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R/SCR.A/1258/2011
ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No 1258 of 2011
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PRAVINSINGH
SOMAJI MAKVANA & 2....Applicant(s)
Versus
STATE
OF GUJARAT....Respondent(s)
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Appearance:
MR
SK PATEL as ADVOCATE for the Applicant(s) No. 1
MR
JK SHAH, APP for the RESPONDENT(s) No. 1
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CORAM:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 06/06/2011
ORAL
ORDER
Permitted to implead
original complainant as party respondent No.2 in the petition. Leave
to amend.
It
appears that the respondent No.2 preferred private complaint in the
Court of Judicial Magistrate First Class, Prantij, Dist.Sabarkantha,
against the petitioners (accused persons) for the offences
punishable under Section 302 and 120B of the Indian Penal Code. It
appears that on filing of the complaint Judicial Magistrate First
Class, Prantij vide order dated 11.6.2009 ordered Police Inspector,
Prantij to investigate the complaint under Section 202 of Criminal
Procedure Code. Subsequently the succeeding Magistrate vide order
dated 16.6.2010 passed an order that since the offences are
exclusively triable by the Sessions Court the predecessor in office
could not have directed the Police Inspector, Prantij to inquire the
offence under Section 202 and place its report. Therefore, the order
appears to have been modified to the extent that the inquiry will be
now conducted by the Court as a Magisterial inquiry.
It
is very unfortunate that the Magistrate has not even recorded
verification of the complainant on oath as mandatorily required
under the provisions of the Code before taking cognizance upon the
complaint. Subsequently it appears from the impugned order dated
28.2.2011 that inspite of giving opportunity to the original
complainant i.e. respondent No.2 to appear before the Court and
enter into witness box and depose for the purpose of Magisterial
inquiry at no point of time the complainant respondent No.2
appeared and, therefore, the Magistrate thought fit to close the
stage of examining the complainant and his witnesses. In para-3 it
is further observed that the complainant has not adduced any
evidence in support of the complaint nor has produced any witnesses
or examined any witness in support of his complaint. Inspite of this
position, straightway the Magistrate, Prantij, thought fit to issue
process under Section 204 of the Code of Criminal Procedure for the
offences punishable under Sections 302 and 120B of the Indian Penal
Code.
Prima
facie I am of the view that the order of the Magistrate, Prantij,
issuing process against the petitioners under Section 204 of the
Criminal Procedure Code is not sustainable in the eyes of law. Let
notice be issued to the respondents returnable on 27.6.2011.
Mr.J.K.Shah, learned APP waives service of notice on behalf of
respondent State. Direct service for respondent No.2 is
permitted.
In
the meantime, operation, implementation and execution of the order
passed by Judicial Magistrate First Class, Prantij dated 28.2.2011
below Ex.1 in Criminal Inquiry Case No.7 of 2009 shall remain
stayed.
(J.B.PARDIWALA,
J.)
kks
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