JAYESHBHAI KANTILAL BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Revision Application has been filed by the applicant (original accused) under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order passed below Exh.1 dated 10.01.2017 passed by the 13th (Ad-hoc) Judicial Magistrate, First Class, Ahmedabad (Rural) whereby the learned Magistrate has ordered to issue process for the alleged offences punishable under Sections 363, 365, 386, 504, 506(2), 120B, 114, 166, 368 and 441 of the Indian Penal Code against the applicant and other accused, on a private complaint filed by respondent No.2 i.e. Kaushik Champaklal Vankani which is now registered as Criminal Case No.704 of 2017.

(2.) As per the case of the complainant, after referring his family history and his deal with Rameshbhai Dahyabhai Patel, owner of land and executed MOU with him for the purchase of land. Thereafter, it is mentioned in the complaint that an accused named in the complaint filed by him had dealing with the complainant for the purchase of said land. It is also stated that even part payment towards purchase was also paid by one of the accused named in the complaint. After narrating details about the payments and outstanding amount, it appears that dispute arose between complainant on one hand and one of the co-accused on the other. As per the case of the complainant on 16.06.2016, the complainant was called near Manav Mandir Petrol Pump at drive-in road and co-accused named in his complaint came in Innova Car and asked the complainant to sit in the car and thereafter car was started. One of the co-accused Ghanshyambhai threatened him to return back him Rs.85 lacs or else he would be implicated in a false case. Co-accused Ghanshyambhai has also threatened him that he knows present applicant who is high ranking officer of Ahmedabad Crime Branch. Thus, it is stated that he was taken to the crime branch office in the said car where co accused Ghanshyambhai and Jinabhai deleted SMSs contained in the mobile phone of the complainant. The complainant was taken to the chamber of the present applicant where it is alleged the applicant asked him to return back the amount, to which, because of fear, he said that it would be paid within 10 days. It is alleged that there after, outside his office, he was made to sit on a bench in the open area under the sun. Again at about 5 o'clock in the evening, he was taken to the chamber of the present applicant where it is alleged that the applicant told him that he has 10 days and 11th day is of him. It is also alleged that he returned back the money of Jinabhai and thereafter he was allowed to go at his home.

(3.) Learned advocate Mr.Umesh A. Trivedi for the applicant, argued that present complaint is filed on 24.06.2016 against the applicant and other co-accused in the Court of Chief Judicial Magistrate, Ahmedabad (Rural). On that day, it was kept for verification on 19.07.2016. After recording verification on 19.07.2016, the learned Chief Judicial Magistrate ordered to hold inquiry under Section 202 of the Code of Criminal Procedure, 1973 and thereafter, the complaint was transferred to 14th Additional Magistrate for the purpose of further inquiry into the same. It is contended that without holding any further inquiry, the 13th (Ad-hoc) Judicial Magistrate First Class, Ahmedabad (Rural) straightaway issued the process against the applicant. It is contended that the learned Magistrate was not sitting in appeal over the decision of Chief Judicial Magistrate to hold inquiry under Section 202 of the Code and thereafter it was transferred to learned Magistrate. Therefore, unless and until, further inquiry into the case of the complainant is conducted the learned Magistrate could not have straightaway issued the process. It is not that the said complaint was first presented before him and after satisfying himself from the averments in the complaint and verification/deposition of complainant on oath, he issued the process. Thus, the order impugned suffers from total nonapplication of mind. From the order impugned, it is also not clear what further inquiry he has made. If process was to be issued, the learned Chief Judicial Magistrate while ordering inquiry under Section 202, if satisfied, could have straightaway issued the process and then transferred the case to the learned Magistrate. The learned Magistrate is subordinate to learned Chief Judicial Magistrate who ordered to hold inquiry under Section 202, cannot review the order passed by the learned Magistrate and instead of conducting inquiry under Section 202, he cannot straightaway issue the process. Therefore, the order impugned before this Honourable Court is illegal and suffers from non-application of mind.