Bombay High Court
Kunal S/O. Pramod Kapartiwar vs State Of Maharashtra Thr. Police ... on 5 October, 2017
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Writ Petition No.886 of 2017
Kunal s/o Pramod Kapartiwar,
Aged about 32 years,
Occupation - Medical Practitioner,
R/o Shriniwas Colony,
Wardha, Tq. and Distt. Wardha. ... Petitioner
Versus
State of Maharashtra,
through its Police Station Officer,
Sewagram Police Station,
Tq. and District Wardha. ... Respondent
Shri Anil Mardikar, Senior Advocate, assisted by Shri S.G.
Joshi, Advocate for Petitioner.
Shri S.D. Sirpurkar, Additional Public Prosecutor for
Respondent.
Coram : R.K. Deshpande, J.
th
Dated : 5 October, 2017
Oral Judgment :
1. Heard Shri Anil Mardikar, the learned Senior
Advocate, assisted by Shri S.G. Joshi, Advocate appearing
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for the petitioner; and Shri S.D. Sirpurkar, the learned
Additional Public Prosecutor appearing for the
respondent.
2. Rule, made returnable forthwith. Heard finally
by consent of the learned counsels appearing for the
parties.
3. The challenge in this petition is to the order
dated 8-8-2017 passed by the learned Special Judge &
Additional Sessions Judge-2, Wardha, in Crime No.247 of
2014 rejecting the closure report under Section 169 of the
Criminal Procedure Code (Cr.P.C.) submitted by the
prosecution. The order records the reasons as under :
"... The investigation discloses the efforts of
accused to pressurize the witnesses. Statements of
victim were recorded repeatedly before Magistrate
and Bal Kalyan Samiti disclosing the incident.
Accused is a doctor, Was unknown to the victim
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under the circumstances with summary can not be
filed. ..."
4. In the decision of the Apex Court in the case of
Vasanti Dubey v. State of Madhya Pradesh, reported in
(2012) 2 SCC 731, relied upon by Shri Mardikar, the
learned Senior Advocate, it is held in para 21 as under :
"21. Thus it is undoubtedly true that even after
the police report indicates that no case is made out
against the accused, the Magistrate can ignore the
same and can take cognizance on applying his
mind independently to the case. But in that
situation, he has two options: (i) he may not agree
with the police report and direct an enquiry under
Section 202 and after such enquiry take action
under Section 203; (ii) he is also entitled to take
cognizance under Section 190 CrPC at once if he
disagrees with the adverse police report but even in
this circumstance, he cannot straightaway direct
submission of the charge-sheet by the police."
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It is apparent that upon submission of the report under
Section 169 of Cr.P.C., the Court has two options: (i) the
Court may not agree with the police report and direct an
enquiry under Section 202 and after such enquiry take
action under Section 203; and (ii) the Court is also
entitled to take cognizance under Section 190 of Cr.P.C. at
once if it disagrees with the adverse police report but even
in this circumstance, it cannot straightaway direct
submission of the charge-sheet by the police.
5. The order impugned in this petition does not
disclose application of mind to the principles laid down by
the Apex Court in the aforesaid decision. The learned
Additional Sessions Judge has failed to adopt either of the
two options and rejected the report. The order impugned
cannot, therefore, be sustained and it will have to be set
aside with an order of remand.
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6. In the result, the petition is allowed. The order
dated 8-8-2017 passed by the learned Special Judge &
Additional Sessions Judge-2, Wardha in Crime No.247 of
2014, is hereby quashed and set aside. The learned
Additional Sessions Judge to apply his mind to the
principles laid down by the Apex Court in the aforesaid
judgment and to adopt the proper course of action, as is
permissible in law.
7. Rule is made absolute in the aforesaid terms.
JUDGE.
Lanjewar
