MAJID HAJI IBRAHIM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners, who are the original accused persons have filed the present petition for the purpose of quashing the complaint dated 24.10.2008 registered as Inquiry Case No. 82 of 2008 pending before the learned Metropolitan Magistrate, Court No.13, Ahmedabad for the offences punishable under Sections 406, 420 and 114 Indian Penal Code (for short "the IPC") and consequentially as prayed for quashing the issuance of process under Section 204 of the Code of Criminal Procedure (for short "Cr.P.C.") dated 14.10.2010 by invoking extraordinary jurisdiction under Section 482 of Cr.P.C.

(2.) The case in brief presented by the petitioners is that the respondent No.2 filed the complaint on 24.10.2008 before the Court of Metropolitan Magistrate, who on the very same day issued an order under Section 156(3) of the Cr.P.C. against the petitioners and also against their mother aged about 90 years by showing her as accused No.3. The statement of the said accused was recorded by way of Inquiry Case No. 82 of 2008. It is the case of the petitioners that pursuant to the order under Section 156(3) Cr.P.C., the investigation was carried out by Navrangpura Police Station and the investigating agency recorded various statements of persons, collected the evidence and having found appropriate, filed "B -Summary" in the same complaint on 05.03.2010. It was thereafter almost period of five months, after presentation of B -Summary before the learned Metropolitan Magistrate on 14.10.2011, again a process came to be issued against the present petitioners and the original accused No.3 i.e. mother. Despite the fact that B -summary has not been challenged anywhere, it is in the background of this fact, the petitioners have filed the present petition by invoking the jurisdiction of this Court. This Court vide order dated 29.03.2012 has issued a notice making it returnable on 16.04.2012 and subsequently, after hearing both the sides passed an order on 03.05.2012 admitting the matter and granted interim relief in terms of Para -7(C). The said order reads as under: -

(3.) The petition came up for final hearing and the learned counsel for the petitioners submitted that entertaining the complaint and consequential issuance of process under Section 204 of Cr.P.C. is nothing but a clear non application of mind on the part of the learned Magistrate and is nothing but serious error on the part of the learned Magistrate to just exercise discretion. Counsel for the petitioners has further contended that in the very same complaint, the learned Magistrate was pleased to issue an order under Section 156(3) of Cr.P.C. in a very same casual manner, the same was not carried further and the petitioners have co -operated and allowed the investigating machinery to investigate the matter and after that the investigating agency has recorded several relevant person's statement and collected evidence and thereafter filed B -summary on 05.03.2010. The counsel for the petitioners has further stated that this very process is not the subject matter of anywhere and even the respondent No.2 has not filed any proceedings against filing of B -summary report dated 05.03.2010. The counsel for the petitioners further argued that in the background of this fact to issue process under Section 204 of Cr.P.C. in a mechanical manner after more than a period of five months, is nothing but a serious error on the part of the learned Magistrate to exercise of jurisdiction and therefore, the counsel requested the Court to quash the issuance of process and also inquiry Case No. 82 of 2008 pending before the learned Metropolitan Magistrate Court No.13, Ahmedabad. Learned counsel for the petitioners further pointed out to this Court that there is no other new material tangible enough available on record, which would permit the learned Magistrate to issue process under Section 204 of Cr.P.C. The counsel for the petitioners has drawn the attention of this Court that all the statements, which were recorded before filing B -summary, were on 04.01.2010 and by pointing out, learned counsel for the petitioners submitted that after that there appears to be no fresh material, which would warrant the exercise of jurisdiction in issuing process under Section 204 of Cr.P.C. in the background of this fact. The counsel for the petitioners requested the Court that issuance of process under Section 204 of Cr.P.C. is nothing but a clear example of non application of mind and therefore, the relief as prayed for deserves to be granted. Learned counsel for the petitioners has further submitted that subsequent to filing the B - summary report there is no fresh material produced on record, nor any verification in the form of affidavit, is filed by the respondent No.2 and the complaint is not attached with any documents and therefore, in the absence of any such kind of circumstances being available to the learned Magistrate, it was not open to issue process. The counsel for the petitioners has further submitted that it is not open for the learned Magistrate to issue process in a mechanical manner and therefore in the background of this fact and circumstances it is desirable in the interest of justice to grant the relief as prayed for. Learned counsel for the petitioners has further drawn the attention of this Court's decision on the aspect of issuance of process on the complaint and requested the Court that same analogy be applied to the present case and ultimately requested to see that issuance of process under Section 204 of Cr.P.C. be set aside. When it was pointed out that whether respondent No.2 would be satisfied with the direction of remand which ultimately follow due process of law contemplated under Section 200 of Cr.P.C. and onwards. The learned counsel for the petitioners agreed that after quashing and setting aside the order of issuance of process under Section 204 of Cr.P.C., the learned Magistrate may be directed to apply its mind to give fresh look in this regard. The decision relied upon by the learned counsel for the petitioners in the case of Ramanbhai Zanzarbhai Ghanghar Vs. State of Gujarat reported in 2012 (1) GLH 586, this Court in the context of Sections 202 and 202 of Cr.P.C. has ultimately come to the conclusion that it is expedient on the part of the learned Magistrate and directed the concerned Trial Court to proceed further from the stage of verification. Since the learned counsel for the petitioners has relied upon the decision of this Court and having satisfied with that part of the direction, the court has not dwelt further with regard to the issue in question, since no other submission thereafter have been made. The counsel for the petitioners alternatively therefore circumscribed his contentions and ultimately requested the Court to pass an order in the light of the decision delivered by this Court reported in 2012 (1) GLH 586, the Court has taken up of the issue only from that angle.