RAMESHBHAI JAGJIVAN VORA AUTHORISED SIGNATORY OF GAEKWAD VS. STATE OF GUJARAT

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RAMESHBHAI JAGJIVAN VORA AUTHORISED SIGNATORY OF GAEKWAD VS. STATE OF GUJARAT

Facts of the case

The petitioner is an authorized signatory for “”M/s. Gaekwad Investment Co. Private Limited”. The petitioner filed a complaint with CID’s Crime Branch (Economic Cell) on July 23, 2008. In the complaint, the petitioner accused Respondent No. 3 of forging 7 documents, including a power of attorney and a sale agreement, along with two other people. Following an initial investigation, a FIR was registered on March 5, 2020, and Respondent No. 3 was taken into custody on March 17, 2020. Respondent No. 3 was presented before the Learned Chief Metropolitan Magistrate, Ahmedabad (hereinafter “CMM”), who remanded him to judicial custody since there was no request for remand. Respondent No. 3 filed an application for bail before the Sessions Court. The investigation was handed over to a new IO (Respondent No. 2). When the matter came up for hearing, the IO declared that a report under Section 173 in the form of a “C” summary and a request for the accused’s release on bail under Section 169 of the Criminal Procedure Code had been submitted to the magistrate.

The application was turned down on April 7, 2010. The learned CMM registered Summary and passed an order exercising his power under Section 169 of the CrPC, releasing Respondent No. 3 on conditional bail of Rs. 25,000. Against this order, the present petition was filed under Article 226 of the Constitution of India, inter alia, seeking that the order of the learned CMM be quashed.

Issues raised

Whether the order of the Learned CMM in releasing accused (Respondent No. 3) on bail, by exercising power under section 169 CrPC, is tenable or not?

Contention of the petitioners

The counsel for the petitioner argued that the impugned order must be annulled because it is unconstitutional and without jurisdiction. First, they asserted that the investigating officer (Respondent No. 2) had not carried out his duties adequately. that the investigation process had been carried out erroneously and hastily. Next, it was contended that there were irregularities on the part of the learned CMM in disposing of proceedings. The magistrate failed to appreciate the evidence and the findings of the FSL report. Additionally, the magistrate should have heard both reports under Sections 169 and 173 at the same time. Instead, the magistrate deferred the proceedings under Section 173 and first determined the case under Section 169. Their main argument was that the magistrate could not have exercised power under Section 169, as such powers are not available to the magistrate. The counsel for the petitioner relied on Brij Nandnan Jaiswal vs. Munna alias Munna Jaiswal & Anr. (2009)[1], in this the SC observed that complainant can question the order granting bail if the said order is not validly passed.

Contention of the Respondents

The counsel for the respondent cited Abhinandan Jha v. Dinesh Mishra (1967)[2], in which the Supreme Court stated that once the police submit a report under s. 169 CrPC, the magistrate has no power to order the police to submit a charge sheet. The Additional Public Prosecutor argued that the police and IO are completely within their rights to propose an accused person’s release because this practise has long been accepted. So when a Summary is requested, the accused is no longer required to be in custody.

They contended that it can’t be said that the impugned order was made only under Section 169, the counsel submitted that the court had exercised power under Section 437 of the CrPC, under which learned magistrates can release accused during any stage of trial.

Finally, they contended that this writ petition is not maintainable since an alternative remedy is available under Section 397. They concluded by saying that the practise of the IO in filing reports under Section 169 is not uncommon and that the order of the magistrate assailed in this petition is legitimate since the release of Respondent No. 3 is unlikely to cause prejudice to any of the parties. They subsequently requested that the petition be dismissed.

Judgement       

The petition was partly allowed, and the order of the magistrate dated April 16, 2010 was quashed and set aside. The Court also directed the Magistrate to investigate the report under Section 173 of the CrPC after giving the complainant an opportunity to be heard.

Rationale (Ratio Decendi)

The panel reasoned that a plain reading of Section 169 of the CrPC in no way implied that the magistrate had the authority to release the accused under that section. Once the magistrate has exercised power under Section 167, his role will only come while examining reports under Section 173. The court stated that the IO should have had a clear position and that the IO wrote two reports, one under Section 173 and one under Section 169, which were in conflict with one another.
The court further notes that the magistrate should have heard the complainant and should not have postponed hearings when allegations were made alleging premature disposition of proceedings.

In light of all these views, the court held that the magistrate was not justified in releasing the accused on bail by exercising the power of Section 169, which is not vested in him.

Conclusion

In the present case, the court clarified the legal situation regarding the magistrate’s authority to use the power under Section 169 of the CrPC. The court correctly determined that the magistrate is not authorised to exercise the powers listed in Section 169. The facts of this case were quite unusual, but the bench endeavoured to answer the question, which comes very often before courts, about the magistrate’s power under Section 169 after understanding all the events that led to this petition. The investigating officer was also criticised by the court for conducting the investigation improperly, and the court specifically called attention to anomalies in the filing of reports under sections 169 and 173.

[1] Brij Nandan Jaiswal v. Munna, (2009) 1 SCC 678

[2] Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668

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