IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 55 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- VACHASPATI R PANDEY Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AMIT J SHAH for Petitioner MR SAMIR J DAVE, APP, for Respondent No. 1 MR YF MEHTA for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 13/11/2000 ORAL JUDGEMENT Heard the learned counsel for the parties. 2. Prayer has been made by the petitioner in this petition under Article 226 of the Constitution, which is not the correct provision, but this is the petition under Article 227 of the Constitution, for quashing and setting aside the order dated 7-6-1996 in criminal case no.1707/96 of the Metropolitan Magistrate Court No.15, Ahmedabad rejecting the `C' Summary filed by the Ellisbridge Police and issuing summons on the petitioner. 3. The complainant-respondent No.2 filed a complaint on 17-2-1995 against the petitioner in the court of Metropolitan Magistrate, Court No.15 at Ahmedabad for the offence under sections 468, 511 and 420 of I.P.C.. This complaint was sent for investigation by the Metropolitan Magistrate to Ellisbridge Police Station, Ahmedabad under section 156(3) of the code of Criminal Procedure, 1973 where it was registered as M. Case No.22/95. After making investigation, the Ellisbridge Police filed `C' Summary in the Court on 16-8-1995. That was not accepted. The cognizance was taken and the petitioner was summoned. 4. It is no more res integra that the report of the police is not binding on the Magistrate. If there is sufficient material, the learned Magistrate has all powers to take cognizance of the offence even in a case where on investigation of the complaint made, `C' Summary has been submitted. Reference here may have to the decision of the Apex Court in the case of State of Maharashtra vs. Sharad Chandra Vinayak Dongze reported in AIR 1995 SC 231. In view of this decision of the Apex Court, the learned magistrate was well within its power and jurisdiction not to accept the `C' Summary and to take cognizance in the matter. As a result of taking the cognizance naturally this accused is to be summoned and that what it has been done in the present case by the learned Magistrate, to which no exception can be made. 5. It is the contention of the learned counsel for the petitioner that no case has been made out against the petitioner. He has been falsely implicated in the matter. Even if it is correct, I fail to see how far it is open to the petitioner to come up before this Court by this petition under Article 227 of the Constitution. Their Lordships of the Hon'ble Supreme Court in the case of Khacheru Singh vs. State of U.P. reported in AIR 1982 SC 784 held that where the learned Magistrate issue summons to the accused, the Sessions Court in the revision as well as this Court may not be justified in all the cases to quash and set aside the same. It is a matter where the Magistrate has all powers to discharge or acquit the accused if no offence is made out. Merely taking cognizance and issuing summons does not mean that final conviction has been recorded of the accused. The accused has all the right to appear before the Magistrate and taking of the proceedings for his discharge. 6. In view of the decision of the Apex Court in the case of Khacheru Singh vs. State of U.P. (supra), no interference is called for in the order passed by the learned trial court, at this stage. 7. This special criminal application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted stands vacated. No order as to costs. ********** zgs/-