Bombay High Court
Sau Mangarani W/O Suresh ... vs Mahesh S/O Mukundrao Parandekar on 15 March, 2016
Bench: N.W. Sambre
(1) Cri. W.P. No. 1239 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 1239 of 2014
District : Nanded
Sau. Mangarani w/o. Suresh Ambulagekar,
Age : 45 years,
Occupation : Agriculture,
R/o. Pasaydan Apartment, .. Petitioner
Shivajinagar, Nanded. (Original accused)
versus
Mahesh s/o. Mukundrao Parandekar,
Age : 37 years,
Occupation : Tahsildar,
R/o. Bhokar,
Taluka : Bhokar, .. Respondent
District : Nanded. (Original complainant)
.........................
Mr. P.P. Mandlik, Advocate, holding for
Mr. A.S. Gandhi, Advocate, for the petitioner.
Mr. D.V. Tele, Addl. Public Prosecutor, for
the respondent.
..........................
CORAM : N.W. SAMBRE, J.
DATE : 15TH MARCH 2016
ORAL JUDGMENT :
1. Heard the learned Counsel for respective parties.
(2) Cri. W.P. No. 1239 of 2014
2. Rule. Rule made returnable forthwith. By consent of the
learned Counsel for the parties, heard finally.
3. The petitioner suffered an order of issuance of process in
Regular Criminal Case No. 26 of 2014, for offences punishable under
Sections 171-G, 177 and 181 of the Indian Penal Code, passed by the
learned Judicial Magistrate (F.C.), Bhokar. The said order thereafter was
confirmed in Criminal Revision No. 2/2014 preferred by the petitioner.
The learned Addl. Sessions Judge, Bhokar, vide judgment and order dated
petition.
August 20, 2014, dismissed the said revision. As such, the present
4. Mr. Mandlik, the learned Counsel for the petitioner, while
inviting my attention to the order of issuance of process, would urge that
the order depicts complete non-application of mind in respect of the
ingredients of the Sections of the Indian Penal Code under which offence
is punishable and for which process is issued by the learned Magistrate. In
his submission, the learned Magistrate has not at all considered
satisfaction of the very ingredients of the Sections of the Indian Penal
Code from the contents of the application and the evidence that is brought
on record prior to the order of issuance of process. He would then submit
that the learned Addl. Sessions Judge has also lost sight of the same.
5. Mr. Tele, the learned Addl. Public Prosecutor for the
respondent, while opposing the application would submit that it is
pursuant to the complaint that was received by one of the candidates, the
(3) Cri. W.P. No. 1239 of 2014
Collector had applied its mind to the conduct of the petitioner and has
directed the Tahsildar to file complaint. He would submit that perusal of
the complaint would depict satisfaction of the very ingredients of the
Sections of the Indian Penal Code of which process is issued.
6. In my opinion, having perused the order passed by the learned
Magistrate on 23rd January 2014 and the order passed by the learned Addl.
Sessions Judge in exercise of revisional jurisdiction on 20th August 2014,
it is noticed that the learned Magistrate has passed the order without
application of mind to the case that was brought before it. It is required to
be noted that though the Magistrate is not required to write a judgment, but
his order must reflect the considerations. The satisfaction of the
ingredients of the Sections of which prima facie an offence is alleged has
to be recorded by the Magistrate. Upon perusal of the order impugned,
what is reflected is, the learned Magistrate has passed a vague order saying
that the Magistrate is satisfied that prima facie there appears to be a
commission of offence punishable under the said Sections.
7. In my opinion, a useful reference can be made 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. Paras 30, 32 and 35 of the said judgment are re-produced
below :-
" 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
(4) Cri. W.P. No. 1239 of 2014
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
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. "
(5) Cri. W.P. No. 1239 of 2014
In view of above observations of the Division Bench, it was expected of
the Magistrate to apply his mind before ordering the issuance of process
and upon satisfying the ingredients of the Sections under which the
offence is punishable.
8. In the result, the petition is allowed.
(a) The order dated 23rd January 2014, passed by the Judicial
Magistrate (F.C.), Bhokar, in Regular Criminal Case No. 26/2014, and the
judgment and order dated 20th August 2014, passed by the Addl. Sessions
Judge, Bhokar, in Criminal Revision No. 2/2014, are quashed and set
aside.
(b) The matter is remitted back to the learned Judicial Magistrate (F.C.),
Bhokar, 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.
9. Rule is made absolute in the aforesaid terms.
( N.W. SAMBRE )
JUDGE
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puranik / CRIWP1239.14
