J.B Pardiwala, J.:— By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants seek to challenge the order dated 2nd January, 2014 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 25, Ahmedabad for police inquiry under section 202 of the Code of Criminal Procedure, 1973.
2. It appears from the materials on record that the respondent No. 2 lodged a private complaint in the court of the Metropolitan Magistrate, Court No. 25 at Ahmedabad against the applicants herein of the offence punishable under sections 406, 420, 465, 467, 468, 471, 475, 476, 477(A), 499, 500 read with 114 of the Indian Penal Code. It also appears that the learned Magistrate took cognizance upon the complaint since the verification of the complaint on oath was recorded. After recording the verification on oath, the learned Magistrate thought fit to initiate an inquiry under section 202 of the Indian Penal Code. The learned Magistrate thought fit to direct the P.I of the Shahpur Police Station to conduct the inquiry and file an appropriate report in that regard. It is at that stage that the applicants filed this application praying for quashing of the order of inquiry under section 202 of the Code.
3. It appears that Rule was ordered to be issued vide order passed by this court dated 21st March, 2014. Ad-interim relief in terms of para-47(C) and (D) was also granted. 47(C) is with respect to stay of the further proceedings in the Criminal Case No. 69 of 2013 pending before the Chief Metropolitan Magistrate, Court No. 25, Ahmedabad and 47(D) is with respect to the stay of the operation and implementation of the impugned order dated 2 January, 2014 passed by the trial court and the consequence summons dated 11th March, 2014 issued by the respondent No. 2.
4. When the matter was taken up for hearing, I invited the attention of Mr. Josih, the learned senior advocate appearing on behalf of the applicants that his clients, as on today, cannot be termed as accused persons. They are merely persons named in the complaint. Although the learned Magistrate could be said to have taken cognizance upon the complaint since he has ordered inquiry under section 202 of the Code of Criminal Procedure, yet the learned Magistrate has not passed any order of issue of process under section 204 of the Code of Criminal Procedure, 1973.
5. It is possible that after the receipt of the report which the police inspector would file on conclusion of the inquiry, the learned Magistrate may even dismiss the complaint under section 203 of the Code of Criminal Procedure. At the same time, it is also possible that the learned Magistrate might deem fit to even order issue of process under section 204 of the Code.
6. Therefore, the only question that falls for my consideration in this application is whether at this stage, the persons named in the complaint can challenge the order passed by the learned Magistrate for inquiry under section 202 of the Code.
7. The law in this regard is well settled. Since the applicants who are named in the complaint have not been clothed the status of being called as an accused, they have no right even to participate in the magisterial inquiry initiated under section 202. At best, they can merely watch the proceedings, but they cannot put forward their defense or their case at this stage. Therefore, till the time the summons under section 204 of the Code of Criminal Procedure is not issued to the accused persons to face the trial, one does not have any locus standi in the case. One is not required either to attend the court or to file his appearance or move for bail. Therefore, mere registration, or continuance of a complaint case under inquiry under section 202 of the Code of Criminal Procedure does not give any locus standi to the accused to challenge the proceedings till cognizance is taken and he is summoned to face the trial after the inquiry under section 202 of the Code of Criminal Procedure is concluded.
8. There is a basic difference regarding locus standi of a person who is arraigned as an accused in a complaint case vis a vis one who is an accused in a police case. In a police case, if accusation made against a person discloses a cognizable offence, he immediately becomes an accused and is liable to be arrested also. That is not the case if upon a private complaint the learned Magistrate has ordered inquiry under section 202 of the Code.
9. In such circumstances, it could be said that these petitions have been filed at a premature stage. Ultimately, on conclusion of the inquiry, the learned Magistrate decides to issue process under section 204, then it shall be open for the applicants to challenge such order by filing a fresh application on its own merit. It is also well settled that when a police is asked to carry out an inquiry under section 202 of the Code, he has no powers even to arrest the person named in the complaint.
10. I had an occasion to consider almost an identical issue with regard to the right of the person to challenge an order of preliminary inquiry under section 340 of the Code. In that case, the plaintiff filed an application before the civil court to initiate proceedings against the defendants under section 340 of the Code. Pursuant to such application filed by the plaintiff, the court initiated preliminary inquiry. The application was considered by the civil court and after hearing the plaintiff and the defendants, the court concerned passed an order of preliminary inquiry as contemplated under section 340 of the Code of Criminal Procedure. Aggrieved by such order of preliminary inquiry, the defendants came up with a petition challenging the order passed by the civil court. I took the view by applying the analogy of section 202 inquiry that the defendant had no locus to challenge such an order of preliminary inquiry until the court decides to file a complaint in the court of law. I may quote with profit the observations made in paragraphs-9, 10, 11, 12, 13 and 14.
“9. The only question which falls for my determination in this petition under Article 227 of the Constitution of India is as to whether the trial Court is obliged to hear a party against whom an application under Section 340 of the Code has been preferred, alleging commission of offence of perjury in relation to, any proceeding in any Court and upon such application being preferred under Section 340 of the Code if the trial Court decides to hold a preliminary inquiry, then whether such an order can be challenged by the party against whom the allegations of perjury are levelled. To put it in another way, if the defendant in the present case i.e the petitioner herein had no right to be heard by the trial Court before deciding application Exh.45 in any manner and if the trial Court under a misconception of law gave an opportunity of hearing to the defendant to oppose the application Exh.45 and thereafter if thought fit to pass an order of preliminary inquiry, then whether the defendant can challenge such an order before this Court under Article 227 of the Constitution.
10. I am of the view that the position of law is no longer res-integra after the pronouncement of judgment in the case of Pritish (supra). I have no hesitation in coming to the conclusion that the petitioner (original defendant) has no locus or any right to challenge the order passed by the trial Court below Exh.45 ordering preliminary inquiry under Section 340 of the Code. In taking this view I may take assistance of the analogy or the position of law so far as the magisterial inquiry under Section 202 of the Code is concerned. In a private complaint, if a Magistrate, after taking cognizance, decides to initiate a Magisterial Inquiry under Section 202 of the Code, then whether the accused in such a case can participate in the inquiry. The answer is in the negative. An accused against whom process is yet to be issued under Section 204 of the Code cannot come before the Magistrate at the stage when a Magisterial Inquiry under Section 202 is being ordered. It is a settled law that he cannot participate in the said inquiry nor can he tell the Magistrate that the complaint deserves to be dismissed by adducing evidence at that stage in his favour. Ultimately, at the end of such Magisterial Inquiry if the Magistrate decides to take cognizance and issues process, then such an accused can challenge the order of issuance of process before the appropriate forum saying that the process ought not to have been issued. The reason is very simple. An inquiry under Section 202 of the Code is not for the purpose of ascertaining whether the accused persons are likely to be convicted but only for the purpose of deciding whether summons should be issued or not. In the same manner, when an application is made before the Court by a party to a proceeding under Section 340 of the Code, then the Court has to form an opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, record a finding to that effect and make a complaint thereafter in writing. Plain reading of Section 340 of the Code goes to show that it is within the discretion of the concerned Court to hold a preliminary inquiry or not before deciding the application under Section 340 finally. Court may, upon a preliminary inquiry, deem fit to reject the application at the threshold or Court may, after a preliminary inquiry, make a complaint in writing. In the same manner, even without holding a preliminary inquiry if the Court is satisfied, can make a complaint in writing against the party who is said to have committed an offence of perjury. Thus, the preliminary inquiry is only for the purpose to decide whether any case has been made out for filing of a complaint or not. At the stage when the Court decides to file a complaint, Court is not holding the person against whom the complaint is lodged guilty of the offence but only records a prima facie finding that it is expedient in the interest of justice to make a complaint. Therefore, at the stage of deciding the application under Section 340, the accused has no right of hearing or participating in the preliminary inquiry if ordered by the concerned Court. Ultimately, even without holding a preliminary inquiry or after holding a preliminary inquiry if the trial Court decides to file a compliant, then under such circumstances such an order will become appealable order under Section 341 of the Code. When the Legislature has thought fit to provide for an appeal to the aggrieved party only against the final order passed under Section 340 of the Code, then under such circumstances it cannot be said that the party concerned can challenge an order of the trial Court to hold a preliminary inquiry.
11. It appears that this issue for the first time came-up for consideration before the Nagpur Bench of the Bombay High Court in the case of Pritish R. Tayde v. State of Maharashtra which is a reported decision in 2001 Cr. L.J 1594. In the said case of Pritish (supra), the appellants approached the Bombay High Court against the decision of the Civil Judge (S.D) in initiating prosecution against them after holding preliminary inquiry under Section 340 of the Code. The matter was carried by the appellants in Misc. Civil Appeal before the Court of Additional District Judge, Kusad impugning the said order. The said Misc. Civil Appeal came to be disposed of with a direction to make appropriate complaint against respondent nos. 4 and 5 of the said case before the learned JMFC, Kusad. The respondents before the Civil Judge (SD), Kusad, alleged that the appellants committed offences under Sections 191, 192, 196, 199 as well as 195 of IPC by tendering in evidence forged documents and thereby committed offences under Sections 463 and 464 which were punishable under Section 465 IPC. The Court conducted a preliminary inquiry by examining the persons whose sale-deeds were forged by the appellants and the Sub-Registrar before whom such documents were registered and after being prima facie satisfied that such offences as alleged were committed, proposed to file a complaint before the learned JMFC. The Appellate Court confirmed the said finding arrived by the Civil Judge (S.D) in the preliminary inquiry and directed him to file such complaint. Before the Bombay High Court it was contended by the appellants that the Court concerned overlooked the basic principles of rules of natural justice and without giving an opportunity to the appellants to be heard in the matter, proceeded to make an inquiry and came to a decision to file a compliant against them. It was contended before the Bombay High Court that this approach of the Court concerned greatly prejudiced the appellants as it has deprived them of an opportunity to be heard and, therefore, prayed to quash and set aside the order. His Lordship of the Bombay High Court, after examining the contentions, more particularly, the main contention of not affording an opportunity of hearing before passing the final order of filing of complaint and after examining the entire scheme of Section 340 of the Code, held that the contention of the appellants that the Court before initiating any inquiry into the matter, ought to have given notice to the appellants and that the appellants have a right to be heard, cannot be accepted. The High Court proceeded to observe that one can understand if the Court had decided to proceed against the appellants summarily under Section 344 of the Code and in that case, it was obligatory on the Court to have given notice to the appellants as required under the summary procedure for trial, but not in a case where the Court has chosen to hold preliminary inquiry under Section 340(1) of the Code to determine whether a complaint should be filed against the appellants or not.
12. Being aggrieved by the judgment and order passed by the Nagpur Bench of the Bombay High Court dismissing the appeal preferred by the appellants of that case, the appellants preferred Special Leave to Appeal before the Supreme Court. The Supreme Court dismissed the appeal confirming the judgment and order of the Bombay High Court and held as under:
“8. Chapter XXVI of the Code contains provisions “as to offences affecting the administration of justice”. Among the 12 Sections subsumed therein we need consider only three. Section 340 consists of four sub-Sections of which only the first sub-Section is relevant for the purpose of this case. Hence the said sub-Section is extracted below:
“When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the First Class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.”
9. Reading of the sub-Section makes it clear that the hub of this provision is formation of an opinion by the Court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the Court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the Court can form such an opinion when it appears to the Court that an offence has been committed in relation to a proceeding in that Court. It is important to notice that even when the Court forms such an opinion it is not mandatory that the Court should make a complaint. This sub-Section has conferred a power on the Court to do so. It does not mean that the Court should, as a matter of course, make a complaint. But once the Court decides to do so, then the Court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the Court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the Court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the Court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-Section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the Court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.
10. “Inquiry” is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a magistrate or Court.” It refers to the pre trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the Court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said Court has to make a complaint in writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of “warrant case” [as defined in Sec. 2 (x)] of the Code the magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report, That being the position, the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.
11. Section 238 of the Code says that the Magistrate shall at the outset satisfy that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the magistrate.
12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged.
13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that Court might file a complaint before the magistrate for initiating prosecution proceedings. Learned Counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.
14. Section 341 of the Code confers a power on the party on whose application the Court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the Court to which the former Court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the Court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the Court or the Authorities concerned, to afford an opportunity of hearing to the would be accused. In any event appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier.”
11. The second grievance which is sought to be redressed before me is that after the order of police inquiry was passed by the learned Magistrate under section 202 of the Code, the police issued summons under section 160 of the Code of Criminal Procedure directing the applicants herein to remain present at the concerned police station. Well if that be so, then in my view the police officer was not justified in issuing such summons under section 160 of the Code of Criminal Procedure. The reason is very simple. section 160 of the Code of Criminal Procedure reads as under:
“(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.”
12. For issuing summons under section 160 of the Code, investigation is a sine-qua-non and the investigation can be conducted only in connection with the crime registered in terms of section 154 of the Code. Section 160 of the Criminal Procedure Code itself makes it clear that any police officer making an investigation under chapter 12 of the Code of Criminal Procedure 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 to required WEB COPY
13. Since there is no crime registered in terms of section 154 of the Code of Criminal Procedure, 1973, no summons can be issued under section 160 of the Code of Criminal Procedure, summoning a person to appear before the officer. As the summons summoning the petitioner issued by the officer are without jurisdiction, they are ordered to be quashed.
14. In the case of Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430, the Supreme Court made the following observations:
“We may point out that since the object of an enquiry under S. 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under S. 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under S. 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this.
15. The scope of investigation, as referred to above, was considered by their Lordships of the Supreme Court in Devarapalli Lakshminarayana Reddy v. Narayana Reddy, (AIR 1976 SC 1672: (1976 Cri LJ 1361)). Their Lordships considered the provisions of Section 202 both before and after the amendment of the Code in 1973 side by side and held that the distinction between a police investigation ordered under Section 156(3) and the one directed under Section 202 has also been maintained under the new Code.” It was observed:
“Section 156(3) occurs in Chap. XII, under the caption: ‘Information to the police and their powers to investigation’; while Section 202 is in Chapter XV which bears the heading ‘of complaints to Magistrate’. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding’. Thus the object of an investigation under Sec. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”
16. There is one additional aspect of the matter. A bare reading of section 160 makes it abundantly clear that a police officer is empowered to direct any person to be present before him so as to be available for interrogation who appears to be acquainted with the facts and circumstances of the case provided that such person is available within the limits of its own or any adjoining station.
17. Indisputably, in the present case, the applicants are not residing within the limits of the police station of the officer who has issued the summons. The summons has been issued by a police officer of Sahpur Police Station, Ahmedabad, whereas the applicants before me are all permanent residents of Mumbai.
18. In the result, this petition is partly allowed. The prayer so far as quashing of the order of police inquiry is concerned, is rejected as premature. I have already clarified that in the event if ultimately process is issued, it shall be open for the applicants to challenge the same. So far as legality and validity of the issue of summons is concerned, I have already explained why such summons could not have been issued.
19. With the above observations and directions, this petition is disposed of.
20. I clarify that I have otherwise not gone into the merits of the matter. I may only say that it shall be open for the applicants herein to submit their say in the matter in writing directly to the concerned police officer and if such representation is received by the police officer, the same be considered in accordance with law.
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