Rule. Mr. Raval, Ld.
APP appears and waives service of rule for respondent no. 1 and Mr. GD Chavda, Ld. Advocate appears and waives service of rule for respondent no. 2.
2. The instant application is filed requesting quashing of M. Case No. I - 1/2010 registered with Viramgam Rural Police Station as well for quashing and setting aside the order dated 16/9/2009 passed by the Ld. Addl. Sessions Judge, Viramgam in Criminal Revision Application No. 3/2009 as well as the subsequent order dated 13/1/2010 passed by the Ld. Judicial Magistrate First Class, Viramgam.
3. Mr. PM Thakkar, Ld.
Senior Counsel with Mr. AM Dagli, Ld. Advocate for the petitioner submitted that the respondent no. 2 herein filed a private criminal complaint against the petitioner and others for the offences punishable under sections 406, 465, 466, etc., of the Indian Penal Code [IPC]. As per the initial order dated 18/10/2008 the trial Court directed to inquire into the matter under section 202 of the Criminal Procedure Code [Cr. P.C.] and called for the report from the concerned police officer as according to the complainant, though he had applied to the concerned police station for registering his FIR, his FIR was not registered. It transpires that after receipt of the report of the police officer, the Magistrate passed the order dated 6/8/2009 issuing necessary processes against the accused under section 204 of the Cr. P.C. It is submitted that the said order dated 6/8/2009 came to be challenged by the respondent no. 2 - original complainant herein in the Sessions Court, Ahmedabad [Rural] at Viramgam by preferring Criminal Revision Application No. 3/2009 and vide order dated 16/9/2009, the said Revision Application was partly allowed and order dated 6/8/2009 passed by the trial Court came to be quashed and set aside and the matter was remanded to the trial Court. It is submitted that the trial Court, thereafter vide order dated 13/1/2010 entrusted the investigation to the police under section 156 [3] of the Cr. P.C.
3.1. Mr. Thakkar, Ld.
Sr. Counsel submitted that once the trial Court kept the matter under inquiry before it under section 202 of the Cr. P.C., then the trial Court should not have entrusted the investigation to the police under section 156 [3] of the Cr. P.C. In support thereof, reliance was placed upon the decisions rendered in the cases of Devrapalli Lakshminarayana Reddy v/s. V. Narayana Reddy reported in [1976] 3 SCC 252, and Rameshbhai Pandurao Hedau v/s. State of Gujarat reported in AIR 2010 SCW 2353. It is, therefore, submitted that since the revisional Court set aside the order dated 6/8/2009 passed by the trial Court, the only order now which remains is the order dated 18/10/2008 passed by the trial Court because, as observed by Hon'ble the Apex Court in the above referred decisions, once the Magistrate takes cognizance of a criminal complaint and the inquiry is taken up by the Court under section 202 of the Cr. P.C., the subsequent order dated 13/1/2010 entrusting the investigation to the police under section 156 [3] of the Cr. P.C., is bad in law. Ultimately, it is submitted that the application may be allowed and the order dated 18/10/2008passed by the trial Court may be restored and the trial Court may be directed to hold inquiry under section 202 of the Cr. P.C., in accordance with the order dated 18/10/2008.
4. Mr.
GD Chavda, Ld. Advocate for the respondent no. 2 - original complainant, however, opposed this application and submitted that the order dated 18/10/2008 was not the order passed by the trial Court under section 202 of the Cr. P.C., directing the police to inquire into the matter, yet the police illegally inquired into the matter and filed report under section 202 of the Cr. P.C. Ultimately, the respondent no. 2 original complainant had to move the Sessions Court and the Sessions Court rightly set aside the order dated 6/8/2009 passed by the Magistrate issuing processes against the accused as the said order was based upon the report of the police officer filed under section 202 of the Cr. P.C. However, Mr. Chavda, Ld. Advocate for the respondent no. 2 submitted that so far as the position of law is concerned, that once the Magistrate has taken cognizance and the Magistrate has kept inquiry under section 202 of the Cr. P.C with himself, subsequently the Magistrate cannot entrust the investigation to police under section 156 [3] of the Cr. P.C and to that extent the ratio laid down by Hon'ble the Apex Court in Devrapalli Reddy's case and Rameshbhai Hedau's case [supra] cannot be disputed. However, it is submitted that ultimately when the order dated 18/10/2008 passed by the Magistrate is required to be restored, then while undertaking the Court inquiry under section 202 of the Cr. P.C., the Magistrate may be directed to take into consideration the entire report of the police officer and the evidence collected by the police thereunder.
5. Heard Mr. Raval, Ld.
APP for the respondent no. 1 - State.
6. Having considered the submissions advanced on behalf of both the sides, so also considering the initial order dated 18/10/2008 passed by the trial Court, it clearly transpires that pursuant to the said order, the trial Court kept the inquiry with it under section 202 of the Cr. P.C. It is true that subsequently pursuant to the report of the police officer, vide order dated 6/8/2009 the trial Court issued processes against the accused and said order dated 6/8/2009 came to be quashed and set aside by the Sessions Court in Revision Application No. 3/2009 and the matter was remanded to the trial Court. As stated above, the trial Court, instead of proceeding further in accordance with the order dated 18/10/2008, vide order dated 13/1/2010 entrusted the investigation to the police under section 156 [3] of the Cr. P.C. In light of the ratio laid down by Hon'ble the Apex Court in Devrapalli Reddy's case and Rameshbhai Hedau's case [supra], this course adopted by the Magistrate to entrust the investigation to the police under section 156 [3] of the Cr. P.C after taking up the inquiry by itself under section 202 of the Cr. P.C., cannot be said to be legal and valid. About the ratio laid down by Hon'ble the Apex Court in the above referred decisions, even there is no dispute by the otherside.
7. In above view of the matter, the order dated 13/1/2010 passed by the trial Court deserves to be quashed and set aside. The order dated 6/8/2009 passed by the trial Court came to be quashed and set aside by the Sessions Court and, therefore, the order that remains on record before the trial Court is the order dated 18/10/2008, whereby the trial Court had undertaken the exercise of inquiring into the matter under section 202 of the Cr. P.C. It is true that pursuant to said order dated 18/10/2008 the police officer forwarded report to the trial Court dated 3/2/2009 along with the inquiry papers. The Magistrate, while undertaking the inquiry under section 202 of the Cr. P.C., may be at liberty to consider the said report of the police officer along with any evidence collected by the police pursuant to the said report.
8. In above view of the matter, the application is partly allowed and the order dated 13/1/2010 passed by the Ld. Judicial Magistrate First Class, Viramgam in Criminal Inquiry Case No. 29/2008 is quashed and set aside. The initial order dated 18/10/2008 passed by the Judicial Magistrate First Class, Viramgam, in the aforementioned criminal inquiry case, pending in the said Court, is maintained and the Magistrate is directed to proceed further with the Court inquiry under section 202 of the Cr. P.C., in accordance with the order dated 18/10/2008 and during the course of the Court inquiry, the Magistrate may take into consideration the report of the police officer dated 3/2/2009 and the evidence collected by the police pursuant to the said report dated 3/2/2009.
Rule is partly made absolute accordingly. DSP.
(J.C.UPADHYAYA, J.) * Pansala.
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