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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Bhimabhai Sejabhai Chavda - Appellant
Versus
State Of Gujarat - Respondents
R/Criminal Misc. Application No.15971 of 2017
Decided on : 01-02-2019
Criminal Procedure, 1973 – Section 156(1),156(3),200,202,340 – clauses (1), (b) and (c) of Section 190(1) – Indian Penal Code, 1860 – Section Sections 465, 467, 468, 471, 193 and 114, 365, 323, 294(b), 506(1) – Seeks quashing of order passed by Chief Judicial Magistrate – Whether Magistrate is said to have taken cognizance by passing impugned order as per Section 340 of Code – It is open to Magistrate to direct police to register an FIR. There is nothing illegal in doing so – Even if a Magistrate does not say in so many words while directing investigation u/s. 156(3) of Criminal Procedure Code that an FIR should be registered, it is duty of officer in charge of police station to register FIR regarding cognizable offence disclosed by complaint because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C. only thereafter – Application made by respondent no.2, Magistrate has ordered to register the same and has called for the report from the concerned authority. Neither the applicant-respondent no.2 nor any witness is examined on oath by him. Thus, no procedure as envisaged under section 200 of Code is followed by Magistrate – Magistrate has not taken any cognizance under section 200 of the Code on application made by respondent no.2 and thus, he has not passed any order of inquiry under section 202 of Code. By passing impugned order directing police to undertake investigation under section 156(3) of Code – Magistrate has not committed any illegality and same is passed in conformity with provisions of Code – Contention advanced by petitioners that Magistrate, after taking cognizance under section 202 of Code, has thereafter reverted to provisions of section 156(3) of Code fails legal scrutiny, and is hereby rejected – Hence Application Dismissed – [Paras 17,20,21, 22]
Facts of the case:
Seeks quashing of order passed by Chief Judicial Magistrate – whole Consideration of questions Whether Magistrate is said to have taken cognizance by passing impugned order as per Section 340 of Code.
Findings of the court:
Magistrate has not taken any cognizance under section 200 of the Code on application made by respondent no.2 and thus, he has not passed any order of inquiry under section 202 of Code. By passing impugned order directing police to undertake investigation under section 156(3) of Code – Magistrate has not committed any illegality and same is passed in conformity with provisions of Code – Contention advanced by petitioners that Magistrate, after taking cognizance under section 202 of Code, has thereafter reverted to provisions of section 156(3) of Code fails legal scrutiny, and is hereby rejected.
Result: writ application Dismisssed
1. By way of the present writ application, the applicants seeks quashing of the order dated 15.05.2017 passed by the Chief Judicial Magistrate, Ahmedabad (Rural) below application Exh.1, whereby the Magistrate has directed the police investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (for short “the Code”) and further to register M. Case No.1 of 2017 at Sola High Court Police Station, Dist. Ahmedabad, for the offences punishable under Sections 465, 467, 468, 471, 193 and 114 of the Indian Penal Code, 1860 (for short “the IPC”).
2. The facts of the case as mentioned in the memo of the application are as under:
2.1. An F.I.R. was registered at Sola High Court Police Station being C.R.No.120 of 2017 dated 20.01.2017 for the offences punishable under Sections 365, 323, 294(b), 506(1) and 114 of the IPC. The accused persons named therein were arrested and were produced before the concerned Magistrate. Pursuant to the said F.I.R., an application seeking regular bail was preferred by the accused therein before the Magistrate who, vide order dated 23.01.2017, released the accused on regular bail by imposing certain conditions, which were complied with by the accused persons, however, the complainant has questioned the genuineness of the solvency certificates being produced by the accused persons as per the order passed by Chief Judicial Magistrate. An application was filed by respondent no.2 before the Chief Judicial Magistrate Court. The Magistrate, having received the copy of the said application, passed an order below the said application Exh.1 to register such application as inquiry case and to call for the report of the concerned authority.
2.2 Thereafter, the Magistrate has called for the inquiry report in Criminal Inquiry Case No.150 of 2017. The inquiry was initiated and the statements of the relevant witnesses were recorded by the concerned authorities and a report was submitted before the Magistrate. Considering the report, the Chief Judicial Magistrate found that bogus, forged and fabricated documents in the nature of the solvency certificates have been produced to fulfill the condition of the bail. By an order dated 15.05.2017, the Chief Judicial Magistrate, by invoking provisions of Section 156(3) of the Code, ordered the concerned Investigating Officer to register the offence and to carry out the police investigation against the accused persons. The Chief Judicial Magistrate also passed an order to complete the investigation and to file a final report within a period of 90 (ninety) days before the concerned court and the accused persons were ordered to be taken into judicial custody by seizing the cash deposit of Rs.50,000/and the application to accept the fresh solvency certificate was rejected. Pursuant to the aforesaid order, a complaint has been registered being M. Case No.1 of 2017 before the Sola High Court Police Station, Ahmedabad, for the offences punishable under Sections 465, 467, 468, 471, 193 and 114 of the IPC.
3. Learned advocate Mr.Khambholja appearing for the applicants has submitted that the Magistrate has misread the provisions of Sections 200 and 156(3) of the Code. He has submitted that taking cognizance of an offence has not been defined in the Code and the same can be taken as per the provision set out in clauses (1), (b) and (c) of Section 190(1) of the Code. He has further submitted that in the present case, the Magistrate has taken cognizance of the offence and has passed an order to register the complaint and to initiate inquiry by calling a report from the concerned authority. Thus, it can be said that the Magistrate has taken cognizance on the application preferred by the complainant.
3.1 Learned advocate Mr. Khambolja has asserted that after the inquiry report was submitted before the Magistrate, he switched back to precognizance stage and directed the police to register the offence under Section 156(3) of the Code and to file a report within a period of 90 (nine
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