Bombay High Court
Arun S/O Venkatrao Chavan And Anr vs Venkatrao S/O Raghunathrao Cavan ... on 2 March, 2016
Bench: V.K. Jadhav
cran6965.15
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 6965 OF 2015
1. Arun s/o Venkatrao Chavan
Age 50 years, Occ. Agriculture
R/o. Pangaon, Tq. Renapur
District Latur.
2. Sharad s/o Nagorao Chavan
Age 58 years, Occ. Agriculture
R/o. Pangaon, Tq. Renapur,
District Latur. ig ...Applicants
versus
1. Venkatrao s/o Raghunathrao Chavan,
Age 55 years, Occu. Agriculture,
R/o. Pangaon, Tq. Renapur
District Latur.
2. The State of Maharashtra ...Respondents
.....
Mr. V.D. Sapkal, advocate for the applicants
Mr. H.M. Karwa, advocate for respondent No.1
Mr. G.O. Wattamwar, A.P.P. for respondent No.2-State
.....
CORAM : V. K. JADHAV, J.
Date of Reserving
the Judgment : 24.02.2016
Date of pronouncing
the Judgment: 02.03.2016
JUDGMENT:-
1. Rule. Rule returnable forthwith. By consent of parties, heard
finally at admission stage.
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2. The applicants are the original accused in R.C.C. No. 17 of
2011. By the impugned order dated 27.3.2014, learned Magistrate
has issued process against the applicants-accused for the offences
punishable under Sections 420, 467, 468, 471 r.w. 34 of I.P.C. The
applicants-original accused had challenged the said order by filing
Criminal Revision No. 62 of 2014 before the Sessions Court at Latur.
The learned Additional Sessions Judge No.3, Latur, by judgment and
order dated 23.11.2015, dismissed the revision with costs. Hence,
this criminal application.
3. Brief facts giving rise to the present Criminal Application, are
as follows:-
a) Respondent No.1-original complaint has filed complaint
before learned J.M.F.C. Renapur against the applicants-
original accused for having committed offences
punishable under Sections 420, 467, 468, 471 r.w. 34 of
I.P.C. The learned J.M.F.C. had directed investigation
under Section 156(3) of the Code of Criminal Procedure
by the police. Learned Magistrate, thereafter, by order
dated 14.9.2011, directed respondent No.1-complainant
to file certified copy of document before issuing process
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against the accused. It is observed in the said order that
xerox copy of document is on record and the
complainant is therefore, directed to file certified copy of
the document.
b) By order dated 5.10.2011, learned Magistrate has
observed that, after reading the complaint, the report of
police and the statements, there is no prima facie
evidence substantiating the allegations of preparation of
false and forged documents and use of the same as
genuine documents in the official working and further
directed respondent No.1-original complainant to lead
additional evidence before issuing process. Accordingly,
statement of the complainant-respondent No.1. came to
be recorded.
c) Thereafter, learned Magistrate, by order dated
27.3.2014, after considering the verification of witnesses
under Section 202 of the Code of Criminal Procedure
and the documents placed on record, issued process
against the applicants-original accused for the offences
punishable under Sections 420, 467, 468, 471 r.w. 34 of
I.P.C.
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d) The applicants-original accused therefore, had
challenged the said order by filing Criminal Revision No.
62 of 2014 as aforesaid, before Sessions Court at Latur
and the learned Additional Sessions Judge-3, Latur by
order dated 23.11.2015 has dismissed the said revision
with cots.
4. Learned counsel for the applicants submits that instead of
taking cognizance of the complaint filed by respondent No.1-original
complainant, learned Magistrate had directed investigation under
Section 156(3) of the Code of Criminal Procedure. Learned counsel
submits that once investigation under Section 156(3) is directed, the
proceedings pursuant to the notice terminates/transforms in the
F.I.R. Learned counsel submits that once order is passed directing
investigation under Section 156(3) of Cr.P.C., the police authorities
are supposed to submit report as contemplated under Section 173 of
Cr.P.C. Learned counsel further submits that the Magistrate can
take cognizance only in respect of report under Section 173 of
Cr.P.C. and till that time the learned Magistrate ceases to have any
jurisdiction and control over the proceedings. Learned counsel
submits that the procedure being adopted by the Magistrate is illegal
and contrary to the provisions of Cr.P.C.
Learned counsel for the applicants-accused in order to
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substantiate his contentions, places reliance on the judgments in the
following cases:-
i) Mohd. Yousuf vs. Afaq Jahan (Smt.) and Another,
reported in (2006) 1 SCC 627;
ii) Priyanka Srivastava and Others vs. State of U.P. and
Others, reported in 2015 (4) SCALE 120;
iii) Madhu Bala vs. Suresh Kumar and others, reported in AIR
1997 SC 3104 (1); and
iv) Judgment dated 10.02.2016 delivered by the Supreme court
in the case of Hemant Yashwant Dhage vs. State of
Maharashtra and others, in Criminal appeal No. 110 of
2016.
5. Learned counsel for respondent No.1-original complainant
submits that when a Magistrate orders investigation by the police
before taking cognizance under Section 156 (3) of Cr.P.C. and
receives the final report from the police, the Magistrate has power to
issue notice to the complainant and record his statement and the
statements of other witnesses and issue process under Section 204
of Cr.P.C. Learned counsel submits that the learned Magistrate has
applied his mind and passed the impugned order of issuance of
process against the applicants-accused. Learned counsel submits
that it is always open to the Magistrate to take cognizance of a
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complaint and dispose of it in accordance with law. Learned counsel
submits that preliminary enquiry is required to be conducted in
respect of the family disputes falling in the category of cases as
observed in para 111(vi) of Lalita Kumari vs. Government of Uttar
Pradesh and others reported in AIR 2014 SC 187. Learned counsel
submits that the Magistrate has correctly passed the order of
issuance of process against the accused and the same is also
confirmed by the learned Sessions Judge. There is no substance in
the criminal application and the criminal application is thus, liable to
be dismissed.
Learned counsel for respondent No.1, in order to substantiate
his submissions, places reliance on the judgments in the following
cases:-
i) Lalita Kumari vs. Government of U.P. and others, reported
in AIR 2014 SC 187;
ii) Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and
others, reported in (1976) 3 SCC 736;
iii) Tula Ram and others vs. Kishore Singh, reported in AIR
1977 SC 2401; and
iv) Ramdev Food Products Private Limited vs. State of
Gujarat, reported in (2015) 6 SCC 439.
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6. In the case of Tula Ram (supra), relied upon by learned
counsel for respondent No.1, the Hon'ble Supreme Court has
considered the order for investigation under Section 156 (3) on
complaint. After considering various earlier decisions, the Supreme
Court, on careful consideration of the facts and circumstances of the
case, propounded the following legal provisions:-
i) a Magistrate can order investigation under Section 156(3)
only at the pre-cognizance stage, that is to say, before taking
cognizance under Sections 190, 200 and 204 and where a
Magistrate decides to take cognizance under the provisions
of Chapter 14 he is not entitled in law to order any
investigation under Section 156(3) though in cases not falling
within the proviso to Section 202 he can order an
investigation by the police which would be in the nature of an
enquiry as contemplated by section 202 of the Criminal
procedure Code.
ii) Where a magistrate chooses to take cognizance, he can
adopt any of the following alternatives:-
(a) he can peruse the complaint and if satisfied that there
are sufficient grounds for proceeding he can
straightway issue process to the accused but before
he does so he must comply with the requirements of
Section 200 and record the evidence of the
complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and
direct an enquiry by himself.
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(c) The Magistrate can postpone the issue of process and
direct an enquiry by any other person or an
investigation by the police.
(iii) In case the Magistrate after considering the statement of the
complainant and the witnesses or as a result of the
investigation and the enquiry ordered is not satisfied that
there are sufficient grounds for proceeding, he can dismiss
the complaint.
(iv) Where a Magistrate orders investigation by the police before
taking cognizance under section 156(3) of the Code and
receives the report thereupon he can act on the report and
discharge the accused or straightway issue process against
the accused or apply his mind to the complaint filed before
him and take action under Section 190 of the Code, as
described above.
7. In the case of Mohd. Yousuf (supra), relied upon by the
learned counsel for the applicant, the Supreme court in para 11 of
the said judgment has made following observations:-
"11. The clear position therefore is that any Judicial Magistrate,
before taking cognizance of the offence, can order investigation
under Section 156(3) of he Code. If he does so, he is not to examine
the complainant on oath because he was not taking cognizance of
any offence therein. For the purpose of enabling the police to start
investigation it is open to the Magistrate to direct the police to
register an FIR. There is nothing illegal in doing so. After all
registration of an FIR involves only the process of entering the
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substance of the information relating to the commission of the
cognizable offence in a book kept by the officer in charges of the
police station as indicated in Section 154 of the Code. Even if a
Magistrate does not say in so many words while directing
investigation under Section 156(3) of the Code that an FIR should
be registered, it is the duty of the officer in charge of the police
station to register the FIR regarding the cognizable offence
disclosed by the complainant because that police officer could take
further steps contemplated in Chapter XII of the Code only
thereafter."
8.
In the case of Madhu Bala vs. Suresh Kumar (supra), relied
upon by the learned counsel for the applicant, the Supreme Court, in
para 10 of the said judgment, has made following observations:-
"10. From the foregoing discussion it is evident that whenever a
Magistrate directs an investigation on a "complaint the police has to
register a cognizable case on that complaint treating the same as
the FIR and comply with the requirements of the above Rules. It,
therefore, passes our comprehension as to how the direction of a
Magistrate asking the police to 'register a case' makes an order of
investigation under section 156(3) legally unsustainable. Indeed,
even if a Magistrate does not pass a direction to register a case, still
in view of the provisions of Section 156(1) of the Code which
empowers the Police to Investigate into a cognizable 'case' and the
Rules framed under Indian Police Act, 1861 it (the police) is duty
bound to formally register a case and then investigate into the same.
The provisions of the Code, therefore, does not in any way stand in
the way of a magistrate to direct the police to register a case at the
police station and then investigate into the same. In our opinion
when an order for investigation under Section 156(3) of the Code is
to be made the proper direction to the Police would be 'to register a
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case at the police station treating the complaint as the First
Information Report and investigate into the same."
9. In the case of Lalita Kumari vs. Government of U.P (supra),
relied upon by learned counsel for respondent No.1, the issue arises
for consideration is whether police officer is bound to register F.I.R.
upon receiving of any information relating to commission of
cognizable offence under Section 154 of Cr.P.C. or the police officer
has power to conduct "preliminary inquiry" in order to test veracity of
such information before registering the same.
10. In the case of Ramdev Food Products (P) Ltd. vs. State of
Gujarat (supra), relied upon the the learned counsel for respondent
No.1, the following questions arise for consideration:-
(i) Whether direction of the Magistrate to call for a report under
section 202 Cr.P.C. instead of directing investigation Section 156(3)
Cr.P.C. is controlled by any defined parameters,
(ii) Whether in the course of investigation in pursuance of a
direction under Section 202 Cr.P.C. the police officer is entitled to
arrest an accused, and
(iii) Whether in the present case, the magistrate erred in seeking
a report under Section 202 Cr.P.C. instead of directing investigation
under Section 156(3) Cr.P.C.
The Supreme Court, while answering those questions, has
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observed that the direction under Section 156(3) is to be issued only
after application of mind by the Magistrate. When the Magistrate
does not take cognizance and does not find it necessary to postpone
issuance of process and finds a case made out to proceed forthwith,
direction under the said provision is issued. In other words, where on
account of credibility of information available, or weighing the interest
of justice, it is considered appropriate to straightway direct
investigation, such a direction is issued. Secondly, the cases where
Magistrate takes cognizance and postpones issuance of process are
cases where the Magistrate has yet to determine "existence of
sufficient ground to proceed". Category of cases falling under para
111(vi) in Lalita Kumari (supra) may fall under Section 202 of the
Code.
11. The provisions of Section 156(3) and Section 202 of the Code
of Criminal Procedure are reproduced herein below:-
"156. Police Officer's power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at
any stage be called in question on the ground that the case was one
which such officer was not empowered under this section to
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investigate.
(3) Any Magistrate empowered under section 190 may order
such an investigation as above-mentioned."
"202. Postponement of issue of process.-
(1) Any Magistrate, on receipt of a complaint of an offence of
which he is authorized to take cognizance or which has been made
over to him under section 192, may, if he thinks fit, and shall, in a
case where the accused in residing at a place beyond the area in
which he exercises his jurisdiction, postpone the issue of process
against the accused, and either inquire into the case himself or
direct an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he shall
call upon the complainant to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub- section (1) is made by a person
not being a police officer, he shall have for that investigation all the
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powers conferred by this Code on an officer in charge of a police
station except the power to arrest without warrant."
12. In the case in hand, the learned Magistrate has passed the
following orders:-
R.C.C. 17/11
4.2.2011
ORDER
4.2.2011
Case fixed for verification statement of complaint. R/on 23.2.2011.
ig Sd/-
J.M.F.C. Renapur
ORDER
4.3.2011
Call report U/Sec. 156(3) of Cr.P.C. from concerned Police Station.
Sd/-
J.M.F.C. Renapur
ORDER
14.9.2011
Complainant is directed to file certified copy of alleged document
before issuing process against accused. It is necessary documents while
consider at the time of issue process under. The Xerox copy of alleged
document is on record. Hence complainant is directed to file certified copy
of alleged document.
Sd/-
J.M.F.C. Renapur
ORDER
5.10.2011
Read complaint, report of police, and statements. The
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complainant in said complaint stated that the accused prepared false,
forged document and same used as a genuine one in official working. But
there is no prima facie evidence regarding that on record. Hence for that
complainant to lead additional evidence before issue process.
Sd/-
J.M.F.C. Renapur
13. In the light of the order passed on 5.10.2011, respondent No.1-
original complainant has examined himself before the Court and
accordingly, learned Magistrate has passed the impugned order
dated 27.3.2014 issuing process against the applicants-accused for
the offences punishable under Sections 420, 467, 468, 471 r.w. 34 of
I.P.C.
14. The powers under Section 156(3) can be invoked by the
Magistrate before taking cognizance directing the police to
investigate into the allegations and submit a report or charge sheet
under section 173 of Cr.P.C. On the other hand, Section 202 of
Cr.P.C. contemplates taking cognizance and the directions for
investigation for the purpose of deciding whether there is sufficient
ground to proceed or not. Such investigation must also end up only
with the report contemplated under Section 173 of Cr.P.C. It is well
settled that even if the Magistrate does not say in his order, while
directing investigation under Section 156 (3) of Cr.P.C., that F.I.R.
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should be registered, it is the duty of the police officer in charge of
the police station to register the F.I.R. regarding cognizable offence
disclosed by the complainant. In the case in hand, it appears that the
Magistrate has not acted in accordance with the provisions of Cr.P.C.
15. In this context, it is relevant to re-produce the provisions of
section 190 of Cr.P.C.;
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section(2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or try."
The expression 'police report" as referred in clause (b) of Section
190 of Cr.P.C. has been defined in section 2(r) to mean a report forwarded
by a police officer to a Magistrate under sub-section (2) of Section 173 of
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Cr.P.C. It is manifest that the Magistrate can take cognizance under
Section 190(1) upon the 'police report' meaning thereby the report
submitted under Section 173(2). The Magistrate has jurisdiction in the
event of final form is filed (i) to accept the final form (ii) in the event the
protest petition is filed, to treat the same as complaint petition and if prima
facie case is made out, to issue process (iii) to take cognizance of the
offence against the person, although final report has been filed by the
police in the event he is of the opinion that sufficient material exists in the
case diary itself thereof and (iv) to direct re-investigation into the matter.
16. In the case in hand, after directing police investigation under Section
156(3) of Cr.P.C., the Magistrate has passed order dated 14.9.2011
directing the complainant to file certified copies of the documents for
issuing process against the accused. In the light of the order passed by
the Magistrate dated 4.3.2011 under section 156(3) of Cr.P.C., the
concerned police officer has not registered F.I.R. and carried out
investigation, if any. It is also not clear whether the concerned police
officer has submitted the report as contemplated under Section 173 (2) of
Cr.P.C. as referred in section 190 (1) (b) of Cr.P.C. Thus, the impugned
order does not stand. I have no hesitation in directing the Magistrate and
the concerned police Officer to rectify their mistake by registering of an
appropriate F.I.R. The delay in lodging of such F.I.R. shall not have any
effect. The concerned police officer is also directed to complete the
investigation strictly in accordance with law, as expeditiously as possible
and preferably within a period of six (06) months from today. On receipt of
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report from the police on completion of investigation, the Magistrate shall
deal with the matter strictly in accordance with law. Hence the following
order:-
ORDER
I. Criminal application is partly allowed.
II. The impugned order dated 27.3.2014 passed by learned
Judicial Magistrate, First Class, Renapur, in R.C.C. No. 17 of
2011 and the order dated 23.11.2015 passed by learned
Additional Session Judge-3, Latur in Criminal Revision No.
62 of 2014 are quashed and set aside.
III. In terms of the order passed by the Magistrate dated
4.3.2011 calling report under Section 156(3) of Cr.P.C.
from concerned police station, the concerned Police
Officer is directed to register an appropriate F.I.R. and to
complete the investigation fairly and strictly in accordance
with law, as expeditiously as possible and preferably within a
period of six months from today.
IV. On completion of investigation and on receipt of report from
the police, the Magistrate shall deal with the matter strictly in
accordance with law.
V. With the above observations, criminal application is disposed
of. Rule made absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
