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SCR.A/91/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 91 of 2011
=============================================
UMESHKUMAR
MAHESHBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=============================================
Appearance :
MR
VM PANCHOLI for Applicant(s) : 1,
MR KARTIK PANDYA ADDL. PUBLIC
PROSECUTOR for Respondent(s) :
1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/02/2011
ORAL
ORDER
1. Rule.
Learned APP waives service of rule on behalf of respondent-State.
2. This
petition under Articles 226 and 227 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, 1973, is filed by
the petitioner/original complainant challenging the order passed by
learned Metropolitan Magistrate, Court No.20, Ahmedabad on 9th
August, 2010 in inquiry case No.9/2008 in exercise of revisional
jurisdiction under Section 397 of the Code in Revision Application
No.203 of 2010.
3. The
Courts below have examined the case of the complainant on prima faice
merit as well as on law and has found that the complainant has no
right to file the complaint and only the concerned Court can file the
complaint looking to the provisions of Section 195(1)(b) of the Cr.
P.C. with regard to the offences punishable under Sections 193 to
197, 464 to 468, 470 and 471 of the Indian Penal Code. The learned
Sessions Judge while considering the record of the case has noticed
that even prima facie no material was found to connect the accused
with the crime and the complaint appear to be vague. No case papers
with regard to medical treatment of Mr. Amit Barot (deceased) was
produced and the certificate issued by the Doctor dated 23.11.2001,
for which, number of allegations were levelled, nothing was shown to
the Court to its genuineness or otherwise.
4. The
above findings of facts as well as law, according to learned counsel
for the petitioner-complainant are contrary to law and submitted that
having sent the complaint for inquiry under Section 202 of the Code
rejection of the complaint on the ground that complaint is barred
under provisions of Sections 195(1) (a) (i) (ii) (iii) of the Cr.
P.C. After receiving the report of the inquiry officer is not just
and proper and deserves to be interfered with. It is further
submitted that courts below have not appreciated the prima facie
material with regard to medical certificate as well as death
certificate issued by Ahmedabad Municipal Corporation and hard fact
remain that the deceased expired in the hospital of the accused and
the courts below ought to have held the accused guilty of the offence
of deposing falsely on oath. It is further submitted that the
consideration weighed with the courts below is time gap of the
complaint filed after several days and nothing could have come in way
for the complainant to secure justice.
5. Having
heard learned counsel for the petitioner and learned APP for
respondent-State, it transpires that submissions canvassed by learned
counsel for the petitioner with regard to powers under Section 202 of
initiating inquiry by the learned Magistrate and rejection of
complaint later on cannot be accepted inasmuch as when after ordering
the inquiry under Section 202 of the Code, learned Judge has
ultimately noticed that when the complaint is barred under Section
195 (1) (b) (i) (ii) (iii) of the code, the learned Magistrate was
empowered to pass the order under Section 203 of the Code. It is to
be noted that Section 195A is inserted by Act 5 of 2009 w.e.f.
31.12.2009 which empowers the witness or any other person to file a
complaint in relation to an offence under Section 195A of the Indian
Penal Code and it is trite that any amendment introduced in the Penal
constitute cannot have a retrospective effect.
6. Considering
the above aspect, other submissions on merit will have no relevance
and the order of learned Magistrate is confirmed by well reasoned
order of learned Sessions Judge while exercising revisional
jurisdiction, I do not find any substantial question of law or any
miscarriage of justice in the orders passed by the Courts below
warranting to exercise extra ordinary jurisdiction under Articles 226
and 227 of the Constitution of India read with Section 482 of the
Code keeping it open to the petitioner to take remedy in accordance
with law.
7. This
petition is dismissed. Rule is discharged with no order as to costs.
[ANANT
S. DAVE, J.]
//smita//
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