[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (QUASHING) NO[CASE NUMBER] 1567 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR[CASE NUMBER]JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT], 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] Applicant(s) Versus [ENTITY] & 2 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No[CASE NUMBER] 1 MR[CASE NUMBER]J [ENTITY], ADVOCATE for the Applicant(s) No[CASE NUMBER] 1 MS HB PUNANI, APP for the Respondent(s) No[CASE NUMBER] 1 CORAM: HONOURABLE MR[CASE NUMBER]JUSTICE [ENTITY] Date : 09/02/2015 CAV JUDGMENT
1[CASE NUMBER] Rule returnable forthwith[CASE NUMBER] Learned APP Ms[CASE NUMBER] [ENTITY] waives service of notice of Rule for the respondents[CASE NUMBER]
2[CASE NUMBER] This petition is filed under [SECTION] of the [ACT] with a prayer to quash and set aside the order dated 19[CASE NUMBER]02[CASE NUMBER]2014 passed by the learned Chief Judicial Magistrate, Mehsana in [CASE NUMBER], by which, the learned Chief Judicial Magistrate has not accepted the request of the complainant to send the complaint for investigation under [SECTION] of the [ACT] (hereinafter referred to as 'the Code'), and also prayed to direct respondent No[CASE NUMBER]2 to register the written complaint given by the petitioner as an FIR and to investigate it in conformity with the provisions of Code[CASE NUMBER]
3[CASE NUMBER] The brief facts are as under:
3[CASE NUMBER]1[CASE NUMBER] It is the case of the petitioner that he has given a written complaint dated [CASE NUMBER] against 5 persons for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] to the Police Inspector of Mehsana 'B' Division Police Station[CASE NUMBER] The said complaint was sent by Registered Post[CASE NUMBER] It is the case of the petitioner that the concerned Police Inspector has not recorded the said written complaint as an FIR and therefore he also gave an application to [ENTITY] on 12[CASE NUMBER]09[CASE NUMBER]2013 in which he had pointed out that the concerned Police Inspector of Mehsana 'B' Division Police Station has not recorded the written complaint given by him on [CASE NUMBER] as an FIR and therefore the action be taken against the said officer[CASE NUMBER] The petitioner also requested the [ENTITY] to register the FIR and further requested to investigate the said case through independent officer[CASE NUMBER] The petitioner further stated in the petition that when the concerned police authorities have not taken any action in pursuant to the written complaint submitted by the petitioner, he approached before the learned Chief Judicial Magistrate Court, Mehsana by filing written complaint against the proposed accused for the alleged offence[CASE NUMBER] The said written complaint is filed by the petitioner on 16[CASE NUMBER]12[CASE NUMBER]2013 before the Chief Judicial Magistrate, Mehsana[CASE NUMBER] It is the case of the petitioner that the learned Chief Judicial Magistrate, Mehsana, by impugned order dated 19[CASE NUMBER]02[CASE NUMBER]2014, has not sent the complaint filed by the petitioner for investigation under [SECTION] of the Code and the learned Chief Judicial Magistrate, Mehsana has not assigned any reasons for not sending the matter for investigation under [SECTION] of the Code[CASE NUMBER] Hence, the impugned order dated 19[CASE NUMBER]02[CASE NUMBER]2014 passed by the learned Chief Judicial Magistrate, Mehsana be quashed and set aside and this Court may direct respondent No[CASE NUMBER]2 to register the written complaint given by the petitioner as an FIR and to investigate it in conformity with the provisions of [ACT]
4[CASE NUMBER] Heard learned advocate Mr[CASE NUMBER] [ENTITY] with Mr[CASE NUMBER] [ENTITY] for the petitioner and learned APP Ms[CASE NUMBER][ENTITY][CASE NUMBER]
5[CASE NUMBER] Learned advocate for the petitioner mainly submitted that the respondent police authorities have failed in discharge of their duty by not registering the written complaint given by the petitioner as an FIR though the allegations are levelled against the proposed accused for the commission of the cognizable offence[CASE NUMBER] It is further submitted by the learned advocate that when the petitioner approached before the learned Chief Judicial Magistrate, Mehsana by filing a written complaint under [SECTION] of the Code and when the petitioner - complainant prayed that the complaint be sent for investigation under [SECTION] of the Code, the learned Magistrate, without assigning any reasons, observed that the complaint is not required to be sent for investigation under [SECTION] of the Code[CASE NUMBER] The learned advocate for the petitioner further submitted that it is the duty of the learned Magistrate to assign the reasons if he is not inclined to send the said complaint for investigation under [SECTION] of the Code[CASE NUMBER] Thus, the learned advocate for the petitioner prayed that the impugned order be quashed and set aside and the police authorities be directed to register the written complaint given by the petitioner as an FIR[CASE NUMBER]
6[CASE NUMBER] On the other hand, learned APP Ms[CASE NUMBER][ENTITY] submitted that prima facie the cognizable offence is not made out from reading the written complaint given by the petitioner and therefore the police authorities have rightly not registered the written complaint given by the petitioner as an FIR[CASE NUMBER] Learned APP further submitted that the petitioner has exercised his option of filing a private complaint before the Magistrate Court and therefore now the police authorities may not be directed to register the FIR on the basis of the written complaint given by the petitioner[CASE NUMBER] The learned APP further submitted that when the complaint is filed before the learned Magistrate, the learned Magistrate can send the said complaint for investigation under [SECTION] of the Code or he can pass an order of inquiry under [SECTION] of the Code or the learned Magistrate may directly issue the process to the accused[CASE NUMBER] In the present case, when the learned Magistrate has not found any substance in the allegations levelled in the complaint and chosen not to send the written complaint of the petitioner for investigation under [SECTION] of the Code, it cannot be said that the learned Magistrate has committed any error[CASE NUMBER] The petitioner complainant can give his verification before the learned Magistrate and thereafter the learned Magistrate would pass an appropriate order[CASE NUMBER] Thus, the learned Magistrate has committed no error and therefore this petition may be dismissed[CASE NUMBER]
7[CASE NUMBER] Having heard the learned advocates for the respective parties and having gone through the record and the evidence produced on record and the order impugned in this petition, it appears that initially the petitioner gave an application on [CASE NUMBER] against the five persons for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] to the Police Inspector of Mehsana 'B' Division Police Station[CASE NUMBER] However, the said officer has not recorded the said complaint as an FIR and therefore the petitioner sent the said written complaint to respondent No[CASE NUMBER]3, [ENTITY] on 12[CASE NUMBER]09[CASE NUMBER]2013[CASE NUMBER] However, since no steps were taken by the respondent police authorities, petitioner approached the learned Magistrate, Mehsana by filing private complaint on 16[CASE NUMBER]12[CASE NUMBER]2013[CASE NUMBER] Initially, the learned Magistrate, by an order dated 16[CASE NUMBER]12[CASE NUMBER]2013, called for the police report from the Police Sub Inspector, Mehsana 'B' Division Police Station with regard to the steps taken by him in pursuant to the written complaint given by the petitioner and thereafter, by an the impugned order dated 19[CASE NUMBER]02[CASE NUMBER]2014, the learned Magistrate refused to send the said complaint for investigation under [SECTION] of the Code[CASE NUMBER] In the impugned order, the learned Magistrate has specifically stated that he has read the complaint and heard the learned advocate for the complainant[CASE NUMBER] However, looking to the facts of the complaint, he was of the opinion that the said complaint cannot be sent for investigation under [SECTION] of the Code[CASE NUMBER] He has further stated in the impugned order that if the complainant is inclined to give his verification, he shall remain present before the Court on 10[CASE NUMBER]03[CASE NUMBER]2014[CASE NUMBER] Thus, from the impugned order, it is clear that the learned Magistrate has initially called for the report from concerned P[CASE NUMBER]S[CASE NUMBER]I[CASE NUMBER] and thereafter after reading the contents of the complaint and after hearing the arguments of the learned advocate for the petitioner, he formed an opinion that the said complaint is not required to be sent for investigation under [SECTION] of the Code[CASE NUMBER] He has further specifically stated in the impugned order that the complaint given by the petitioner is required to be proceeded further after following the procedure prescribed under [SECTION] of the Code and therefore he observed in the order that if the complainant is inclined to give his verification, he shall remain present on 10[CASE NUMBER]03[CASE NUMBER]2014[CASE NUMBER]
8[CASE NUMBER] In this factual background of the present case, the only contention which has been taken by the learned advocate for the petitioner is required to be considered in this petition[CASE NUMBER] The sole contention of the learned advocate for the petitioner is that the learned Magistrate has not assigned any reason for not sending the matter for investigation under [SECTION] of the Code and therefore the impugned order is required to be quashed and set aside[CASE NUMBER] In support of such contention, learned advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court rendered in the case of [ENTITY] & Ors[CASE NUMBER] V[CASE NUMBER] M[CASE NUMBER] K[CASE NUMBER] Aiyappa & Anr[CASE NUMBER] reported in (2013) 10 SCC 705[CASE NUMBER] in the said decision, the Hon'ble Supreme Court, in para 8, has observed as under:
"8[CASE NUMBER] We may first examine whether the Magistrate, while exercising his powers under [SECTION] [ACT], could act in a mechanical or casual manner and go on with the complaint after getting the report[CASE NUMBER] The scope of the above mentioned provision came up for consideration before this Court in several cases[CASE NUMBER] This Court in [ENTITY] case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under [SECTION] and held that where a jurisdiction is exercised on a complaint filed in terms of [SECTION] or [SECTION] [ACT], the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under [SECTION] against a public servant without a valid sanction order[CASE NUMBER] The application of mind by the Magistrate should be reflected in the order[CASE NUMBER] The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient[CASE NUMBER] After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under [SECTION] [ACT], should be reflected in the order, though a detailed expression of his views is neither required nor warranted[CASE NUMBER] We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation[CASE NUMBER]"
9[CASE NUMBER] Thus, from the aforesaid observations of the Hon'ble Supreme Court, it is clear that the question for consideration before the Hon'ble Supreme Court was whether the learned Magistrate while exercising his powers under [SECTION] of the Code, could act in a mechanical or casual manner and go on with the complaint after getting the report, and looking to the facts of the said case, the Hon'ble Supreme Court held that after going through the complaint, documents and hearing the complainant what weighed with the Magistrate to order investigation under [SECTION] of the Code should be reflected in the order, though a detailed expression of his views is neither required nor warranted[CASE NUMBER]
10[CASE NUMBER] In the present case, the learned Magistrate has not sent the complaint for investigation under [SECTION] of the Code and therefore the learned Magistrate is not required to assign the reasons for not sending the said matter for investigation under the aforesaid section[CASE NUMBER]
11[CASE NUMBER] At this stage, provisions of [SECTION] and [SECTION] of the Code are required to be considered[CASE NUMBER] [SECTION] provides thus:
"156[CASE NUMBER] Police officer's power to investigate cognizable cases[CASE NUMBER] -
(1) xxxxxx (2) xxxxxx (3) Any Magistrate empowered under [SECTION] may order such an investigation as above mentioned[CASE NUMBER]"
12[CASE NUMBER] Now, the provisions of [SECTION] of the Code read thus:
"202[CASE NUMBER] Postponement of issue of process[CASE NUMBER]
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under [SECTION], may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or
(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under [SECTION] In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath[CASE NUMBER]
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer in charge of a police station except the power to arrest without warrant[CASE NUMBER]"
13[CASE NUMBER] From the aforesaid provisions, it appears that [SECTION] of the Code falls under [SECTION][CASE NUMBER] The said Section deals with the powers of police officer to investigate the cognizable offences, whereas, investigation envisaged under [SECTION] contained in [SECTION] is different from the investigation contemplated under [SECTION] of the Code[CASE NUMBER] The investigation contemplated under [SECTION] can be commenced by the police even without the order of the Magistrate but that does not mean that when a Magistrate orders an investigation under [SECTION], it would be a different kind of investigation[CASE NUMBER] Such investigation must also end up only with the report contemplated under [SECTION][CASE NUMBER] However, the important point to be noticed is, when a Magistrate orders investigation under [SECTION], he does so before he takes cognizance of the offence[CASE NUMBER] However, a Magistrate need not order any such investigation if he proposes to take cognizance of the offence[CASE NUMBER] Once he took cognizance of the offence, he has to follow the procedure envisaged under [SECTION] of the Code[CASE NUMBER]
14[CASE NUMBER] Thus, if the Magistrate is passing an order of investigation under [SECTION] of the Code, the said stage can be said to be a pre- cognizance stage[CASE NUMBER] If the Magistrate passes an order of investigation under [SECTION] of the Code, the concerned police authority is required to register the said complaint as an FIR and thereafter he has to proceed with the investigation[CASE NUMBER] Thus, though it is a pre- cognizance stage, as per the order passed by the Hon'ble Supreme Court in the case of [ENTITY] (Supra), the Magistrate has to assign brief reasons which should suggest why the investigation is required[CASE NUMBER] Hence, registration of the FIR on the basis of the investigation ordered by the learned Magistrate is a serious matter and therefore the Hon'ble Supreme Court has held that brief reasons are required to be assigned by the learned Magistrate[CASE NUMBER]
15[CASE NUMBER] However, if the learned Magistrate is not inclined to pass an order of investigation under [SECTION] of the Code and if he is of the opinion that after recording of the verification of the complainant he will proceed with the complaint under [SECTION] of the Code, in my humble opinion, the learned Magistrate is not required to assign reasons for the said purpose[CASE NUMBER] In the present case, as observed earlier, the learned Magistrate has specifically stated in the impugned order that he has perused the contents of the complaint and heard the arguments of the learned advocate of the complainant and from the contents of the complaint, he is of the opinion that the said complaint is not required to be sent for investigation under [SECTION] of the Code and therefore if the complainant wants to give his verification, he shall remain present on 10[CASE NUMBER]03[CASE NUMBER]2014[CASE NUMBER] Thus, in the facts of the present case, learned Magistrate has assigned brief reasons from which it is culled out that the learned Magistrate was not inclined to send the matter for investigation and the complaint filed by the petitioner is required to be proceeded under [SECTION] of the Code[CASE NUMBER] Thus, the learned Magistrate has not committed any illegality[CASE NUMBER]
16[CASE NUMBER] In the case of [PRECEDENT], the Hon'ble Supreme Court has held that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process[CASE NUMBER] However, there is no such legal requirement imposed on a magistrate for passing detailed order while issuing summons[CASE NUMBER] Similar view is taken by the Hon'ble Supreme Court in another decision in the case of Jagdish Ram v[CASE NUMBER] State of Rajasthan & Anr[CASE NUMBER] reported in (2004) 4 SCC
432[CASE NUMBER]
17[CASE NUMBER] Thus, in the facts and circumstances of the present case, when the learned Magistrate has decided to proceed further under [SECTION] of the Code, verification of the complainant is required and therefore the learned Magistrate would proceed further under the said Chapter and therefore it is not proper on the part of the petitioner to contend that the learned Magistrate is required to record detailed reasons for not sending the matter for investigation under [SECTION] of the Code[CASE NUMBER] Hence, such contention is required to be discarded[CASE NUMBER]
18[CASE NUMBER] In view of the aforesaid discussion, the learned Magistrate has not committed any error, which calls for interference by this Court[CASE NUMBER] Hence, the petition deserves to be dismissed and is, accordingly, dismissed[CASE NUMBER] Rule is discharged[CASE NUMBER]
([ENTITY], J[CASE NUMBER]) [ENTITY]