The Magistrate has discretion under Section 156(3) of the CrPC to decide on police investigation, and is not obligated to proceed with an FIR based on the complainant's request.

ORDER :

HASMUKH D. SUTHAR, J.

[1.0] Since the issue involved in all these petitions is same and all the petitions are filed challenging the order passed by the learned Magistrate sending the complaint of the respective petitioners – original complainants against common respondent Nos.2 to 8, for inquiry under Section 202 of the Code of Criminal Procedure, 1973 (for short “CrPC”) and which has been upheld by the learned Additional Sessions Judge, all these petitions are heard, decided and disposed of by this common oral judgment.

[2.0] By way of present petitions under Articles 14, 21, 226 and 227 of the Constitution of India, the petitioners – original complainants are seeking quashing of order passed by the learned 15^th Additional Senior Civil Judge and Chief Judicial Magistrate, Surat below Exh.1 as well as the order passed by the learned 12^th Additional Sessions Judge, Surat. The details of order passed by the learned Magistrate as well as learned Additional Sessions Judge qua respective petitioners is as under:

For the sake of brevity and convenience, Special Criminal Application No.6461 of 2025 is taken as a lead matter and facts of the said petition are considered.

[3.0] That, the petitioner – original complainant is engaged in the business of buying and selling gold as well as processing gold as per the orders. Respondent Nos.2 to 8 – accused are also in the business of gold jewelry and they buy gold from various traders on credit in accordance with market norms and selling it in retail in the name of the partnership firm namely “Varman Jewelers”. It is further the case that the accused after purchasing the gold from the respective petitioners did not pay the amount and with the same modus operandi, the accused duped and cheated the respective petitioners and therefore, the respective petitioners – original complainants filed detailed complaints with Umra Police Station against the accused for the offence under Sections 406 , 409, 420, 114, 120(B) and 34 of the IPC however, even after several efforts, the same was not registered as an FIR and therefore, the petitioners were constrained to file respective applications before the learned Magistrate under Section 156(3) of the CrPC for registration of FIR.

[3.1] The learned Magistrate vide the impugned order sent the complaint of the respective petitioners for police inquiry under Section 202 of the CrPC. Being aggrieved with the said order, the petitioners filed respective Criminal Revision Applications before the learned Additional Sessions Judge which was also dismissed and confirmed the order passed by the learned Magistrate.

[3.2] Being aggrieved with both the orders, the petitioners have filed respective petitions as detailed hereinabove.

[4.0] Heard learned advocate for the petitioner and learned APP for respondent No.1 – State of Gujarat.

[5.0] Learned advocate for the petitioner has submitted that the learned Magistrate has committed an error and no reason is assigned as to why the matter is not referred to or directed for investigation under Section 156(3) of the CrPC and has been sent by the learned Magistrate for inquiry under Section 202 of the CrPC. The learned Magistrate has not properly exercised the discretion despite of the fact that cognizable offence is made out. The learned Magistrate is not justified in not passing order for investigation under Section 156(3) of the CrPC. Considering the nature of offence, custodial interrogation of the accused persons is required though the learned Magistrate has ordered inquiry under Section 200 / 202 of the CrPC. To buttress his argument, learned advocate for the petitioner has relied on the decision of Allahabad High Court in the case of Hari Krishna Das Gupta vs. State of U.P. reported in 2007 (25) RCR (Criminal) 120 and decision of Kerala High Co