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VERSUS
STATE OF GUJARAT
RESPONDENT
JUDGMENT
ADARSH KUMAR GOEL J.
1.
Page1
120-B and 114 of the Indian Penal Code directing the Police
Sub-Inspector, Sanand, to give a report to the Court within
thirty days under Section 202(1) of the Code of Criminal
Procedure, 1973 (for short the Code) instead of directing
investigation under Section 156(3) of the Code, as sought by
the appellant.
3.
Accused No.1
Page 2 of 38
Page2
the appellant before the High Court was that in view of the
allegation that documents had been forged with a view to
usurp the trademark, which documents were in possession
of the accused and were required to be seized, investigation
ought to have been ordered under Section 156(3) instead of
conducting further inquiry under Section 202. Thus, there
was non application of mind by the Magistrate.
It is also
to
arrest
the
accused
as
arrest
is
part
of
appellant.
It
was
observed
that
the
appellant
had
Page 3 of 38
Page3
The fact
Ravjibhai
Patel
vs.
Dhirubhai
Shambhubhai Kakadiya1 .
6.
Page4
7.
Such
Page 5 of 38
Page5
(1979) 1 GLR 17
Page 6 of 38
Page6
is
necessary,
Magistrate
must
order
Page7
investigation
under
Section
156(3);
and
(ii)
to
proceed
further
and
issue
process
are
Page 8 of 38
Page8
Magistrate
has
discretion
either
to
direct
when
is
primarily
of
civil
nature.
Page 9 of 38
Page9
Page 10 of
Page10
Heading
of
Chapter
XIV
is
Conditions
to
Page11
direction
for
Page 12 of
Page12
15.
Page 13 of
Page13
(2014) 2 SCC 1
Page 14 of
Page14
18.
Page15
Page16
Page17
Page 18 of
Page18
19.
are
different.
It requires application of
Existence of power and its
Delicate
balance
had
to
be
Page19
Page20
Page 21 of
Page21
Page22
Page23
We are of the view that the maxim does not apply for
interpretation of Section 202 (3) for the reasons that follow.
In our view, the correct interpretation of the provision is that
merely negating the power of arrest to a person other than
police officer does not mean that police could exercise such
Page 24 of
Page24
For
Page25
25.
Page 26 of
Page26
cognizance.
Bombay,
(supra),
Emperor
vs.
Nurmahomed
(1929) 31 BOMLR 84
Page 27 of
Page27
10
Page 28 of
Page28
27.
Asha Das and others vs. The State12, Sind and Assam
High Courts respectively have taken a contrary view by
holding that when direction for investigation issued under
Section 202 (1) is issued, the police is to investigate
precisely in the same manner and arrest the accused in
precisely the same manner as they would have done if they
had recorded First Information Report.
28.
Page29
29.
Page 30 of
Page30
Nurmahomed
Shanabhai
Rajmahomed
Chauhan
(supra),
(supra)
and
Mahendrasinh
Harsh
Khurana
been upheld by the High Court. The case has been held to
be primarily of civil nature. The accused is alleged to have
forged partnership.
While a
may
be
justified,
there
is
judicially
Page 31 of
Page31
observed :
13. While on this issue, it is necessary to take
notice of a growing tendency in business circles
to convert purely civil disputes into criminal
cases. This is obviously on account of a
prevalent impression that civil law remedies are
time consuming and do not adequately protect
the interests of lenders/creditors. Such a
tendency is seen in several family disputes also,
leading
to
irretrievable
breakdown
of
marriages/families. There is also an impression
that if a person could somehow be entangled in
a criminal prosecution, there is a likelihood of
imminent settlement. Any effort to settle civil
disputes and claims, which do not involve any
criminal offence, by applying pressure through
criminal prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State of U.P.
[(2000) 2 SCC 636] this Court observed: (SCC p.
643, para 8)
It is to be seen if a matter, which is
essentially of a civil nature, has been
given a cloak of criminal offence.
Criminal proceedings are not a short cut
of other remedies available in law.
Before issuing process a criminal court
has to exercise a great deal of caution.
For the accused it is a serious matter.
This Court has laid certain principles on
the basis of which the High Court is to
exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this
section has to be exercised to prevent
13
Page32
32.
In
Pepsi
Foods
Ltd.
vs.
Special
Judicial
33.
High Court rightly held that in the present case report under
Section 202 was the right course instead of direction under
Section 156(3). The question is answered accordingly.
14
Page33
34.
Page34
by
the
complainant
and
the
statements made before him by
persons examined at the instance of
the complainant.
Indicating the scope, ambit of Section 202 of
the Code of Criminal Procedure this Court in
Vadilal
Panchal
v.
Dattatraya
Dulaji
Ghadigaonker [AIR (1960) SC 1113] observed
as follows:
Section
202
says
that
the
Magistrate may, if he thinks fit, for
reasons to be recorded in writing,
postpone the issue of process for
compelling the attendance of the
person complained against and
direct an inquiry for the purpose of
ascertaining the truth or falsehood of
the complaint; in other words, the
scope of an inquiry under the section
is limited to finding out the truth or
falsehood of the complaint in order
to determine the question of the
issue of process. The inquiry is for
the purpose of ascertaining the truth
or falsehood of the complaint; that
is, for ascertaining whether there is
evidence in support of the complaint
so as to justify the issue of process
and commencement of proceedings
against the person concerned. The
section does not say that a regular
trial for adjudging the guilt or
otherwise of the person complained
against should take place at that
stage; for the person complained
against can be legally called upon to
answer the accusation made against
him only when a process has issued
and he is put on trial.
Page 35 of
Page35
vs.
Raghuraj
Shaileshbhai
Singh
Mohanbhai
Rousha
vs.
Patel
Shivam
&
Ors.17,
Sunadaram
beginning
Page 36 of
Page36
Section 173.
36.
37.
any error in the view taken by the Magistrate and the High
Court that direction under Section 156(3) was not warranted
in the present case and the police may not be justified in
exercising power of arrest in the course of submitting report
under Section 202.
38.
The
questions
framed
for
consideration
stand
answered accordingly.
24
Page37
39.
...J.
[ T.S. THAKUR ]
....J.
[ ADARSH KUMAR GOEL ]
...J.
[ R. BANUMATHI ]
NEW DELHI
MARCH 16, 2015
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