Bombay High Court
Vijay vs The State Of Maharashtra on 23 October, 2012
Bench: T.V. Nalawade
1 Cri. Appln 1401/2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1401/2011
Vijay s/o Arjun Patil,
Age : 37 years, Occu. Business,
R/o Parivardhe, Tq. Shahada,
Dist. Nandurbar.
...Applicant.
Versus
1. The State of Maharashtra.
2.
Priyanka Mansukhalal Shah,
Age : 27 years, Occu. Service,
R/o Flat No.1, Shrikrushana Vanda Society,
Pramod Nagar, Gangapur Road,
Nashik.
3. Rajendra Baburao Shekatkar,
Age : 48 years, Ocu. Agri.
R/o 110 Makhamala Road,
Hanuman Wadi,
Panchvati, Nashik.
...Respondents.
.....
Shri S.J. Salgare h/f Shri Satej Jadhav, Advocate for the applicant.
Shri S.N. Kendre, A.P.P. for Respondent No.1 / State.
Shri C.R. Deshpande, Advocate for respondent No.2.
Shri A.P. Basarkar, Advocate for respondent No.3.
.....
CORAM : T.V. NALAWADE, J.
DATED : 23rd October, 2012
JUDGMENT:-
1. Rule. Rule made returnable forthwith.
2. By consent both the sides are heard for final disposal.
2 Cri. Appln 1401/2011
3. Present proceeding is filed u/s 482 of the Code of
Criminal Procedure to challenge the order made by Judicial
Magistrate (First Class), Shahada in Crime No. 25/2011 which is
registered in Shahada Police Station. On 25/02/2011, Judicial
Magistrate (First Class) first rejected the remand report given by
Police for police custody and then virtually quashed the F.I.R.
registered on the basis of order made by Judicial Magistrate (First
Class) u/s 156(3) of the Code of Criminal Procedure. The Magistrate
has made the order of discharge of the accused, respondents No.2
and 3.
4. Petitioner, the original complainant has made allegations that in
private complaint filed by him against accused No.1 Smt. Priyanka for
offence punishable u/s 138 of the Negotiable Instruments Act,
revenue record was produced by accused No.2 to show that he owns
landed property and he can stand surety for Smt. Priyanka. It is his
case that after inquiry, he learnt that property shown in assessment
extract No. 8 of village Kone Tq. Trimbak Dist. Nasik viz. property
No. 110 is not owned by accused No.2 and the assessment extract
produced in the Court was falsely prepared. He found that in one
more case this record was used by accused No.2 for standing surety.
He has made allegations that accused Nos. 1 and 2 joined hands to
create such false record. This complaint was referred for
3 Cri. Appln 1401/2011
investigation by Judicial Magistrate (First Class). In this crime,
accused No.1 came to be arrested and when she was produced with
remand report, aforesaid two orders came to be passed.
5. Judicial Magistrate (First Class) has given the reason that
cognizance of such offence can be taken only on report given by the
Court or its officer, in view of section 195 of the code of Criminal
Procedure and as their allegations are that false record was used in
the Court. On this point, reliance was placed by the ld. Advocate for
applicant on case reported as (2005) 4 Supreme Court Cases 370
(Iqbal Singh Marwah and another Vs. Meenakshi Marwah and
another) Apex Court has laid down that the bar of section 195 would
be attracted when some alteration etc is made in the document
already produced in evidence in any Court during the time when the
document was in custodia legis. It is observed by Apex Court that, if
offence of forgery was committed prior to its production in the Court,
no complaint by Court would be necessary and private complaint
would be maintainable. There cannot be dispute over this proposition.
The allegations made by the petitioner show that observations made
by Apex Court are squarely applicable to the case filed by present
petitioner. Inspite of these circumstances, Judicial Magistrate (First
Class) has held that cognizance of the offence cannot be taken.
4 Cri. Appln 1401/2011
6. There are more irregularities in the orders made by Judicial
Magistrate (First Class). There was only remand report and no case
as such was filed against the two accused by police. Though it can
be said that the Magistrate could have refused to grant police custody
remand, the Magistrate could not have made order of discharge as no
case as such was filed against the accused. Even cognizance of the
offence was not taken by the Magistrate. Such orders cannot sustain
in law. So, the order.
ig ORDER
The application is allowed.
Orders made by Judicial Magistrate (First Class) in
Crime No. 25/2011 registered in Shahada Police Station
on 25/02/2011 are hereby set aside.
The Police are entitled to make further investigation of
this Crime, by taking the steps permissible in law.
Rule is made absolute in these terms.
( T.V. NALAWADE J. )
ts k/
