Gujarat High Court
Circulate To All Judicial ... vs State Of Gujarat & on 23 September, 2015
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5144 of 2014
Coram; HONOURABLE MR.JUSTICE J.B.PARDIWALA 1. By this application under Article 227 of the Constitution of India, the applicants-original accused persons call in question the legality and validity of the order dated 25th November, 2014 passed by the Additional Sessions Judge, Court No.3, Ahmedabad in the Criminal Revision Application No.298 of 2014 by which the learned Judge partly allowed the application setting aside the order passed by the learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad in the Criminal Case No.304 of 2014 dated 5.7.2014 and at the same time directing the Maninagar Police Station to undertake investigation of the complaint filed by the respondent No.2 herein (original complainant) under section 156(3) of the Code of Criminal Procedure and file an appropriate report before the trial court within a period of 90 days. 2. The facts of the case may be summarized as under: 2.1 The respondent No.2 herein lodged a private complaint in the court of the learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad against the applicants herein for the offence punishable under sections 406, 420, 409, 465, 468, 469, 471, 365, 307, 342, 120(B) and 294(b) of the Indian Penal Code. The complainant prayed that the complaint be sent for police investigation through the P.I. of the Maninagar Police Station under section 156(3) of the Code of Criminal Procedure, 1973. However, it appears that the learned Metropolitan Magistrate thought fit to take cognizance upon the complaint after recording verification of
the complainant on oath. It appears that the learned Magistrate,
thereafter, ordered police inquiry under section 202 of the Code. On receipt of the report of the police as regards the inquiry, the learned Magistrate thought fit to issue process under section 204 of the Code for the offence enumerated above. 2.2 The applicants herein, being dissatisfied with the order passed by the learned Metropolitan Magistrate dated 5.7.2014, preferred the Criminal Revision Application No.298 of 2014 challenging the legality and validity of the order passed by the learned Magistrate. 2.3 It was argued before the Revisional Court that the entire procedure which was adopted by the learned Magistrate was contrary to the provisions of the Code of Criminal Procedure inasmuch as the learned Metropolitan Magistrate could not have issued process for the offence under section 307 of the Indian Penal Code which is a sessions triable offence in the absence of proper inquiry under section 202 of the Code. The principal argument of the applicants before the Revisional Court was that the learned Magistrate could not have ordered investigation under section 202 of the Code through police since the offence complained of is triable exclusively by the court of sessions. It was also argued that the proviso to sub- section (2) to section 202 of the Code provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of sessions, then he shall call upon the complainant to produce all his witnesses and examine them on oath. 2.4 The Revisional Court accepted both the contentions and in my view very rightly as the position of law is very well settled. However, while quashing the order passed by the learned Metropolitan Magistrate, the learned Sessions Judge exceeded its jurisdiction by ordering police investigation under section 156(3) of the Code read with section 397 of the Code. 2.5 The operative part of the impugned order reads thus; "23. Consequence upon the above discussion, the following order is passed in the interest of justice. ORDER
1. Criminal Revision Application filed by the applicants Mr. Umashankar R. Sharma, Mr. Nareshkumar R. Sharma and Mr.Devendrakumar R. Sharma, is hereby partly allowed.
2. Under Section 397 of the Criminal Procedure Code, the order passed by the Learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad, in Criminal Case No.304/2014 dated 05.07.2014 is hereby set aside.
3. Under Section 397 read with Section 156(3) of the Criminal Procedure Code, it is hereby ordered that the complaint filed by the complainant Nagesh N. Sharma be sent for the police investigation to Maninagar Police Station. Maninagar Police Station is hereby ordered to carry out the investigation and to submit appropriate report, charge-sheet, C summary as the case may be before the learned lower Court within 90 days after receiving the complaint from the learned lower court.
4. Copy of this order be sent to the learned lower Court as well as to the Maninagar police station for information and necessary action.
5. Records & Proceedings be sent back to the learned lower Court."
3. Mr. Umesh Trivedi, the learned counsel appearing for the applicants vehemently submitted that the impugned order is erroneous. He submitted that the learned Sessions Judge has no powers to direct police investigation under section 156 (3) of the Code read with section 397 of the Code. He submitted that after quashing the order passed by the learned Additional Chief Metropolitan Magistrate, the learned Sessions Judge should have remitted the matter to the trial court with appropriate directions to proceed further with the complaint in accordance with law. Mr. Trivedi submitted that the impugned order, being without jurisdiction, is a nullity and therefore the same be quashed.
4. On the other hand, this application has been vehemently opposed by Mr. Bhadrish Raju, the learned counsel appearing for the respondent No.2-original complainant. He submitted that no error, not to speak of any error of law could be said to have been committed by the learned Additional Sessions Judge in passing the impugned order. He submitted that having regard to the peculiar facts of the case and the nature of the allegations leveled by the complainant in his complaint, the learned Sessions Judge rightly ordered police investigation under section 156(3)of the Code as it is only the police who could have undertaken effective investigation and the court could not have gone into the issues raised in the complaint without proper investigation. He, therefore, submitted that this application, being devoid of any merit, the same be rejected.
5. Ms. Punani, the learned APP appearing for the State adopted the submissions of Mr. Raju and submitted that no error, not to speak of any error of law could be said to have been committed by the learned Sessions Judge.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the learned Sessions Judge committed any error in passing the impugned order.
7. Section 202 of the Code reads thus "202. Postponement of issue of process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, a [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] 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 Session; 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 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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.
(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 Code on an officer in charge of a police station except the power to arrest without warrant."
8. A bare perusal of the section itself indicates that in a complaint which prima facie discloses an offence exclusively triable by the court of sessions, then in such circumstances, the Magistrate has no power to direct police investigation under section 202 of the Code. In a case where it appears to the Magistrate that the offence complaint of is triable exclusively by the court of sessions, then he shall have to call upon the complainant to produce all his witnesses and examine them on oath. After the examination of the complainant and his witnesses, the learned Magistrate may, thereafter, take an appropriate decision whether to issue process or not.
9. In the present case, the learned Sessions Judge, as observed earlier, rightly came to the conclusion that the procedure adopted by the learned Metropolitan Magistrate was not in accordance with law and rightly quashed the order passed by the learned Metropolitan Magistrate. However, after quashing the order passed by the learned Metropolitan Magistrate, the learned Sessions Judge should have stopped at that stage. At best, the learned Sessions Judge should have remitted the matter to the learned Magistrate with appropriate directions to proceed further in accordance with law.
10. The question that falls for my consideration is whether there is any provision in the Code of Criminal Procedure or in any other statute giving specific powers to the court of sessions to order investigation under section 156(3) of the Code.
11. Section 156(3) reads thus;
"156.Police Officer's power to investigate cognizable case :-(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
Section 190 empowers the Magistrates of the first class etc. to take cognizance of the offence. Court of Session is not a Magistrate empowered under S. 190. Court of Session comes to the picture, generally, after committing of the cases unless specifically provided. Therefore, investigation can ordinarily be ordered by the Magistrate only under S. 156(3) of Cr. P.C."
12. Admittedly, the inherent powers under S. 482 of Cr. P.C. is not available to the Court of Session. The inherent powers of the High Court is only saved by S. 482. Even the High Court can use such inherent powers specifically protected in S. 482 only sparingly with circumspection in rare cases as held by the Apex Court in Kurukshetra University v. State of Haryana, AIR HC-NIC Page 8 of 11 Created On Thu Sep 24 01:53:22 IST 2015 1977 SC 2229 : (1977 Cri LJ 1900) and in Municipal Corporation of Delhi v. Ram Kishan Rohtagi 1983 Cri LJ 159 : (AIR 1983 SC
13. Section 6 of the Code of Criminal Procedure, 1973 specifies the classes of criminal courts in India as follows;
"Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates."
14. A Court of Sessions is under section 6 clearly a Court quite differentiated from the Court of a Magistrate. Section 193 also inter alia makes this quite plain. A Sessions Court is not a Magistrate empowered under section 190. No other section or provision of the Code gives a Sessions Court power to order such an enquiry.
15. Next question to be considered is whether, In the absence of power under S. 482, a Court of Session has got any inherent power to order such investigation? It was argued by the learned Public Prosecutor that all Courts can exercise such inherent powers to do justice as are preserved expressly or are not taken away by a Statute as observed by the Supreme Court in Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1 :
HC-NIC Page 9 of 11 Created On Thu Sep 24 01:53:22 IST 2015 (1964 (1) Cri LJ 1) (See para 17). But, the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 : (1978 Cri LJ 187) held that inherent powers of the High Court is only protected and in the absence of a power under Section 151 of the Code of Civil Procedure to Civil Courts, subordinate criminal Courts have no inherent powers. Despite the decision of the Supreme Court in the above case, divergent views are expressed by certain High Courts regarding the powers of the sub-ordinate criminal Courts in exercising inherent powers without an enabling section like Section 482 (previous Section 561-A). But, it is settled law that such inherent powers cannot be exercised by any criminal Court if there is an express or implied bar in the Code of Criminal Procedure itself or in any other Statute. The Supreme Court considered the matter with regard to the power of review in criminal matters. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a criminal case, shall alter or review the same except to correct a clerical or arithmetical error. The Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa, 2000 AIR SCW 3848 : (2001 Cri LJ 128) held that even the High Court cannot invoke S. 561-A (present S. 482) for exercise of inherent powers to correct a mistake which is specifically prohibited by the Code.
16. Thus, the impugned order passed by the learned Additional Sessions Judge insofar as it directed the Maninagar Police Station to undertake investigation of the complaint filed by the complainant under section 156(3) read with section 397 of the Code is absolutely without jurisdiction and deserves to be quashed.
17. In the result, this application is allowed. The order passed by the learned Additional Sessions Judge dated 25th November, 2014 in Criminal Revision Application No.298 of 2014 to a limited extent as noted above is hereby ordered to be quashed and set aside.
18. The learned Additional Metropolitan Magistrate, Court No.15, Ahmedabad shall proceed further in accordance with law with the complaint keeping in mind the provisions of section 202 of the Code.
19. It is clarified that if the complainant is of the view that his complaint should be investigated under section 156(3) of the Code, then it shall be open for him to avail of appropriate legal remedy before the appropriate forum in accordance with law. The submission of Mr. Raju that this option may be left to the better discretion of the learned Metropolitan Magistrate is not tenable in law because the learned Additional Metropolitan Magistrate had already taken cognizance. From post- cognizance stage, the matter cannot go back to the pre- cognizance stage.
20. With the above, this application is disposed of.
(J.B.PARDIWALA, J.) Vahid