Bombay High Court

Pramod Bapurao Patil And Others vs The State Of Maharashtra And Anr on 22 November, 2017

Bench: S.S. Shinde

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 811 OF 2017 

          1.       Pramod Bapurao Patil 
                   Age : 44 years, Occ : Agri., 
                   and Medical Practitioner, 
                   R/o village Rajwadi, at present 
                   Near Police Station, Math Galli, 
                   Mudkhed, Tq. Mudkhed, Dist. Nanded. 

          2.       Govind Sawairam Chavan 
                   Age : 40 years, Occ : Agri., 
                   R/o Rajwadi Tanda, 
                   Tq. Mudkhed, Dist. Nanded. 

          3.       Kishan @ Krishna Pundlik 
                   Boinwad
                   Age : 50 years, Occ : Agri., 
                   R/o Rajwadi Tanda, 
                   Tq. Mudkhed, Dist. Nanded. 

          4.       Vinod Shankar Chavan 
                   Age : 37 years, Occ : Agri., 
                   R/o Rajwadi Tanda, 
                   Tq. Mudkhed, Dist. Nanded. 

          5.       Ramesh Rangrao Chavan 
                   Age : 48 years, Occ : Agri., 
                   R/o Rajwadi Tanda, 
                   Tq. Mudkhed, Dist. Nanded. 
                                               ..PETITIONERS 

                   VERSUS 

          1.       The State of Maharashtra 
                   Through Police Officer, 
                   Police Station, Barad, 
                   Tq. Mudkhed, Dist. Nanded. 




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          2.       Devrao Nagoba Choudante 
                   Age : 48 years, Occ : Nil, 
                   R/o Bhimnagar, Mudkhed, 
                   Dist. Nanded. 
                                                        ..RESPONDENTS
                                   ...
          Mr. R.B. Narvade Patil, Advocate for the Petitioners. 
          Mr. D.R. Kale, APP for Respondent/State
          Mr. G.G. Suryawanshi, Advocate for Respondent No.2

                          CORAM:  S.S.SHINDE & 
                                  MANGESH S. PATIL,JJ. 
                                 
                      RESERVED ON : 10th November, 2017 
                   PRONOUNCED ON : 22nd November, 2017. 

          JUDGMENT (Per S.S.Shinde, J.):

Heard the learned counsel appearing

for the petitioners, the learned A.P.P.

appearing for the Respondent/State and the

learned counsel appearing for Respondent

No.2.

2. This Petition is filed with the

following prayer :-

"b. The impugned order dated

31.01.2017 passed in O.M.C.A.

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No.91/2016 by the Sessions Judge at

Nanded as well as F.I.R. bearing Crime

No.58/2017 registered with Barad

Police Station, Tq. Mudkhed, Dist.

Nanded, pursuant to the aforesaid

order against the petitioners for the

offences punishable under sections

427, 428, 506, 379 of I.P.C. and

Section 3(i)(x) of the Atrocity Act

and all the further proceedings based

on it, may kindly be quashed and set

aside, in the interest of justice."

3. Though the various contentions have

been raised by the learned counsel appearing

for the petitioners in the Memo of the

Petition, however, during the course of

hearing, he invites our attention to the

order passed by the Additional Sessions Judge

at Nanded on Misc. Criminal Application No.

91/2016 filed by Respondent No.2 herein and

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submits that, there is no single reason

assigned in the impugned order, why the Court

felt it necessary to direct investigation

under Section 156(3) of the Code of Criminal

Procedure (For short "Cr.P.C."). It is

further submitted that, the powers given

under Section 156 of Cr.P.C. are conferred on

the Magistrate, and therefore, the Special

Court i.e. Court of Additional Sessions Judge

at Nanded was not competent to adjudicate the

Misc. Criminal Application filed by

Respondent No.2. The learned counsel

appearing for the petitioners submits that,

the Petition deserves to be allowed on the

aforesaid two grounds only. Therefore,

without prejudice to the other

contentions/legal issues raised in the

Petition and the right to agitate the said

points at the appropriate time, the learned

counsel appearing for the petitioners submits

that, the Petition may be allowed.

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4. On the other hand, the learned

counsel appearing for Respondent No.2 submits

that, Writ Petition under Article 226 of the

Constitution of India is not maintainable in

view of availability of the remedy of filing

revision challenging the impugned order

passed directing the investigation under

Section 156(3) of the Code of Criminal

Procedure. He further submits that, the

Magistrate has passed the reasoned order and

thereafter the investigation has been carried

out by the Investigating Officer. He further

invites our attention to the averments in the

affidavit in reply filed by Respondent No.2

and also other documents placed on record and

submits that, the Petition may be rejected.

5. The learned A.P.P. appearing for the

Respondent/State, relying upon the

investigation papers and report submitted by

the Investigating Officer, submits that, the

Investigating Officer has formed the prima

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facie opinion that, the alleged incident had

not taken place as it is evident from the

statements of the witnesses.

6. We have given careful consideration

to the submissions advanced by the learned

counsel appearing for the petitioners,

learned A.P.P. appearing for the

Respondent/State and the learned counsel

appearing for Respondent No.2. Though the

various contentions have been raised in the

Petition and also by Respondent No.2 on

merits, at present we are confining the

adjudication of this Writ Petition on

preliminary objection/contention raised by

the petitioners.

7. The order passed by the Additional

Sessions Judge at Nanded i.e. Special Court

on Misc. Criminal Application No.91 of 2016

(Deorao Nagoba Chaudante V/s Pramod Bapurao

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Patil and others) reads thus :-

"O

Perused application & affidavit. Call report U/s. 156(3) of Cr.P.C. Application stands disposed off.

Sd-

31.01.2017 ASJ"

8. Upon perusal of the aforementioned

order, it is abundantly clear that, neither

there is any application of mind by the

concerned Court nor any reasons, much less

the brief reasons have been assigned while

directing the investigation under Section

156(3) of the Cr.P.C. The Division Bench of

Bombay High Court Bench at Nagpur in the case

of State of Maharashtra V/s Shashikant Eknath

Shinde1, after placing reliance on the ratio

laid down in the case of Pesi Foods Ltd. V/s

Special Judicial Magistrate2 and also in the

1 2013(4) Bom.C.R.(Cri.) 801 2 1998(5) Bom.C.R. 426(S.C.)

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case of Maksud Saiyed Vs. State of Gujrat 3

has taken a view that, where a jurisdiction

is exercised on a complaint petition filed

under section 156(3) or section 200 of the

Code of Criminal Procedure, the Magistrate is

required to apply his mind. The reference is

also made to the judgment of the Division

Bench of this Court in the case of Yogiraj

Vasantrao Surve Vs. State of Maharashtra in

Criminal Application No.470 of 2011 decided

on 28th February, 2013. The para 30 of the

said judgment in the case of Shashikant

Shinde (supra) reads thus :-

"30. In view of the aforesaid judgments of the Apex Court, it can, thus, clearly be seen that when the Magistrate passes order directing investigation under section 156(3) of Code of Criminal Procedure, it is necessary that, prior to doing so, he should apply his mind to the case

3 2008(5) S.C.C. 668

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before him. Least that is expected of the Magistrate, is to verify from the averments of the complaint as to whether the ingredients to constitute the offences complained of have been made out or not. As such the order under section 156(3) of Code of Criminal Procedure, should depict the application of mind. No doubt the Magistrate is not expected to give elaborate judgment at that stage. However, the least expected is that the order should depict application of mind and as to how the complaint discloses the ingredients to constitute the offence complained of."

9. The Supreme Court in the case of

Anil Kumar and others V/s M.K. Aiyappa and

another4 in para 8 held thus :-

"8. We may fist examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., could act in a mechanical or casual

4 (2013) 10 SCC 705

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manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the 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 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 compliant, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section

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156(3) Cr.P.C., 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." (Underlines added)

10. The Supreme Court in the case of

Priyanka Shrivastava V/s State of Uttar

Pradesh and others5 has made it clear that,

the application filed by the complainant

seeking direction for investigation under

Section 156(3) of the Code of Criminal

Procedure should be supported by the

affidavit of the applicant. Though there is

no specific provision to that effect for

filing such affidavit, however, the

pronouncement of the Supreme Court in the

case of Priyanka Shrivastava (supra) binds