A Magistrate must not express views on the merits of a case when directing an investigation under Section 156(3) of the Cr.P.C., as it may compromise the integrity of the investigation.

JUDGMENT :

1. Since common question of facts and law involved in the captioned applications and same arise out of the order dated 19.05.2021, they were heard together and being disposed of by this common order.

2. Since the applicant Ashaben Patel (SCR.A 5079 of 2021) has died during the pendency of the application, same does not survive and is accordingly disposed of.

3. The applicants – original accused Nos. 1 and 2 of the Criminal Enquiry No. 2 of 2021, have preferred these applications under Article 226 and 227 of the Constitution of India, read with Section 482 of the Cr.P.C. thereby, they seek to challenge the legality and validity of the impugned order dated 19.05.2021 passed by the Court of Judicial Magistrate at Unjha, District : Mehsana in Criminal Inquiry No. 2 of 2021.

4. The brief facts leading to file the present applications are that, the second respondent filed a private complaint under Section 156(3) of the Cr.P.C. for the offence punishable under Sections 405, 406, 409, 467, 471, 120B of the IPC before the Court of Judicial Magistrate at Unjha, Dist.: Mehsana and same is registered as Enquiry Case No. 2 of 2021. After hearing the complainant and on perusal of the documentary evidence, the trial Court transmitted the said complaint to Gandhinagar CID Crimes Police Station and directed to register an FIR and investigate the matter and further directed to submit the report within 60 days. The accused applicants were holding the post of Secretary and Chairman of the Agricultural Produce Market Committee (for short ‘APMC’) at Unjha, Dist.: Mehsana, whereas, deceased Ashaben Patel was arraigned as accused no. 3 as at relevant time she was Member of Legislative Assembly of Unjha-21. The second respondent being an employee of APMC, Unjha in his complaint alleged that, despite the disclosure of the cognizable offence, the Unjha police did not register the FIR and therefore, he constrained to file the complaint for necessary direction. The allegations made against the applicants with regard to embezzlement of public money as according to say of the complainant, the accused by manipulating the account software, made alteration in the receipts of usage charges and thereby misappropriated the huge amount of user charges for their own benefit and caused the financial loss to the institution. The trial Court after hearing the complainant, before taking cognizable of the offence, vide its order dated 19.05.2021 directed the CID Crimes Police Station, Gandhinagar to register an FIR and investigate the matter for the aforesaid offences, as contemplated under Section 156(3) of the Cr.P.C.

5. Aggrieved with the said order, the applicants are before this Court mainly on the ground that, the trial court by examining the merits of the case, has taken the cognizance and considering Section 47 of the APMC Act, without valid sanction, the trial Court cannot take cognizance of the offence. The second issue is raised that, the court has travelled beyond its jurisdiction while entrusting the investigation to the State CID Crime Branch.

6. This Court has heard learned Senior Counsel Mr. Yogesh Lakhani, Mr. Jal Unwala and Mr. Prakash Jani, learned counsel assisted by their respective advocate on record namely Mr. Rahul Dholakia, Ms. Tejal Vashi, and Mr. Shivang Jani appearing for and on behalf of the applicants herein and Senior Advocate Mr. I.H. Syed, assisted by Mr. Aniq Kadri for the private respondent and Ms. Chetna Shah, learned APP for the respondent State.

7. The following contentions have been raised by the learned counsel appearing for the applicants :

(a) That the allegations made in the complaint do not disclose the cognizable offence or made out any offence and the complaint has been filed with malafide intention for wreaking the vengeance on the applicants and with a view to spite him due to private and personal grudge. In the year 2010-20 i.e. on 08.09.2020, the applicants came to know that the complainant Saumil Patel had installed