Bombay High Court
Jignesh Patel vs Edrich Miranda And Ors on 13 June, 2016
Bench: Anuja Prabhudessai
apl_1220_2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1220 OF 2015
Jignesh Patel
Age: 29 years
Occup: Station House Officer,
Khanvel Police Station,
Residing at: village: Kudacha,
DNH Silvasa. ...Applicant
Versus
1. Edrich Miranda
Age 54 years
Occup: Journalist
R/o: 204, Old Amdar Nivas,
Shahid Bhagat Singh Road,
Mumbai 400 030.
2. Union Territory of DNH and
Silvassa
(through Supdt. Of Police DNH
Silvasa)
3. The State of Maharashtra ...Respondents
...
Mr. S.V. Marwadi for the Applicant.
Mr. Edrich Miranda, Respondent No.1 in person present.
Mrs. P.H. Kantharia, for Respondent No.2.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
RESERVED ON: 17th FEBRUARY, 2016.
PRONOUNCED ON: 13th JUNE, 2016
ORAL JUDGMENT :
This is an application under section 482 of the Criminal
Procedure Code whereby the Applicant has challenged the order dated
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21.10.2015 passed in the revision application No.12 of 2015
confirming the order dated 28th May, 2015 passed under section 156
(3) of the Criminal Procedure Code in C.C. No.61 of 2015 on the file of
J.M.F.C., Silvassa.
2. The Applicant, who is a station house officer at Khanvel
Police Station, Kudcha, DNH, Silvasa, has been arrayed as accused
No.2 in C.C. No.61 of 2015 filed by Respondent No.1 for offences
punishable under sections 3 (iv) and (v) of Scheduled Castes and
Scheduled Tribes Act, section 64 of the Bombay Police Act and sections
217 and 218 r/w. 120 B of the IPC. One Nasruddeen Suleman
Khutliwala, Haribhai Rohit, the Talati, P.U. Patel, Mamlatdar and Smt.
Jasuben Patel, Assistant Superintendent of Civil and Criminal Court at
Silvassa, have been arrayed as accused Nos.1,3, 4 and 5 respectively.
The case of Respondent No.1 is that accused No.1- Nasruddeen
Sulaiman Khutliwala had in connivance with the other accused Nos. 3
and 4 had usurp the property belonging to one Halpati family. The
case of the Respondent No.1 is that the Applicant herein and the other
police personnels were reluctant to register the FIR even though the
same disclosed the ingredient of cognizable offence. The Respondent
No.1 further stated that since the Applicant herein and other police
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personnel dissuaded him from filing complaint he had addressed
several written complaints and thereafter addressed a legal notice to
the superintendent of police. The Respondent No.1 claimed that it was
incumbent upon the Applicant to make necessary entry in the record
and to register the FIR. The Respondent No.1 claimed that the acts
committed by the Applicant constitute an offence under section 217 of
the IPC. The Respondent No.1 has stated that the Applicant having
failed and neglected to register the FIR, he is liable for offence under
section section 217 of the IPC.
3. By order dated 28.5.2015 under section 156 (3) of the
Cr.P.C., the learned Chief Judicial Magistrate, Silvasa directed
investigation of the alleged crime. The said order was challenged by all
the accused including the Applicant herein in Criminal Revision
Application No.7 of 2015 and 12 of 2015. By order dated 21.10.2015
the learned Sessions Judge set aside the order dated 28.5.2015 qua
accused No.3-Haribhai Rohit, accused No.4-Prabhubhai Ukadbhai Patel,
and accused No.5 -Jasuben S. Patel. The revision application as against
the accused No.1-Nasruddeen Sulaiman Khutliwala and the present
Applicant Jignesh Patel was dismissed. Aggrieved by the said order the
Applicant has invoked the powers of this Court under section 482 of
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the Cr.P.C.
4. I have perused the records and considered the submissions
advanced by Mr. Marwadi, the learned counsel for the Applicant and
Mr. Edrich Miranda, Respondent No.1 in person.
5. It is not in dispute that the Applicant is a senior inspector of
police, who at the relevant time was posted as station house officer,
Khanvel Police Station, Silvasa. The substratum of the allegations of
the Respondent No.1 herein, as disclosed in para four of the complaint
are that the Applicant herein was reluctant to register the FIR lodged
by the Respondent No.1. The records reveal that one Shri Bhikhal
Khulat had addressed letters dated 3.3.2015 and 9.4.2015 on the letter
head of Bahujan Vikas Aghadi to the Administrator and Deputy
Collector Dadra, Nagar Haveli at Silvassa regarding fraudulent transfer
of land of Halpati family in favour of accused No.1-Nasruddeen
Sulaiman Khutliwala. Copies of these applications were forwarded to
S.P., Dadra Nagar Haveli at Silvassa. Said Bhikhal Khullat had
addressed a letter dated 20.5.2015 on the letter head of Bahujan Vikas
Aghadi to the incharge of Khanvel Police Station, Dadra Nagar Haveli
at Silvasa, wherein he had alleged that the accused No.1-Nasruddeen
Sulaiman Khutliwala had wrongfully transferred the land of Halpati
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family, who are the members of Scheduled Tribe. The said Bhikhal
Khulat therefore, requested the incharge police officer to register the
FIR against said Nasruddeen Sulaiman Khutliwala for committing
offence under the provisions of Scheduled Castes and Scheduled Tribes
Act.
6. It is pertinent to note that the Respondent No.1 had not
lodged any report before the Khanvel Police Station, Silvassa under
section 154 (1) of Cr.P.C. Shri Bhikhal Khulat, who had addressed the
letters on the letter head of Bahujan Vikas Aaghadi had also not taken
recourse to file any application under section 154 (3) of the Cr.P.C. The
copy of the said letter, which is placed on record indicates that said
Bhikhal Khulat had merely complained that Nasruddeen Sulaiman
Khutliwala had usurp/encroached upon the land of Halpati family, who
are the members of Hindu Adivasi Tribe. Apart from this statement,
the said letter did not contain any other particulars. This being the
case the Officer, Incharge of the concerned police station was certainly
could not have registered the FIR on the basis of vague statement made
in the said letter. It is also pertinent to note that said Khulat had also
not sent substance of information to the superintendent of police as
required under section 154 (3) of Cr.P.C. On the contrary the records
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reveal that a legal notice was sent to the superintendent of police on
behalf of Respondent no.2, who is stated to be an activist.
Undisputedly, the Respondent No.2 had not lodged any report under
section 154 (1) of the Cr.P.C.
7. The records reveal that since said Bhikal Khullat had not
given any details of the property and further particulars of the offence
allegedly committed by Nasruddeen Sulaiman Khutliwala, the
concerned police officers had undertaken a preliminary enquiry and
thereafter registered a crime and upon investigation of the said crime
submitted the report to superintendent of police. In the meantime the
Applicant, who had neither filed a report under section 154 (1) nor an
application under section 154 (3) of the Cr.P.C., filed an application
before the learned Magistrate under section 156 (3) of Cr.P.C. The
records reveal that the Magistrate without application of mind directed
registration of crime against the Applicant for offence under sections
217 and 218 of the IPC.
8. It may be mentioned that in the case of Anil Kumar Yadav
Vs. M.K. Aiyappa (2013) 10 SCC 705 the Apex Court while examining
the scope of section 156 (3) of Cr.P.C. has held thus:
"The scope of the above mentioned provision came up for
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consideration before this Court in several cases. This Court in
Maksud Saiyed case (supra) examined the requirement of the
application of mind by the Magistrate before exercising
jurisdiction under Section 156(3) and held that where a
jurisdiction is exercised on a complaint filed in terms of
Section 156(3) or Section 200 Cr.P.C., the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section
156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate should be
reflected in the order. The mere statement that he has gone
through the complaint, documents and heard the
complainant, as such, as reflected in the order, will not be
sufficient. After going through the complaint, documents and
hearing the complainant, what weighed with the Magistrate
to order investigation under Section 156(3) Cr.P.C., should be
reflected in the order, though a detailed expression of his
views is neither required nor warranted."
9. In a more recent case of Priyanka Srivastava & Anr. vs.
State of U.P (CRIMINAL APPEAL NO.781 OF 2012) the Apex Court
afterconsidering its previous pronouncements has held that :
"24. Regard being had to the aforesaid enunciation of law, it
needs to be reiterated that the learned Magistrate has to
remain vigilant with regard to the allegations made and the
nature of allegations and not to issue directions without
proper application of mind. He has also to bear in mind that
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sending the matter would be conducive to justice and then he
may pass the requisite order.
25 ... ... ...
26. At this stage it is seemly to state that power under Section
156(3) warrants application of judicial mind. A court of law
is involved. It is not the police taking steps at the stage of
Section 154 of the code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A principled and really
grieved citizen with clean hands must have free access to
invoke the said power. It protects the citizens but when pervert
litigations takes this route to harass their fellows citizens,
efforts are to be made to scuttle and curb the same. In our
considered opinion, a stage has come in this country where
Section 156(3) Cr.P.C. applications are to be supported by an
affidavit duly sworn by the applicant who seeks the invocation
of the jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would be well
advised to verify the truth and also can verify the veracity of
the allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without
taking any responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and alarming
when one tries to pick up people who are passing orders under
a statutory provision which can be challenged under the
framework of said Act or under Article 226 of the
Constitution of India. But it cannot be done to take undue
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advantage in a criminal court as if some body is determined
to settle the scores. We have already indicated that there has
to be prior applications under Section 154(1) and 154(3)
while filing a petition under Section 156(3). Both the aspects
should be clearly spelt out in the application and necessary
documents to that effect shall be filed. The warrant for giving
a direction that an the application under Section 156(3) be
supported by an affidavit so that the person making the
application should be conscious and also endeavour to see
that no false affidavit is made. It is because once an affidavit
is found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually invoke
the authority of the Magistrate under Section 156(3). That
apart, we have already stated that the veracity of the same
can also be verified by the learned Magistrate, regard being
had to the nature of allegations of the case. We are compelled
to say so as a number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial offences,
medical negligence cases, corruption cases and the cases where
there is abnormal delay/laches in initiating criminal
prosecution, as are illustrated in Lalita Kumari are being
filed. That apart, the learned Magistrate would also be aware
of the delay in lodging of the FIR."
10. After having considered the aforesaid principles, the
Division Bench of this Court in Pandharinath Narayan Patil & Ors. Vs.
State of Maharashtra & Anr. in criminal writ petition no.4775 of 2014
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has held that-
"The powers under section 156(3) of the Code cannot be
exercised mechanically but are required to be exercised judiciously.
The Magistrate is not required to embark upon an in-depth roving
enquiry as to the reliability or genuineness of the allegations,
nonetheless, he has to arrive at a conclusion that the application
discloses necessary ingredients of the offence for which
investigation is intended to be ordered. Furthermore, the reasons
for arriving at such conclusion should be clearly reflected in the
order."
11. In the instant case, as stated earlier the Respondent No.1
had not filed any application under section 154 (1) or 154 (3) of the
Criminal Procedure Code. The Respondent No.1 had also not filed any
affidavit in support of the application under section 156 (3) of the
Cr.P.C. The learned Magistrate had ordered registration of crime
against the Applicant herein, who is a senior police inspector on the
basis of bold and spacious statement made by the Respondent No.1,
without even verifying whether the concerned police officer had in fact
registered any crime or whether he had undertaken any preliminary
enquiry prior to registration of the crime.
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12. It may be mentioned that in the case of Anil Kumar Yadav
(supra) the Apex Court has held that the Special Judge /Magistrate
cannot refer the matter under section 156 (3) of Cr.P.C. against the
public servant without a valid sanction order. In the case of
Pandharinath Narayan (supra) the Division Bench of this Court after
considering the principles laid down by the Apex Court in Rizwan
Ahmad has held that members of Bombay Police Force though do not
fall in the category of public servant specified in sub section 1 of
section 197 of the Cr.P.c. by virtue of notification dated 2.6.1979 they
are entitled for benefit of sub section 3 of section 197 of the Cr.P.C.
13. In the instant case, the Applicant is a member of a police
force of Dadra and Nagar Haveli. The learned counsel for the
Applicant has placed on record a notification by virtue of which the
members of the police force; Dadra and Nagar Haveli, though not
public servants within the meaning of section 197(1) of Cr.P.C., are also
entitled for protection under section 197(3) of Cr.P.C. The material on
record reveals that the acts alleged against the Applicant were
performed by him in discharge of official duties and are reasonably
connected with his official duties. In the light of the said circular and
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in view of the principles laid down by the Apex Court in Rzwan Ahmad
as well as Anil Kumar Yadav (supra) the Applicant would be entitled for
the benefit of sub section 3 of section 197 of the Cr.P.C. Undisputedly
in the instant case there is no sanction order and hence the learned
Magistrate was not justified in issuing the order under section 156 (3)
of Cr.P.C.
14. At this stage it is also advantageous to consider the decision
of the Division Bench of this Court in Pandharinath Narayan Patil &
Ors. Vs. State of Maharashtra & Anr. (supra), wherein it is held that
subjecting the police officers to criminal prosecution on such vague
allegations will affect the morale and effective functioning of the police
machinery which in turn have serious and far reaching adverse impact
on the interest of society. The learned Magistrate as well as the learned
Sessions Judge have failed to consider this material aspect and have
ordered registration of crime against the police officers mechanically,
without application of mind and without scrutinising the relevant
material and ascertaining whether the facts disclosed, constitute
cognizable offence. Under the circumstances, the orders dated
28.5.2015 and 21.10.2015 cannot be sustained qua the Applicant.
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15. Hence, the application is allowed. The orders dated
28.5.2015 and 21.10.2015 are quashed and set aside qua the
Applicant.
(SMT. ANUJA PRABHUDESSAI, J.)
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