LexKETANKUMAR BABULAL PATEL versus KESARBEN JESANGJI AND ORS.
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[2008] 13 S.C.R. 812 .A KETANKUMAR BABULAL PATEL v. KESARBEN JESANGJI AND ORS. (Criminal Appeal No. 1509 of 2008) SEPTEMBER 23, 2008 f- 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 D decision. ~· 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. F In appeals to this Court, appellants contended that 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 ' i ' ~ l ~ I 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 issue process to the accused. [Para 9] [816G-H, 817A-C] Minu Kuma.ri and Anr. v. State of Bihar and Ors. (2006) 4 sec 359 - relied on. E 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 1 O] [817 E-F] Case Law Reference (2006) 4 sec 359 relied on Para 9 CRIMINALAPPELLATE JURISDICTION: Criminal Appeal G No. 1509 of 2008 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 D E 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
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