Bombay High Court
Sanjay Ashok Lohar (Chavan) And ... vs The State Of Maharashtra & Anr on 15 March, 2016
Bench: N.W. Sambre
(1) Cri. W.P. No. 954 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 954 of 2015
District : Nandurbar
1. Sanjay Ashok Lohar (Chavan),
Age : 42 years,
Occupation : Stamp Vendor.
2. Ashok Giridhar Lohar,
Age : 66 years,
Occupation : Business.
3. Latabai Ashok Lohar,
Age : 60 years,
Occupation : Housewife.
4. Sachin Ashok Lohar,
Age : 35 years,
Occupation : Labourer.
Petitioner Nos.1 to 4
R/o. Khataimata Nagar,
At Post : Taloda,
District : Nandurbar.
5. Surekha Jagdish Panchal,
Age : 38 years,
Occupation : Housewife.
6. Jagdish (Bachu) Gujju Panchal,
Age : 46 years,
Occupation : Business.
Petitioner Nos.5 and 6
R/o. Limbayat,
Near Lokmanya Tilak Garden,
Surat, Taluka & District : Surat
(Gujrat).
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(2) Cri. W.P. No. 954 of 2015
7. Sarita Mukesh Lohar,
Age : 36 years,
Occupation : Housewife.
8. Mukesh Nandlal Lohar,
Age : 40 years,
Occupation : Business.
9. Nandlal Suklal Lohar,
Age : 71 years,
Occupation : Business.
10. Miraben Nandlal Lohar,
Age : 65 years,
Occupation : Housewife.
Petitioner Nos.7 to 10
R/o. 150, Green Park,
Dhusav Road, Bhestan,
Surat (Gujrat).
11. Kishor Dhabu Lohar,
Age : 72 years,
Occupation : Business.
12. Kusum Kishor Lohar,
Age : 66 years,
Occupation : Housewife.
Petitioner Nos.11 and 12
R/o. 396, Kusumnanda,
Hudco Colony, Korit Road,
Nandurbar, Dist. : Nandurbar.
13. Dinesh Chhotubhau Chavan,
Age : 42 years,
Occupation : Business.
14. Jyoti Dinesh Chavan,
Age : 39 years,
Occupation : Housewife.
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(3) Cri. W.P. No. 954 of 2015
15. Gajanan Ghhotu Chavan,
Age : 61 years,
Occupation : Business.
16. Pratibha Gajanan Chavan,
Age : 59 years,
Occupation : Housewife.
Petitioner Nos.13 to 16
R/o. Gurukrupa Colony,
Near Bus Stand, Taloda,
District : Nandurbar. .. Petitioners.
versus
1. The State of Maharashtra.ig
2. Sou. Urmila @ Chhaya Sanjay Chavan,
Age : Major,
Occupation : Housewife,
C/o. Ghanshyam Kalidas Lohar,
R/o. Borad, Taluka : Taloda,
District : Nandurbar. .. Respondents.
.........................
Mr. R.S. Shinde, Advocate, holding for
Mr. N.L. Chaudhari, Advocate, for the petitioners.
Mr. R.V. Dasalkar, Addl. Public Prosecutor, for
respondent no.1.
Mr. G.A. Nagori, Advocate, for respondent no.2.
..........................
CORAM : N.W. SAMBRE, J.
DATE : 15TH MARCH 2016
(4) Cri. W.P. No. 954 of 2015
ORAL JUDGMENT :
1. Heard the learned Counsel for respective parties.
2. Rule. Rule made returnable forthwith. By consent of the
learned Counsel for the parties, heard finally.
3. Respondent no.2 herein filed Regular Criminal Case No.
34/2014, in the Court of Judicial Magistrate (F.C.), Taloda [District :
Nandurbar], against the petitioners alleging commission of offence under
Sections 498A, 323, 504, 506, read with Section 34 of the Indian Penal
Code. The learned Magistrate has taken cognizance of the same and by
order dated 31-1-2015, directed issuance of process against accused
persons i.e. petitioners herein for the said offences. The same was subject
matter of challenge in a revision before the learned Additional Sessions
Judge, Shahada, vide Criminal Revision Application No. 12/2015, which
came to be dismissed by judgment and order dated July 3, 2015. As such,
the present petition.
4. Mr. Shinde, the learned Counsel for the petitioners, while
inviting attention of this Court to the order of issuance of process passed
by the learned Magistrate on January 31, 2015, would urge that the said
order is without considering the material that was brought on record qua
the role attributed to each of the petitioners who are named as accused in
the said proceedings. According to him, some of the accused are residents
of State of Gujarat and are included as accused by making certain omnibus
allegations which are not at all taken into account by the learned
Magistrate before passing the order of issuance of process. He would then
(5) Cri. W.P. No. 954 of 2015
invite attention of this court to the law laid down by a Division Bench of
this Court in the case of State of Maharashtra Vs. Shashikant s/o. Eknath
Shinde, reported in 2013 ALL MR (Cri) 3060, so as to canvass that an order
passed by the Magistrate directing either investigation or registration of
crime has to be upon considering the material that was brought on record
and the order must reflect application of mind. According to him, the
orders impugned, as such, are not sustainable.
5. Mr. Nagori, the learned Counsel for respondent no.2 - original
complainant, would urge that the learned Magistrate after taking into
account the evidence of independent witnesses, which was brought on
record, has satisfied himself, as is apparent from the observations made in
para 2 of the order of the Magistrate passed on January 31, 2015. He
would then submit that upon satisfaction, the learned Magistrate has
rightly issued process against the petitioners in the light of provisions of
Section 204 of the Code of Criminal Procedure 1973. He would submit
that there is enough material on record to connect the present petitioners
qua their prima facie involvement in the crime in question and, as such, in
view of concurrent findings i.e. the order of issuance of process and
dismissal of revision, this Court in its extraordinary jurisdiction should be
slow in interfering and sought dismissal of the petition.
6. The learned Addl. Public Prosecutor for respondent no.1 has
supported the impugned orders.
7. Having bestowed my thoughts to the submissions made and
upon perusal of the complaint, it is required to be noted that the
(6) Cri. W.P. No. 954 of 2015
complainant - respondent no.2 has impleaded all the relatives, total 16, as
accused to the complaint alleging some vague role to some of the accused.
This Court must take note of the fact that some of the accused are residents
of Surat in Gujrat State. The sister of her husband i.e. accused no.1 is not
even residing with them. However, she is shown as shown with some
vague allegations. The said aspect and the prima facie availability of the
material on record as against the said accused person is not at all dealt with
by the learned Magistrate while passing the order of issuance of process.
8. The learned Counsel for the petitioners, in my opinion, has
rightly invited attention of this Court to the judgment of Division Bench of
this Court in the case of State of Maharashtra Vs. Shashikant s/o. Eknath
Shinde (cited supra), so as to canvass that the Magistrate must apply his
mind to the material that is brought before him and satisfy himself before
passing an order of issuance of process. In my opinion, the order passed
by the learned Magistrate is contrary to the law laid down by the Division
Bench of this Court in the case of State of Maharashtra Vs. Shashikant s/o.
Eknath Shinde (cited supra). Paras 30, 32 and 35 of the said judgment are
re-produced below in order to have useful reference :-
" 30. In view of the aforesaid Judgments of the Apex
Court, it can, thus, clearly be seen that when the
Magistrate passes order directing investigation
under Section 156(3) of Cr.P.C., it is necessary
that, prior to doing so, he should apply his mind
to the case before him. Least that is expected of
the Magistrate, is to verify from the averments of
the complaint as to whether the ingredients to
constitute the offences/s complained of have been
made out or not. As such the order under Section
(7) Cri. W.P. No. 954 of 2015
156(3) of Cr.P.C., should depict the application of
mind. No doubt the Magistrate is not expected to
give elaborate Judgment at that stage. However,
the least expected is that the order should depict
application of mind and as to how the complaint
discloses the ingredients to constitute the offence
complained of.
32. It can, thus, be seen that the Division Bench
of this Court has clearly held that if the petition
or complaint does not disclose commission of
cognizable offence, the learned Magistrate cannot
pass the order under Section 156(3) of Cr.P.C. It
is also held that disclosure of commission of the
offence is sine qua non for issuing the order under
Section 156(3) of Cr.P.C.
35. It will, thus, have to be held that it is
mandatory for the Magistrate to apply his mind to
the allegations made in the complaint and only when
the allegations made in the complaint make out the
ingredients to constitute an offence, the learned
Magistrate can pass an order of investigation under
Section 156(3) of Cr.P.C. Equally, when the
ingredients to constitute the offence are not made
out in the complaint, the learned Magistrate cannot
direct investigation under Section 156(3) of
Cr.P.C. Such an order is without jurisdiction. If
the contention of the learned counsel for
respondent complainant that once the complaint is
filed under Section 156(3) of Cr.P.C., the learned
Magistrate has no option but to pass an order under
Section 156(3) of Cr.P.C., is accepted, it would
amount to reducing the learned Magistrate to
nothing else but the postman. As such, we have no
other option but to reject the said contention. "
9. In the result, the petition is allowed.
(8) Cri. W.P. No. 954 of 2015
(a) The order dated 31st January 2015, passed by the learned Judicial
Magistrate (F.C.), Taloda, below Exhibit 1 in Regular Criminal Case No.
34/2014, and the order dated 3rd July 2015, passed by the Additional
Sessions Judge, Shahada, in Criminal Revision Application No. 12/2015,
are quashed and set aside.
(b) The matter is remitted back to the learned Judicial Magistrate (F.C.),
Taloda, who is directed to pass fresh orders after going through the law
laid down by the Division Bench of this Court in the case of State of
Maharashtra Vs. Shashikant s/o. Eknath Shinde (cited supra) and thereafter
pass appropriate orders in the matter.
10. Rule is made absolute in the aforesaid terms.
( N.W. SAMBRE )
JUDGE
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puranik / CRIWP954.15
