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Shantibhai Somabhai Raval Vs. Madhukani T. Shukla and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ62; (1982)2GLR711
AppellantShantibhai Somabhai Raval
RespondentMadhukani T. Shukla and anr.
Excerpt:
- - 4. the terminology of sub-(1) of section 210 of the code clearly shows that if it is made to appear to the magistrate, during the course of inquiry or trial held by him, that an investigation by the police is in progress, then he has to stay the matter and call for the report of the police......code'), which is to the following effect:210. (1) when in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case) it is made to appear to the magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.(2) if a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the magistrate against any person who is an accused in the complaint case, the magistrate shall inquire into.....
Judgment:
ORDER

V.V. Bedarkar, J.

1. This is an application making a grievance against issue of process by the learned Judicial Magistrate, First Class, Narol, on the strength of the complaint filed by opponent No. 1 Mad-hukant T. Shukla (original complainant) against the petitioner. The case of opponent No. 1 - Complainant was that the petitioner had purchased a tractor from the complainant. As the tractor was not in working order, the petitioner is alleged to have told the original complainant that the tractor was to be brought for repairs, but because the wheat season was going on, he may be helped by giving another tractor. So an unregistered tractor was given to the petitioner. As the petitioner did not return either the old tractor or the new tractor, a complaint was given by the original complainant before the police. It was the grievance of the complainant that the police did not make proper investigation, did not record statements and merely attempted to rely on a counter-foil of the cheque alleged to have been issued by the petitioner to the complainant, though, in fact, no cheque was issued, and it was not encashed in the Bank, etc.. and, therefore, he filed a complaint before the learned Magistrate. On the strength of this complaint, process was issued. The petitioner has come with a grievance against that order of process.

2. The grievance of the petitioner is quite justified in view of the provisions of Section 210 of Criminal P. C. 1973 (hereinafter referred to as 'the Code'), which is to the following effect:

210. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case) it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the Police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

This is a new provision, and probably, as it was not brought to the notice of the learned Magistrate at that very time, he has not acted according to this provision. Instead of drawing the attention of the learned Magistrate to this provision, the petitioner has rushed to this Court.

3. Mr. B, C. Patel, learned Advocate for the petitioner, of course, rightly argued that the contents of the complaint itself show that the original complainant had already given a complaint to the police which was under investigation, but the only grievance was that the investigation was not proper. At any rate, according to Mr. B. C. Patel, when the contents of the complaint show that the original complainant had given the complaint to the police and it was under investigation, then the learned Magistrate should have followed the procedure as required under Section 210 of the Code. He is quite justified. It, however, seems that the attention of the learned Magistrate was not at all drawn to Section 210 of the Code, which is a new provision. If it would have been brought to his notice, probably he would have taken recourse to that provision.

4. The terminology of Sub-(1) of Section 210 of the Code clearly shows that if it is made to appear to the Magistrate, during the course of inquiry or trial held by him, that an investigation by the police is in progress, then he has to stay the matter and call for the report of the police. So that stage has not gone. It is still open for the petitioner to draw the attention of the learned Magistrate to the provisions of Section 210 of the Code and request him to call for the report, and till then to stay the matter. If, in spite of the learned Magistrate's attention having been drawn to this aspect, any order adverse to the petitioner is passed, the petitioner can come to this Court making a grievance against that order if it is illegal. This is a very early stage to come to this conclusion by way of this petition.

5. It should be noted that under Section 210 of the Code various eventualities are open before the learned Magistrate. First of all, he has to stay the proceedings of the inquiry or trial before him and call for the report on the matter from the police officer conducting the investigation. Secondly, if a report is made by the investigating police officer under Section 173 of the Code, and if the Magistrate takes cognisance on such report against a person who is an accused in the complaint case, then in that case also the Magistrate has to inquire into and try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. Thirdly, if the police report does not relate to any accused in the complaint case, or which is another eventuality as contemplated by Sub-section (3) of Section 210 of the Code, that if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him. This shows that if the police did not make a report against some of the accused, then also the Magistrate can proceed with the original complaint filed before him, or if the police did not make any report under Section 173 of the Code against any of the accused, meaning thereby, the police did not find that any offence was committed which ultimatly resulted into Magistrate's not taking cognizance of any offence on a police report, then it will be open to the Magistrate to proceed with the complaint or take any further action deemed fit by the learned Magistrate on the submissions made before him.

6. So far as the present petition before me is concerned, it is at a very early stage and, therefore, I do not propose to pass any orders, but dismiss it with an observation that it will be open for the petitioner to draw the attention of the learned Magistrate to the provisions of Section 210 of the Code and invite suitable orders.

7. With these observations, the petition is dismissed only on the aforesaid count and not on any other counts mentioned in the petition. Interim relief vacated. Rule is discharged.


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