Jayantkumar Motichand Doshi and 1 vs The State of Gujarat and 1

Honourable Mr. Justice M.R. Shah

Present application u/s 482 of the Code of Criminal Procedure has been preferred by the Petitioners-original accused to quash and set aside the private complaint being Criminal Case No. 216 of 2000 filed by the Respondent No. 2 against the Petitioners before the learned JMFC, Rajkot dated 18.5.2000.

The facts leading to the present Criminal Miscellaneous Application in nutshell are as under:

2.1. That Respondent No. 2-original complainant filed private complaint u/s 190 of the Code of Criminal Procedure in the Court of learned JMFC, Rajkot for the offences punishable under Sections 406, 409, 420 of Indian Penal Code, which was registered as Criminal Inquiry Case No. 216 of 2000. That the learned Magistrate passed an order on 10.5.2000 sending the said complaint for police investigation u/s 156(3) of the Code of Criminal Procedure and directed the concerned Investigating Officer of Rajkot Taluka Police Station to submit the report. It appears that thereafter the investigation was concluded by the Investigating Officer, Rajkot Taluka Police Station and the Investigating Officer submitted the "C" Summary Report. That the learned Magistrate accepted the said "C" Summary Report submitted by the Investigating Officer and dismissed the said complaint by holding that the dispute is of civil nature. It appears that being aggrieved and dissatisfied with the order passed by the learned JMFC (Traffic), Rajkot dated 3.8.2002 dismissing the said complaint, Respondent No. 2-original complainant preferred Criminal Revision Application No. 84 of 2002 before the learned Sessions Court, which came to be heard by the learned Additional Sessions Judge, 4th Fast Track Court, Rajkot, who by his judgment and order dated 6.9.2003 allowed the said Criminal Revision Application and quashed and set aside the order passed by the learned Magistrate dismissing the said complaint and remanding the matter to the learned Magistrate by further directing the learned Magistrate to consider the "C" Summary Report submitted by the Investigating Officer again afresh and take an appropriate decision considering the objection submitted by Respondent No. 2-original complainant. That thereafter, on remand the learned Magistrate has considered the "C" Summary Report submitted by the Investigating Officer again and in detail and considered the objection submitted by the original complainant and the learned Magistrate by impugned order has not accepted the "C" Summary Report and before taking any final decision he has directed the Investigating Officer to further investigate the case. Being aggrieved and dissatisfied with the said order and at that stage, the Petitioners-original accused have preferred present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure.

Shri Samir Khan, learned advocate for the Petitioners has submitted that as such the Petitioners have not committed any offence as alleged and therefore, original private complaint itself deserves to be quashed and set aside in exercise of powers u/s 482 of the Code of Criminal Procedure.

Having heard Shri Samir Khan, learned advocate for the Petitioners, Shri Tushar Sheth, learned advocate for the Respondent No. 2-original complainant and Shri Dabhi, learned APP for the Respondent State and considering the facts stated hereinabove as well as considering the impugned order, it appears that the learned Magistrate has considered the "C" Summary Report submitted by the Investigating Officer again pursuant to the order passed by the Revisional Court and has considered the objections submitted by Respondent No. 2-original complainant and has thought it fit to pass an order for further investigation and at that stage without any further investigation by the Investigating Officer the Petitioners have approached this Court and have challenged the original complaint. It is to be noted that initially when the complaint was filed and the learned Magistrate has passed an order in 2002 sending the said complaint for police investigation u/s 156(3) of the Code of Criminal Procedure, the Petitioners did not challenge the original complaint and Petitioners accepted the said order. That thereafter, when "C" Summary Report was submitted by the Investigating Officer and the same was accepted by the learned Magistrate and the learned Magistrate dismissed the complaint. Even thereafter also, when Revision was preferred by Respondent No. 2-original complainant, the Petitioners did not challenge the original complaint. Only at the stage when the learned Magistrate has passed an order for further investigation u/s 156(3) of the Code of Criminal Procedure and directed the Investigating Officer to submit the report, at that stage the Petitioners has come before this Court and have challenged the original complaint, which is not permissible.

4.1. It is to be noted that the Investigating Officer has yet to further investigate the case pursuant to the impugned order passed by the learned Magistrate and thereafter is required to submit the report before the learned Magistrate as per the impugned order, which is yet to be considered by the learned Magistrate. Therefore, in view of the above, this is not a fit case to exercise the powers u/s 482 of the Code of Criminal Procedure and to quash and sett aside the original private complaint. At this stage, the decision of the Hon''ble Supreme Court in the case of Dharmatma Singh Vs. Harminder Singh and Others, , para 22 is required to be referred. The Hon''ble Supreme Court in para 22 has observed and held as under:

Section 482 Code of Criminal Procedure saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It has been held by this Court in R.P. Kapur v. State of Punjab that Section 561 A of the Code of Criminal Procedure, 1898 (which correspondence to Section 482 of the Code of Criminal Procedure, 1973) saves the inherent powers of the High Court to make such orders as may be necessary to given effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the code and therefore, when the Magistrate has not applied his mind u/s 190 CRPC to the merits of the reports and passed the order, the High Court ought not to consider a request for quashing the proceedings.

In view of the above and for the reasons stated above and without further expressing anything on merits in favour of either parties and further investigation is yet to be carried out by the concerned Investigating Officer and is required to be sent to learned Magistrate, which is yet to be considered by the learned Magistrate, present application is hereby dismissed/ disposed of. Rule discharged. Ad-interim relief, if any, stands vacated forthwith.