KETANKUMAR BABULAL PATELversusKESARBEN JESANGJI AND ORS.

                           [2008] 13 S.C.R. 812


.A                 KETANKUMAR BABULAL PATEL
                                   v.
                  KESARBEN JESANGJI AND ORS.
                  (Criminal Appeal No. 1509 of 2008)
                                                                                f-
                         SEPTEMBER 23, 2008                               <-·
8
         [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                        SHARMA, JJ.]

           Code of Criminal Procedure, 1973: s.156(3), 202- Com-
c    plaint alleging refusal of police to register an earlier complaint
     - Trial court ordered inquiry and report under s.202 - High
     Court ordered inquiry under s. 156(3) - On appeal, Held: Since
     order of trial court was not very clear and High Court did not
     deal with this aspect, matter is remitted to trial court for fresh
     decision.
D                                                                         ~·
       A complaint was filed against certain police officers
  before the Magistrate on the ground that they had refused
  to register an earlier complaint filed, and the District Su-
  perintendent of Police informed the other party about the
E complaint and did not initiate any action against the re-
  spondent. The Magistrate ordered for inquiry and report
  under s.202 Cr.P.C. High Court ordered inquiry under
  s.156(3) Cr.P.C.
        In appeals to this Court, appellants contended that
F the course adopted by the High Court was impermissible;
  that once the cognizance has been taken, the procedure
  in terms of s.156(3) Cr.P.C. could not be resorted to and it
  has to be in terms of ss.202 and 204 Cr.P.C.; that once the
  Magistrate held that a prima facie offence was made out,
G whether it was right or wrong the only course available
  was issuance of process, but High Court overlooking that
  aspect has again directed that modality under s.156(3) to
  be adopted.                                                             "
H                                  812
             KETANKUMAR BABULAL PATEL v. KESARBEN               813
                       JESANGJI & ORS.

           Disposing of the appeals and remitting the matter to        A
     trial Court, the Court
           HELD: 1. When the information is laid with the Po-
     lice, but no action in that behalf is taken, the complainant
     is given power under s.190 Cr.P.C. read with s.200 Cr.P.C ..
     to lay the complaint before the Magistrate having juris- 8
     diction to take cognizance of the offence and the Magis-
     trate 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 is-
     suing process to the accused, he is empowered to direct C
     the police concerned to investigate into the offence under
     Chapter XII of the Code and to submit a report. If he finds
     that the complaint does not disclose any offence for tak-
     ing further action, he is empowered to dismiss the com-
     plaint under s.203 Cr.P.C. In case he finds that the com- D
     plaint/evidence recorded prima facie discloses an offence,
     he is empowered to take cognizance of the offence and to
i'   issue process to the accused. [Para 9] [816G-H, 817A-C]
'
~         Minu Kuma.ri and Anr. v. State of Bihar and Ors. (2006)
 l                                                                     E
     4 sec 359 - relied on.
          2. It is not clear from the order of the trial Court as to
     which of the alternatives, was being resorted to. That
     would have enabled the High Court to decide as to
     whether, the report could be made under s.156(3) Cr.P.C.          F
     [Para 1O] [817 E-F]
                           Case Law Reference
          (2006) 4 sec 359              relied on     Para 9
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal              G
~
     No. 1509 of 2008
 I
          From the Order/Judgment dated 4th/5th August, 2008 of
     the High Court of Gujarat at Ahmedabad in Special Criminal
     Application No. 1060 of 2008
                                                                       H
    814        SUPREME COURT REPORTS                    [2008] 13   s. C.R.

A        R.F. Nariman, L.N. Rao, MaheshAgrawal, RishiAgrawala,
    Gaurav Goel, Amit Kumar Sharma and E.C. Agrawala for the
    Appellant. ,

         K.T.S. Tulsi, Dushyant A. Dave, Yatin N. Oza, S. Udaya
    Kumar Sagar, Bina Madhavan, roma Fadelis and Shwetank                     ._.
B   Sailakwal (for Mis. Lawyer's Kant & Co.) for the Respondents.

          The Judgment of the Court was delivered by

          Dr. ARIJIT PASAYAT, J. 1. Leave granted.
c          2. In these appeals challenge is to the judgment of a learned
    Single Judge of the Gujarat High Court disposing of several
    petitions. By the impugned judgment in each case the High Court
    inter alia directed as follows:

          "In the result, the petition is allowed. Order dated 11 .4 .2008
D         passed by the Judicial Magistrate, First Class,                     ,.. .
          Ahmedabad (Rural) in Criminal Complaint No.103 of 2008
          is quashed and set aside. Inquiry under Section 156(3) of
          the Code is ordered. Complaint be registered as an FIR
          by the officer in charge of the concerned Police Station for
E         the offences disclosed in the complaint. Rule is made
          absolute."

          3. Background facts in a nutshell are as follows:

        A complaint alleging commission of offences punishable
F under Sections 406, 420, 465, 467, 468 and 120B of the Indian
  Penal Code, 1860 (in short the 'IPC') was filed before the
  learned Judicial Magistrate, First Class, Ahmedabad (Rural)
  which was numbered as Criminal Case No.103 of 2008. The
  basis of the complaint was that on 29.3.2008 the petitioners in
G Special Criminal Application No.1060 of 2008 approached the
  District Superintendent of Police, Ahmedabad requesting him
  to exercise powers under Section 154 (3) of the Code of Crimi-
  nal Procedure, 1973 (in short the 'Code'). But they were ad-                      ..
  vised to approach the police station and assurance was given
H that they shall get justice. Thereafter, complaint was filed on
                   KETANKUMAR BABULAL PATEL v. KESARBEN                815
                    JESANGJI & ORS. [DR. ARIJIT PASAYAT, J.]

           29.3.2008 before the Sarkhej Police Station but the same was A
           not accepted. It was alleged that the respondents in the com-
           plaint were politically very influential persons and were promi-   •
           nent builders and hence police did not accept the complaint. It
           was also stated that the District Superintendent of Police in-
    >).
           stead of helping them to give justice informed the respondent B
           no.1 in the complaint about the said complaint oh 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   c
           the Police Inspector are called for, it will become crystal clear
           that such .communications were there. The scripts of the talks
           between the con.cerned officials and respondent No.1 have to
           be called for from the mobile companies. An order was passed
           earlier in Special Criminal Application No.918 of 2007. The
    ' ""                                                                      D
           Judicial Magistrate, 1st 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."                                     E

                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.              F
                 4. Learned counsel for. the appellants in each case sub~
           mitted that the course adopted by the High Court is impermis-
           sible. 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 G
           the Code, It is also submitted that once the Magistrate held that
           a prima facie offence was made out 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
I
           has again directed that modality under Section 156(3) to be H
    816       SUPREME COURT REPORTS                [2008] 13 S.C.R.


A adopted. It is pointed out that reasons have been given as to
  why it was felt necessary to have resort to Section 156(3).
c       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
8 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 di-
e   rected inquiry to be conducted. The trial Court could have di-
    rected the action under Section 156(3) to be taken. The High
    Court has acted in accordance with law in directing that Sec-
    tion 156 (3) procedure was to be followed.
        7. With reference to the order passed by the Collector vis-
D 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
E 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 of-
  fence was made out, to close the proceeding and thirdly to take
F 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) sec 359) the position was highlighted as follows:
G         "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 before the Magistrate having
          jurisdiction to take cognizance of the offence and the
H         Magistrate is required to enquire into the complaint as
         KETANKUMAR BABUl,.AL PATEL v. KESARBEN                 817
          JESANGJI & ORS. [DR. ARIJIT PASAYAT, J.]

       provided in Chapter XV of the Code. In case the Magistrate A
       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 XI I of the Code and to submit a report. If he
       finds that the complaint does not disclose any offence to B
       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. c
       These aspects have been highlighted by this Court in A//
       India Institute of Medical Sciences Employees' Union
       (Reg.) through its President v. Union of India and others
       (1996 (11) sec 582). It was specifically observed that a
       writ petition in such cases is not to be entertained.
                                                                    D
       17. The above position was highlighted in Gangadhar
       Janardan Mhatre v. State of Maharashtra and Ors. (2004
       (7) sec 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 cat-   E
egory 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 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     F
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.
                                                                       G
D.G.                                        Appeals disposed of.