Kailash Dattatraya Jadhav And Anr vs The State Of Maharashtra And Anr
2016 Latest Caselaw 2220 Bom

    This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016


                                                1 of 11                         APL.152.2015



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                    CRIMINAL APPELLATE JURISDICTION




                                                            
                     CRIMINAL APPLICATION NO.152 OF 2015

     Kailash Dattatraya Jadhav and another                                    Applicants
              versus




                                                           
     1. State of Maharashtra through Sakinaka
     Police Station.

     2. Vishal Khanderao Ghorpade, Mumbai                                  Respondents




                                             
     Mr.Niranjan   Mundargi   with   Shri   Prasanna   Bhangale   i/by 
                             
     Mr.Sandip R. Khurkute for the Applicants.
     Dr.F.R.Shaikh, APP, for the Respondent no.1.
                            
                               CORAM :  A.S.OKA AND P.D.NAIK, JJ.

DATE : 4th May 2016

ORDER - (Per : A.S.Oka, J.) :

1. Submissions of learned counsel for the Applicants were heard on the earlier date. We have also heard learned APP. The

challenge in this application under Section 482 of the Code of Criminal Procedure, 1973 (`Code') is to the first information report (`FIR') registered at Sakinaka Police Station, Andheri,

Mumbai. The quashing of the FIR is sought by the Applicants. When the application was called out for admission, we pointed out to the learned advocate for the Applicants that a remedy under the Code is available to the Applicants in view of the decision of a Division Bench of this court in the case of Avinash

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

2 of 11 APL.152.2015

Trimbakrao Dhondage Vs. State of Maharashtra1. The

Division Bench of this Court by the said decision held that an order made by learned Magistrate under sub-Section 3 of

Section 156 of the Code is not an interlocutory order, but it is a final order on an application/complaint under sub-Section 3 of Section 156 of the Code. The Division Bench held that a

remedy of revision under Section 397 of the Code is available against the said order.

2. Learned counsel for the Applicants urged that the remedy

under Section 397 of the Code is not at all an efficacious

remedy inasmuch as the Revisional Court or the Sessions Court has no power to quash the FIR. He submitted that the law is well settled. As a consequence of an order being made under

sub Section 3 of Section 156 of the Code, the officer in-charge

of concerned Police Station is under an obligation to register FIR in accordance with sub Section 1 of Section 154 of the Code. His submission is that as the Revisional Court cannot

quash FIR, even assuming that a remedy is available under Section 397 of the Code to challenge an order under sub Section 3 of Section 156, the said remedy cannot be an efficacious

remedy.

3. Learned counsel for the Applicants also submitted that the view that an order allowing/granting application/complaint

1 2016-ALL MR (Cri)-985

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

3 of 11 APL.152.2015

under sub Section 3 of Section 156 of the Code is not an

interlocutory order, may also need reconsideration inasmuch as by passing the said order, cognizance is not taken of the offence

by the Criminal Court.

4. As far as the implication of directions under sub Section 3

of Section 156 is concerned, he invited our attention to the law laid down by the Apex Court in case of Madhu Bala Vs. Suresh

Kumar and others2. He pointed out that as held by the Apex Court, on the basis of an order of a Magistrate to investigate,

even in absence of a specific direction to register FIR, the Police

is bound to register FIR and bound to investigate into the same. Relying upon the decision of Apex Court in the case of Suresh Chand Jain Vs. State of Madhya Pradesh 3, he urged that when

a Magistrate passes an order under sub Section 3 of Section 156

of the Code, he passes the said order at a pre-cognizance stage. He also invited our attention to a decision of Full Bench of Allahabad High Court in the case of Father Thomas Vs. State

of Uttar Pradesh4. He invited our attention to the finding recorded by the Full Bench of Allahabad High Court wherein it was held that an order passed by a Magistrate directing

investigation under sub Section 3 of Section 156 of the Code is an interlocutory order and a revision application is not maintainable against such order. He also invited our attention to another Full Bench decision of Allahabad High Court in the 2 (1997)8-SCC-476 3 (2001)2-SCC-628 4 2011-Cri.L.J.-2278

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

4 of 11 APL.152.2015

case of Jagannath Verma Vs. State of Uttar Pradesh5. In the

said decision, the Full Bench of Allahabad High Court has considered the entire law on the point and without disturbing

the decision in the case of Father Thomas (supra), it was held that an order rejecting an application/complaint under sub Section 3 of Section 156, is not an interlocutory order and it is a

revisable order. He also invited our attention to a well known decision of the Apex Court in case of Amar Nath Vs. State of

Haryana6, which deals with the scope of the term "interlocutory order". He also placed reliance on a decision of another

Division Bench of this Court in the case of State of

Maharashtra Vs. Shashikant Eknath Shinde7. Lastly, he relied upon a decision of the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra8.

5. Before adverting to the issue of availability of an efficacious remedy, we must advert to the facts of the case in brief. Learned counsel for the Applicants pointed out that on

the complaint filed by the second Respondent, an order was made under Section 202 of the Code. On the basis of the said order, a report was submitted by the Sub Inspector of Police of

Saki Naka Police Station on 30 September 2009 recording that no case for recording of offence was made out. On the basis of said report, the learned Metropolitan Magistrate dismissed the

5 2015-ALL MR (Cri) Journal 129 6 1977-AIR-SC-2185 7 2013-ALL MR (Cri)-3060 8 (2011)1-SCC-694

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

5 of 11 APL.152.2015

private complaint filed by the second Respondent vide order

dated 16 November 2000. Against the said order, a revision application was filed by the second Respondent. The learned

Additional Sessions Judge, Mumbai, by order dated 27 January 2012 partly allowed the revision application and directed the second Respondent to appear before the learned Magistrate for

having a further inquiry under Section 202 of the Code. Perhaps, without noticing the said order of the Sessions Court

that by the impugned order dated 12 December 2013, the learned Magistrate purportedly exercised power under sub Section 3 of Section 156.

6. In view of the settled law, when the complaint was at post- cognizance stage, the learned Magistrate could not have

exercised the power under sub Section 3 of Section 156 of the

Code, which is to be exercised at pre-cognizance stage. Therefore, prima facie, we are of the view that the order of the learned Magistrate dated 12 December 2013 is completely

illegal. Apart from the fact that the learned Magistrate could not have exercised the power at that stage, the learned Magistrate has completely overlooked the order of learned

Additional Sessions Judge and the specific directions issued by the the Additional Sessions Judge.

7. Now, we turn to the issue of availability of an efficacious remedy. The law is well settled. Extraordinary jurisdiction of this Court under Section 482 of the Code has to be exercised in

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

6 of 11 APL.152.2015

rare cases and normally the Applicant who seeks to invoke the

jurisdiction of this Court under Section 482 of the Code, should not be permitted to invoke the same when an efficacious

remedy is available under statute.

8. At this stage, we may make a reference to the well settled

legal position as regards effect of the order made by learned Magistrate under sub Section 3 of Section 156 of the Code

directing investigation. For this purpose, we may advert to the decision of Apex Court in case of Madhu Bala (supra).

Paragraphs 8 and 10 of the said decision reads thus :

"8. From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizable offence is made

before a Magistrate, he may take cognizance upon the same under Section 19091)(a) of the Code and

proceed with the same in accordance with the provisions of chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate police station under

Section 156(3) for investigation. Once such a direction is given under sub section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a "police

report" in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 19091)(b) - but not under 190(1)(a). Since a complaint filed before a Magistrate cannot be a "police report" in view of the definition of "complaint" referred to earlier and since the investigation of a "cognizable case"

by the police under Section 156(1) has to culminate in a "police report" the "complaint" - as soon as an order

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

7 of 11 APL.152.2015

under section 156(3) is passed thereon - transforms itself to a report given in writing within the meaning of

Section 154 of the Code, which is known as the first information report (FIR). As under Section 156(1), the

police can only investigate a cognizable "case", it has to formally register a case on that report.

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 the Indian Police Act, 1861 (the police) is duty bound to formally register a case and then investigate into the same.

The provisions of the Code, therefore, do 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 case at the police station treating the complaint as the first information report and investigate into the same."

(emphasis added)

9. Therefore, the effect of an order under sub Section 3 of Section 156 is that though there may not be any specific direction to register FIR, on the basis of an order made directing investigation under sub Section 3 of Section 156, the officer in- charge of the concerned police station is under an obligation to

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

8 of 11 APL.152.2015

register FIR in accordance with sub Section 1 of Section 154

and to commence investigation.

10. Now, we may turn to the decision of a Division Bench of this Court in the case of Avinash Trimbakrao Dhondage (supra). In the said decision, the Division Bench considered the decision

of the Apex Court in the case of Suresh Chand Jain (supra). Ultimately, after considering various decisions including the

decision of the Full Bench of Allahabad High Court in the case

of Father Thomas (supra), the Division Bench relied upon the decision of a Division Bench of this Court in case of B.S.Khatri

Vs. State of Maharashtra and another 9. It is in the light of the said decision of the Division Bench that in paragraph 14, the Division Bench came to the conclusion that an order directing

investigation under sub Section 3 of Section 156 is not an

interlocutory order but it is in the nature of a final order disposing of the complaint. That is why it was held that a revision under Section 397 of the Code would be maintainable.

As far as this view taken is concerned, being the view of a co- ordinate Bench, we are respectfully bound by the said view. We are not shown any binding precedent which is contrary to this

view.

11. We must note here that there is no finding recorded in the decision of Avinash Trimbakrao Dhondage (supra) that in view of

9 2003-ALL MR (Cri)-1925

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

9 of 11 APL.152.2015

availability of remedy under Section 397 of the Code, an

application under Section 482 of the Code cannot be entertained. On the contrary, paragraph 16 suggests that the

Court considered the prayer made across the bar for exercising power under Section 482 of the Code on the ground that there was an abuse of process of law and ultimately, in the facts of the

case, the Division Bench held that in none of the cases before it, inherent power deserved to be exercised.

12. As held by the Apex Court, once an order is made by

learned Magistrate under sub Section 3 of Section 156 of the

Code directing investigation to be made, it is the legal obligation of the police officer to register FIR under sub Section 1 of Section 154 of the Code, inasmuch as registration of FIR in

terms of sub Section 1 of Section 154 is a condition precedent

for commencing investigation into the commission of cognizable offence. As is clear from sub-Section 1 of Section 156 of Code, the power under sub-Section 3 of Section 156 of the Code can

be exercised only in cognizable cases.

13. We may make now a reference to Section 397 and Section

401 of the Code. The power of revision under Section 397 will have to be read with Section 398 of the Code. Firstly, we may note here that power of the High Court or the Sessions Court under sub Section 3 of Section 397 is of calling for the record of proceedings before any subordinate Criminal Court for the

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

10 of 11 APL.152.2015

purposes of satisfying itself about correctness, legality or

propriety of any finding, sentence or order recorded or passed in any proceeding before such subordinate Court. Thus, the

power under Section 397 is confined to testing the legality, validity and propriety of the orders passed by the Courts which are subordinate to the High Court or the Sessions Court, as the

case may be. Secondly, on conjoint reading of Sections 398, 399 and 401, it follows that there is no power conferred on the

Revisional Court to quash FIR registered by the Police in accordance with sub-section (1) of Section 154 of the Code and

the investigation carried out on the basis of that and to quash

the criminal proceedings on the basis of charge sheet, which may be eventually filed. Therefore, in a case where an order made under sub-Section 3 of Section 156 culminates into

registration of FIR, the Revisional Court is powerless to pass an

order of quashing the FIR and quashing a charge sheet filed on the basis of the FIR. Therefore, in a case where on the basis of an order under sub Section 3 of Section 156 of the Code , FIR is

registered, the remedy of revision under the Code for challenging the order under sub Section 3 of Section 156 will not be an efficacious remedy at all. For the reasons which we

have recorded above, even in a case where a revision application is entertained against an order under sub Section 3 of Section 156 where FIR on the basis of the said order is already registered, in exercise of revisional jurisdiction, neither this Court nor Sessions Court can quash the FIR and

This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

11 of 11 APL.152.2015

proceedings subsequent to the FIR, as what can be gone into by

the Court in revisional jurisdiction is the issue of legality, validity and propriety of the orders passed by a subordinate

Criminal Court.

14. Therefore, we accept the submission made by the learned

counsel for the Applicants that a revision under Section 397 of the Code is not at all an efficacious remedy in view of

registration of FIR on the basis of an order under sub-Section (3) of Section 156 of the Code.

15. We have already come to a prima facie conclusion in the facts of the case that the learned Magistrate could not have passed an order under sub Section 3 of Section 156 of the Code.

In view of the strong prima facie case made out, we are inclined

to grant interim relief in terms of prayer clause (d).

16. Accordingly, we pass following order :

(a) Rule. Learned APP waives service for Respondent-State;

(b) There will be interim relief in terms of prayer clause (d).

              (P.D.NAIK, J.)                                (A.S.OKA, J.)
     MST