is given about requirement of the applicant to remain present before the Hon'ble Justice Nanavati and Hon'ble Mr. Justice Mehta inquiry Commission at 11:30 and that receipt of communication from the Secretary of the Commission reveal that the presence of the applicant was not required and, therefore the above information is false and issuance of summons by learned JMFC is legal, valid and can be examined during the proceedings by the learned JMFC, no case is made out by the applicant to grant relief as prayed for.
5. Considering the above aspect, prima faice, at this stage I am of the view that the applicant from August, 2011 has made it clear to the investigating authority about inability to remain present on a bonafide plea and further he had left his mobile number so as to contact him again to convey the venue and the date and, therefore, prima faice it cannot be said that the applicant was avoiding the summon or absconded the service of summons as per provisions of Section 172 of Indian Penal Code. The question about the appearance and requirement of the applicant before the inquiry commission for which a valid explanation about 'in camera' proceedings is rendered and further what is required under Section 177 of Indian Penal Code is disclosure of information by a person legally bound to disclose such things, the above aspect can be examined in detail at the stage of final hearing.
In view of the above, rule returnable on 23.2.2012.
Meanwhile, ad-interim relief in terms of para 9(D).
However, grant of stay of the order dated 21.10.2011 passed by learned JMFC in terms of para 9(D) of the this petition will not preclude the investigating officer from investigating the case viz. FIR being C.R. No.I-149/2011 registered with Ghatlodia Police Station on 22.6.2011 in accordance with law.
[ANANT S. DAVE, J.] //smita// Top