Gujarat High Court Case Information System
Print
SCR.A/1678/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1678 of
2010
=========================================================
SOUVIK
KAR,SHIV GOTRI DIAGNOSTIC CENTRE, - Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Applicant(s) : 1,MR PP MAJMUDAR for Applicant(s) : 1,
MR KARTIK
PANDYA, ASST. PUBLIC PROSECUTOR for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 01/10/2010
ORAL
ORDER
1. The
case of the petitioner is that he is being summoned by the Police
Officer of the Gorva Police Station, for which a ‘Summons’ has been
issued, which is produced at Annexure-H .
Upon perusal of the said document, it clearly emerges that the
summons is issued under the purported exercise of powers under
Section 156 of the Code of Criminal Procedure, by the Police
Inspector, Gorva, Vadodara. It is stated in the said document that
one Dr. Sarla Brijsunder Patra has filed a complaint against the
petitioner, in the office of Commissioner of Police, Vadodara.
Since, he is inquiring into the said application, it is necessary to
record the statement of the petitioner. The petitioner should,
therefore, remain present before the Gorva Police Station, for giving
his statement within two days of the receipt
of the said summons.
2. Section
160 of the Code of Criminal Procedure pertains to Police Officer’s
power to require attendance of witnesses. It reads as follows:
160.
Police officer’s power to require attendance of witnesses.
(1) Any police officer, making an investigation under this Chapter
may, by order in writing, require the attendance before himself of
any person being within the limits of his own or any adjoining
station who, from the information given or otherwise, appears to be
acquainted with the facts and circumstances of the case; and such
person shall attend as so required: Provided that no male person
under the age of fifteen years or woman shall be required to attend
at any place other than the place in which such male person or woman
resides. (2)The State Government may, by rules made in this behalf,
provide for the payment by the police officer of the reasonable
expenses of every person, attending under sub-section (1) at any
place other than his residence.
3. Upon
perusal of the said Section, in particular, sub-Section 1 thereof, it
becomes clear that any Police Officer, who is making investigation
under Chapter XII, may be, by an order in writing, require attendance
of any person before him, who appears to be acquainted with
the facts and circumstances of the case.
4. Chapter
XIV of the Code of Criminal Procedure pertains to the information to
the police and their powers to investigate. Section 154 of the Code
pertains to information in cognizable cases. Section 155 provides
that every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police station,
shall be reduced to writing by him or under his direction. Section
156 provides that any officer in charge of a police station may,
without the order of a Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local area within the
limits of such police station would have power to inquire into or try
under the provisions of Chapter XIII. Section 157 pertains to
procedure for investigation.
5. In
the present case, it is an admitted position that neither a complaint
of having committed a cognizable offence has been made against the
petitioner nor an FIR thereof, is registered by the police. In that
view of the matter it cannot be stated that the police officer is
making investigation under Chapter XII of the Code.
6. He,
therefore, could not have issued the impugned summons to the
petitioner. Under the similar circumstances, previously, I had an
occasion to pass an order in the case of Hasmukhbhai
Ranchodbhai Patel-Amar Enterprise VS. State of Gujarat & Others
in Special Criminal Application No.1061 of 2010, making following
observations:
Counsel
for the petitioner submitted that in absence of any police complaint,
the petitioner cannot be summoned under section 160 of Cr.P.C. for
recording his statement. He further submitted that purely under
pressure from the father of respondent No.3 who is a retired police
officer, the Police Inspector, respondent No.2 herein is pressurizing
the petitioner into settling civil dispute through police machinery.
xxx
xxx xxx
The
power to require attendance of any person vested in the police
officer under sub-section (1) of section 160 flows from the fact that
he is making an investigation under Chapter XXII of Cr.P.C. Such
investigation must relate to information of a cognizance offence as
referred to in section 154 of the Cr.P.C. In the present case, when
admittedly, no FIR is registered, compelling the presence of the
petitioner under section 160 of Cr.P.C. does not arise. No other
provision is pointed out to suggest that in absence of complaint
also, presence of a person can be compelled. I have therefore based
my conclusion on section 160 which is referred to in the impugned
summons.
7. In
the result, the impugned communication Annexure-H ,
dated 29.08.2010, issued to the petitioner, by the Police Inspector,
Gorva Police Station, Vadodara, is QUASHED.
8. It is,
however, made clear that if, at any point of time, an FIR is
registered by the concerned police station, with respect to which
attendance of the petitioner is necessary, it is always open to the
Investigating Officer to summon the petitioner. This is without
prejudice to the defence of the petitioner.
9. With the
above observations and directions, this petition is disposed of.
Direct service is permitted.
(AKIL
KURESHI, J.)
Umesh/
Top