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2009 (3) GCD 2002 (Guj)
Hon’ble Mr. Justice Jayant Patel
Anvar Azimbhai Sheikh [Vadodara]
Versus
State of Gujarat & Ors.
Special Criminal Application No. 1097 of 20031—Decided on 26/03/2009
(a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 202 — Inquiry under — Power of Court — Discretionary — Order of Court to proceed under — No perversity committed by Court.
Held :
When any complaint is filed before the Court, discretion lies with the Court to be exercised judicially as to whether it would be a fit case to order inquiry under Section 202 of the CrPC by the Court itself or it should be sent for police investigation under Section 156(3) of CrPC. In the present case, the Magistrate has passed the order under Section 202 of CrPC to the effect that Police Inspector, J.P. Road Police Station would inquire into the matter and submit the report within 60 days. Therefore, the learned Magistrate has found it proper to take cognizance or otherwise to issue process only after the inquiry is made by the police and the report is submitted before it. [Para 7]
The Counsel for the original complainant has not been able to show any perversity in exercise of the discretion by the Magistrate in passing the impugned order dated 24.10.2003, whereby the inquiry is ordered under Section 202 of CrPC. [Para 8]
Head Note :
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Complaint — Second Complaint to police — Same subject matter — Held, not maintainable for taking cognizance — Court quashed second complaint.
Held :
It is by now well settled that the second complaint for the same subject matter would not be maintainable before the Court for taking cognizance thereof in normal circumstances.
[Para 10]
It is an admitted position that the subsequent complaint with the police is for the same subject matter, on the same accusation. When the Magistrate has already ordered inquiry under Section 202 in respect to the first complaint, and the said inquiry is also to be made by the police and the report is to be submitted before the Magistrate apart from the fact that the second complaint may not be maintained, if the second complaint with the police vide C.R. No. 62/04 is allowed to continue, it would result into further complication and the investigation by the police may be premature prior to the competent Court considers the matter for the alleged offence. [Para 11]
Law Laid Down :
It is by now well settled that the second complaint for the same subject matter would not be maintainable for taking cognizance in normal circumstances.
Jayant Patel, J.—As the facts in all the petitions are interconnected, they are being considered by this common Judgement.
2. The short facts of the case appears to be that the petitioner of Special Criminal Application No. 1097/03 filed private complaint before the Chief Judicial Magistrate, First Class, Vadodara being registered as Complaint No. 221/03 against one Bharatbhai Dahyabhai Barot, Sureshbhai Parshottambhai Brahmbhatt and Aminuddin @ Aman Isamaddin Sheikh, for the offences under Sections 465, 466, 467, 467 read with Sections 468 and 120-B of the IPC on the ground that all the accused formed an unlawful assembly and have concocted the bogus documents and the rights of the original complainant in the property are frustrated. It appears that the learned Magistrate passed an order for holding inquiry under Section 202 of the CrPC. The original complainant being aggrieved by the said order of the learned Magistrate, has preferred Special Criminal Application No. 1097/03 for the relief inter alia to quash and set aside the order of the Judicial Magistrate (Annexure-A) and to direct the Chief Judicial Magistrate to order inquiry under Section 156(3) of the CRPC. It further appears that pending the petition, the interim stay came to be granted in terms of Para 8-C. As a result thereof, the operation of the order passed by the Chief Judicial Magistrate remained stayed. Consequently, the inquiry under Section 202 of the CRPC has not proceeded further.
3. It appears that thereafter, the very complainant filed another complaint vide C.R. No. 62/04 with J.P. Road Police Station, Vadodara, on the same accusation of concoction of documents, but in the said complaint, the name of certain accused have been added which were not mentioned in the private complaint. Some of the accused in the said criminal complaint filed before the police have preferred Cr. Misc. Application No. 1496/04 for quashing of the complaint filed before the Police vide CR.No.62/04. It appears that one of the accused of the said police complaint, viz. Bharatbhai Dahyabhai Barot, has preferred a separate Cr. Misc. Application No. 1652/04 for quashing of the same complaint registered vide CR.No. 62/04 with J.P.Road Police Station, Vadodara. Pending the petition, the investigation pursuant to the complaint appears to have not proceeded further since the interim relief was granted by this Court.
4. Heard Mr. Darji for Mr. Lakhani, Mr. D.J.Bhatt, Mr. N.K. Majmudar, Mr. Saiyed as well as the learned APP appeared for the State and the police in the respective petitions.
5. It appears that it is an admitted position by the learned counsel for the private parties as well as the learned APP confirmed the same that the subject matter of the private complaint filed before the learned Magistrate by the original complaint and the complaint filed before the subsequently registered vide C.R. No. 62/04 is the same.
6. Under these circumstances, two aspects may be required to be examined. One would be the legality and validity of the order passed by the learned Magistrate for holding inquiry under Section 202 of the CrPC in the private complaint filed by the original complainant and the another would be as to whether considering the facts and circumstances, the subsequent complaint filed with the police for the same subject matter deserves to be quashed or not.
7. On the first aspect, it appears that when any complaint is filed before the Court, discretion lies with the Court to be exercised judicially as to whether it would be a fit case to order inquiry under Section 202 of the CrPC by the Court itself or it should be sent for police investigation under Section 156(3) of CrPC. In the present case, the learned Magistrate has passed the order under Section 202 of CrPC to the effect that Police Inspector, J.P. Road Police Station would inquire into the matter and submit the report within 60 days. Therefore, the learned Magistrate has found it proper to take cognizance or oth
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