Bombay High Court
Jagdish S/O Chintaman Khodke vs The State Of Maharashtra & Ors on 28 June, 2016
Bench: R.V. Ghuge
CR.WP/1059/2015
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1059 OF 2015
Jagdish S/o Chintaman Khodke,
Age : 42 years, Occu : Service/Surplus,
R/o Plot No.8, JB Badgujjar Colony,
Devpur, Dhule,
Tal & Dist. Dhule. ..Petitioner
Versus
1 The State of Maharashtra,
Through Incharge Police Inspector,
Police Station, Devpur,
Tal. & Dist. Dhule.
2 Gopalrao Kashinath Kele,
Age : Major, Occu : Social Worker,
R/o Patil Nagar Near Netaji Colony
Gajanan Maharaj Mandir D P Road,
Devpur, Dhule, Tal. & Dist. Dhule.
3 Prof. D. V. Kothawade,
Age : Adult, R/o Samrat Colony,
Near LIC Colony, Chittod Road,
Saidhan Apartment, Dhule,
Tal. & Dist. Dhule.
4 Milind S/o Ramchandra Shirude,
Age : Adult, R/o Plot 7, Shivgiri Colony,
Disuja Colony, College Road,
Nashik, Dist. Nashik.
5 Pritesh S/o Gopalrao Lad,
Age : Adult, R/o Flat No.19,
4th floor, Suyog Heights,
Near M.I.T. College, Sneh Paradose,
Don Road, Kothrud, Pune - 400003.
6 Jitendra S/o Dharmaraj Songire,
Age : Adult, R/o Plot No.86,
Jai Hind Colony, Devpur,
Dhule, Dist. Dhule.
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CR.WP/1059/2015
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7 Arun S/o Baraku Kele,
Age : Adult, R/o Arvi,
Tal. & Dist. Dhule.
8 Natthu S/o Kisan Nerkar (Wani)
Age : Adult, R/o Matruchaya,
In front of Bhavsar Bhavan,
Lane No.5, Dhule, Dist. Dhule,
9 Pradip S/o Hari Amrute,
Age : Adult, R/o Plot No.32,
Tulshiram Nagar, Behind Shreyas
Colony, Devpur, Dhule,
Dist. Dhule.
10 Suresh S/o Kashinath Borase,
Age : Adult, R/o Siddheshwar,
Plot No.9, Kele Nagar, Nakane
Road, Devpur, Dhule,
District Dhule.
11 Sanjay S/o Gopalrao Naik,
Age : Adult, R/o Naik Communication,
Chaitrabhuj Nanji, Agra Road,
Dhule, District Dhule.
12 Walmik S/o Pitambar Desale,
Age : Adult, R/o Plot No.51,
Section - 3, Pramod Nagar,
Devpur, Dhule, Dist. Dhule.
13 Sau. Nisha W/o Kishor Musale,
Age : Adult, R/o No.17,
Borase Nagar, Near Om Building,
Devpur, Dhule, Dist. Dhule.
14 Sau. Ashalata W/o Hansraj Bagal,
Age : Adult, R/o Shivpratap Colony,
Devpur, Dhule, Dist. Dhule.
15 Sau. Bharati Bhalchandra Kothawade,
Age : Adult, R/o Veer Bhagatsing
Chowk, Subhash Nagar, Dhule,
Dist. Dhule.
16 Manish Manoj Dandhalikar,
Age : Adult, R/o Ransing Plot,
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CR.WP/1059/2015
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Behind Zende Hospital,
Station Road, Dhule,
District Dhule.
17 Murlidhar S/o Sonu Wani,
Age : Adult, R/o Plot No.71,
Shivaji Colony, Behind Ice Factory,
Devpur, Dhule, Dist. Dhule.
18 Satish Bawiskar,
Age : Adult, R/o 15, Vrandawan Colony,
Deepa Provision, Bondur Road,
Devpur, Dhule, Dist. Dhule. ..Respondents
ig ...
Advocate for Petitioner : Shri P.M. Nagargoje
APP for Respondent 1 : Shri Bhagat N.T.
Advocate for Respondents 2 to 18 : Shri V.D.Hon, Sr. Adv.
i/b Shri A.V.Hon
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 28, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
CR.WP/1059/2015
4. This matter was heard at length on 15.6.2016 and 16.6.2016.
On 16.6.2016, this Court has passed the following order:-
"1. The order of issuance of process of the learned
Magistrate is on the basis of taking cognizance of a complaint
u/s 156(3) of the Cr.P.C. by invoking its powers u/s 190(1)(a).
By the impugned judgment of the Additional Sessions Judge,
Dhule dated 01/08/2015, the order of the learned Magistrate
dated 21/08/2014 has been quashed and set aside primarily on
the ground that Section 200 of the Cr.P.C. was not complied
with as there was no recording of verification of the
complainant.
2. In this backdrop, it is necessary to peruse the record.
3. Learned Advocate for the petitioner submits that he
would apply for a certified copy of the verification of the
petitioner as has been recorded by the learned Magistrate in
Reg. Cri. Case 794/2006.
4. In the light of the statement made, the petitioner is
permitted to apply for a certified copy of the verification and
produce the same in this Court prior to the next date of
hearing in this matter.
5. Stand over to 28/06/2016."
5. This matter was, thereafter, heard today.
CR.WP/1059/2015
6. I have considered the submissions of Shri Nagargoje, learned
Advocate for the petitioner and Shri Hon, the learned Sr. Advocate
for respondents 2 to 18 along with the learned APP for the State.
7. The relevant factors as are evident from the record and
therefore, undisputed, are as under:-
(a) Regular Criminal Case No.794 of 2006, at the instance of
the petitioner under Section 156(3) of the Criminal Procedure
Code ("CrPC") was lodged on 4.11.2006.
(b) The learned Magistrate directed police investigation on
5.12.2006.
(c) The concerned police submitted the "B" Summary
Report on 2.4.2007.
(d) The learned Magistrate by invoking his powers under
Section 200 of the CrPC directed the recording of the
statement of the complainant on 24.8.2007.
(e) The complainant led evidence on the point of issuance
of process on 7.3.2009.
CR.WP/1059/2015
(f) The order for issuance of process against the accused
under Sections 420, 465, 467, 468, 469, 471 read with 120-B of
the Indian Penal Code ("IPC") was passed on 22.9.2009.
(g) These proceedings have travelled upto this Court on two
occasions.
(h) The judgment and order dated 16.7.2014, delivered by
this Court in Criminal Writ Petition No.148 of 2013 led to a
direction to the learned Magistrate to consider the material on
record afresh.
(i) By order dated 21.8.2014, the learned Magistrate passed
a detailed and reasoned order thereby issuing process against
the accused.
(j) The accused preferred Criminal Revision Application
No.89 of 2014 for challenging the order of issuance of process.
(k) The learned Additional Sessions Judge, Dhule by an
interim order dated 20.6.2015, concluded that Section 200 was
complied with and rejected the application for stay after
considering the record and proceedings and then returned the
R & P to the learned Magistrate for proceeding with RCC
CR.WP/1059/2015
No.794 of 2006.
(l) By the impugned judgment, the same learned Additional
Sessions Judge allowed the Revision filed by the accused
specifically on the ground that the learned Magistrate has
failed to comply with Section 200 of the CrPC and, therefore,
directed the said Court to follow the procedure and pass an
order on the aspect of issuance of process.
8.
Having considered the strenuous submissions of the learned
Advocates and having gone through the record available, it is
apparent from the dates and sequence of events that the
complainant was examined on 7.3.2009 under Section 200 after the
"B" Summary report was filed. It was thereafter that the first order
of issuance of process was issued on 22.9.2009 and pursuant to the
directions of this Court dated 16.7.2014, the learned Magistrate
considered the entire material before him and passed a reasoned
order dated 21.8.2014 issuing process against the accused.
9. The issue, raised before this Court is as to whether the
evidence of the complainant recorded on 7.3.2009 can be said to be
in deference to Section 200 of the CrPC and as to whether the same
would not tantamount to a verification of the complainant.
CR.WP/1059/2015
10. Shri Hon has strenuously contended that the evidence of the
complainant recorded on 7.3.2009 can be said to be a statement on
oath, but not a verification as is enshrined under Section 200 of the
CrPC.
11. I am unable to accept the submissions of the learned Sr.
Advocate since Section 200 of the CrPC does not make a distinction in
between a formal verification and a statement recorded in support of
the complaint prior to the issuance of process.
12. Section 200 of the CrPC reads as under:-
"Section 200 - Examination of complainant. - A Magistrate
taking cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if any,
and the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing,
the Magistrate need not examine the complainant and the
witness--
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the
CR.WP/1059/2015
case to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate need
not re-examine them."
13. This Court, in the matter of Lance Irwin Lobo (Capt.) Vs. Ismail
D'Souza and other [2007 All MR (Cri) 623], has concluded in paragraph
No.16 as under:-
"16. I have already observed that the accused after
revocation of the power of attorney had also executed a Sale
Deed of a bungalow along with undivided right to the property
in favour of the complainant's witness Shri Almeida against
whom the complainant till date has made no grievance. All
that the complainant stated in his examination-in-chief is that
the complainant did something which he could not have done
by virtue of revocation of the power of attorney. The facts
stated by the complainant and reproduced hereinabove, in my
view, did not disclose any offence for the accused to be
summoned. A conjoint reading of Sections 203 /204 Cr.P.C.
shows that process is to be issued after considering the
statement on oath of the complainant and of the witnesses
and the result of the inquiry or investigation, if any, under
Section 202. The recording of the statement on oath of the
complainant under Section 200 Cr.P.C. is not an empty
formality. Commonly it is nicknamed as verification. To verify
means to establish the truth. In other words, verification is
done in order to ascertain as to what is pleaded by the
complainant is true or not. It is with a view to separate chaff
from the grain as many a times complaints do contain
unfounded allegations and it is the duty of the Court to ensure
CR.WP/1059/2015
that what is stated in the complaint is also stated by the
complainant on oath and it is only then that based on such
statement that process can be issued. The corollary of this
would be that unless offences are disclosed from the
statement on oath, no process can be issued only based on
averments in the complaint. The complainant is bound to
make a statement on oath as to how the offence was
committed and how the accused persons are responsible
therefor. After the statement on oath is recorded, a
Magistrate is required to apply his judicial mind to the facts
of the case and the law applicable thereto and find out what
offence/s is made out, notwithstanding that the other party
at that stage is unrepresented. As observed by the Apex Court
time and again, summoning of an accused in a criminal case is
a serious matter and criminal law cannot be set into motion as
a matter of course. A Magistrate is required to examine the
nature of the allegations made in the complaint and the
evidence both oral and documentary to see if it is sufficient
for the complainant to succeed in bringing charge home to the
accused. In other words, the examination of the complainant
on oath is for the purpose of ascertaining whether a prima
facie case is made out against the accused to issue process so
that the issue of process is prevented on a complaint which is
either false or vexatious or intended only to harass. As
observed by the Apex Court in Punjab National Bank and Ors.
Vs. Surendra Prasad Sinha 1993 Supp. (1) SCC 499, it is
salutary to note that judicial process should not be an
instrument of oppression or needless harassment. A Magistrate
is required to find out whether the concerned accused should
be legally responsible for the offence charged for. Only on
satisfying that the law casts liability or creates offence
against the juristic person or the persons impleaded then only
CR.WP/1059/2015
process would be issued and at that stage the Court has got to
be circumspect in exercising discretion and should take all the
relevant facts and circumstances into consideration before
issuing process lest it would be an instrument in the hands of
the private complaint as vendetta to harass the persons
needlessly. Vindication of Majesty of justice and maintenance
of law and order in the society are the prime objects of
criminal justice but it would not be the means to wreak
personal vengeance."
14.
The Honourable Supreme Court in the matter of Madhavrao
Jiwajirao Scindia Vs. S.C.Angre [(1996) 1 SCC 692], while considering
the challenge to the issuance of process has concluded that the test
to be applied is as to whether the un-controverted allegations made
in the complaint are sufficient to launch the prosecution against the
accused. In doing so, the statement of the complainant in support of
his complaint was held to be a necessary ingredient in order to enable
the Court to pass an order on issuance of process.
15. This Court in the matter of Amarnath Bajinath Gupta Vs.
Mohini Organics Pvt. Ltd. & Another [2009 (3) BCR 258], has held in
paragraph Nos.19 and 22 as under:-
"19. The Apex Court in the case of Nirmaljit Singh Hoon Vs.
The State of West Bengal and another ({1973}3-SCC-753) had
an occasion to consider the provisions of Section 200 of the
said Code. It will be necessary to refer to what is held by the
CR.WP/1059/2015
Apex Court in paragraph no.22 :-
"22. ... ... ... Where a complaint is presented
before him, he can under Section 200 take
cognizance of the offence made out therein and
has then to examine the complaint and his
witnesses. The object of such examination is to
ascertain whether there is a prima facie case
against the person accused of the offence in the
complaint, and to prevent the issue of process on a
complaint which is either false or vexatious or
intended only to harass such a person. Such
examination is provided therefore to find out
whether there is or not sufficient ground for
proceeding." (emphasis supplied)
This Court had an occasion to consider
Section 200 of the said Code in the Case of Captain
Lance Irwin Lobo Vs.Ismail D'Souza @ Angelo Ismail
de Souzla and another (2007-ALL MR {Cri}-623). It
will be necessary to refer paragraph 16 of the said
judgment in which this Court has held thus :-
"16. ... ... ... The recording of the
statement on oath of the complainant under
Section 200 Cr.P.C. is not an empty
formality. Commonly it is nicknamed as
verification. To verify means to establish
the truth. In other words, verification is
done in order to ascertain as to what is
pleaded by the complainant is true or not.
It is with a view to separate chaff from the
grain as many a times complaints do contain
CR.WP/1059/2015
unfounded allegations and it is the duty of
the Court to ensure that what is stated in
the complaint is also stated by the
complainant on oath and it is only then that
based on such statement that process can be
issued. The corollary of this would be that
unless offences are disclosed from the
statement on oath, no process can be issued
only based on averments in the complaint.
The complainant is bound to make a
statement on oath as to how the offence
was committed and how the accused persons
are responsible therefore. After the
statement on oath is recorded, a Magistrate
is required to apply his judicial mind to the
facts of the case and the law applicable
thereto and find out what offence/s is made
out, notwithstanding that the other party
at that stage is unrepresented. As observed
by the Apex Court time and again,
summoning of an accused in a criminal case
is a serious matter and criminal law cannot
be set into motion as a matter of course. A
Magistrate is required to examine the
nature of the allegations made in the
complaint and the evidence both oral and
documentary to see if it is sufficient for the
complainant to succeed in bringing charge
home to the accused. In other words, the
examination of the complainant on oath is
for the purpose of ascertaining whether a
prima facie case is made out against the
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accused to issue process so that the issue of
process is prevented on a complaint which is
either false or vexatious or intended only to
harass. (emphasis supplied).
.................................
"22. On plain reading of Section 200 of the said Code it
appears that it is the obligation of the Magistrate to examine
the complainant which means that the learned Magistrate is
obliged to put questions to the complainant for eliciting the
truth from him. The said provision enjoins a judicial duty to
be performed by the Judicial Magistrate which requires an
application of judicial mind. The said work of recording the
statement cannot be done mechanically by simply filling
details such as the date of cheque, name of the bank, date of
intimation of dishonour of the cheque etc; in a format which
is already kept ready. Generally, the complaints are drafted
by the lawyers as per the instructions of the complainants.
Thus, a complaint is the translated version or a formulated
version made by the advocate on the instructions received
from the complainant. Therefore, the examination of the
complainant under section 200 by the learned Magistrate is
very important. During the course of such examination the
complainant tells the truth. In fact, the object of the learned
Magistrate recording such statement is of eliciting the truth
from the complainant. Therefore, while recording a statement
under Section 200 of the said Code in such a complaint, the
learned Magistrate cannot merely reproduce the data in a
preconceived format. He must give an opportunity to the
complainant to state and describe the role played by the
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accused especially when directors/officers of a company are
sought to be held vicariously liable. The object of examination
is that a true version on oath of the complainant is brought on
record."
16. It is, therefore, no longer res integra that the examination of
the complainant under Section 200 of the CrPC is vital for the reason
that in the course of such examination the learned Magistrate can
arrive at a prima facie conclusion as to whether there is any material
before him and would assist him in recording a statement for eliciting
the truth in the complaint at a prima facie stage so as to conclude as
to whether the issuance of process would be justiciable.
17. In this matter, I find that the learned revisional Court has
failed to apply its mind while passing the impugned order, by which,
the order of issuance of process dated 21.8.2014 was interfered with
only on the ground that the learned Magistrate had not followed the
procedure under Section 200 of the CrPC.
18. In the light of the view taken by this Court in the matters of
Capt. Lance (supra) and Amarnath (supra), evidence of the
complainant recorded on oath on the point of issuance of process is in
due compliance of Section 200 of the CrPC. Such recording of
evidence in common parlance is said to be a verification. Verification
and recording of evidence of the complainant on issuance of process
CR.WP/1059/2015
is, therefore, one and the same and such recording therefore,
amounts to compliance of Section 200.
19. It cannot be ignored that the same learned Additional Sessions
Judge, Dhule (as she was then) has recorded a specific finding in
paragraph No.7 of her interim order dated 20.6.2015, refusing to stay
the proceedings before the learned Magistrate, that the Magistrate
had complied with Section 200 of the CrPC as evidence of the
complainant was recorded on 7.3.2009 on the point of issuance of
process. It is also evident from the said order that the conclusion of
the said learned Judge was based upon the record and proceedings
placed before her and which were returned to the trial Court after
the order dated 20.6.2015 was passed. Surprisingly, the same learned
Additional Sessions Judge, in the impugned order dated 1.8.2015 has
allowed the Criminal Revision Application on the sole ground that the
record reveals that the learned Magistrate failed to record the
verification of the complainant and therefore, did not comply with
Section 200 of the CrPC.
20. It is pointed out by the petitioner that this conclusion is drawn
by the same learned Judge after returning the record and
proceedings to the learned Magistrate, pursuant to the passing of the
interim order dated 20.6.2015. In my view, the learned Additional
Sessions Judge, Dhule has casually arrived at such a conclusion and
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which cannot be appreciated.
21. Considering the above, this petition succeeds and is allowed.
The impugned judgment and order dated 1.8.2015 passed by the
revisional Court is quashed and set aside. Criminal Revision
Application No.89 of 2014 stands rejected.
22. Rule is made absolute in the above terms.
23.
At this stage, the learned Advocate for the petitioner has
placed reliance upon the observations of the Honourable Supreme
Court in the matter of Jagdish Ram Vs. State of Rajasthan and
another [(2004) 4 SCC 432], which reads as under:-
"13. It is to be borne in mind that the appellant has been
successively approaching the High Court every time when an
order taking cognizance was passed by the Magistrate. It is
because of the appellant that the criminal proceedings before
the Magistrate did not cross the stage of taking cognizance. As
earlier noticed, since earlier judgments of the High Court
have attained finality, we are not going into correctness of
these judgments. When third time the appellant was not
successful before the High Court, he has approached this
Court and at his instance the proceedings before the trial
court were stayed. In fact, from 1986 till date the criminal
case has not proceeded further because of the appellant. It
would be an abuse of the process of the court if the appellant
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is now allowed to urge delay as a ground for quashing the
criminal proceedings. In considering the question whether
criminal proceedings deserve to be quashed on the ground of
delay, the first question to be looked into is the reason for
delay as also the seriousness of the offence. Regarding the
reasons for delay, the appellant has to thank himself. He is
responsible for delay. Regarding the seriousness of the
offence, we may notice that the ill of untouchability was
abolished under the Constitution and the Act under which the
complaint in question has been filed was enacted nearly half a
century ago. The plea that the complaint was filed as a result
of vindictiveness of the complainant is not relevant at this
stage. The appellant would have adequate opportunity to
raise all pleas available to him in law before the trial court at
an appropriate stage. No case has been made out to quash the
criminal proceedings on the ground of delay."
24. He, therefore, submits that as the instant matter virtually
amounts to a serious financial scam in the cooperative society, this
Court may direct the learned Magistrate to expedite the hearing in
Regular Criminal Case no.794 of 2006, in view of the observations of
the Honourable Supreme Court. Learned Advocate for the
respondents 2 to 18 has opposed the said request.
25. Considering the above and the observations of the Honourable
Apex Court in paragraph No.13 of the Jagdish Ram judgment (supra),
the learned Magistrate dealing with RCC No. 794 of 2006 is directed
to proceed with the said case as expeditiously as possible and decide
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the same within a period of nine months from today. Adjournments
sought on trivial or unreasonable grounds, shall be refused.
( RAVINDRA V. GHUGE, J. )
...
akl/d
