Bombay High Court
Pramod Wamanrao Kshirsagar And ... vs The State Of Maharashtra And Anr on 3 August, 2017
Bench: T.V. Nalawade
(1) Writ Petition No. 527/08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 527 OF 2008
1. Promod Wamanrao Kshirsagar
Age : 36 years, occ : service (Junior Engineer)
R/o Flat No. 101, Yash Corner, Naik
Nagar Road, Anand Nagar,
Nanded.
2. Shri P.B. Nawale
Age : 35 years, occ : service
R/o Plot No. 30, Fulsungi,
Indraprasth Nagar, Bhati,
Nagpur .. Petitioners.
Versus
1. The State of Maharashtra
Through Police Station Officer,
Shivaji Nagar Police Station,
Nanded.
2. Asha Shantilal Bhandari
Age : 40 years, occ : household
R/o Mahavir Society, Shivaji
Nagar, Nanded. .. Respondents.
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Mr. N.V. Gaware, Advocate for petitioners.
Mr. S.D. Ghayal, A.P.P. for respondent No.1/State.
Mr. Vijay Sharma, Advocate for respondent No.2.
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CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
DATED : 03.08.2017.
(2) Writ Petition No. 527/08
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. Petitioners have filed this Writ Petition to quash and
set aside the order dated 07.08.2008 passed by the Chief
Judicial Magistrate, Nanded in O.M.C. No. 276/2008 filed by
respondent No.2, and consequent F.I.R. bearing Crime
No.135/2008, dated 13.08.2008 registered at Shivaji Nagar
Police Station, Nanded, under Sections 323, 380, 452 and 457
read with Section 34 of the Indian Penal Code.
2. Petitioner No.1 works as a Junior Engineer and
petitioner No.2 as Deputy Executive Engineer with Maharashtra
State Electricity Distribution Co. Ltd., Nanded (hereinafter
referred as " M.S.E.D.C.L.").
3. On 02.08.2008 while executing Special Theft
Detection Drive Operation, petitioners and other staff members
started verifying and checking the Meters in Mahavir Society at
Nanded. After receiving telephonic call from staff member Mr.
P.B. Nawale, the petitioners visited the house of Girish Bansilal
Bhandari and noticed that the said Girish Bhandari was abusing
(3) Writ Petition No. 527/08
Mr. Nawale and other staff members in filthy language. One
person Manoj Bhandari also abused the employees of
M.S.E.D.C.L. in filthy language. On intervention by the
petitioners, Girish Bhandari, Manoj Bhandari and Virendra
Bhandari assaulted the petitioners. Therefore, on the same day
complaint was lodged to Police Station and in the result Crime
No. 129/2008 was registered against the offenders under
Sections 353, 332, 342, 323, 504 and 506 read with Section 34
of the Indian Penal Code. On the same day second complaint
was registered against Manoj Bansilal Bhandari under Section
135 of Indian Electricity Act for theft of electric energy of worth
Rs. 2,72,196/-. Being annoyed with this action of the
petitioners, as a counter-blast, respondent No. 2 Smt. Asha
Shantilal Bhandari filed complaint before the Chief Judicial
Magistrate, Nanded, which was registered as O.M.C.
No.276/2008 against the petitioners alleging criminal house
trespass and theft of jewellery from her house by the petitioners.
4. On 07.08.2008 Chief Judicial Magistrate, Nanded
passed an order under Section 156 (3) of the Code of Criminal
(4) Writ Petition No. 527/08
Procedure and directed the Police Inspector of Shivaji Nagar
Police Station to register crime and investigate accordingly. In
the result, Crime No. 135/2008 was registered against
petitioners under Sections 452, 457, 323 and 380 read with
Section 34 of the Indian Penal Code. Therefore, this petitioner
arises.
5. Heard learned Advocate Mr. Gaware for petitioners,
learned A.P.P. for the State and learned Advocate Mr. Vijay
Sharma for respondent No.2.
6. Contention of the learned Advocate for the
petitioners is that, the complaint lodged by respondent No.2 is
mala fide, passed on vague assertion and deserves to be
quashed. He placed reliance on the case between Baijnath Jha
Versus Sita Ram and another reported in 2008 AIR SCW
4614, wherein the Apex Court ruled out that, "when
proceedings instituted were mala fide, based on vague assertion
and were initiated with mala fide intents and constitute sheer
abuse of process of law, the proceedings are liable to be
quashed".
(5) Writ Petition No. 527/08
7. In reply, learned Advocate for respondent No.2
supported the order passed by Chief Judicial Magistrate,
Nanded on the ground that on merits it can be decided whether
the complaint lodged by respondent No.2 is false or not.
8. We have carefully gone through the copy of F.I.R.
dated 02.08.2008 lodged by petitioner No.1 to Shivaji Nagar
Police Station, Nanded alleging the use of criminal force and
causing hurt to the petitioners by Manoj Bhandari and Girish
Bhandari. On the same day second complaint was lodged
regarding commission of theft of electric energy by Manoj
Bhandari. Thereafter on 07.08.2008 respondent No.2 Smt.
Asha Bhandari filed complaint before Chief Judicial Magistrate,
Nanded under Sections 452, 457, 323 and 380 of the Indian
Penal Code against the petitioners. On the same day, learned
trial Court passed the impugned order, which reads as under :-
"Heard Advocate Manish Sharma for the
applicant, perused documentary evidence on
record including affidavit of the applicant.
The police Inspector of Shivajinagar P.S. is
directed U/Sec. 156 (3) of Cr.P.C. to register
crime and investigate. Accordingly present
application is disposed off".
(6) Writ Petition No. 527/08
A bare glance at the impugned order makes it clear
that the learned Chief Judicial Magistrate, Nanded did not apply
his mind to the facts of the case. No reasons are assigned to
show that after going through the facts of the case, he was
satisfied that at least cognizable offence is made out against the
petitioners.
9. Thus, the impugned mechanical order, passed
without application of mind, is bad in law and deserves to be set
aside on this count alone. Reference can be made on the case of
Maksud Saiyed Vs. State of Gujarat & ors. reported in
(2008) 5 SCC 668, wherein Apex Court examined the
requirement of the application of mind by Magistrate before
exercising jurisdiction under Section 156(3) and held that,
where a jurisdiction is exercised on a complaint filed in terms of
Section 156(3) or Section 200 Cr.P.C., the Magistrate is required
to apply his mind in such a case. The application of mind by
Magistrate should be reflected in order. The mere statement
that he has gone through the complaint, documents and heard
the complainant, as such, will not be sufficient. After going
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through the complaint, documents and hearing the
complainant, what weighed with the Magistrate to order
investigation under Section 156(3) of the Code of Criminal
Procedure should be reflected in the order, though a detailed
expression of his views is neither required nor warranted. This
law is also followed by Apex Court in Anil Kumar & ors. Vs.
M.K. Aiyappa & anr. reported in AIR 2014 SC (Supp) 1801.
10. Otherwise also, the facts placed on record clearly
indicate that only because on 02.08.2008 the petitioners caught
the members of Bhandari family for committing theft of electric
energy and only because the offence was registered against the
members of Bhandari family, as a counter-blast, respondent
No.2 filed this baseless complaint with mala fide intention.
11. Therefore, in the light of law laid down by the Apex
Court in the case of Baijnath Jha (cited supra), the proceedings
initiated against the petitioners deserves to be quashed.
Accordingly, we proceed to pass the following order.
(8) Writ Petition No. 527/08
ORDER
1. The Petition is allowed.
2. The order passed by the Chief Judicial
Magistrate, Nanded to make investigation
under Section 156 (3) of the Code of Criminal
Procedure is set aside.
3. The F.I.R. filed on the basis of the said order is
also quashed and set aside.
4. Rule is made absolute in the above terms.
Sd/- Sd/-
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
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