REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  1509   OF 2008 (Arising out of (SLP (Crl.) No.6328 of 2008)

Ketankumar Babulal Patel ….Appellants

Versus

Kesarben Jesangji and Ors.  ….Respondents

(With Criminal Appeal No.  1510 /2008@SLP (Crl.) 6331/2008)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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  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 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

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 Special  Criminal  Application No.1060 of  2008

approached the District Superintendent of Police, Ahmedabad

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requesting him to exercise powers under Section 154 (3) of the

Code of Criminal  Procedure,  1973 (in short the ‘Code’).  But

they  were  advised  to  approach  the  police  station  and

assurance was given that they shall  get justice.   Thereafter,

complaint  was filed  on 29.3.2008  before  the  Sarkhej  Police

Station but the same was not accepted. It was alleged that the

respondents in the complaint were politically very influential

persons and were prominent builders and hence police did not

accept  the  complaint.  It  was  also  stated  that  the  District

Superintendent  of  Police  instead  of  helping  them  to  give

justice informed the respondent no.1 in the complaint about

the said complaint  on 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 the Police Inspector are

called  for,  it  will  become  crystal  clear  that  such

communications were there.  The scripts of the talks between

the concerned officials and respondent No.1 have to be called

for from the mobile companies.  An order was passed earlier in

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Special  Criminal  Application  No.918  of  2007.  The  Judicial

Magistrate,  Ist  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.”    

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.  

4. Learned  counsel  for  the  appellants  in  each  case

submitted  that  the  course  adopted  by  the  High  Court  is

impermissible.  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 the Code. It is also submitted that once the

Magistrate  held  that  a  prima  facie  offence  was  made  out

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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 has again directed that modality

under  Section 156(3)  to be adopted.  It  is  pointed out  that

reasons have been given as to why it  was felt  necessary to

have resort to Section 156(3).

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  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

directed inquiry to be conducted.  The trial Court could have

directed  the  action under  Section 156(3)  to  be  taken.   The

High Court has acted in accordance with law in directing that

Section 156 (3) procedure was to be followed.  

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7. With reference to the order passed by the Collector vis-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 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

offence was made out, to close the proceeding and thirdly to

take 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) SCC 359)  the position was highlighted as follows:

“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

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before  the  Magistrate  having  jurisdiction  to  take cognizance  of  the  offence  and  the  Magistrate  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  issuing  process  to  the  accused,  he  is empowered  to  direct  the  police  concerned  to investigate  into  offence  under  Chapter  XII  of  the Code and to submit a report.  If  he finds that the complaint  does  not  disclose  any  offence  to  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.  These aspects have been highlighted  by  this  Court  in  All  India  Institute  of Medical  Sciences Employees’  Union (Reg.)  through its President v. Union of India and others (1996 (11) SCC 582).  It  was specifically observed that a writ petition in such cases is not to be entertained.

17. The  above  position  was  highlighted  in Gangadhar  Janardan  Mhatre v.  State  of Maharashtra and Ors. (2004 (7) SCC 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

category 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

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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 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.  

……..……………………...…….J. (Dr. ARIJIT PASAYAT)

……….…….…………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, September 23, 2008      

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