1.0 Criminal Miscellaneous Application No.5144 of 2010 has been preferred by the petitionersoriginal accused of Inquiry Case No.34 of 2010 pending in the Court of learned JMFC, Mehsana filed by respondent no.2 hereinoriginal complainant for the offences punishable under Sections 420, 406, 467, 468, 471, 120B and 34 of the Indian Penal Code.
2.0 Criminal Miscellaneous Application No. 17439 of 2001 has been preferred by the applicantsoriginal accused of Police Inquiry Case No.31 of 2010 which is subsequently registered as Criminal Case No.5614 of 2011, in which, the learned Magistrate has directed to issue process against the said applicants for the offences under Sections 420, 465, 468, 471, 120B and 34 of the Indian Penal Code.
3.0 It is required to be noted that so far as Criminal Miscellaneous Application No.5144 of 2010 is concerned, the learned Magistrate has passed an order for inquiry under Section 202 of the Code of Criminal Procedure in the impugned complaint being Inquiry Case No.34 of 2010. Shri Kogje, learned advocate for the said applicantsoriginal accused of Inquiry Case No.34 of 2010 pending in the Court of learned JMFC, Mehsana has stated at the bar that after the inquiry pursuant to the order passed by the learned Magistrate in the said inquiry case, the Investigating Officer/ concerned Police Officer has submitted the report before the concerned Magistrate and the same is yet to be considered by the learned Magistrate. Under the circumstances, considering the decision of the Hon'ble Supreme Court in the case of Dharmatma Singh vs. Harminder Singh & others reported in (2011) 6 SCC 102 (para 22) when the learned Magistrate has yet to consider the report and take an appropriate decision the present application is not entertained and the learned Magistrate to consider the said report in accordance with law and on merits after following due procedure as required. It goes without saying that as such under the law the learned Magistrate is not bound to accept the said report and he is required to take his own independent decision after considering the material on record and if learned Magistrate is of the opinion that the report submitted by the Inquiry Officer is to be accepted, in that case, he is required to give an opportunity to original complainant to submit the protest application and before taking any final decision, the same is required to be considered by the learned Magistrate in accordance with law and on merits. With this, Criminal Miscellaneous Application No.5144 of 2010 is not entertained and is dismissed. Rule is discharged. Adinterim relief, if any, stands vacated forthwith.
4.0 Now, so far Criminal Miscellaneous Application No.17439 of 2011 which has filed against the petitionersoriginal accused being Inquiry Case No.34 of 2010 is concerned, Shri Brahmbhatt, learned advocate for the applicantsoriginal accused of Police Inquiry Case No.31 of 2010 which is subsequently registered as Criminal Case No.5614 of 2011 does not press the present application. However, has requested to direct that the Criminal Case No.5614 of 2011 filed against the petitioners and Inquiry Case No.34 of 2010 filed by them, in which, report is yet to be considered by the learned Magistrate, be placed before the same learned Magistrate so that both of them can be considered in its true perspective. Under the circumstances, Criminal Miscellaneous Application No.17439 of 2011 is dismissed as withdrawn without further entering into the merits of the case and / or expressing anything on merits in favour of either parties and all the defences which may be available to the petitioners of Criminal Miscellaneous Application No.17439 of 2011 are kept open which may be considered by the concerned Magistrate in accordance with law and on merits. In the facts and circumstances of the case, it is hereby directed that the inquiry case no.34 of 2010 be placed before the same learned Magistrate who has passed an order in Police Inquiry Case No.31 of 2010 which is subsequently registered as Criminal Case No.5614 of 2011. With above observations and directions Rule is discharged in both the applications. Adinterim relief, if any, stands vacated forthwith in both the applications.
kaushik sd/ (M.R.SHAH, J.)