Bombay High Court
Harishchandra Vishwanath Chavan ... vs The State Of Maharashtra And ... on 24 March, 2017
Bench: S.S. Shinde
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crapln 3740.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3740 OF 2014
1. Harischandra s/o Vishwanath Chavan,
Age : 78 years, Occ. Nil,
R/o Nandgaon, Tq. Ambajogai,
Dist. Beed.
2. Santosh Harischandra Chavan,
Age : 35 years, Occ. Agril.
R/o Nandgaon, Tq. Ambajogai,
Dist. Beed.
...APPLICANTS
versus
1. The State of Maharashtra
Through Investigation Officer,
Bardapur Police Station,
Tq. Ambajogai, Dist. Aurangabad.
2. Ashok Lahu Shinde
Age : 40 years, Occ. Agriculture
R/o C/o Sadashiv Nagar, Khadgaon Road,
Latur, Tq. & Dist. Latur. ...RESPONDENTS
.....
Mr. S.J. Salunke, Advocate for petitioner
Mr. S.G. Karlekar, AAP for Respondent State
Mrs. S.A. Ambliwade h/f Mr. D.J. Patil, Advocate for Respondent No. 2
.....
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 16th FEBRUARY, 2017.
PRONOUNCED ON : 24th MARCH, 2017.
JUDGMENT : ( Per : K.K. Sonawane, J.)
1] Heard. Rule. Rule made returnable forthwith. Matter is taken
up for final hearing with the consent of parties.
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This is a unique case where the Civil Judge (J.D.), while
exercising jurisdiction of the Civil Court, dealing with the civil proceeding,
i.e. R.C.S. No. 61 of 2014, ventured to utilize the powers of a Magistrate as
envisaged under the Code of Criminal Procedure, and proceeded to direct
investigation under Section 156(3) of Cr.P.C. barely on the protest
application filed on behalf of the defendants in the suit.
2] The applicant moved the present application under section 482
of Cr.P.C. to quash and set aside the impugned order passed under Section
156(3) of the Cr.P.C. as well as consequential proceeding of FIR bearing
Crime No. 3/14, registered with Bardapur Police Station, under Section 3(1)
(g), 3(1)(r) and 3(1)(z) of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as, "the
Atrocities Act, 1989" for sake of brevity) and Section 506 r/w. 34 of IPC.
3] It has been contended that the applicants are owner and in
possession of agricultural land Gat No. 176, located at village Nandgaon,
Tahsil Ambejogai. There was no access for ingress and egress to the land
Gat No. 176 of the applicants. Therefore, in the year 2006 the applicants
purchased the portion of adjoining land Gat No. 175, from one Prayagabai
Chavan. The Mutation entry of the same was also effected in the revenue
record. Since purchase of the land applicants were utilizing it for going to
their land Gat No. 176. The portion of land Gut No. 175 belonging to
respondent No.2 Ashok Shinde and his brothers was located abutting to the
land of applicants. The respondents always used to create obstruction in
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the path way created from the land of applicants bearing Gut No. 176.
Therefore, the applicants instituted the civil proceedings bearing R.C.S. No.
61 of 2014 and claimed the relief of declaration and injunction against the
respondent No.2 and his family members. The learned Civil Judge (Junior
Division) Ambejogai, issued the suit summons to the defendants i.e.
respondent No.2- herein and his family members for appearance in the
proceeding. Accordingly, on receipt of the summons, respondent No.2 being
defendant No.1 caused his appearance in the proceedings before the Civil
Judge, Junior Division, Ambejogai.
4] However, while putting his appearance in civil proceeding RCS No. 61
of 2014, respondent No.2 filed an application-cum-memorandum before the
Civil Court and ventilated the grievances against the plaintiffs/applicants
herein. The learned Civil Judge appreciated the grievance of respondent
No2- Ashok Shinde and issued directions to the Bardapur Police to investigate
under Section 156(3) of Cr.P.C. Pursuant to the directions of the learned
civil Judge (J.D.), Ambejogai, Police of Bardapur Police Station, registered
Crime No. 3 of 2014 for the offences under the Atrocities Act, 1989 and set
the investigation into motion.
5] Being aggrieved by the impugned order of directing police to
investigate under Section 156(3) and resultant registration of Crime NO. 3 of
2014, the applicants invoking remedy under Section 482 of Cr.P.C. preferred
the present application and put in controversy the legality, validity and
propriety of the impugned order, passed under Section 156(3) of Cr.P.C. and
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consequential registration of crime No. 3 of 2014, before this Court.
6] The learned counsel for the applicants vehemently submitted
that the impugned order passed under Section 156(3) of Cr.P.C. by the
learned Civil Judge is erroneous , illegal and not within the ambit of law. The
Civil Judge while exercising the powers of a civil court has no authority to
pass such order under Section 156(3) of the Cr.P.C. According to learned
counsel the application-cum-complaint of respondent No. 2 came to be filed
being the written statement/say of defendant in the civil proceeding i.e.
R.C.S. No. 61 of 2014. The application was filed with an intention to
traverse the pleadings of the plaintiff. It was not a complaint or petition
under Section 156(3) of the Cr.P.C. Therefore, the action of the learned Civil
Judge, directing the police of Bardapur police to investigate under Section
156(3) of Cr.P.C. is perverse, illegal and not within the ambit of law. The
applicants/ plaintiff filed the suit for the relief of declaration and injunction
and in such civil nature of proceedings, without giving opportunity to the
plaintiffs, the learned Civil Judge ventured to initiate criminal prosecution
by exercising the powers under section 156(3) of Cr.P.C. at the instance of
defendants. It would cause injustice and prejudice to the plaintiffs. The
action of the concerned civil Judge is against the principles of natural
justice. The learned counsel also harped on the circumstance that the
concerned civil court did not apply mind to the allegations in the
application-cum-complaint. There was no disclosure of commission of crime.
The impugned order passed by the concerned civil court is cryptic and
slender in nature. The learned counsel described in detail the circumstances
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on record and submitted that in case the civil courts are allowed to initiate
criminal proceedings against the plaintiffs on the allegations made on behalf
of defendants, then it would create an anomalous situation and nobody
would come forward to seek civil remedy from the court of law. He prayed
to quash and set aside the impugned order passed under Section 156(3) of
the Cr.P.C. and consequent registration of Crime No. 3 of 2014 with the
Bardapur police station for the offences under the Atrocities Act, 1989.
7] Per contra, learned counsel appearing for the respondents
opposed the contentions put forth on behalf of applicants. He submitted
that the learned civil Judge, has rightly exercised the powers of the
Magistrate and passed the impugned order within the ambit of law. There is
no error or imperfection in the impugned order. The complaint/application
of the defendants/respondent No.2 herein, prima-facie disclosed commission
of a cognizable offence against the applicants. Therefore, the learned civil
Judge has dealt with the application and passed the order to register it
separately as a Misc. Criminal application, and directed the police of
Bardapur police station to investigate under Section 156(3) of the Cr.P.C. and
file a report. According to learned counsel for the respondents, there was
no illegality or error in the impugned order passed by the Civil Judge,(J.D.)
Ambejogai. Therefore, it is prayed not to nod in favour of applicants and
dismiss the application.
8] We have considered the rival submissions canvassed on behalf
of both sides. We have also perused the relevant documents produced on
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record. The questions which arise for consideration in this application is,
whether the impugned order directing investigation under Section 156(3) of
the Cr.P.C. by the Civil Judge (J.D.) while dealing with a civil proceeding, is
sustainable and maintainable in the eye of law and whether, taking
allegation in the complaint/application at its face value and considered in its
entirety, would constitute an offence punishable under Section 3(1)(g), 3(1)
(r) and 3(1)(z) of the Atrocities Act, and Section 506 r/w. 34 of IPC.
9] Sections 3(1)(g), 3(1)(r) and 3(1)(z) of the Atrocities Act,1989
read as under :-
"3(1)(g) wrongfully dispossesses a member of a
Scheduled Caste or a Scheduled Tribe from his land or
premises or interferes with the enjoyment of his rights,
including forest rights, over any land or premises or
water or irrigation facilities or destroys the crops or
takes away the produce therefrom
3(1)(r) intentionally insults or intimidates with
intent to humiliate a member of a Scheduled Caste or a
Scheduled Tribe in any place within public view;
3(1)(z) forces or causes a member of a Scheduled
Caste or a Scheduled Tribe to leave his house, village or
other place of residence"
10] At the threshold it would be apposite to spell out the factual
scenario of the matter, which made the learned Civil Judge Ambejogai to
pass the impugned order directing investigation under Section 156(3) of the
Cr.P.C. by exercising powers of a Magistrate, who is empowered to take
cognizance of offence under Section 190 of Cr.P.C. Undisputedly, the
applicant Harishchandra Chavan initiated the civil proceeding bearing R.C.S.
No. 61 of 2014, before the Civil Judge Junior Division, Ambejogai for the
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relief of declaration of ownership and perpetual injunction restraining the
defendants to cause obstruction in the possession and enjoyment of the
portion of 0.6 Aar land of Gat No. 175, belonging to him. The respondent
No.2 Ashok Shinde and his family members were impleaded in the array of
defendants of the said civil suit bearing R.C.S. No. 61 of 2014. The learned
Civil Judge (J.D.), Ambejogai issued summons to the defendants to appear
and answer the claim and to file written statement, if any, within the
stipulated time. In response to the summons, the defendant i.e. respondent
No.2 herein, appeared in the civil proceeding before the civil Judge (J.D.).,
Ambejogai and filed one application-cum-memorandum, which is reproduced
as under :-
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11] After perusal of the aforesaid application-cum-memorandum
filed in the civil proceeding R.C.S. No. 61 of 2014 by the defendant No.1, the
learned Civil Judge considered the allegation and directed to register it
separately as a Misc. Criminal Application as well as simultaneously ventured
to pass the impugned order under Section 156(3) of the Cr.P.C. as follows :-
ORDER
Perusing complaint/application it be registered
separately as Misc. Criminal Application and Bardapur
Police Station A.P.I. Is directed to investigate U/Sec.
156 III of Cr.P.C. and report within one month to this
Court.
Copy of this application be retained on record.
Sd/-
2/5/2014.
12] Pursuant to the aforesaid impugned order of the learned Civil
Judge, the police of Bardapur police station, registered Crime No. 3 of 2014
under Section 3(1)(g), 3(2)(r) and 3(2)(z) of the Atrocities Act as well as
Section 506 r/w. 34 of IPC and set the investigation in motion. The aforesaid
impugned order and consequential registration of FIR bearing Crime No. 3 of
2014 are the subject matter of present application.
13] The factual scenario mentioned above categorically indicate
that the present application/complainant of respondent No.2 herein was
filed in the civil proceeding bearing RCS No. 61 of 2014. The defendant No.1
Ashok Shinde caused his appearance in the civil proceeding and filed the
present application. It is to be noted that there was no prayer or verification
appended to the said application. The recitals of the application reflect that
it was not submitted in the court in lieu of say/written statement of the
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defendant under order VIII of Civil Procedure Code in the suit. The
application was not duly verified by the defendants as contemplated under
Order VI Rule 15 of C.P.C. Therefore, it can not partake the character of
pleadings at all. When the defendants appeared and did not file the written
statement in consonance with the provisions prescribed under the CPC, it
was incumbent on the part of concerned Civil Judge to proceed further for
adjudication of matter in issue without written statement and pass a decree
in the suit, as envisaged under Order VIII, Rule 5 of CPC. But, instead of
taking recourse of the provisions of Civil Procedure Code, the concerned Civil
Judge appreciated the allegations nurtured on behalf of defendants against
the plaintiff and exceeded his jurisdiction by exercising powers of a
Magistrate. He ventured to pass the impugned order directing the police to
investigate under Section 156(3) of the Cr.P.C. The action of the concerned
civil Judge (J.D.) diverting civil proceeding to criminal complaint, for
initiating penal action against the plaintiffs at the behest of defendant,
appears somewhat strange and not amenable within the ambit of procedural
law. The concerned presiding officer of the Civil Court could not avail the
liberty to exercise the powers of Magistrate in the civil proceeding, as per
his whims and caprices. There are guidelines laid down under the procedural
law in regard to jurisdiction of civil and criminal court and judicial powers to
be exercised while presiding over such courts.
14] It is worth to mention that the impugned order directing
investigation under Section 156(3) of Cr.P.C. was passed by the concerned
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presiding officer of the civil court, when he was dealing with a civil matter
by exercising jurisdiction of civil court assigned to him. The tenor and mode
of application-cum-complaint filed on behalf of defendants, indicates that
the application was filed to traverse the claim of the plaintiffs in the suit. It
was not a petition under Section 156(3) of Cr.P.C. or complaint against the
plaintiff but the defendant was intending to deny the pleadings propounded
on behalf of plaintiffs, who sought the relief of injunction in the suit.
However, the learned Civil Judge, on receipt of the application, suo-motu
took the decision unilaterally and passed the impugned order under Section
156(3) of Cr.P.C. The learned presiding officer of the civil court overlooked or
glossed over the procedural law while exercising the powers of Magistrate
when he was dealing with the civil proceedings and not criminal complaint.
The protest application filed by the defendant to traverse the claim of
plaintiffs/other side in the suit would not be considered as a "complaint" as
defined under section 2(d) of the Cr.P.C. It would not be a complaint to the
Magistrate with a view to take action under the Cr.P.C. Therefore, it would
be fallacious to appreciate the bare protest application filed before Civil
Judge, while dealing with civil proceedings, as a petition under section
156(3) of Cr.P.C. It is true that there is no specific format of complaint. But,
it must contain particular kind of information and is more or less formally
made with the definite object that the person to whom the complaint is
made will take action under the Cr.P.C. In the instant case, the
circumstances would show that the defendant appeared in the civil
proceedings and filed the protest application to resist the claim of the
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plaintiffs. There was no object of defendant for penal action against the
plaintiffs, nor he made any request or prayer to take action under Cr.P.C.
The protest application was not in the nature of complaint under section
2(d) of Cr.P.C. But, it was filed to raise objection to the releif claimed on
behalf of plaintiffs/applicants-herein.
15] There was no compliance of mandatory provisions of section 154 of
Cr.P.C. prior to remedy under section156(3) of Cr.P.C. nor there are any
complaints to superior officer of the Police as contemplated U/Sec.154(3) of
the Cr.P.C. It is true that learned Civil Judge bade for separate registration
of application/complaint as a Miscellaneous Criminal Application for exercise
of powers of Magistrate. Albeit, it emerges from the impugned order that
the learned Civil Judge, instead of awaiting for separate registration of
proceeding as Miscellaneous Criminal Application, contemporaneously
proceeded to pass the impugned order under section 156 of Cr.P.C. in most
hasty manner and appended his signature as a Presiding Officer of civil court.
The manner in which the learned Civil Judge dealt with the civil proceeding
and passed the impugned order of criminal in nature is indefensible and
incomprehensible one within the purview of procedural law.
16] Now, dealing with the another spectrum of the matter, it appears that
while passing impugned order, the learned Judge did not apply his mind. The
impugned order is cryptic and slender in nature. At this juncture, it is
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gainful to refer to the observations of the Apex Court in the case of Pepsi
Foods Ltd. and another vs. Special Judicial Magistrate and others
reported in (1998)5 SCC 749 wherein the Apex Court, in unequivocal terms,
delineated that summoning of an accused in a criminal case is a serious
matter. The criminal law can not be set into motion as a matter of course.
It is essential for the Magistrate to apply his mind to find out the truthfulness
of the allegations. Atleast he is to verify from the averments of the
complaint as to whether the ingredients to constitute the offence
complained of have been made out or not . The Observations of the Apex
Court are as under :-
"Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have
the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in
support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at
the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully
scrutinize the evidence brought on record and may even himself
put the questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."
17] The Apex Court in the case of Maqsood Syed Vs. State of
Gujarat (2008)5 SCC 668, in paragraph No. 13 has held that where a
jurisdiction is exercised on a complaint petition filed in terms of section
156(3) or section 200 of the Code of Criminal Procedure, the Magistrate is
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required to apply the mind. It is obligatory on the part of the complainant to
make requisite allegations which would attract the provisions constituting
criminal liability.
18] It is a settled principles of law that if the petition or complaint
does not disclose commission of a cognizable offence, the learned Magistrate
cannot pass the order under Section 156(3) of the Cr.P.C. It has also been
held that the disclosure of commission of offence is a Sine Qua Non for
issuing the order under Section 156(3) of Cr.P.C.
19] In view of the aforesaid legal principles of law, if we scrutinize
the allegations nurtured on behalf of the defendants in the impugned
application-cum-complaint, it reveals that there are no circumstances on
record sufficient to prove the charges against the plaintiffs/applicants. The
respondent No.2 made reference in his complaint about the atrocities which
were continued since last 21 years. He has made reference about castiest
allegations and threats of dire consequences on the part of the plaintiffs.
But, all these are sweeping allegations, vague and omnibus in nature. The
respondent No.2 made general allegations against the plaintiffs/applicants in
this application He has not given details about the incidents or any specific
overt act to point out the commission of crime on the part of the applicants.
In case, the entire aspersions made in the application/complaint of
respondent No.2 if taken at its face value and considered in its entirety,
prima facie circumstances, do not constitute the cognizable offence. No
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question of wrongful dispossession of the defendant/respondent No.2 from
the suit land being member of the Scheduled Caste or Scheduled Tribe is
involved in this matter. Therefore, in view of legal guidelines delineated in
the case of "State of Haryana Vs. Bhajanlal" AIR 1992 SC 604, we have no
hesitation to arrive at a conclusion that the circumstances on record in the
complaint/application do not disclose any commission of crime to bring
home guilt of the applicant. In such circumstances, we have no alternative
but to invoke the extraordinary jurisdiction under Section 482 of Cr.P.C. to
quash and set aside the impugned order and consequential registration of FIR
No. 61 of 2014 by Bardapur Police Station.
20] It is also significant to mention that, the impugned order directing
the investigation under section 156(3) of Cr.P.C. came to be passed by the
learned Civil Judge against the original plaintiff on bare protest application
tendered by defendant (respondent No. 2-herein) on his appearance in the
civil proceeding. The very purpose of filing the application by the defendants
was to deny or traverse the pleadings of the plaintiffs made in the suit and
not to set the criminal law in motion. In general, in each and every civil
proceeding there are allegations against each other by the parties to the
proceeding. But, it does not mean that in every proceeding the concerned
civil court has to exercise the powers of Magistrate as contemplated under
the Cr.P.C. for initiating criminal proceeding against the original plaintiffs.
In case, after filing civil proceeding for any relief of civil nature against the
defendants, the plaintiffs are forced to face criminal proceedings, on the
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allegations nurtured on behalf of the defendants, it would, create a very
unhealthy atmosphere and would open the flood-gates of such type of
unscrupulous and unprincipled litigation/complaints to harass the plaintiffs
in such civil proceedings, and nobody would dare to come forward to seek
reliefs from the civil courts of law. It may also result in cynical disregard of
law which would have impact on the society and people may lose faith from
the judicial system.
21] The impugned order under Section 156(3) of Cr.P.C. passed on
bare protest application of respondent No.2 filed in the civil proceedings is
not amenable within the purview of legal provisions. The action on the part
of the concerned civil court, appears deprecative and unsustainable one.
The plaintiff should not be victimized or exploited at any point of time and
cost, on his approaching to the civil court for seeking justice. In case,
defendant would have any grievance of penal nature he may take recourse of
remedy available under Criminal Procedure Code and file separate complaint
for penal action against the miscreants. We find force in the submission
canvassed on behalf of applicants that the impugned order is erroneous,
imperfect, perverse and liable to be quashed and set aside. Moreover, there
was no prima facie case made out against the applicants as discussed above
to constitute offences under the Atrocities Act, 1989 as well as the offence
of criminal intimidation. The impugned order is cryptic and slender in
nature. It came to be passed in post-haste manner, without application of
mind to the attending circumstances on record. Therefore, we are not
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inclined to uphold the impugned order passed by the learned Civil Judge
Junior Division, Ambejogai for initiating criminal action against the
applicants.
23] In the result, the application stands allowed. The impugned
order dated 02-05-2014 passed by the learned Civil Judge (J.D.) Ambejogai in
RCS No. 61 of 2014, under Section 156(3) of the Cr.P.C and resultant FIR
bearing Crime No. 3 of 2014, registered with Bardapur Police Station, Tq.
Ambejogai, Dist. Beed for the offences punishable under Sections 3(1)(g),
3(1)(r) and 3(1)(z) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and under Section 506 r/w. 34 of IPC against the
applicants is hereby quashed and set aside. Rule made absolute in above
terms. There shall be no orders as to costs.
[K.K.SONAWANE] [S.S. SHINDE]
JUDGE JUDGE
grt/-
