Bombay High Court
Sayed Anwar Ahmed And Anr vs The State Of Maharashtra And Anr on 28 February, 2017
Bench: A.S. Oka
cr wp-924.16.sxw
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.924 OF 2016
WITH
CRIMINAL APPLICATION NO.486 OF 2016
1. Sayed Anwar Ahmed
aged 64 years, Indian Inhabitant,
Occu. : Business, residing at Flat No.202,
Meadow Park - 1, Aksa Masjid Road,
Opp: 24 Karat Multiplex,
Jogeshwari (West),
Mumbai - 400 102.
2. Sayed Ghulam Raza Naqvi
aged 54 years, Indian Inhabitant,
Occu. : Business, residing at Flat No.503,
Lotus Park - 2, B-Wing, Aksa Masjid Road,
Opp : 24 Karat Multiplex,
Jogeshwari (West),
Mumbai - 400 102. ... Petitioners
Versus
1. The State of Maharashtra,
(at the instance of Oshiwara
Police Station, Mumbai )
2. Asif Akbarali Mulji,
residing at Guru Nanak Nagar
Near Scout Camp, Behram
Link Road, Jogeshwari (W),
Mumbai - 400 102.
and also at :-
D-13, Zahur Ahmed Chawl,
Santosh Nagar, Link Road,
BehramBaug, Jogeshwari (West),
Mumbai - 400 102. ... Respondents
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Mr. Subhash Jha with Ms Sanjana Pardeshi and Mr. Mohd. Majjid
Siddiqui i/b. M/s. Law Global Advocates.
Dr. F.R. Shaikh, APP for the Respondent No.1 - State.
Mr. Diwakar Dwivedi for the Respondent No.2.
CORAM : A.S. OKA &
ANUJA PRABHUDESSAI, JJ.
DATE : 27th & 28th FEBRUARY, 2017
OVERVIEW
ORAL JUDGMENT :
1 The submissions of the learned counsel appearing for the
parties were heard on the earlier date and today the Petition is fixed for
dictation of judgment. We are dealing with this Petition elaborately as
the issues raised in this Petition under Article 226 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure, 1973
(for short "Cr.P.C") arise in many matters.
2 The challenge in this Petition is to the proceedings of a
complaint file seeking an action under Sub-Section (3) of Section 156 of
Code of Criminal Procedure. The complaint was filed by the second
respondent before the learned Metropolitan Magistrate, 10 th Court at
Andheri alleging commission of offence punishable under Sections 452,
465, 466, 468, 471, 420 read with Section 34 of the Indian Penal Code.
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On the said complaint on 7th October, 2000, the learned Metropolitan
Magistrate passed the following order :-
"Received. Heard.
Sr. P.I. of Oshiwara is directed to investigate u/s. 156(3) Cr.P.C."
3 On the basis of the said order, in the year 2014, the second
respondent who was the complainant in the said complaint filed
Criminal Writ Petition No.3488 of 2014 in this Court. The said Writ
Petition was filed making a grievance as regards the failure of the police
to take action on the basis of the order dated 7 th October, 2000. The
said Writ Petition came up before a Division Bench of this Court on 17 th
August, 2015. The Division Bench disposed of the Writ Petition by
permitting the second respondent to give a statement before the
Inspector of Police, Oshiwara Police Station, Mumbai and by directing
the Oshiwara Police Station to comply with the order dated 7 th October,
2000 and to proceed further in accordance with law. The said order
reads thus :-
"1. This petition is filed seeking direction to the respondent
to comply with the order dated 07.10.2000 passed
by the learned Magistrate, 10th Court, Andheri, Mumbai
and investigate the complaint filed by the petitioner vide
C.C. No.37/S/2000 under Section 156(3)(b) of the
Cr.P.C., copy of which is annexed at Exh.A at page 10 to
the petition. The grievance of the petitioner is that
even the learned Magistrate has passed an order
under Section 156(3)(b) of the Cr.P.C. on 07.10.2000
and directed the Senior Police Inspector, Oshiwara
Police Station to investigate petitioner's complaint,
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so far no action is taken by the Oshiwara Police Station."
2. Mrs. Mhatre, learned APPP placed on record report
dated 17.08.2015 submitted by the Senior Inspector of
Police, Oshiwara Police Station, Mumbai. The report
reveals that all the registers and vital documents have
been destroyed in the rainy water during the deluge in
Mumbai on 26.07.2005.
3. In the above circumstances, in our considered view, it
would be appropriate to dispose of the petition by
passing following order.
ORDER
The petitioner is at liberty to give statement
before the Senior police Inspector of Oshiwara Police
Station, Mumbai and thereafter Oshiwara Police Station
shall comply with the order dated 07.10.2000 and
proceed further in accordance with law as expeditiously
as possible."
4 It is on the basis of the said order that on 27 th October,
2015 the impugned FIR was registered. Thus, the order passed by the
learned Magistrate on 7th October, 2000 was acted upon after expiry of
a period of 15 years. As stated earlier, the challenge in this Writ Petition
is not only to the complaint and order passed thereon but also to the
FIR registered on the basis of the said Order.
SUBMISSIONS
5 The learned counsel appearing for the petitioner has taken
us through the Complaint filed by the second respondent by inviting our
attention to the material part of the averments. He urged that the real
dispute is about the implementation of a Slum Rehabilitation Scheme
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and the real issue agitated by the complainant appears to be the issue of
eligibility of the slum dwellers to get permanent accommodation. He
pointed out that the Complaint is as vague as possible and at highest, it
raises the issue regarding eligibility of certain persons for grant of
accommodation in the Slum Rehabilitation Scheme. He has invited our
attention to various documents placed on record by the petitioner as
well as by the second respondent. In fact, he pointed out on the basis of
the documents which are produced by the second respondent that when
the Complaint was filed by the second respondent before the learned
Magistrate even Annexure-II (list of persons entitled to permanent
accommodation under the Scheme) had not become final. He also
invited our attention to the correspondence exchanged between the
contesting parties.
6 He relied upon various decisions and in particular a
decision of the first Court in PIL No.156 of 2006 along with Suo Motu
PIL No.6 of 20071. Inviting our attention to the law laid down by the
Division Bench, he submitted that in a case like this, at highest, it is
only the High Power Committee constituted by the State Government
which could have issued directions for setting the criminal law in
motion. He also placed reliance on several decisions laying down the
scope of powers of the learned Magistrate under Sub-Section (3) of
1 MANU/MH/1023/2009
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Section 156 of the Cr.P.C including the well known recent decision of
the Apex Court in the case of Priyanka Srivastava and Anr. Vs. State of
Uttar Pradesh and others2. He also invited our attention to the decision
of the Full Bench of this Court in the case of Panchabhai Popotbhai
Butani and Ors. Vs. State of Maharashtra and Others 3. He invited our
attention paragraphs 58 to 60 of the said decision of the Full Bench.
7 The learned counsel appearing for the second respondent
urged that the order passed by the learned Magistrate on 7 th October,
2000 has attained finality. By inviting attention of the Court to the order
passed by a Division Bench of this Court in the Writ Petition filed by the
second respondent on 17th August, 2015, he urged that the impugned
FIR has been registered as per the directions issued by the Division
Bench of this Court. He invited our attention to the documents which
are part of the additional compilation. His submission is that there is a
material on record to show that fictitious persons have been shown
eligible for allotment of permanent accommodation. He relied upon a
list which is a part of the compilation and submitted that the persons
whose names appear in the list are non-existing persons who have been
shown as eligible on the basis of fabricated documents. He relied upon
the licenses under the Shops and Establishment Act,1948 as well as the
2 (2015) 6 SCC 287
3 (2010) 1 Mh.LJ 421 (FB)
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copies of the electoral roll. He urged that considering the serious
allegations of fabrication of documents, no interference can be made in
writ jurisdiction in the investigation at this stage.
8 The learned APP while supporting the impugned FIR also
tendered on record a copy of the letter dated 5 th August, 2016
addressed by the Maharashtra Housing and Area Development
Authority (MHADA) to the Commissioner of Police, Mumbai. In the
said letter, the MHADA has also relied upon a decision in the case of
Shailesh Gandhi Vs. State of Maharashtra and Ors. in PIL No.156 of 2006
and pointed out to the Commissioner that the impugned FIR could not
have been registered by Oshiwara Police Station. The said letter
addressed by the Vice-President and Chief Executive Officer of the
MHADA records that the matter can be referred to the High Power
Committee and therefore, the FIR registered should be withdrawn. A
copy of the said letter is taken on record and marked 'M-1' for
identification.
CONSIDERATION OF SUBMISSIONS
9 We have given careful consideration to the submissions.
We have perused the Complaint as well as the relevant documents on
record. In the Complaint, the second Respondent claims that he was
working as a cable operator in Zahoor Chawl which is situated
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adjoining to Scout Camp. In paragraph 2 of the Complaint, he has
described the land on which the Scout Camp is situated with reference
to survey numbers. It is alleged that some of the accused have
encroached upon certain portion of the land in Scout Camp. It is alleged
that some of them destroyed trees on the open land by putting
chemicals. The Complaint alleges that the accused and their associates
have formed a committee under the name and style as Guru Nanak
Nagar Co-operative Hsg. Society Ltd. It is alleged that accused in
connivance and collusion with the employees of the Competent
Authority have submitted a list of more than 400 members along with a
plan of redevelopment of Guru Nanak Nagar Co-operative Hsg. Society
Ltd. and Aaradhana Society to the Slum Rehabilitation Authority. It is
alleged that though 400 slum dwellers have been shown, in fact, there
are only 40 members of Guru Nanak Nagar Co-operative Hsg. Ltd. It is
alleged that some of the persons included in the list of 400 persons are
in fact residents of adjoining area. Paragraph 7 contains an allegation
that the list submitted by the members of the said Society to the
Competent Authority is false and fabricated and even a copy of the plan
submitted is forged one. There is mere assertion in paragraph 8 that the
second respondent has been repeatedly lodging complaints with various
authorities about the activities of the accused and their associates. It is
alleged that since the accused are influential persons, they are ensuring
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that the complainants are filed without investigation. There is a vague
assertion that he lodged various complaints with Oshiwara Police
Station, MHADA and other authorities but there is no investigation
carried out. We have already quoted the cryptic order passed by the
learned Metropolitan Magistrate on 7 th October, 2000 running into two
lines. There are absolutely no reasons recorded for issuing the
impugned direction to the Senior P.I of Oshiwara Police Station to
investigate.
10 Now, we turn to the order dated 17th August, 2015 passed
in Criminal Writ Petition No.3488 of 2014. Only direction sought in the
said Petition under Article 226 of the Constitution of India appears to be
against the State of Maharashtra to comply with the order dated 7 th
October, 2000 passed by the learned Magistrate on the aforesaid
Complaint. From the title of the order dated 17 th August, 2015, it is
obvious that persons who are named as accused in the Complaint on
which the said order is passed were not made parties to the Petition. In
any case, the said persons were not before the Court when the petition
was disposed of. In fact, the learned APP made a statement that the
registers and other documents of the police station have been destroyed
due to floods on 26th July, 2005. The only direction issued by the
Division Bench is of directing the Oshiwara Police Station to comply
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with the order dated 7th October, 2000 which was in force as on that
date. In the said Petition, the Division bench had no occasion to go into
the legality of the said order.
11 It is not the case made out by the second Respondent that
the present petitioners were at any relevant time aware of the order
dated 7th October, 2000. The FIR was registered 15 years thereafter on
the basis of the aforesaid direction of the Division Bench. The aforesaid
direction of the Division Bench will not preclude the present petitioners
from challenging the order passed under Section 156(3) of the Cr.P.C.
The legality and validity of the FIR depends on the outcome of the said
challenge.
12 Before we come to the law laid down by the Apex Court
and this Court, even going by the assertions made in the Complaint by
the second respondent, when the Complaint was filed, the Competent
Authority had not even approved the list of eligible slum dwellers by
finalising Annexure - II. As we understand from the documents, the
proposal was to implement a Slum Rehabilitation Scheme under
Regulation 33(10) of the Development Control Regulations for the City
of Mumbai of 1999 (for short "DCR").
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13 There are elaborate provisions made in the DCR for
preparation of list of eligible slum dwellers. Under the Redevelopment
Scheme under Regulation 33(10) for rehabilitation of the slum
dwellers, there is a provision for providing a tenement in exchange of
dwelling of those inhabitants whose names and structures appear in the
electoral roll as on 1st January, 1995. Under clause (i) of Appendix IV of
the D.C.R, the eligibility criteria for allotment of permanent
accommodation is also laid down. Under the DCR, there are different
authorities for certifying the correctness of Annexure - II depending
upon the category of the lands sought to be developed. There is an
elaborate process of preparation and finalisation of the Annexure - II
containing the names of the persons eligible for rehabilitation. In the
City of Mumbai, there are large number of Slum Rehabilitation Projects
being implemented under Regulation 33(10) of the DCR. Considering
the fact that there was no proper machinery created for dealing with
the grievances about the implementation of the Slum Rehabilitation
Scheme, the Full Bench of this Court in the case of Tulsiwadi Navnirman
Co-op. Housing Society Ltd. and Anr. Vs. State of Maharashtra and
Others4, expressed a view that an Authority will have to be created for
dealing with the all grievances in connection with Slum Rehabilitation
Schemes. Ultimately, the State Government accepted the suggestion of
creating a High Power Committee for dealing with various disputes
4 2007(6) Mh.L.J. 851
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concerning the implementation of the schemes under Regulation
33(10). As per the judgment of the Full Bench dated 1 st November,
2007 a Government Resolution was issued on 15 th November, 2007
constituting the High Power Committee. It may not be out of place to
mention here that the High Power Committee is still functioning and in
fact the State Government has accepted the suggestion of this Court to
constitute additional High Power Committee. That is what is recorded
in the judgment and order dated 23rd December, 2016 in Writ Petition
No.2326 of 2016.
14 It is in the context of this background that we turn to the
decision of the Division Bench of this Court in the case of Shailesh
Gandhi. As noted in the judgment, the petitioner in the said PIL is an
activist under the Right to Information Act,2005. In the facts of the
case, there were as many as 87 complaints concerning Rehabilitation
Schemes under DCR. This Court referred to the constitution of the High
Power Committee and the procedure to be followed for sanction of a
Slum Rehabilitation Schemes under Regulation 33(10). The Division
Bench dealt with the issue of disposal of the said 87 complaints.
Ultimately, the Division Bench disposed of the Petition by issuing the
following directions :-
"It is neither permissible nor possible for this Court to
examine these 87 complaints on their merit and
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supervise their inquiry or day to day investigation. It is,
therefore, essential that some directions must be issued
in regard to the proper investigation and disposal of
these complaints and that too expeditiously. It is
apparent from the record that there are different types
of complaints which would require to be dealt with and
investigated by different authorities. A kind of
preliminary examination of all these complaints,
therefore, would be necessary before actual
investigating machinery is put in motion. There might
be matters which can be remedied and corrected at the
department level, while in other complaints, element of
criminality may be involved which requires proper
investigation by the concerned authorities. It is the duty
of the court to ensure that rule of law prevails and the
serious matters are not scuttled by administrative
authorities or are not delayed in a manner which would
completely render the complainant's grievances
incapable of being redressed and remedied.
In our view, the most appropriate way to handle
these matters would be to issue certain directions and
leave it open to the Authorities concerned to proceed
in accordance with law while ensuring that all the
matters are examined judiciously and persons
responsible for committing illegalities and acting in an
unfair manner are brought to book. Thus, while
disposing of this Writ Petition, we issue the following
directions:
(a) All these 87 complaints, except the one's which
are already before the Court of Competent
Jurisdiction, would be examined by the
members of the High Powered Committee
constituted by the State and the Committee
upon the inquiry and examination of the
relevant records shall record its opinion.
(b) While examining these complaints, the High
Powered Committee shall take assistance of the
police officers not below the rank of an
Additional Commissioner.
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(c) The collective opinion of these Authorities shall
be recorded and the concerned departments
shall take action in furtherance thereto in
accordance with law.
(d) Wherever departmental or administrative action is
called for, the concerned department whether the
State of Maharashtra or statutory bodies like
MHADA, BMC and SRA shall take action in
accordance with the disciplinary rules applicable
to its officers/employees without any further
delay.
(e) Wherever element of criminality is involved,
particularly in cases of fraud, impersonation or
like cases, the investigation would be handed
over to an appropriate agency which shall then
proceed with the matter in accordance with
law and without being influenced in any
manner whatsoever by the position or status of
the person involved in the case.
(f) All these complaints would be examined by the
High Powered Committee assisted by the
Additional Commissioner of Police nominated by
Director General of Police, Maharashtra,
expeditiously. In the event this Committee finds
that illegalities or irregularities coupled with the
element of criminality justify passing of certain
interim directions with regard to stopping,
regulating or even cancelling the development
schemes, in order to achieve the object of
settlement of genuine slum dwellers and the
public interest, it would be free to do so, subject to
the orders that may be passed by the Courts of
Competent Jurisdiction."
(emphasis added)
15 As noted in the Judgment, 87 complaints (except the one
which was already before the Court of competent jurisdiction) were
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ordered to be examined by the members of the High Power Committee.
A direction was also issued to the High Power Committee to take
assistance of a Police Officer not below the rank of Additional
Commissioner. It was laid down that if the High Power Committee finds
an element of criminality such as fraud, impersonation, fabrication, the
High Power Committee would hand over investigation to a proper
agency which thereafter shall proceed with the matter in accordance
with law without being influenced by any manner whatsoever by the
position or the status of the person involved in the case.
16 Now, going back to the facts of the case, on the date of
filing of the Complaint, the Competent Authority which was empowered
to finalise Annexure -II as per the scheme of Regulation 33(10) of the
DCR had not even finalised Annexure-II which is very apparent from the
documents produced by the second respondent in his compilation. Thus,
on facts, it is abundantly clear that on the date on which the Complaint
was entertained by the learned Metropolitan Magistrate, there was not
even a final decision taken on the eligibility of slum dwellers for grant
of permanent accommodation. The complaint is based on very vague
assertions about the submission of a list of 400 persons by the office
bearers of the society. As we have noted above, on the complaint filed
by the second respondent, a very cryptic order was passed by the
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learned Magistrate which does not record any reasons for directing
action to be taken under Sub-Section (3) of Section 156 of the CrPC.
17 As far as power under Sub-Section (3) of Section 156 of the
CrPC is concerned, there are various decisions of the Apex Court and
this Court. In the case of Anil Kumar and Others. Vs. M.K. Aiyappa and
Another5, the Apex Court considered the scope of powers under Sub-
Section (3) of Section 156. What is material is paragraph 11 of the said
decision which reads thus :-
"11. The scope of Section 156(3) CrPC came up for
consideration before this Court in several cases. This
Court in Maksud Saiyed Case examined the
requirement of the application of mind by the
Magistrate before exercising jurisdiction under
Section 156(3) and held that where jurisdiction is
exercised on a complaint filed in terms of Section
156(3) or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section
156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate
should be reflected in the order. The mere statement
that he has gone through the complaint, documents
and heard the complainant, as such, as reflected in
the order, will not be sufficient. After going through
the complaint, documents and hearing the
complainant, what weighed with the Magistrate to
order investigation under Section 156(3) CrPC,
should be reflected in the order, though a detailed
expression of his views is neither required nor
warranted. We have already extracted the order passed
by the learned Special Judge which, in our view, has
stated no reasons for ordering investigation."
(emphasis added)
5 (2013) 10 SCC
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18 Thus, the Apex Court held that when the learned
Magistrate orders investigation under Sub-Section (3) of Section 156
what weighed with the learned Magistrate to order investigation should
be reflected from his order, though a detailed expression of his views is
not warranted. While passing an order under Sub-Section (3) of Section
156 of Cr.P.C, surely some reasons are required to be recorded after
going through the Complaint as well as the documents produced with
the complaint and after hearing the complainant. The reasons should be
sufficient to indicate that the learned Magistrate had applied his mind.
19 Then we come to a recent well known decision of the Apex
Court on this aspect in the case of Priyanka Srivastava, wherein the
Apex Court had an occasion to consider the entire law on the subject of
taking action under Sub-Section (3) of Section 156 of the CrPC. The
Apex Court also referred to its own decision in the case of Lalita Kumari
Vs. State of Uttar Pradesh and Others 6. The Apex Court also considered
its earlier decision rendered by a Bench of three Hon'ble Judges in
paragraph 21 which reads thus :-
"21. Dealing with the nature of power exercised by the
Magistrate under Section 156(3) CrPC, a three-Judge
Bench in Devarapalli Lakshminarayana Reddy v. V.
Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri)
380] , had to express thus: (SCC p. 258, para 17)
6 2014(2) SCC 1
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"17. ... It may be noted further that an order made
under sub-section (3) of Section 156, is in the nature of
a peremptory reminder or intimation to the police to
exercise their plenary powers of investigation under
Section 156(1). Such an investigation embraces the
entire continuous process which begins with the
collection of evidence under Section 156 and ends with
a report or charge-sheet under Section 173."
What is held by the Apex Court in the case of Priyanka is
very relevant for consideration of the present case and especially when
there are no reasons recorded by the learned Magistrate for initiating an
action under Sub-Section (3) of Section 156. Paragraphs 27 to 30 of the
said decision which are very material reads thus :-
"27. Regard being had to the aforesaid enunciation of law,
it needs to be reiterated that the learned Magistrate
has to remain vigilant with regard to the allegations
made and the nature of allegations and not to issue
directions without proper application of mind. He
has also to bear in mind that sending the matter
would be conducive to justice and then he may pass
the requisite order. The present is a case where the
accused persons are serving in high positions in the
Bank. We are absolutely conscious that the position does
not matter, for nobody is above the law. But, the learned
Magistrate should take note of the allegations in entirety,
the date of incident and whether any cognizable case is
remotely made out. It is also to be noted that when a
borrower of the financial institution covered under
the SARFAESI Act, invokes the jurisdiction under Section
156(3) CrPC and also there is a separate procedure
under the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, an attitude of more
care, caution and circumspection has to be adhered
to.
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28. Issuing a direction stating "as per the application" to
lodge an FIR creates a very unhealthy situation in
society and also reflects the erroneous approach of
the learned Magistrate.It also encourages unscrupulous
and unprincipled litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous steps with
courts to bring the financial institutions on their knees.
As the factual exposition would reveal, Respondent 3
had prosecuted the earlier authorities and after the
matter is dealt with by the High Court in a writ petition
recording a settlement, he does not withdraw the
criminal case and waits for some kind of situation where
he can take vengeance as if he is the emperor of all he
surveys. It is interesting to note that during the tenure of
Appellant 1, who is presently occupying the position of
Vice-President, neither was the loan taken, nor was the
default made, nor was any action under the SARFAESI Act
taken. However, the action under the SARFAESI Act was
taken on the second time at the instance of the present
Appellant 1. We are only stating about the devilish
design of Respondent 3 to harass the appellants with the
sole intent to avoid the payment of loan. When a citizen
avails a loan from a financial institution, it is his
obligation to pay back and not play truant or for that
matter play possum. As we have noticed, he has been
able to do such adventurous acts as he has the embedded
conviction that he will not be taken to task because an
application under Section 156(3) CrPC is a simple
application to the court for issue of a direction to the
investigating agency. We have been apprised that a
carbon copy of a document is filed to show the
compliance with Section 154(3), indicating it has been
sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind.
A court of law is involved. It is not the police taking
steps at the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the authority
of the Magistrate. A principled and really grieved
citizen with clean hands must have free access to
invoke the said power. It protects the citizens but
when pervert litigations takes this route to harass
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their fellow citizens, efforts are to be made to scuttle
and curb the same.
30. In our considered opinion, a stage has come in this
country where Section 156(3) CrPC applications are
to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction
of the Magistrate. That apart, in an appropriate case,
the learned Magistrate would be well advised to
verify the truth and also can verify the veracity of the
allegations. This affidavit can make the applicant
more responsible. We are compelled to say so as such
kind of applications are being filed in a routine
manner without taking any responsibility whatsoever
only to harass certain persons. That apart, it becomes
more disturbing and alarming when one tries to pick up
people who are passing orders under a statutory
provision which can be challenged under the framework
of the said Act or under Article 226 of the Constitution of
India. But it cannot be done to take undue advantage in
a criminal court as if somebody is determined to settle
the scores.
31. We have already indicated that there has to be prior
applications under Sections 154(1) and 154(3) while
filing a petition under Section 156(3). Both the
aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed.
The warrant for giving a direction that an application
under Section 156(3) be supported by an affidavit is
so that the person making the application should be
conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is found
to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the
veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere, matrimonial
dispute/family disputes, commercial offences, medical
negligence cases, corruption cases and the cases where
there is abnormal delay/laches in initiating criminal
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prosecution, as are illustrated in Lalita Kumari [(2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That
apart, the learned Magistrate would also be aware of
the delay in lodging of the FIR. "
(emphasis added)
20 The relevant decisions of the Apex Court including the
decision in the case of Lalita Kumari, were considered by another
Division Bench to which one of us (Anuja Prabhudessai, J.) is a member.
In paragraph No.15 of the decision dated 30 th March, 2015 in Writ
Petition No.4775 of 2014 (Mr. Pandharinath Narayan Patil & Ors. Vs.
The State of Maharashtra and Anr.) the Division Bench held thus:-
"15. It is thus well settled that the powers under section
156(3) of the Code cannot be exercised mechanically
but are required to be exercised judiciously. The
magistrate is not required to embark upon an in-depth
roving enquiry as to the reliability or genuineness of the
allegations, nonetheless, he has to arrive at a conclusion
that the application discloses necessary ingredients of
the offence for which investigation is intended to be
ordered. Furthermore, the reasons for arriving at such
conclusion should be clearly reflected in the order."
(emphasis added)
21 After considering the decision of the Apex Court in the case
of Lalita Kumari Vs. State of U.P., the Apex Court in the case of Priyanka,
reminded the learned Magistrates that the Court of Law is involved
when power under Sub-Section (3) of Section 156 is invoked and it is
not the case of the Police taking steps as per Section 154 of the said
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Code. The Apex Court has reminded the learned Magistrates that there
is a difference between the Court of Law exercising the power under
Sub-Section (3) of Section 156 and the Police acting under Section 154.
Therefore, only on the ground that the allegations made in the
Complaint constitute a cognizable offence, an order under under Sub-
Section (3) of Section 156 cannot be mechanically passed. The Apex
Court observed that the power under Section 156(3) warrants
application of judicial mind. The mandate of law laid down in the case
of Lalita Kumari is only against the Police in the context of mandatory
provisions of Sub-Section (1) of Section 154 of Cr.P.C. From paragraph
29 of the decision in the case of Priyanka, it is apparent that even in a
case where the Complaint is seeking an action under Section 156(1)
discloses commission of a cognizable offence, it is not necessary that in
every such case the learned Magistrate should pass an order under Sub-
Section (3) of Section 156. It is ultimately the discretion of the learned
Magistrate which is to be exercised after considering several factors.
What we emphasis even at the risk of repetition is that only because the
Complaint filed seeking an action under Sub-Section (3) of Section 156
discloses commission of a cognizable offence, the learned Magistrate
should not mechanically the exercise power without application of
judicial mind.
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22 The Apex court has laid emphasis on the complainant
supporting his case under Sub-Section (3) of Section 156 of the Code
by filing an affidavit. As observed in paragraph No.31 of the decision,
mere filing of affidavit is not sufficient. In a given case, the learned
Magistrate will be well advised to verify the truth and veracity of the
allegation. Advantages of filing of such affidavit are also mentioned in
the said decision of the Apex Court.
23 Filing of an affidavit is also not empty formality. The
manner in which affidavit is to be filed is prescribed in Chapter VII of
the Criminal Manual published by this Court in paragraph Nos.1 to 5, 7
and 8 :-
"1. (1) The heading of every affidavit to be used in a Court
of of Justice shall be "in the Court of....at.....". naming
such Court.
(2) If there be a case pending in Court, the affidavit in
support of, or opposition to, an application respecting it,
must also begin with the heading "In the matter of the
case of....." in the case.
(3) If there be no case pending in Court heading shall be : In
the matter of the application of.
2. Every affidavit shall be drawn up clearly and legibly and,
as far as possible, in a language which the person
making it understands. It shall be drawn up in the first
person and divided into paragraphs numbered
consecutively, and each paragraph, as far as may be,
shall be confined to a distinct subject or portion thereof.
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3. (1) Every person making an affidavit shall state his full
name, father's name, surname, age, profession or trade
and place of residence and shall give such other
particulars as will make it possible to identify him
clearly.
(2) The affidavit shall be signed by him in his own
hand or he shall make his finger impression thereon.
4. Unless it is otherwise provided, an affidavit may be
made by any person having knowledge of the facts
deposed to.
5. (1) Every affidavit should clearly specify what
portion of the statement is made on the declarant's
knowledge and what portion of the statement is
made on his information or belief.
(2) When a particular portion is not within the
declarant's own knowledge but it is stated from
information obtained from others, the declarant must
use the expression "I am informed" and if it is made
on belief should add "I verily believe it to be true."
He must also state the source or ground of the
information or belief, and give the name and address
of, and sufficiently described for the purpose of
identification, the person or persons from whom he
had received such information.
(3) When the statement rests on facts disclosed in
documents or copies of documents procured from
any Court or other person, the declarant shall state
the source from which they were procured and his
information, or belief, as to the truth of the facts
disclosed in such documents.
7. All erasures, errors, interlineations, etc, in the affidavit
shall be legibly initialled and dated by the declarant.
8. (1) The Officer authorised in this behalf, shall, before
administering the oath ask the declarant if he has
read the affidavit and understood the contents
thereof, and if the latter states that he has not read it,
or appears not to understand fully, the contents
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thereof, or appears to be blind, illiterate or ignorant
of the language in which it is written, the Officer
administering the oath shall read and explain or
cause some other competent person to read and
explain in his presence the affidavit to the declarant
in the language which both the declarant and the
Officer administering the oath understood.
(2) When an affidavit is read, translated or explained
as herein provided the Officer administering the oath
shall certify in writing at the foot of the affidavit that
it has been so read, translated or explained in his
presence and that the declarant understood the same
at the time of making the affidavit and made his
signature or finger impression in the presence of the
Officer."
24 Thus, the requirement of law is that every affidavit should
clearly specify what portion of the statement is made on declarant's
personal knowledge and what portion of the statement is made on his
information or belief. When a particular statement is made on the basis
of information and belief, the affidavit must state that the declarant
believes the said statement to be true. Particulars of the source or
ground of information or belief as provided in clause (2) of paragraph
No.5 of the Chapter VII of the Criminal Manual are required to be
disclosed. The manner in which an affidavit should be executed is also
laid down in paragraph No.8 of Chapter VII. An affidavit filed without
substantially complying with the requirements of Chapter VII cannot be
said to be an affidavit filed in compliance with the directions issued by
the Apex Court in the case of Priyanka Srivastava. As stated in the said
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decision, the object of filing an affidavit is to ensure that the
complainant must face consequences, if his statements made therein
are found to be false. To achieve the object of filing an affidavit, it must
substantially comply with the requirements specified in Chapter VII of
the Criminal Manual.
25 To summarise,
(a) While dealing with a Complaint seeking an action
under Sub-Section (3) of Section 156 of Cr.P.C, the
learned Magistrate cannot act mechanically. He is
required to apply his mind to the contents of the
Complaint and the documents produced along with the
Complaint ;
(b) An Order passed on the said Complaint must record
reasons in brief which should indicate application of
mind by the Magistrate. However, it not necessary to
record detailed reasons;
(c) The power under Sub-Section (3) of Section 156 is
discretionary. Only because on plain reading of the
Complaint, a case of commission of cognizable offence
is made out, an Order of investigation should not be
mechanically passed. In a given case, the learned
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Magistrate can go in to the issue of the veracity of the
allegations made in the Complaint. The learned
Magistrate must also consider the other relevant
aspects such as the inordinate delay on the part of the
Complainant. The nature of the transaction and
pendency of civil proceedings on the subject are also
relevant considerations;
(d) When a Complaint seeking an action under Sub-Section
(3) of Section 156 is brought before the learned
Metropolitan Magistrate or the learned Judicial
Magistrate, it must be accompanied by an affidavit in
support as contemplated by the decision of the Apex
Court in Priyanka Srivastava. The affidavit must
substantially comply with the requirements set out in
Chapter VII of the Criminal Manual and especially
paragraphs 5 and 8 which are quoted above; and
(e) Necessary averments recording compliance with Sub-
Sections (1) and (3) of Section 154 of the CrPC should
be incorporated with material particulars. Moreover,
the documents in support of the said averments must
filed on record.
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26 Now coming back to the facts of the case, we have already
quoted the order dated 7th October, 2000 which is a non-speaking order
which does not satisfy the tests laid down by the Apex Court. There is
non-compliance with the requirements of setting out compliance with
Sub-Sections (1) and (3) of Section 154 of Cr.P.C and of producing
supporting documents. Hence, the order is completely illegal.
27 We may also note here that there is an endorsement on the
complaint that the verification of the complainant has been recorded. If
verification was recorded, the impugned order is bad for that reason
also, as the pre-cognizance stage was already over when the impugned
order was passed. The learned counsel appearing for the first informant
tried to submit that a copy of the Roznama or verification statement is
not produced. It is not necessary for us to go into the aspect of
recording of verification inasmuch as on merits, the impugned order is
held to be illegal. Consequently the registration of the First Information
Report is also rendered illegal.
28 In the city of Mumbai, there are large number of such
Complaints filed concerning execution and implementation of several
Rehabilitation Schemes which are being implemented in Mumbai. In
view of the law laid down by the decision of this Court in Shailesh
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Gandhi Vs State of Maharashtra and Others, the aggrieved party must
first approach the High Power Committee. As directed by the said
Judgment, if the High Power Committee finds that there is an element
of criminality and particularly in cases of fraud, impersonation and like
cases, the High Power Committee will ensure that the investigation will
be handed over to the appropriate agency. As stated earlier, the
Complaint in the present relies on so called draft prepared containing
names of the eligible slum dwellers. If the complainant has any
grievance about the names included in Annexure - II, he can always
approach High Power Committee. The said Committee can direct
setting of criminal law in motion if it finds element of criminality.
29 In view of the discussion made above, the impugned order
dated 7th October, 2000 and consequently, the First Information Report
deserves to be quashed and set aside. Considering the law laid down by
us, it is not necessary to grant prayer (b). As far as prayer (c) is
concerned, the Petitioners will have to file appropriate proceedings in
accordance with law.
30 Accordingly, the Petition must succeed and we pass
following order:-
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ORDER
(i) Rule is made absolute in terms of prayer clause (a),
which reads thus:
"(a) that this Hon'ble Court may be pleased to call for
records and proceedings concerning C.C.
No.37/SS/2000 from the court of the Ld.
Metropolitan Magistrate's 10th Court at Andheri,
Mumbai and after examining the legality, validity
and/or propriety of the purported order dated
7.10.2000 and so also MECR No.21/15 dated
17.10.2015 registered with Oshiwara police station,
Mumbai, the same may be quashed and set aside;"
(ii) It will be always open to the second Respondent to take
out appropriate proceedings before the High Power
Committee;
(iii) All contentions in that behalf are expressly kept open;
(iv) If the second Respondent files appropriate proceedings
before the High Power Committee, we are sure that the
High Power Committee will expeditiously deal with the
same in accordance with law;
(v) Rule is made absolute on above terms;
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(vi) We direct the Registrar (Judicial-I) to circulate a copy of
this judgment to all the Judicial Magistrates and the
Metropolitan Magistrates in the State;
(vii) Criminal Application No.486 of 2016 does not survive
and is disposed of.
(ANUJA PRABHUDESSAI, J) (A.S. OKA, J)
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