Bombay High Court
Manik Baburao Chate & Anor vs State Of Mah. Thru. P.S.O. Rajura on 10 August, 2017
Bench: V.M. Deshpande
1 CR325.2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Revision Application No. 325/2007
Applicants
:-
: 1. Manik Baburao Chate
Aged about 62 yrs,
Occ. Retired Dy.S.P.
R/o Takalkhopa District Jalna
(MS)
2. Dilip Pundalikrao Kahale
Aged about 53 yrs,
Occ. Business R/o Saibaba Ward
Chandrapur Tahsil & Dist.
Chandrapur (Maharashtra)
Versus
Respondent : State of Maharashtra, Through
PSO Rajura Tahsil Rajura Dist.
Chandrapur
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Shri M.P. Khajanchi,Adv. for the applicants
Shri J.Y.Ghurde,A.P.P for the Respondent/State
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CORAM : V.M. Deshpande, J.
DATE : 10.8.201
.
Oral Judgment
1. By this revision, the applicants are challenging the order
passed by the Learned Ad-hoc Additional Sessions Judge-2, Chandrapur
dated 02/07/2007 below Exhibit No. 4 in Special Case No. 03/2001, by
which the learned Judge of the Court below rejected the application for
discharge filed by the present applicants. The foremost contention of the
learned counsel for the applicants is that in view of Section 195 of Criminal
2 CR325.2007
Procedure Code, the learned Court below was barred from taking cognizance
on a police report.
2. In order to appreciate the contention of the applicants, it
would be useful to give brief facts for initiating the prosecution against the
applicants.
3. On 03/02/1991, one Chandrabhan Soma Gawade gave a
complaint against the applicant no. 2, a businessman that he in connivance
with applicant no. 1, Police Station Officer has falsely implicated him in a
crime. The said complaint was marked for enquiry by the Superintendent of
Police, Chandrapur to the Sub-Divisional Officer, Rajura. During the enquiry,
he noticed that the applicant no. 2 is having required licence for explosives
and has magazine for storing explosives which is situated at Mauza
Lakhmapur, Nagpur Road. Chandrabhan Gawade was working as a
watchman on the said Magazine and the keys of the said were in his
possession. Applicant No. 2 did not give his salary from January, 1990 and
therefore, he, on 06/04/1990 issued a legal notice upon the applicant no. 2.
He was not intending to continue his duties as watchman, therefore, he
handed over the keys to one Pundalikrao Kahale. On 07/05/1990, the
applicant no. 2 opened the Magazine, and at that time, he noticed that some
explosives were missing.
3 CR325.2007
4. He was having suspicion in his mind that it is Chandrabhan
Gawade who must have stolen away those explosives. Therefore, a complaint
was lodged and also a report was given at Rajura Police Station. That time,
he was accompanied by Pundalikrao. That time, applicant no. 1 was Police
Officer at Rajura Police Station. He asked the Head Constable to visit the
house of Chandrabhan Gawade and conduct a search at his house.
Accordingly, Chandrabhan Gawade's house was searched but nothing was
found in his house. Thereafter, the petitioner no. 2 purposefully placed one
explosive beneath agriculture equipment and it was seized by drawing a
seizure Panchanama. Chandrabhan Gawade was arrested in Crime No.
0/1990 for an offence punishable under Section 381 of IPC. However, since
the place of occurrence of the incident was falling within the jurisdiction of
the Ramnagar Police Station, the crime was transfered to the said police
station and it was registered as Crime No. 109/1990 for an offence
punishable under Section 301 of IPC. The said crime was duly investigated by
the Police Officer of the said Ramnagar Police Station and in that report
under Section 169 of Criminal Procedure Code, a case was filed in the Court
of law. Accepting the said,the learned Magistrate directed that the applicant
no. 2 gave false complaint.
5. On his finding in the enquiry, Sub-Divisional Police Officer,
4 CR325.2007
Rajura, lodged a FIR with Police Station, Rajura on 08/08/1991 vide Crime
No. 155/1991 for the offences punishable under Sections 341, 177, 182, 193
and 222 of IPC and under sections 3(1)(8)(9), 3(2)(7) and 4 of the
Scheduled Castes and Schedules Tribes (Prevention of Atrocities)Act.
6. Though the FIR was lodged on 08/08/1991, the charge-sheet
was presented on 31/03/2001 i.e after a lapse of 10 years. The learned trial
Court took cognizance in the matter. Thus, the offences against the present
applicant is registered on the complaint of a Sub-Divisional Officer, Rajura
Sub-Division, Dist. Chandrapur.
7. The relevant portion of Section 195 of Criminal Procedure
Code is produced herein as under:-
"Prosecution for contempt of lawful authority of
public servants, for offences against public justice
and for offences relating to document given in
evidence.
1. No Court shall take cognizance:-
a)(i) of any offence punishable under
sections 172 to 188 (both inclusive) of the
Indian Penal Code (45 of 1860), or
ii. of any abetment of, or attempt to commit,
such offence, or
iii. Of any criminal conspiracy to commit
such offence,
except on the complaint in writing of the
public servant concerned or of some other
public servant to whom he is
administratively subordinate.
5 CR325.2007
8. A bare reading of Section 195 of Criminal Procedure Code
shows that a Court cannot take cognizance of an offence punishable under
sections 172 to 188 (both inclusive) of the Indian Penal Code except the
complaint in writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate.
9. In that view of the matter, it would be useful to refer the
definition of complaint as appearing in clause D of section 2 of Criminal
Procedure Code.
"Complaint " means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not
include a police report.
10. In the present case, it is not disputed that against the
applicants final report was lodged for the offences punishable under Sections
342, 172, 182, 193, 211 read with Section 34 of IPC and under sections 3(1)
(8)(9), 3(2)(7) and 4 of the Scheduled Castes and Schedules Tribes
(Prevention of Atrocities)Act. Further, admittedly complaint is not filed by
the learned Magistrate before whom the report under Section 169 of
Criminal Procedure Code was filed for discharging Chandrabhan Gawade.
6 CR325.2007
11. On a reading of Section 195 of Criminal Procedure Code, I am
of the view that the learned Judge of Court below should not have taken
cognizance on the Police report. Consequently, the impugned order cannot
stand to the scrutiny of law and it is liable to be set aside. Hence, following
order is passed:-
O R D E R
1] Criminal Revision No. 325/2007 is allowed.
2] Order dated 02/07/2001 below Exhibit No. 4, in Special Case
No. 3/2001 passed by Ad-hoc Additional Sessions Judge-2,
Chandrapur is quashed and set aside.
3] Application below Exhibit No. 4 in Special Case No. 3/2001 is
allowed.
JUDGE
Ansari
