Bombay High Court
Mohd. Rafique vs Special Judge Only Against P.S.I. ... on 17 October, 2012
Bench: M.L. Tahaliyani
cri.wp.231.12
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL WRIT PETITION NO. 231 /2012
1) Mohd. Rafique s/o Abdul Rahman
Aged about 51 years,
R/o Mana Tah Murtizapur Dist. Akola.
2) Mohd. Siddique s/o Abdul Wahab
Aged about 49 years,
R/o Teachers Colony, Near Stadium
Khamgaon Dist. Buldana.
3) Mohd. Harun s/o Ghayasuddin
Aged about 50 years
R/o Teachers Colony,
Near Stadium, Khamgaon
Dist. Buldana.
4) Shaikh Mahmood @ Munna Bhai s/o Shaikh Lal
Aged about 43 years, R/o Vasant Nagar
Pusad Dist. Yeotmal. . ...PETITIONERs
v e r s u s
State of Maharashtra
Through PSO Murtizapur
Police Station Tah. Murtizapur
Dist. Akola. ...RESPONDENT
...........................................................................................................................
Mr. S.Zia Qazi, Advocate for petitioners
Mr S.S.Doiphode, APP for Respondent
............................................................................................................................
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CORAM: M.L.TAHALIYANI, J.
DATED : 17th October, 2012
ORAL JUDGMENT :
1. Rule. Heard finally, by consent. Heard Mr. S. Zia
Qazi, learned Advocate for petitioners and Mr. S.S. Doiphode,
learned APP for respondent-State.
2. The petitioners feel aggrieved by the order passed by
the learned Additional Sessions Judge in Criminal Revision
Application No.62/2010. The said Criminal Revision Application
was filed by the present petitioners feeling aggrieved by the order
passed by the learned Judicial Magistrate, First Class, Murtizapur
while disposing of the Application filed by the police under section
169 of Code of Criminal Procedure, 1973 (henceforth abbreviated
to "Cr.P.C")
3. At the outset, it may be mentioned there that the
petitioners and and one Abdul Aahad were accused in Crime No.
3065/2009 for the offences under Unlawful Activities (Prevention)
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Act, 1967 of Murtizapur Police Station. During the course of
investigation they were arrested. The investigation carried out
by the Investigating Officer revealed that there was no sufficient
evident against the petitioners and said Abdul Aahad. He therefore,
submitted an Application u/s. 169 Cr.P.C. for release of the
petitioners and said Shri Aahad. The learned Magistrate rejected
the Application and directed the Investigating Officer to carry out
further investigation. This order was passed by the learned
Magistrate in exercise of powers u/s 156 (3) Cr.P.C. The
Investigating Officer carried out further investigation as ordered
by the Magistrate and again submitted an Application u/s. 169
Cr.P.C. The said Application was also rejected and following order
came to be passed by the learned Magistrate below the Application
submitted by the police :-
"1. The report submitted u/s 169 Cr.P.C is not
accepted.
2. I.O. Is hereby directed to take steps within
one month from today for getting sanction of
Central Government or authorised officer of
Central Government for taking cognizance
against accused No.4 to 8 for offences u./s 10,13
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of Prevention of Unlawful (Activities) Act.
3. I.O. Is directed to inform to this court in
writing about what steps taken by him for
getting said sanction After I.O. Receiving sanction
it be placed before this Court so as to enable this
Court to pass further orders against accused no.4
to 8."
4.
The petitioners and said Shri Aahad, therefore, moved
the Additional Sessions Judge against the order of learned Judicial
Magistrate directing the police to take steps for getting sanction
from the Central Government for prosecuting the petitioners and
said Shri Aahad. The learned Additional Sessions Judge, while
disposing of the Criminal Revision Application, took the view that
the Magistrate is empowered to reject the Application u/s 169
Cr.P.C. and he is also empowered to direct investigation of the
offence of which he can take cognizance. He therefore rejected the
Criminal Revision Application.
5. Heard learned counsel Mr. Zia Qazi for the petitioners
and the learned APP Mr. Doiphode for the respondent-State. It is
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submitted by Mr Qazi, that the learned Magistrate did not have
power to reject the Application submitted by the police u/s. 169
Cr.P.C. It is submitted by Mr Qazi that in fact if there was no
sufficient material against the petitioners the police were not
under obligation to file Application before the Magistrate. The
police were supposed to act in accordance with section 169
Cr.P.C. It is submitted that the police could, at the most, have
taken bonds from the petitioners and said Shri Aahad and could
have released them without taking permission of the Magistrate.
According to Mr Qazi, even intimation to the Magistrate was not
necessary. In brief, it is submitted that the police were under the
wrong impression that an Application u/s 169 Cr.P.C. was supposed
to be submitted before the Magistrate and that the Magistrate has
travelled beyond his jurisdiction by rejecting the said Application
and by directing the police to investigate the case.
6. Learned APP Mr Doiphode, has submitted that the
respondent stand by their report submitted u/s 169 Cr.P.C. It is
submitted by Mr. Doiphode that if the Investigating Officer felt
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that there was no sufficient evidence, he was at liberty to release
the petitioners u/s 169 Cr.P.C.
7. After having gone through the orders of the learned
Magistrate and the learned Additional Sessions Judge, I have come
to the conclusion that both the Courts below were reeling under
impression that the Magistrate can exercise powers of taking
cognizance on the report submitted u/s 169 Cr.P.C. The Courts
below failed to understand that the report submitted u/s 169
Cr.P.C. is not a report submitted u/s 173 of Cr.P.C. Learned counsel
Mr.Qazi has rightly submitted that there was no necessity to
submit report to the Court u/s. 169 of Cr.P.C. He has relied
upon the judgment of this Court reported at 2007 ALL MR (Cri)
3086 in the matter of Abdul Razak Abdul Gani Dunge vs.State
of Maharashtra and others. The relevant portion can be found
at para 5 which runs as under :-
"5. Non-applicant No.3 after completion of
investigation had forwarded charge-sheet under
Section 173 of Criminal Procedure Code to the
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Special Judge only against P.S.I. Patil and the
accused No.4 was not shown as accused in the
case. Obviously the Investigating Agency did not
find sufficient evidence against respondent No.4
and he was not sent for trial. On the other hand
application under Section 169 was filed for his
discharge. Learned Sessions Judge as observed
earlier rejected the application saying that since
the non-applicant is not sent for trial with report
under Section 173 and he is already released on
bail the application for discharge was not tenable.
The scheme of the Code is that if the Investigating
Officer finds that there is no evidence against
particular accused he has to simply release him
after taking a bond from him under Section 169
Criminal Procedure Code. In fact Investigating
Officer is not even supposed to apply to a
Magistrate under Section 169 for discharge. The
word used in Section 169 is "release", due to the
fact that there is no sufficient evidence to
proceed against the accused. The Investigating
Officer is to obtain a bond with or without surety
at the time of release. Section 170 of Criminal
Procedure Code says that if after completion of
investigation it is found that there is sufficient
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evidence the Investigating Officer ha s to forward
the report and the accused under Section 173 of
the Criminal Procedure Code to the Magistrate. In
this case the respondent No.4 was not forwarded
under Section 170 and 173 of the Criminal
Procedure Code at all to the Court."
I have gone through paragraph no.5 of the said
judgment and I am in full agreement with the learned Judge that
the police were not under obligation to submit report to the
Magistrate u/s 169Cr.P.C. In my view even intimation to the
Magistrate is not necessary. The Judicial Magistrate does not
come into picture when the police exercise power u/s 169 Cr.P.C.
From the order of the learned Magistrate it appears that he had
formed opinion that the police were extending undue favour to
the petitioners and said Shri Aahad. At this stage, it may be
stated that the accused Mohd. Aahad is dead.
8. The provisions of law u/s 169 Cr.P.C. are very clear. It
need not be repeated here that the Application of police to the
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Magistrate was misconceived. It was not necessary for the police to
even intimate the Magistrate that there was no sufficient material
against a particular accused and that they were releasing him.
Mr.Qazi supported the judgment of this Court cited supra. I am in
full agreement with the observations made by the learned single
Judge in the said judgment. In view thereof, the Writ Petition must
succeed. The order passed by both the Courts below need to be set
aside. Hence, I pass the following order.
ORDER
Writ Petition is allowed. The order passed by the learned
Judicial Magistrate in Crime No.3065/2009 dated 15th February
2010 is set aside. The order passed by the learned Addl. Sessions
Judge in Criminal Revision No.62/2010 dated 7.1.2011 is also set
aside. The report submitted by the police u/s 169 Cr.P.C. pending
before the Judicial Magistrate, First Class, Murtizapur shall stand
disposed of. Rule is made absolute in aforesaid terms.
JUDGE
sahare
