Rule. Mr.AB Gogia, learned advocate appears and waives service of rule for respondent No.1 and Mr.KP Raval, learned APP appears and waives service of rule for respondent No.2 - State.
The instant application is filed by the petitioners, who are original accused in Criminal Case No.2431 of 2009 pending in the Court of Judicial Magistrate (First Class), Gandhidham, Kutch seeking quashing of said criminal case.
The respondent No.1 herein filed private complaint against the petitioners herein, alleging various offences, namely, punishable u/ss.420, 406 etc. of the IPC. The said criminal complaint was filed on 6.10.2007 and on the same day, learned Magistrate stayed the proceeding u/s.210 of the Criminal Procedure Code ('Cr.P.C.', for short) and called for the police report u/s.202 of the Cr.P.C. The learned Magistrate on 6.6.2009 passed the impugned order whereby processes were issued against the petitioners herein.
After the matter was argued for some time by Mr.NK Thakkar, learned advocate for the petitioners, Mr.AB Gogia, learned advocate for respondent No.1 and Mr.Raval, learned APP for respondent No.2 - State, a broad consensus has been arrived at between the learned counsel representing both the sides to the effect that in the instant matter, before passing any order u/s.202 of the Cr.P.C., even the learned Magistrate did not record verification of respondent No.1 - complainant, as contemplated u/s.200 of the Cr.P.C. and, therefore, it is requested that the impugned order dated 6.6.2009 passed by the learned Magistrate, deserves to be quashed and set-aside, and that let the original complainant may appear before the learned Magistrate for verification of the complainant on oath and, thereafter, the learned Magistrate may pass appropriate order, considering Sections 200 and 202 of the Cr.P.C. My attention was also drawn to the case of Vinay Vyasa, Deputy Municipal Commissioner & Anr. Vs.State of Gujarat & Ors. decided by this Court on 8.9.2011 in Criminal Misc.Application No.2709 of 2003 and it is submitted that almost identical situation had arisen in said matter and, ultimately, this Court setting aside the order passed by the concerned learned Magistrate regarding issuing processes against the accused, remanded the matter to the trial Court at the pre-cognizance stage and further directed that as and when the original complainant appears before the learned Magistrate, his verification on oath, as contemplated u/s.200 of the Cr.P.C. shall be recorded and, thereafter, the concerned learned Magistrate to consider the said complaint in accordance with law and on merits, as provided under Sub-Section 200 r/w.Section 202 of the Cr.P.C.
In above view of the matter, the instant application deserves to be partly allowed.
For the foregoing reasons, the application is partly allowed and the order dated 6.6.2009 passed by learned Judicial Magistrate (First Class), Gandhidham, Kutch in Criminal Case No.2431 of 2009, is quashed and set-aside and the matter is remanded to the learned Magistrate at the pre-cognizable stage and as and when the respondent No.1 herein (original complainant) appears before the learned Magistrate for his verification on oath, as contemplated u/s.200 of the Cr.P.C., his verification on oath shall be recorded and, thereafter, the learned Magistrate to consider the said complaint in accordance with law and on merits, as provided u/s.200 r/w.Section 202 of the Cr.P.C. at the earliest. However, this Court has not expressed anything on merits in favour of either parties so far as allegations made in the complaint are concerned, and after verification of the complainant on oath, it is, ultimately, for the learned Magistrate to consider the same in accordance with law and on merits. With this, the present application stands disposed of.
Rule is made absolutely to the aforesaid extent.
The respondent No.1 -
original complainant shall appear before the trial Court at the earliest, preferably within 15 days hereof. Registry is directed to communicate this order to the concerned trial Court forthwith.
(J.C.UPADHYAYA, J.) (binoy) Top