Hareshkumar Dahyabhai Mevada, Chief Officer and 3 Others vs State of Gujarat and 1 Another

Mohinder Pal, J.—Under the scheme of National Slum Development Project, a work order was awarded after following the required procedure to one M/s. Dwarkesh Gram Vikas Trust for laying down pipelines. The pipes were laid as per the guidelines. There were periodic inspections of the allotted work. However, the complainant, i.e. respondent No. 2 namely Pathan Ahmad Alikhan, in the capacity as a social worker filed a private complaint against the petitioners for the offences punishable under sections 409, 420, 465, 468, 114, 120B and 167 of the Indian Penal Code before the Court of Judicial Magistrate, First Class at Vadnagar on 12.9.2006. On receipt of the complaint, learned Magistrate vide order dated 15.9.2006 ordered the police officer to inquire into the complaint u/s 202 of the Code of Criminal Procedure. Thereafter, concerned police officer conducted necessary investigation and submitted report. On receipt of this report, learned Magistrate vide his impugned order dated 07.9.2009 summoned the accused (present petitioners) to face trial under the above-mentioned sections. Aggrieved from this order of learned Magistrate, the accused persons, i.e. present petitioners, have preferred this special criminal application which is pending for disposal. I have heard learned counsel Mr. Jal Soli Unwala, appearing for the petitioners, and learned APP Mr. Alkesh N. Shah, appearing on behalf of the State.

Learned advocate for the petitioners submitted that, though the report in question u/s 202 of the Cr.P.C. was in favour of the petitioners, despite that the petitioners have been ordered to be summoned by issuing non-bailable warrants to face trial. He has read the report today in the Court and has submitted that there was nothing adverse against any of the petitioners and in absence of any fault on the part of the petitioners, the complaint should have been dismissed by learned Magistrate. Therefore, the impugned order should be quashed and set aside.

On the other hand, learned APP has opposed the petitions by submitting that lot of nuisance has been caused to the residents of the area because of allotment of the work and because of faulty laying down of pipeline which has caused nuisance to the public at large.

Section 202 of the Cr.P.C. deals with the issue in question, which reads as under:

Postponement of issue of process

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, a [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200".

So, as per reading of this provision, on receipt of complaint, the Magistrate has to either take cognizance or may direct for further investigation by police. In this case, learned Magistrate seems to have proceeded for further investigation as enshrined in section 202 of the Cr.P.C.

Perusal of the report by the police official shows that:

...It does not seem that the complainant is having adequate and proper knowledge about the drainage system and the gutter pipelines which are laid down by the Nagarpalika. For the reason that the gutter pipelines which are to be installed are gutter pipelines and there is no question of leakage from the said pipelines. And because of such half gutter pipelines, there is no question of causing damage to the old houses before which the pipelines are laid down. And because of such pipelines laid down by Nagarpalika the traffic problem will also be resolved. And in view of the above fact, the averment of the complainant that the gutter pipelines laid down are non functional are false.

That as per the terms and conditions of the Tender, a public advertisement was issued by Vadnagar Nagarpalika in a daily newspaper namely Sambhav inviting applications for execution of work of the gutter pipelines from the persons desiring of doing such work and further inviting applications from co-operative societies which are registered with Vadnagar Nagarpalika''s CDS. Committee. In furtherance of the above discussion, it was decided to allot the work to two different co-operative societies equally and estimate of the tender work (neither low nor high) was obtained from both the societies and work of laying gutter pipelines from Darbar to Amtol Darwaja was allotted to Dwarkesh Gram Vikas Trust and the same Trust has also executed the work as per the map and terms and conditions of contract.

That Vadnagar Nagarpalika has obtained appropriate permission from concerned authority for laying down gutter pipelines from Ashok Pan Ghar to Samtol Darwana and thereafter has allotted work and the said work was also satisfactorily completed and because of the above reasons the allegations of the complainant in the complaint that the bills are forged are totally false and baseless...

After going through the contents of this report, there is no illegality in laying down the pipelines as claimed by the complainant. Otherwise also, all the accused persons ordered to be summoned and face trial are government officials and public servants who seem to have performed their duty in discharge of their official work cannot be made to face the trial like this. Under the circumstances, once it is established that government officials have worked within the four corners of law, mathematical scrutiny of every administrative action cannot be permitted. Otherwise also, before taking cognizance against them, sanction u/s 197 of the Cr.P.C. was required to be taken from the higher authorities, which has not been taken. On that ground also, the proceedings against the petitioners are required to be quashed and set aside. In the result, both the petitions are allowed and the impugned order is set aside. If the petitioners are on bail, the bail bonds are ordered to be discharged.