CR.MA/833/2002 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 833 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= BACHUBHAI GORDHANBHAI VAGHER & ANR Versus STATE OF GUJARAT & ANR ========================================= Appearance : MR KB ANANDJIWALA for Applicants MR M.R. MENGDEY APP for Respondent No.1 State Respondent No.3 served ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 22/08/2008 CAV JUDGMENT : 1. Present petitioners are accused of `M' Case No.4 of 2001, registered before `A' Division Police Station of Junagadh City, for the offences punishable under Sections 193, 464, 465, 467 and 471 of the CR.MA/833/2002 2/11 JUDGMENT Indian Penal Code. 2. It is unfortunate that the Judicial Magistrate, First Class, who has filed complaint, has been made respondent No.2 herein, which ought not to have been made as the complaint has been preferred by learned Magistrate in his official capacity. As per brief facts of the case, Sixth Joint Civil Judge (JD), Junagadh, Mr. A.N. Vijoda, gave his complaint in the Court of Chief Judicial Magistrate, Junagadh, on 25th of December, 2001 against the present petitioners, for the offences punishable under Sections 193, 464, 465, 467 and 471 of the Indian Penal Code, alleging that when Shri Vijoda was discharging his duties as Sixth Joint Civil Judge (JD), Junagadh, a Regular Civil Suit, being Civil Suit No. 1009 of 1993, was being conducted before him. During the proceedings of the said Civil Suit, learned Advocate for the defendant filed an application at Exhibit-69 stating that a witness of the plaintiff, who deposed by Exhibit-36, personated himself to be one “Somabhai” but, in fact, he was not Somabhai, but he was Bharat Lavji and, in fact, he happened to be nephew of plaintiff Bachubhai Godarhanbhai Vadhar - petitioner No.1 herein and, hence, it was requested that action should be taken against plaintiff - Bachubhai Gordhanbhai Vadher, petitioner No.1 and Bharat @ Somu Lavjibhai - petitioner No.2 herein for the offences punishable under Sections 191, CR.MA/833/2002 3/11 JUDGMENT 192, 193 of the Indian Penal Code as envisaged by Section 195 of the Code of Criminal Procedure. Learned Sixth Joint Civil Judge (JD), held an inquiry and passed the order below Exhibit-69 on 18.12.2001 and come to the conclusion that the documents at Exhibits 32 and 33 produced on record by the plaintiff are tampered with and witness Bharat Lavji personated and gave the evidence and, therefore, by said order, it was directed that a complaint be filed in the court of a competent jurisdiction. Thereafter, Sixth Joint Civil Judge (JD) and Judicial Magistrate, First Class, Mr. A.N. Vijoda, preferred a complaint in the Court of Judicial Magistrate, First Class, on 25th of December, 2001 stating that during the proceedings of Regular Civil Suit No. 1009 of 1993, it was found that one witness personated himself and that the plaintiff had tampered with the documents at Exhibits 32 and 33. The complaint came to be filed for the charges under Sections 193, 464, 465, 467 and 471 of the Indian Penal Code. The learned Chief Judicial Magistrate, First Class, Junagadh, was pleased to forward the said complaint filed by learned Sixth Joint Civil Judge (JD), as aforesaid, to the police for investigation under Section 156 (3) of the Code of Criminal Procedure, which was registered as `M' Case No.4 of 2001, on 25th of December, 2001 at `A' Division Police Station of Junagadh City and, therefore, this petition is filed for a relief that the order passed by the learned Chief Judicial Magistrate, First Class, directing the police to CR.MA/833/2002 4/11 JUDGMENT investigate into the complaint, being Inquiry Case No.113 of 2001, under Section 156(3) of the Code of Criminal Procedure, be quashed. 3. Learned Senior Counsel Mr. K.V. Anandjiwala for the petitioners and learned APP Mr. M.R. Mengdey for respondent No.1 State were heard in detail. 4. Learned Senior Counsel Mr. Anandjiwala for the petitioners submitted that the order passed by the learned Chief Judicial Magistrate directing the police to investigate the complaint, being Inquiry Case No. 113 of 2001, under Section 156(3) of the Criminal Procedure Code on presenting the complaint was absolutely illegal and by continuing the said order would cause grave prejudice to the accused and, therefore, the said order cannot be permitted to be sustained. It is submitted that the order passed is without jurisdiction and, in fact, after registering the case, either any inquiry was required to be made under Section 202 of the Code of Criminal Procedure or after registering the complaint, summonses ought to have been issued, but directing investigation under Section 156(3) of the Code of Criminal Procedure is absolutely without jurisdiction. It is submitted that from the order passed below Exhibit-69 by Sixth Joint Civil Judge (JD) Mr. Vijoda, it becomes crystal clear that he had taken cognizance of the commission of the CR.MA/833/2002 5/11 JUDGMENT offence under Section 195 (1)(b) of the Code of Criminal Procedure and directed to lodge the complaint against the petitioner No.2 Bharat Lavjibhai and, hence, in terms, the learned Magistrate had already taken cognizance under Section 200 of the Code of Criminal Procedure. It is submitted that when such cognizance of commission of offence is already taken once, then, thereafter, the Magistrate cannot direct the investigation by police under Section 156(3) of the Code of Criminal Procedure and, hence, the order of the learned Chief Judicial Magistrate, First Class, Junagadh, directing police investigation under Section 156(3) is absolutely illegal, which requires to be quashed. That learned Chief Judicial Magistrate could not properly construe the provision of Section 200 of the Criminal Procedure Code wherein by proviso an explanation has been carved out that if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint, it was not obligatory upon the Magistrate to examine the complaint and, therefore, it is crystal clear from Section 200 of the Code of Criminal Procedure that the provision prohibits the learned Chief Judicial Magistrate to forward the complaint for investigation under Section 156(3) of the Code of Criminal Procedure and the only course which was opened for him to proceed in connection with the complaint as while passing the order below Application Exhibit-69, the learned Sixth Joint Civil Judge (JD) had already taken CR.MA/833/2002 6/11 JUDGMENT the cognizance of the offence. It is further argued that the offence under Section 193 of the Indian Penal Code alleged is non-cognizable offence and, therefore, also the complaint could not have been forwarded to the police for investigation and, therefore, it is submitted that the complaint be quashed. 5. As against that, learned APP Mr. M.R. Mengdey on behalf of the respondent – State submitted that there is no bar in the law for learned Chief Judicial Magistrate to forward the complaint for investigation under Section 156(3) of the Code of Criminal Procedure when a complaint is preferred by a court alleging offence against the administration of public justice. 6. Going through the detailed submissions and facts on the record, this Court is unable to accept the contentions raised on behalf of the petitioners. True it is that, there is bar in taking cognizance if the offence is covered by Section 195 of the Code of Criminal Procedure. Certain offences charged against the petitioners are covered by Section 195 of the Code of Criminal Procedure, however, complaint is filed by the Magistrate to a court competent to try the case. The matter is required to be viewed from the angle that when the offences charged against the accused consisting of cognizable and non-cognizable CR.MA/833/2002 7/11 JUDGMENT offences, as it is alleged that the offence punishable under Section 188 of the Indian Penal Code is non-cognizable offence. Non-cognizable offence also can be investigated in the manner prescribed by cognizable offence. It must be therefore taken into consideration that the accused is also charged with other offences like Sections 471, 467, 465 and 464 of the Indian Penal Code which are cognizable offences. Section 155 of the Code of Criminal Procedure particularly sub-section (4)of the said Section clearly enumerates that where a case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that, the other offences are non- cognizable and, therefore, the investigation by police in the present case is not at all illegal as has been argued. 7. Once it is found that the case is covered under Section 195 of the Code of Criminal Procedure putting bar to take cognizance, what is required by the Magistrate or a court to follow the procedures as laid down under Section 340 of the Code of Criminal Procedure wherein it is required to hold a preliminary inquiry and record a finding. When court, which is complainant, has recorded a finding in civil proceedings below Exhibit-69 that certain offences are committed, which are covered under Section 195 of the Code of Criminal Procedure, by no stretch of reasoning it could be said that such a court only because that court was CR.MA/833/2002 8/11 JUDGMENT of Magistrate, has taken cognizance of the offence by merely recording of finding after inquiry in accordance with Section 340 of the Code of Criminal Procedure and, therefore, the contentions has no merit that the learned 6th Joint Civil Judge (JD) at Junagadh has taken the cognizance of the offence on 18th of December, 2001, and, therefore, once the cognizance is taken, it was not proper for the Chief Judicial Magistrate, First Class, to refer the complaint to the police under Section 156(3) of the Code of Criminal Procedure. In fact, what has happened is 6th Joint Civil Judge (JD) Mr. Vijoda followed the procedure under Section 340 of the Code of Criminal Procedure and forwarded a complaint to the Chief Judicial Magistrate at Junagadh as per procedure laid down under Section 340 of the Code of Criminal Procedure and thereby it is not at all correct to say that the 6th Joint Civil Judge (JD), Junagadh, has taken cognizance and, therefore, the Chief Judicial Magistrate, Junagadh, to whom the complaint was forwarded and was competent to try the offences, was obliged not to forward the said complaint to the police for investigation under Section 156(3) of the Code of Criminal procedure. The contention being merit less is rejected. 8. The relief which claimed is, the learned Chief Judicial Magistrate ought not to have forwarded this complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure, CR.MA/833/2002 9/11 JUDGMENT but ought to have held inquiry under Sections 200 and 202 of the Code of Criminal Procedure. When the whole scheme, in this respect, of the Code of Criminal Procedure is examined, there is no bar at all which indicates that the Magistrate is obliged to hold inquiry and inquiry only under Sections 200 and 202 of the Code of Criminal Procedure and such complaint would not be forwarded for investigation to the police under Section 156(3) of the Code of Criminal Procedure. The attention of the Court was drawn to Section 343 of the Code of Criminal Procedure, wherein it has been laid down that when such complaint is produced before the Magistrate, notwithstanding anything contained in Chapter XV of Code of Criminal Procedure, as far as may be, the Magistrate shall proceed to deal with such case as if it were instituted on a police report. Despite this provision, Chief Judicial Magistrate is not obliged to hold inquiry under Sections 200 and 202 of the Code of Criminal Procedure nor prevented by law anywhere to forward the complaint under Section 156(3) of the Code of Criminal Procedure to police for investigation. This is so because when we read Section 173 of the Code of Criminal procedure in juxtaposition, it clearly indicates that such an investigation under Section 173(8) of the Code of Criminal Procedure is not barred and, therefore, it cannot be said that the Magistrate has to take cognizance of the offence and cannot order an investigation before taking cognizance. I do not find any such provision in the Code of CR.MA/833/2002 10/11 JUDGMENT Criminal Procedure nor in the scheme of the Code supports the contention of the learned Advocate for the petitioners and, therefore, the relief claimed that the Magistrate was bound to hold inquiry under Section 202 of the Code of Criminal Procedure and ought not to have forwarded the complaint to the police, deserves to be dismissed. Otherwise also, exercising powers under Section 482 of the Code of Criminal Procedure, it could not be said that, the order passed by the learned Chief Judicial Magistrate, First Class, Junagadh, forwarding complaint for police investigation could be labelled as an abuse of process of law or failure of justice, as to interfere in the order as contended. 9. Learned Senior Counsel Mr. Anandjiwala for the petitioners relied upon a decision of the Apex Court in the mater of IQBAL SINGH MARWAH vs. MEENAKSHI MARWAH, as reported in AIR 2005 SC 2119 to support his contentions. Full Bench of the Apex Court in the above said decision, made it clear that bar under Section 195 of the Code of Criminal Procedure attracts only when the offence might have been committed in respect of the documents produced or given in evidence in proceeding in court which should normally mean that commission of such an offence after the document has actually been produced or given in evidence in the court but when the document is already forged and is CR.MA/833/2002 11/11 JUDGMENT subsequently produced in court, bar under Section 195 of the Code of Criminal Procedure would not be attracted because such interpretation would lead to a situation where a victim of a crime would be rendered remedy less and, therefore, by this decision the Apex Court resolved the controversy that bar under Section 195 of the Code of Criminal Procedure is attracted only when offence is committed relating to the proceedings of the court but when the offence is committed before that, complainant of such an offence may file complaint according to law. However, this decision is not applicable on the facts of the case and, therefore, not helpful to the petitioners. 10. In above view of the matter, this application stands dismissed. Rule discharged. Interim relief granted by this Court by order dated 05th of February, 2002 and granted till further orders on 7th of March, 2002, shall be continued for six weeks from today. However, no extension shall be made to interim relief, thus extended. (J. R. VORA, J.) pnnair