Bombay High Court
Shri. Renukamata Multistate ... vs State Of Maharashtra, Through ... on 10 March, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO.16/2015
Shri Renukamata Multistate
Co-operative Society Limited,
Ahmednagar, through a Dattatraya
Kisan Dhokne, Aged about 37 Yrs.,
Occu. Service, R/o Shivnagar,
Ahmednagar, at present R/o
Tilak Road, Akola, R/o Shivnagar,
Ahmednagar.
ig ..Applicant.
..Versus..
1. State of Maharashtra,
through Police Station,
Ramdaspeth, Akola.
2. Ashfak Hussain Irfan Hussain,
Aged about 25 Yrs., Occu. Business,
R/o Najuknagar, Akola,
Tq. and Distt. Akola.
3. Sugriv Ramnath Khedkar,
Aged about 26 Yrs.,
Occu. Ex. Assistant Branch Officer,
Renukamata Multistate Co-operative
Urban Credit Society Limited Branch
Akola, R/o Chaklamba, Tq. Bewarai,
Distt. Bid.
4. Parmeshwar Bapurao Gawande,
Aged about 25 Yrs., Occu. Ex. Cashier,
Renukamata Multistate Co-operative
Urban Credit Society Limited Branch
Akola R/o Nimgaon Mahimba,
Tq. Shiroor, Kasar, Dist. Bid. ..Non-applicants.
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CORAM : Z.A. HAQ, J.
DATE : 10.3.2016
ORAL JUDGMENT
1. Heard Ms. Ankita Sarkar advocate h/f Shri S.V. Sirpurkar, advocate for the
applicant, Shri A.S. Mardikar senior advocate assisted by Shri S.G. Joshi advocate for
the non-applicant no.2, Shri F.T. Mirza, advocate for the non-applicants 3 and 4 and
Shri N.S. Khubalkar, A.P.P. for non-applicant no.1.
2. Rule. Rule made returnable forthwith.
3. The applicant/original complainant has filed this revision application challenging
the order passed by the learned Additional Sessions Judge, allowing the revision filed
by the non-applicant no.2 and setting aside the order passed by the learned Magistrate
directing the investigation under Section 156(3) of the Code of Criminal Procedure.
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4. The applicant filed an application under Section 156(3) of the Code of Criminal
Procedure alleging that the non-applicants 2 to 4 have committed the offence
punishable under Section 120-B, 406, 420, 467, 468, 471 read with 34 of the Indian
Penal Code. The applicant prayed that the concerned police station be directed to
investigate under Section 156(3) of the Code of Criminal Procedure.
The learned Magistrate, by the order dated 2 nd June, 2014, allowed the
application and directed investigation under Section 156(3) of the Code of Criminal
Procedure.
The non-applicant no.2 challenged the order passed by the learned Magistrate
in revision which is allowed by the learned Additional Sessions Judge by the impugned
order.
5. The learned Magistrate allowed the application filed by the applicant under
Section 156(3) of the Code of Criminal Procedure by the following order:
"Heard. Perused. Contents of the application and
submissions made on behalf of the applicant reflects ingredients of
offence punishable u/s 406, 409, 420, 467, 468 and 471 r/w 34 of the
I.P.C. Thorough investigation is necessary.
Hence, application is allowed.
PSO Ramdaspeth Police Station is hereby directed to make
investigation as per sec. 156(3) of the Cr.P.C."
In paragraph no.23 of the impugned order, the learned Additional Sessions
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Judge has rightly concluded that the Magistrate, while considering the application under
Section 156(3) of the Code of Criminal Procedure is under an obligation to apply his
mind to the allegations in the complaint and only in cases which disclose an offence,
the Magistrate gets jurisdiction to order investigation by the police. The learned
Additional Sessions Judge has rightly recorded that the learned Magistrate has passed
the impugned order directing investigation, without applying his mind.
However, the learned Additional Sessions Judge has committed an error in
delving into the merits of the contentions of the parties. Once the learned Additional
Sessions Judge had come to the conclusion that the order passed by the learned
Magistrate shows that there is non-application of mind by the Magistrate, in my view,
the learned Additional Sessions Judge should have remanded the matter to the learned
Magistrate. However, the learned Additional Sessions Judge has dealt with the merits
of the matter which, in my view, should not have been done while exercising the
revisional jurisdiction.
6. Shri Mardikar, learned senior advocate for non-applicant no.2 and Shri Mirza,
advocate for the non-applicants 3 and 4, relying on the judgment given by the Full
Bench of this Court in the case of Panchabhai Popotbhai Butani & Ors. V/s. State of
Maharashtra & Ors. reported in 2010(1) Bombay C.R. (Cri) 1 and the judgment given
by the Hon'ble Supreme Court in the case of Mrs. Priyanka Srivastava and another V/s.
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State of U.P. and others reported in 2015 CRI.L.J.2396 (SC) have submitted that the
applicant has not made any complaint to the police and has directly filed complaint
under Section 156(3) before the Magistrate and, therefore, the complaint filed by the
applicant is not maintainable.
The learned advocate for the applicant has pointed out from paragraph no.3 of
the complaint filed by the applicant under section 156(3) of the Code of Criminal
Procedure averment that the applicant had gone to the police station Ramdaspeth and
to the Superintendent of Police to submit the complaint. In view of the averment, the
submission made on behalf of the non-applicants 2 to 4 that the complaint filed by the
applicant under Section 156(3) of the Code of Criminal Procedure is not maintainable,
cannot be considered at this stage.
Moreover, in paragraph no.64 of the judgment given in the case of Panchabhai
Popotbhai Butani & Ors. V/s. State of Maharashtra & Ors. (cited supra) it is laid down
that there could be cases where the police fail to act instantly and the facts of the case
show that there is possibility of the evidence of commission of the offence being
destroyed and/or tampered with and the complainant may approach the Magistrate
under Section 156(3) of the Code of Criminal Procedure directly as an exception as the
Legislature vested vide discretion in the Magistrate.
7. In the judgment given in the case of Mrs. Priyanka Srivastava and another V/s.
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State of U.P. and others (cited supra) it is laid down that the applications filed under
Section 156(3) of the Code of Criminal Procedure are to be supported by an affidavit
duly sworn by the applicant and in appropriate cases, the learned Magistrate would be
well advised to verify the truth and also can verify the veracity of the allegations.
Considering the proposition laid down in the judgment given in the case of Mrs.
Priyanka Srivastava and another V/s. State of U.P. and others (cited supra) and the
conclusions of the learned Additional Sessions Judge recorded in paragraph no.23 of
the impugned order that the order passed by the learned Magistrate directing
investigation under Section 156(3) of the Code of Criminal Procedure is without
application of mind, which in my view are proper, the following order is passed:
(i) The impugned order passed by the learned Additional Sessions Judge in
Criminal Revision No.91/2014 on 4th December, 2014 is set aside.
(ii) The matter is remitted to the Judicial Magistrate, First Class, Akola for deciding
the application filed by the applicant under Section 156(3) of the Code of Criminal
Procedure, afresh, according to law.
(iii) As the non-applicants 2 to 4 are granted hearing by the Sessions Court as well
by this Court and as the matter is being remitted, the non-applicants 2 to 4 may be
permitted by the learned Magistrate to file submissions and to advance arguments.
(iv) The criminal revision application is allowed in the above terms.
(v) In the circumstances, the parties to bear their own costs.
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(vi) The applicant and the non-applicants 2 to 4 shall appear before the Judicial
Magistrate First Class, Court No.5, Akola on 15 th April, 2016 and abide by further orders
in the matter.
JUDGE
Tambaskar.
