Ketankumar Babulal Patel vs Kesarben Jesangji & Ors

2 requesting him to exercise powers under Section 154 (3) of the

Code of Criminal Procedure, 1973 (in short the `Code'). But

they were advised to approach the police station and

assurance was given that they shall get justice. Thereafter,

complaint was filed on 29.3.2008 before the Sarkhej Police

Station but the same was not accepted. It was alleged that the

respondents in the complaint were politically very influential

persons and were prominent builders and hence police did not

accept the complaint. It was also stated that the District

Superintendent of Police instead of helping them to give

justice informed the respondent no.1 in the complaint about

the said complaint on telephone and did not initiate action

against the said respondent as he was a sitting member of the

Legislative Assembly and belonged to the ruling party. It was

highlighted that if the records of the telephones and mobiles of

District Superintendent of Police and the Police Inspector are

called for, it will become crystal clear that such

communications were there. The scripts of the talks between

the concerned officials and respondent No.1 have to be called

for from the mobile companies. An order was passed earlier in

3 Special Criminal Application No.918 of 2007. The Judicial

Magistrate, Ist Class passed an order contrary to it by

directing as follows:

"This complaint is sent to Sarkhej Police for inquiry and report under Section 202 of Cr. P.C.

Declared in open Court."

After having held that there exists prima facie offence

and connectivity of the accused with it, which is also referred

to by the Collector in his order, requisite order was to be

passed. Several other factual details were also referred to.

4. Learned counsel for the appellants in each case

submitted that the course adopted by the High Court is

impermissible. It is submitted that once the cognizance has

been taken, the procedure in terms of Section 156(3) of the

Code cannot be resorted to. It has to be in terms of Sections

202 and 204 of the Code. It is also submitted that once the

Magistrate held that a prima facie offence was made out

4 whether it was right or wrong, the only course available was

issuance of process which has been directed. But the High

Court overlooking that aspect has again directed that modality

under Section 156(3) to be adopted. It is pointed out that

reasons have been given as to why it was felt necessary to

have resort to Section 156(3).

5. Learned counsel for the respondents on the other hand

with reference to Section 202 of the Code submitted that

action was in order. After hearing learned counsel for the

parties and analyzing the legal position with reference to

various decisions the impugned order was passed.

6. Learned counsel for the respondents further submitted

that the High Court had the jurisdiction available and has

directed inquiry to be conducted. The trial Court could have

directed the action under Section 156(3) to be taken. The

High Court has acted in accordance with law in directing that

Section 156 (3) procedure was to be followed.

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7. With reference to the order passed by the Collector vis-a-

vis the power of attorney which forms the subject matter of

controversy, it is submitted that records cannot be produced

by the private respondents to substantiate the accusations. If

the investigation is undertaken by the police, it can certainly

take custody of the records and produce to the court as and

when necessary.

8. It is submitted that the Magistrate had three courses

open. Once the complaint is filed, it can even after finding that

prima facie case exists direct investigation. Secondly, if no

offence was made out, to close the proceeding and thirdly to

take cognizance. In the instant case, the trial Court adopted

the first course available.

9. In Minu Kumari and Anr. v. State of Bihar and Ors.

(2006 (4) SCC 359) the position was highlighted as follows:

"16. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint

6 before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and others (1996 (11) SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained.

17. The above position was highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SCC 768)."

10. It is not clear from the order of the trial Court as to

which of the alternatives, i.e. the first category or the third

category was being resorted to. That would have enabled the

High Court to decide as to whether the report could be made

under Section 156(3) of the Code. Since the order of the trial

7 Court is not very clear and the High Court has not dealt with

this aspect, we deem it proper to remit the matter to the trial

Court to decide the matter afresh expeditiously in the light of

what has been stated in para 16 of Minu Kumari's case

(supra). It is made clear that we have not expressed any

opinion in that regard.

11. The appeals are disposed of.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, September 23, 2008

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