1.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the petitioner hereinoriginal complainant to quash and set aside the impugned order passed by the learned JMFC, Bechraji dated 12.3.2012 passed in Inquiry Case No.9 of 2011 whereby the learned Magistrate has disposed of the said complaint.
2.0 The facts leading to the present Criminal Revision Application in nutshell are as under:
2.1. That a scuffle took place between two groups at Surpura village of Bechraji Taluka of Mehsana District on 11.2.2011 at about 17.00 hours, wherein according to the petitioner complainant, the petitioner and one Raghubhai and the father of the petitioner namely Bhemabhai were seriously injured and therefore, they were admitted to Indus Hospital at Ahmedabad for treatment. For the aforesaid incident two cross FIRs came to be lodged by both the parties recording above mentioned at Bechraji Police Station. That one FIR being CRI No.15 of 2011 came to be lodged on 11.2.2011 at 23.15 hours at the instance of one Desai Ramabhai Mohanbhai against 12 persons including the petitioner for the offences punishable under Sections 147, 148, 302, 307, 323, 324 and 337 r/w Section 149 of the Indian Penal Code and also for the offences punishable under Sections 25(1)(c) of the Arms Act. On other hand one another FIR (Cross FIR) being No. CRINo.16 of 2011 came to be registered at the instance of the petitioner on 12.2.2011 after recording the statement of the petitioner at the hospital for the offences punishable under Sections 147, 148, 323, 325, 504 and 506(2) r/w Section 149 of the Indian Penal Code. It is the case of the petitioner that thereafter the Investigating Agency subsequently arrested the petitioner along other accused persons in relation to the FIR being CRINo.15 of 2011 but did not take any action in relation to the FIR being CRINo.16 of 2011 which was lodged by the petitioner. It is also the case on behalf of the petitioner that even the Investigating Officer also requested to add the offences punishable under Section 307 of the Indian Penal Code in relation to FIR being CRI No. 16 of 2011, however no cognizance was taken by the I.O, therefore, the petitioner submitted a private complaint under Section 190 of the Code of Criminal Procedure against the 12 persons for the offences punishable under Sections 147, 148, 323, 325, 307, 506 and 504 r/w section 149 and 114 of the Indian Penal Code on 23.8.2011 before the learned Magistrate First Class, Becharaji which came to be registered as Inquiry Case No.9 of 2011. According to the petitioneroriginal complainant, the learned JMFC stayed the further proceedings for the said Inquiry Case No.9 of 2011 in exercise of powers under Section 210 of the Code of Criminal Procedure as the matter was under the investigation by the Police Officer of Becharaji Police Station (CRINo.16 of 2011) and the learned Magistrate passed an order to call for the record from the concerned Police Officer of Becharaji Police Station.
2.2. It appears that in the meantime the Investigating Officer submitted the report / chargesheet under Section 173(2) of the Code of Criminal Procedure in relation to FIR being CRI No.15 of 2011 against the petitioner and others for the offences punishable under Sections 147, 148, 302, 307, 323 and 324 r/w Section 149 of the Indian Penal Code as the case was exclusively triable by the learned Sessions Court, learned Magistrate committed the case to the learned Sessions Court at Mehsana.
2.3. That after filing of the private complaint by the petitioner being Inquiry Case No.9 of 2011 the Investigating Officer submitted report under Section 173(2) of the Code of Criminal Procedure in relation to the FIR being CRI No. 16 of 2011 (which was filed by the petitioner herein) against the 9 persons for the offences punishable under Sections 147, 148, 323 and 504 r/w Section 149 of the Indian Penal Code on 17.11.2011 which was committed by the learned Judicial Magistrate First Class, Becharaji to the Court of Sessions at Mehsana wherein the offences punishable under Sections 325, 324 and 307 of the Indian Penal Code are not found to be substantiated by the Investigating Officer and hence the report to the said effect was made to the Court of learned JMFC on 21.9.2011. That according to the petitioner, as the report submitted by the Police Officer, the fact mentioned in the complaint were inconsistent to each other and Court did not take cognizance for the offences punishable under Sections 307, 324 and 325 of the Indian Penal Code and also did not take cognizance against the accused namely Rabari Kamleshbhai Mafabhai and Rabari Mafabhai Jesingbhai, the learned JMFC was requested to proceed with the complaint in accordance with Section 202(2) of the Code of Criminal Procedure. However, the learned Magistrate by impugned order has dismissed the said complaint by observing that case has been committed to the Court of Sessions along with the case arising out of CRI No.15 of 2011, he cannot pass any order and therefore, by impugned order learned JMFC, Becharaji passed an order to dispose / file the Inquiry Case No.9 of 2011.
2.4. Being aggrieved and dissatisfied with the impugned order passed by the learned JMFC, Becharaji dated 12.3.2012 passed in Inquiry Case No.9 of 2011 in disposing or passing order to file the Inquiry Case No. 9 of 2011, the petitioner hereinoriginal complainant of Criminal Inquiry Case No. 9 of 2011 has preferred the present Criminal Revision Application.
3.0 Shri Dave, learned advocate for the petitioneroriginal complainant has submitted that learned Magistrate has materially erred in disposing of the Court Inquiry Case No. 9 of 2011 and / or passing order to file said complaint. It is submitted that as such while considering and / or disposing of the said inquiry case, the learned Magistrate has not followed the procedure as required to be followed under Section 210 of the Code of Criminal Procedure. It is submitted that initially the learned Magistrate passed an order to stay the proceedings of Inquiry Case No. 9 of 2011 with respect to the very incident as the FIR filed by the complainant being CR.I No.16 of 2011 was being investigated by the concerned Police Officer of Becharaji Police Station and the learned Magistrate passed order to call for the report from the concerned Investigating Officer. It is submitted that though the allegations against the accused persons in the FIR as well as private compliant under Section 190 of the Code of Criminal Procedure were for the ofeences under Sections 147, 148, 323, 325, 307, 504 and 506(2) r/w Section 149 of the Indian Penal Code and against all 12 accused persons, the investigating Officer submitted chargesheet / report under Section 173(2) of the Code of Criminal Procedure in CRI No.16 of 2011 against the 9 persons only and that too for the offences under Sections 147, 149, 323, 504 r/w 149 of the Indian Penal Code and did not file chargesheet against the accused persons for the offences under Section 307, 324 and 325 of the Indian Penal Code as well as against other accused persons namely Rabari Kamleshbhai Mafabhai and Rabari Mafabhai Jesingbhai and report to that effect was sent to the learned Magistrate. It is submitted that therefore, considering Section 210 of the Code of Criminal Procedure, the learned Magistrate was required to proceed further with inquiry which was stayed by him, in accordance with the provision of Code of Criminal Procedure. Therefore, it is submitted that as such the learned Magistrate was required to proceed further with the inquiry against the accused persons for the offences punishable under Sections 307, 324 and 325 of the Indian Penal Code against all the accused persons and even against other accused namely Rabari Kamleshbhai Mafabhai and Rabari Mafabhai Jesingbhai and unless and until the inquiry is concluded after following the procedure as required under the Code of Criminal Procedure the learned Magistrate is not justified in disposing of the inquiry case no. 9 of 2011 and / or in passing order to file Criminal Inquiry Case No. 9 of 2011. It is submitted that as such there is no provision under the Code of Criminal Procedure to file Inquiry Case as passed by the learned JMFC.
3.1. Shri Dave, learned advocate for the petitioner has heavily relied upon the decision of this Court in the case of Rehana S. Kadri vs. State of Gujarat reported in 2012(0) GLHELHC 227075 rendered in Criminal Miscellaneous Application No.13245 of 2010 as well as another decision of this Court in the case of Radheshyam Khiru Goswami & Anr vs. Rajubhai Pannalal Ran and Anr reported in 2012(2) GLR 964 as well as another decision of the Allahabad High Court in the case of Kalyan and others vs. State of U.P and Others reported in 1990 Cri.LJ 1658 as well as decision of the Rajasthan High Court in the case of Madanlal vs. State of Rajasthan & Others reported 1998 Cri.L.J 597. By making above submissions and relying upon the above decisions, it is requested to allow the present Criminal Revision Application.
4.0 Ms. Shah, learned Additional Public Prosecutor has appeared on behalf of the State. She has fairly conceded that as such in case where the learned Magistrate has passed an order under Section 210 of the Code of Criminal Procedure and has stayed the further inquiry in private criminal complaint, after receipt of the report from the concerned Investigating Officer who has investigated the case with respect to the very offence / incident and other which has been found that the chargesheet / report under Section 173(2) of the Code of Criminal Procedure is made by the concerned Investigating Officer with respect to some of the offences only and that too against some of the accused and the accused persons are not chargesheeted for all the offences alleged in that case, the learned Magistrate is required to proceed further with the inquiry in the Criminal Complaint / case as provided under the Code of Criminal Procedure with respect to the offences for which the accused persons are not chargesheeted and / or with respect to those accused persons against whom the chargesheet/ report under Section 173(2) of the Code of Criminal Procedure has not been made. Therefore, she has requested to pass appropriate order.
5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner hereinoriginal complainant lodged the private complaint in the Court of learned JMFC, Becharaji against the 12 accused persons for the offences under Sections 147, 148, 323, 325, 307, 506 and 504 r/w section 149 and 114 of the Indian Penal Code and the same was registered as Inquiry Case No.9 of 2011. However, with respect to the very incident, at the instance of the very complainant FIR being CRI No.16 of 2011 was being investigated by the concerned Police Officer, Becharaji Police Station, learned Magistrate stayed the further proceedings of Inquiry Case No. 9 of 2011 in exercise of powers under Section 210 of the Code of Criminal Procedure and pass an order to call for the report from the Investigating Officer. That thereafter, Investigating Officer of FIR being CRI No.16 of 2011, submitted the report under Section 173(2) of the Code of Criminal Procedure / chargesheet against the 9 persons, for the offences punishable under Sections 147, 148, 323, 504 and 149 of the Indian Penal Code only and did not file chargesheet against the accused persons for the offences under Section 307, 324 and 325 of the Indian Penal Code as well as against other accused persons namely Rabari Kamleshbhai Mafabhai and Rabari Mafabhai Jesingbhai and submitted the report to the learned Magistrate accordingly. However, in view of the fact that cross case arising out of the very incident being CRI No.15 of 2011 was committed to the Court of Sessions, learned Magistrate also committed the case arising out of the FIR being CRI No. 16 of 2011 to the learned Sessions Court, however passed impugned order disposing of the Inquiry Case No. 9 of 2011 and / or passed an order to file said Inquiry Case without following any procedure required under Section 210 of the Code of Criminal Procedure. Once the original complaint filed by the petitioner being Inquiry Case No. 9 of 2011 for the offences punishable under Sections 147, 148, 323, 325, 307, 506 and 504 r/w section 149 and 114 of the Indian Penal Code was filed against the 12 persons, was stayed in view of FIR being CRINo.16 of 2011 being investigated by the concerned Police Officer of Becharaji and when thereafter on investigation the Investigating Officer sent the report to the learned Magistrate against the 9 persons only and that too for the offences punishable under Sections 147, 148, 323 and 504 r/w Section 149 of the Indian Penal Code, thereafter for the offences punishable under Section 307, 324 and 325 of the Indian Penal Code and with respect to other accused persons namely Rabari Kamleshbhai Mafabhai and Rabari Mafabhai Jesingbhai, the learned Magistrate was required to proceed further with the Inquiry being Inquiry Case No. 9 of 2011 as provided under the Code of Criminal Procedure. From the impugned order, it appears that the learned Magistrate has not followed further procedure as required under Section 210 of the Code of Criminal Procedure and has straightway passed the order to dispose of the Inquiry Case No. 9 of 2011 and / or has ordered to file said inquiry case which is not permissible. It appears that learned Magistrate has passed impugned order observing that the chargesheet has been filed by the Investigating Officer in case arising out of FIR being CRI No.16 of 2011 and the case is committed to the learned Sessions Court and thereafter he has no further jurisdiction to pass any order. The aforesaid cannot be sustained. Merely because, the Investigating Officer has submitted chargesheet for the some of offences, right of complainant to agitate the matter with respect to other alleged offences under the penal Code cannot be taken away. In the case of Kalyan & Others (supra) the learned Single Judge of Allahabad High Court has observed that right of complainant to agitate the matter through complaint cannot be taken away by filing a chargesheet by the Investigating Officer under some different Sections. In the case of Madanlal (supra) the learned Single Judge of the Rajasthan High Court considered the provision of Section 210 of the Code of Criminal Procedure and has observed and held that in view of sub section (3) of Section 210 of the Code of Criminal Procedure, if on the basis of the police report the Magistrate does not take cognizance of the offences disclosed by the complainant or on the basis of police report the Magistrate does not proceed against any person but on the basis of complaint such person can be proceeded against the complaint cannot be amalgamated with the police report. Under the circumstances, the learned Magistrate was required to proceed further with the Inquiry Case No. 9 of 2011 after following procedure as required under the Code for the offences for which no report is submitted by the police officer and against those accused persons named in the complaint / inquiry case but not chargesheeted and / or for whom no report has been made by the police investigating officer.Identical view has been taken by this Court in the case of Rehana S. Kadri (supra).
6.0 In view of the above and for the reasons stated above, present Criminal Revision Application succeeds. The impugned order passed by the learned JMFC, Bechraji dated 12.3.2012 passed in Inquiry Case No.9 of 2011 is hereby quashed and set aside and the matter is remanded to the learned JMFC, Becharaji to proceed further with the said Inquiry Case No.9 of 2011 against all the accused persons for the offences other than for which the Investigating Officer submitted the report i.e. for the offences under Sections 325, 324 and 307 of the Indian Penal Code and also against the other accused persons named in the complaint but against whom no report has been submitted by the Investigating Officer and to proceed further with the said Inquiry Case No. 9 of 2011 after following procedure as required under the Code. The aforesaid exercise shall be completed within the period of three months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
“kaushik”
sd/ ( M. R. Shah, J. )