Rajesh Chandmal Varma vs The State Of Maharashtra
2013 Latest Caselaw 139 Bom

                                       1                                wp471.13.odt


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                                   
              CRIMINAL WRIT PETITION NO. 471 OF 2013




                                           
     RAJESH CHANDMAL VARMA
     age 38 years, Occ. Business,




                                          
     R/o Ishwar Colony, Jalgaon.                                 Petitioner
      
     VERSUS




                                 
     1.    THE STATE OF MAHARASHTRA 
           Through Police Inspector,
                   
           MIDC Police Station, 
           Jalgaon, Dist. Jalgaon.
                  
     2.    Sow. Ranjana w/o Sham Varma,
           age 43 years, Occ. Household.

     3.    Sham s/o Ramprasadji Varma,
      


           age 44 years, Occ. Business,
   



           Both r/o Plot No.1, Ishwar Colony,
           Vyaknateshpuram, Jalgaon.                    Respondents. 
     ...





     Mr. B.R. Warmaa Advocate for Petitioner  
     Mr. P.N.Muley APP for Respondent no.1
     Mr. V.P. Patil advocate For R/2 And 3 
     ...
                              CORAM : ABHAY M. THIPSAY, J.

Dated: November 13, 2013 ...

ORAL JUDGMENT :-

1. Rule. By consent, rule made returnable forthwith. By

consent, heard finally.

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2. The petitioner filed an application before the Chief

Judicial Magistrate, Jalgaon alleging commission of various

cognizable offences by the respondent nos.2 and 3 herein and

praying that, the police be ordered to investigate into the matter as

contemplated under section 156 (3) of the Code of Criminal

Procedure. The learned Magistrate, on 25.9.2012, passed an order

on the said application to the effect that, he needed some

clarification from the mouth of the complaint on the point of the

alleged offences. He, therefore, directed the complainant 'to

adduce his evidence at the pre-cognizance stage'. Pursuant to this

order, the applicant was examined by the Magistrate on oath.

Thereafter, the Magistrate passed an order purportedly under

section 156 (3) of the Code of Criminal Procedure directing the

police to investigate into the matter. The respondent nos.2 and 3

challenged the said order by filing a Revision Application in the

Court of Sessions. The learned Additional Sessions Judge who

heard the revision application allowed the same and set aside the

order passed by the Magistrate ordering investigation under

section 156 (3) of the Code of Criminal Procedure.

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3. The only ground on which the learned Additional

Sessions Judge set aside the order to investigate the matter as

passed by the Magistrate was that after having examined the

complainant on oath, the Magistrate could not have switched back

to the stage as contemplated under section 156 (3) of the Code of

Criminal Procedure and could not have ordered an investigation into

the matter under the said provision.

4. Being aggrieved by the order passed by the Court of

Sessions in revision, the petitioner has approached this court by

invoking its Constitutional jurisdiction under Articles 226 and 227

of the Constitution of India.

5. I have heard the learned counsel for the parties. I

have also heard the learned APP.

6. The legal position that after examining the

complainant on oath as contemplated under section 200 of the

Code, the Magistrate cannot pass an order under section 156 (3) of

the Code of Criminal Procedure, is well settled. That an order

under section 156 (3) of the Code of Criminal Procedure can be

passed only at the pre-cognizance stage and that examining the

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complainant on oath under the provisions of Section 200 of the

Code amounts to taking cognizance of the offence/s in question.

is also well settled. (See i]. Devarapalli L.Reddy V. Vs. Narayan

Reddy reported in 1976 SC 1672 & ii] Jamuna Singh Vs. Bhadai

Shah reported in 1964 SC 1541).

7. There are, however, some other aspects of the matter

which need a mention.

The order dated 25.9.2012 passed by the Magistrate

does not specifically state that the complainant was to be

examined in accordance with the provisions of Section 200 of the

Code. The order makes a curious reading and indicates that

examination was sought for by the Magistrate for the purpose of

satisfying whether an order u/s 156 (3) of the Code should be

passed or not. This was, clearly, not permissible. Since the

complainant was thereafter examined on oath on the basis of the

complaint/application made before the Magistrate, such

examination must be treated as having been done under the

provisions of Section 200 of the Code. It therefore follows that,

the order directing an investigation by the police under the

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provisions of section 156 (3) of the Code of Criminal Procedure

passed thereafter by the Magistrate was not legally sound and

therefore, no fault can be found with the order passed by the

revisional court.

8. The contention advanced advanced by Mr. Warmaa,

the learned counsel for the petitioner is that, the petitioner never

wanted to have the application made by him treated as a

complaint and that, prayer made by the petitioner before the

Magistrate was only for an order of investigation under section 156

(3) of the Code of Criminal Procedure. Mr. Warmma, submitted -

rightly in my opinion - that the Magistrate ought to have decided

this aspect viz :- whether or not to order the investigation and

could not to have required the complainant to have himself

examined on oath before a Magistrate would take a decision with

regard to an order u/s 156 (3) of the Code. Any investigation, after

having examined the complainant on oath could only be under

Section 202 of the Code.

9. I have carefully considered the matter. Though, in the

circumstances the Magistrate was not justified in examining the

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petitioner on oath, the fact remains that the petitioner instead of

protesting at that stage allowed his examination to be carried out

by the Magistrate. When such was the situation, the order passed

by the Additional Sessions Judge in revision which is challenged

by the present petitioner cannot be interfered with.

10. Mr. Warmma, then submitted that when the revisional

court interfered with the order passed by the Magistrate, the

police had already registered a crime by recording a FIR and had

commenced the investigation. He submitted that the revisional

court ought not to have interfered in the matter at that stage. It is

not possible to agree with this submission.

11. Considering all the relevant aspects of the matter and

the undisputed fact that the petitioner had approached the

Magistrate for an order u/s 156 (3) of the Code, though I am not

inclined to interfere in the matter by exercising the Constitutional

Jurisdiction of this Court, it needs to be clarified that should the

police form an opinion independently, that commission of

cognizable offence/offences is disclosed from what has been

alleged by the petitioner, they shall not be prevented from

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investigating into the matter in accordance with the provisions of

Chapter XII of the Code of Criminal Procedure. It needs to be

made clear that the police have a statutory power to investigate

into cognizable cases and such power does not depend on whether

the Magistrate orders an investigation or not. Consequently, the

dismissal of the petition, as is being done, shall not be construed

as an order preventing investigation into the matter by the police

in the event of police forming an opinion that Commission of

cognizable offence is, anyway, disclosed.

10. The petition is dismissed with the aforesaid

observations. Rule is discharged.

( ABHAY M. THIPSAY ) JUDGE.

...

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