Salim S/O. Jilani Qureshi vs The State Of Maharashtra And ...
2017 Latest Caselaw 9138 Bom

                                    (1)                     Cri.WP 1063 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1063 OF 2017

Salim s/o Jilani Qureshi
Age: 52 years, Occu.: Business,
R/o.Azam Colony Road, Roshan Gate,
Aurangabad, Taluka and District:- 
Aurangabad.                                        ..Petitioner

               Versus

1)    The State of Maharashtra
      through the Police Inspector,
      Jinsi Police Station, Aurangabad
      (City), Aurangabad, Taluka and
      District: Aurangabad.

2)    Anjum Ara Siddiqui w/o Nadim
      Age: 43 years, Occu.: Service,
      R/.o.Azam Colony Road, 
      Roashan Gate, Aurangabad.

3)    Hina Siddiqui w/o.Babar Qureshi
      Age: 36 years, Occu.: and 
      R/o.: As above.

4)    Anam Nadim
      Age: 23 years, Occu.: Household,
      R/o.: As above

5)    Umar Ara Nadim
      Age: 20 years, Business,
      R/o.: As above

6)    Adil Madni
      Age: 41 years, Occu.: Business,
      R/o.Maqsood Colony, Roshan Gate,



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                                     (2)                     Cri.WP 1063 of 2017


      Aurangabad, Taluka and District:
      Aurangabad.

7)    Khuram Siddiqui s/o.Babar Siddiqui
      Age: 36 years, Occu.: Business,
      R/o.Azam Colony Road, Roshan Gate,
      Aurangabad, Taluka and District:
      Aurangabad.

8)    Irfan Siddiqui s/o. Babar Siddiqui
      Age: 34 years, Occu.: and 
      R/o. As above.

9)    Faiz Siddiqui
      Age: 26 years, Occu.: and 
      R/o.As above.                                ..Respondents

                           ...
 Advocate for the Petitioner : Mr.Govind Kulkarni h/f. 
                                Mr.R.S.Deshmukh
         APP for Respondent No.1 : Mr.K.S.Patil
 Advocate for the Respondent Nos.2 to 9 : Mr.P.F.Patni 
                           ...
                           CORAM :  PRAKASH D.NAIK, J.

DATES : 29.11.2017

ORAL JUDGMENT:-

1) The petitioner is the original complainant. The

complaint was filed against the respondent Nos.2 to 9.

The petitioner has invoked the supervisory jurisdiction

of this Court under Article 227 of Constitution of India,

and taken exception to the order dated 16.6.2017 passed

by the Additional Sessions Judge, Aurangabad, in Criminal

(3) Cri.WP 1063 of 2017

Revision Application No.128 of 2016 as well as the order

dated 28.6.2016 passed by the Judicial Magistrate First

Class, Aurangabad, below Exh.1 in Regular Criminal Case

No.1572 of 2016.

2) The facts which are necessary for deciding the

present petition are as follows:-

(a) The petitioner filed Regular Criminal Case

No.1572 of 2016 against the respondents/accused

alleging that they have committed offences under

Sections 147, 148, 149, 307, 326, 325 and 452 r/w

Section 34 of the Indian Penal Code as well as

Sections 4 and 25 of the Arms Act.

(b) The case of the petitioner/complainant is that

the accused No.1 had unauthorizedly constructed house

after demolishing the old house by encroaching upon

public property. The residents of the area opposed

the construction and prevented them from constructing

the house. The accused carried misunderstanding that

(4) Cri.WP 1063 of 2017

the complainant's family had instigated residents to

stop the construction of house started by accused.

On 9.6.2016, the complainant and his sons were at

home. The accused came near the house of the

petitioner and knocked at his door. They were armed

with weapons. The accused Nos.1 and 4 stated that

the complainant has instigated residents to stop the

construction. They instigated others to assault the

complainant and others and forcefully entered into

house. The accused No.5 assaulted the petitioner on

assaulted the complainant's wife and son Javed by

hockey-stick and stick. Accused Nos.4 and 6 assaulted

brother of complainants Riyaz with hockey-stick and

accused Nos.1 to 3 assaulted complainant, his wife

and son by sticks on abdomen, chest and back. The

attack was with an intention to kill the complainant

and others. It is further alleged that upon raising

hue and cry, the witnesses have rushed to the

residence of the complainant and they were rescued

(5) Cri.WP 1063 of 2017

from the clutches of the accused. If the said persons

would not have come to save the complainant and his

family, the accused would have killed them. The

complainant rushed to the Police Station. The

injured were referred to for medical treatment in

GHATI Hospital, Aurangabad. They were treated at

hospital and then considering the injuries sustained

by them, they were sent for X-ray and Sonography. By

that time, it was too late and hence, they could not

got to the Police Station. The wife of the

complainant had undergone abdominal surgery and on

account of assault in the present incident, her

condition was serious and for that reason also, they

could not visit Police Station.

(c) On 10.6.2016 the complainant was at the Police

Station for registration of crime, but the Police

refused to register the crime and informed that

action will be taken after receipt of medical report.

The petitioner lodged the report with the Police

(6) Cri.WP 1063 of 2017

Commissioner on 14.6.2016. However, no cognizance

was taken by Police. The accused are politically

influential persons and hence no action was taken

against them and on the contrary, false FIR was

registered against the petitioner. The complainant

approached the Police for action, but he was

threatened that, he will be arrested in the offence.

The accused had conspired and with intention to kill

the complainant and others had assaulted them by

dangerous weapons. Since the Police failed to take

cognizance, the petitioner filed a private complaint.

(d) The petitioner had prayed for issuance of

directions under Section 156(3) of the Code of

Criminal Procedure. The Court was not inclined to

issue such directions initially and therefore

directed him to remain present for verification under

Section 200 of the Code of Criminal Procedure and

was also given liberty to lead evidence in support of

his complaint.

(7) Cri.WP 1063 of 2017

(e) The petitioner was aggrieved by the said order

dated 28.6.2016 and therefore, preferred Criminal

Revision Application No.128 of 2016 before the Court

of Sessions, Aurangabad on 11.7.2016. The Sessions

Court vide Order dated 16.6.2017 dismissed the said

Criminal Revision Application. Petitioner therefore,

approached this Court to challenge the said orders on

several grounds.

3) The learned counsel for the petitioner submits that

there was enormous evidence before the Trial Court to

issue directions under Section 156(3) of the Code of

Criminal Procedure. It is submitted that the accused had

committed serious cognizable offence and therefore, Court

ought to have directed investigation. The facts involved

in the complaint were required to be thoroughly

investigated by the Police. Therefore, it was a fit case

to issue directions of investigation. It is submitted

that the Court, however, adopted the other mode available

(8) Cri.WP 1063 of 2017

in law and therefore, placed the matter for recording

verification statement of the complainant. It is

therefore, submitted that the Court was proceeding to

post-cognizance stage and prayed for investigation under

Section 156(3), which is the pre-cognizance stage and was

deemed to have been rejected by the Trial Court. It is

submitted that once the complaint makes out cognizable

offence, it was bounden duty of the Police to take

cognizance of the same and proceed in accordance with

law. The complaint refers to allegations of assault by

deadly weapons and therefore, the said complaint ought to

have been investigated by the Police.

4) It is further submitted that inspite the complaint

being made to the Police, the Police machinery refused to

take cognizance of his complaint, which is contrary to

the decision of the Supreme Court in the case of Lalita

Kumari Vs. Govt. of U.P. and ors., reported in AIR 2014

SC, 187. It is submitted that the assault as stated by

the complainant was not a concocted story, but it was

(9) Cri.WP 1063 of 2017

supported by the medical evidence. Although, the accused

were referred for medical examination, which is not in

dispute, the Police did not thought it fit to register

the First Information Report. It is therefore, submitted

that the order passed by the Trial Court is contrary to

law. In the interest of justice and to collect the

evidence against the accused, who were involved in the

crime, it was necessary to conduct investigation.

5) It is submitted that adhering to any other mode

available in law either calling report under Section 202

of the Code of Criminal Procedure or issuance of process

would not serve the purpose and the complaint requires

Police investigation and therefore, the order of the

Magistrate would be required to be set aside. It is

submitted that the Sessions Court has also failed to

appreciate the aforesaid aspects and rejected the

Criminal Revision Application preferred by the

petitioner. It is submitted that the case was made out

for offences under Sections 307, 324, 325 and 326 of the

( 10 ) Cri.WP 1063 of 2017

Indian Penal Code and therefore, the complaint makes out

cognizable offences, which requires the Police machinery

to conduct investigation.

6) The prosecution has filed affidavit in reply. It is

stated that the petitioner was not found in the vicinity

of Roshan Gate, Azam Colony area. Since, the petitioner

was not available, the First Information Report was not

registered. Reliance was placed on Case Diary. It is

also stated that a case was registered against the

petitioner and others and the petitioner had applied for

anticipatory bail before the Sessions Court. It is also

submitted that the incident, which is subject matter of

Crime No.236 of 2016 filed against the petitioner was

real incident, which is evident from spot panchanama,

which was annexed to the said reply.

7) The learned counsel for the respondents submitted

that there is no error in the order under challenge.

There was no justification for issuing directions under

( 11 ) Cri.WP 1063 of 2017

Section 156(3) of the Code of Criminal Procedure and

therefore, the learned Magistrate has rightly posted the

matter for recording the verification statement of the

complainant. It is submitted that false and frivolous

complaint has been lodged by the petitioner and there was

no reason to direct investigation under Section 156(3) of

the Code of Criminal Procedure. It is submitted that

there was no evidence on record to support the

contentions of the complainant that the complaint makes

out cognizable offence and in the absence of said

evidence, the Court could not have directed the

investigation under Section 156(3) of the Code of

Criminal Procedure. It is submitted that the Court had

directed that the complaint would proceed by recording

verification statement, which would mean that the Trial

Court had option of issuing process directly or calling

for report under Section 202 of the Code of Criminal

Procedure. The grievance could also be dealt with by any

other options available to the Trial Court. The

petitioner therefore, cannot challenge the discretion of

( 12 ) Cri.WP 1063 of 2017

the Court and contend that the complaint has to be sent

for investigation under Section 156(3) of the Code of

Criminal Procedure. It is submitted that the injury

certificate on record does not support the allegation of

any cognizable offence and therefore, there was no

question of exercising powers under Section 156(3) of the

Code of Criminal Procedure. The learned Magistrate has

therefore posted the mater for recording verification

statement of the complainant. It is also open to the

complainant to lead evidence of witnesses in support of

his complaint and it would be open to the Trial Court to

take appropriate decision in accordance with law. There

has to be material on record to invoke powers under

Section 156(3) of the Code of Criminal Procedure, it is

therefore submitted that there is no reason to interfere

in the order passed by the Trial Court. The learned

Magistrate has categorically observed that the xerox

copies of medical certificates show history of assault.

However, there is no evidence of deadly weapon. The

medical papers did not disclose the nature of injuries.

( 13 ) Cri.WP 1063 of 2017

The Sessions Court also reiterated same aspects and

dismissed revision. It is therefore prayed that the

petition is devoid of merits and same be dismissed. The

learned counsel relied upon the decisions of Supreme

Court in the case of Priyanka Srivastava Vs. State of

Uttar Pradesh [(2015) 6 Supreme Court Cases, 287] and

Madhao and Another Vs. State of Maharashtra [(2013) 5

SCC, 615].

8) On perusal of the documents on record, it is

apparent that the alleged incident had occurred on

9.6.2016. The complainant and others had approached the

Police Station immediately after the incident. They were

forwarded for medical examination at the instance of

police. The medical certificate does indicate that the

petitioners and others had sustained injuries on the

various parts of the body. The complainant has also

forwarded a written complaint on 14.6.2016 stating that

the accused were armed with dangerous weapons like sword,

iron rod, hockey-sticks, and that the victims were

( 14 ) Cri.WP 1063 of 2017

assaulted by them with an intention to kill them. The

complainant approached the concerned Police Station,

however, no action was initiated by the Police. The

complaint dated 14.6.2016 discloses the fact that the

accused were armed with aforesaid weapons and assaulted

the complainant and others. Prima-facie the incident of

assault as alleged by the complainant was fortified by

the injury certificate. The complaint dated 14.6.2016

discloses cognizable offence. On reading the said

complaint, it is apparent that the complaint does makes

out a case for cognizable offence and it was bounden duty

of the Police to take cognizance of the said complaint.

9) The Supreme Court in the case of Lalita Kumari

(supra) relied upon by the learned counsel for the

petitioner, has categorically stated that the use of word

"shall" in Section 154(1) of the Code clearly shows the

legislative intent that it is mandatory to register a FIR

if the information given to the Police discloses the

commission of cognizable offence. The object of using

( 15 ) Cri.WP 1063 of 2017

the word "shall" in the context of Section 154(1) of the

Code is to ensure that, all information relating to

cognizable offences is promptly registered by the Police

and investigated in accordance with provisions of law.

Investigation of offences and prosecution of offenders

are duties of the State for 'cognizable offences', a duty

has been cast upon the Police to register FIR and to

conduct investigation except as otherwise specifically

permitted under Section 157 of the Code.

10) The injury certificate is not creation of

complainant or injured persons. The complainant and

others reached the Police Station after the incident

immediately and they were forwarded to the medical

examination. The injury certificate discloses injuries

sustained by the victims etc. It was bounden duty of the

Police to collect the medical certificates by getting the

injured persons examined by Doctors and initiate

immediate action. The Police refused to take cognizance

on oral complaint and even thereafter on written

( 16 ) Cri.WP 1063 of 2017

complaint. On reading the complaint, if the cognizable

offences were made out, nothing prevented them from

registering the FIR.

11) It is the contention of the petitioner that the

intention of the assailants is required to be taken into

consideration on the basis of manner in which the accused

committed crime. It is submitted that the manner in which

the assault took place, the nature of weapons used by the

accused and the fact that 10 victims were assaulted on

various parts of the body, justifies investigation by

Police. Since the Police did not take cognizance of the

complaint, he was required to file a private complaint

before the Trial Court. The factual aspects, as stated

in the complaint made to the Police, were also reiterated

in the private complaint. There was sufficient material

to issue directions under Section 156(3) of Code of

Criminal Procedure.

12) The Trial Court, however, was pleased to observe

( 17 ) Cri.WP 1063 of 2017

that the accused have filed a complaint against the

present complainant. The xerox copies of medical

certificates shows the history of assault. However, as

far as the deadly weapons are concerned, there is no iota

of evidence with regards to deadly weapons used. There

is no direct or indirect evidence to infer that the

weapons were used by the accused. The contents of the

complaint shows that there was previous enmity and the

nature of injuries reflected in the medical certificates

does not disclose any grievous injury. The Trial Court

has travelled beyond the scope of Section 156(3) of the

Code of Criminal Procedure. The complainant spells out

requisite ingredients which constitute cognizable

offences and the medical certificates which were on

record corroborates the incident. The medical case

papers showed history of assault on hand, chest and

abdomen of petitioner, head, chest and back of Salima,

forearm and abdomen of Javed and mouth, head, hand and

back of Riyaz. The petitioner is relying upon the

certificates of injury issued by hospital showing

( 18 ) Cri.WP 1063 of 2017

injuries by hard, blunt object. These certificates were

apparently not before the Trial Court but certainly

corroborates the theory of assault. The Police ought to

have collected the said certificates.

13) Apparently the Trial Court proceeded beyond the

scope of the powers by making such observations. The

evidence would be collected only after the investigation

commence and the Court was required to consider whether

the prima-facie case is made out or not, making out

cognizable offence, directing investigation. It appears

from the tenor of the order passed by the Trial Court

that the Court passed the said order on the basis of the

medical certificates, which were on record, which only

refers to physical assault.

14) It is contended by the learned counsel for the

respondents that injury certificates, which discloses

that injuries were with hard and blunt objects, were not

before the Trial Court when the impugned order was

( 19 ) Cri.WP 1063 of 2017

passed. It is however contended by the learned counsel

for the petitioner that the facts, which disclosed in the

complaint coupled with the medical certificate, which was

on record depict that there was an assault on the victims

on the head, chest, back and abdomen by deadly weapon.

It is therefore, submitted that the material before the

Trial Court was sufficient to direct investigation.

15) There is substance in the submission advanced by the

learned counsel for the petitioner. It is true that

medical certificate, which shows that the injuries were

caused by the hard and blunt object were not before the

Trial Court. However, the material on record was

sufficient to direct investigation under Section 156(3)

of the Code of Criminal Procedure. The fact remains that

the injury certificates, which were produced before the

Sessions Court corroborates the version of the complaint.

Since there was failure on the part of the Police

machinery to take cognizance, the complainant was

required to file a private complaint. The affidavit

( 20 ) Cri.WP 1063 of 2017

filed by Investigating Officer indicates that the

complainant and others were not available for

investigation as there was counter case registered

against them and therefore no steps could be taken for

dealing with the complaint filed by the petitioner. The

fact that the petitioner and others were not available is

evident from Case Diary as stated in the said affidavit.

Assuming that the said assertions are true that doesn't

wipe out the commission of offence as alleged by the

complainant. The affidavit in reply, however, confirms

that complainant filed an application on 14.6.2016,

stating that there was incident of assault. It is also

admitted that the injured were referred to hospital with

letter dated 10.6.2016 by Police. The injury

certificates are annexed to the reply. It is further

stated that since the petitioner was not available, FIR

was not registered. This assertion would also indicate

that cognizable offence was made out and Police wanted to

register FIR, but the same could not be done on account

of non-availability of petitioner. The affidavit also

( 21 ) Cri.WP 1063 of 2017

states that the petitioner had approached Police on

17.6.2016, after obtaining anticipatory bail in cross

case and inspite of assurance did not approach Police.

It is difficult to accept this contention as the

petitioner had lodged complaint on 14.6.2016, with said

Police Station, which bears acknowledgement. The further

averment in affidavit shows that the Police recorded

statement of some witnesses which falsifies complaint.

The Officer had doubt about occurrence of incident as

stated by complainant. The approach of Police reflects

bias. The complainant had approached Police immediately

after incident and they were sent for medical examination

and even then the Police had reason to doubt the

occurrence of incident. It is further stated that,

although petitioner party sustained injury and that rival

party did not suffer injury, the statements of witnesses

show that the incident stated by rival group was real.

The cross FIR was registered vide Crime No.236 of 2016

against the petitioner for offences under Sections 143,

452, 427, 323, 506 of the Indian Penal Code. It is also

( 22 ) Cri.WP 1063 of 2017

relevant to note that the Police without recording

statement of petitioner and registering FIR conducted

purported enquiry in negative. The Supreme Court in the

case of Lalita Kumari (supra) has laid down guidelines as

to what extent preliminary enquiry can be conducted. In

paragraph 111 of the said decision, it is observed that,

if the information received does not disclose cognizable

offence but indicates the necessity for an enquiry, a

preliminary enquiry may be conducted only to ascertain

whether cognizable offence is disclosed or not.

16) In the decision of the Supreme Court in the case of

Priyanka Srivastava and another (supra), it is observed

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. Issuing directions

stating "as per application" to lodge a FIR creates very

( 23 ) Cri.WP 1063 of 2017

unhealthy situation in society and reflects erroneous

approach of Court. The power under Section 156(3)

warrants application of judicial mind. The learned

counsel for respondent therefore contended that the Trial

Court has rightly refused to direct investigation under

Section 156(3) of the Code of Criminal Procedure. From

the facts in the present case, however, it is clear that

investigation by Police was imperative. In the aforesaid

decision, the Court has also observed that, a principled

and really grieved citizen with clean hands must have

free access to invoke the said power.

17) In another decision of Madhao and another (supra),

the Supreme Court has analyzed the mode to be adopted by

learned Magistrate after receipt of complaint. It is

observed that, when a Magistrate receives a complaint, he

is not bound to take cognizance of facts alleged in the

complaint disclosing commission of offence. The

Magistrate has discretion in the matter. If on a reading

of the complaint, he finds that allegations therein

( 24 ) Cri.WP 1063 of 2017

disclose a cognizable offence and the forwarding of the

complaint to the Police for investigation under Section

156(3) will be conducive to justice and save valuable

time of the Magistrate from being wasted in enquiring

into matter, which was primarily the duty of Police to

investigate, he will be justified in adopting that course

as an alternative for taking cognizance of offence

itself.

18) Therefore, in the circumstances as stated herein

above, and considering the material on record, the matter

require Police investigation and hence, the Trial Court

ought to have directed investigation under Section 156(3)

of the Code of Criminal Procedure. Reading the complaint

alongwith medical case papers, the cognizable offence

does discloses in the said complaint. As observed in

Priyanka Srivastava's (supra) case, there has to be

application of mind. The Trial Court can also apply its

mind as to what cognizable offence is made out in

complaint. After investigation, it would be open to

( 25 ) Cri.WP 1063 of 2017

investigating machinery to come to the conclusion whether

the offence is made out under Sections 307, 324 or any

other offence under the Indian Penal Code or any other

opinion in accordance with law.

19) In view of the above, the order passed by the Trial

Court directing recording of the verification statement

is required to be set aside. For the reasons stated

above, I pass the following Order:-

ORDER

(I) Writ Petition No.1063 of 2017 is allowed.

(II) The order dated 28.6.2016 passed by the Judicial Magistrate First Class, Aurangabad, in Regular Criminal Case No.1572 of 2016, is quashed and set aside.

(III) The order dated 16.6.2017 passed by the Additional Sessions Judge, Aurangabad, in Criminal Revision Application No.128 of 2016 is quashed and set aside.

(IV) The Trial Court is directed to issue direction under Section 156(3) of the Code of Criminal Procedure, in accordance with law.

( 26 ) Cri.WP 1063 of 2017

(V) In pursuant to the direction issued to the Trial Court for issuing direction under Section 156(3) of the Code of Criminal Procedure, the Police machinery shall investigate the complaint in accordance with law without being influenced by the observations made in this order.

(VI) Petition stands disposed of.

[PRAKASH D.NAIK, J.] SPT/Cri.WP 1063 of 2017