Mr Sainath S/O Ramrao Thombre vs The State Of Maharashtra And Anr
2017 Latest Caselaw 7958 Bom

                                        (1)                            cri.appln 192.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                CRIMINAL APPLICATION NO. 192 OF 2017

      Mr. Sainath S/o Ramrao Thombre,
      Age : 47 years, Occ. Service,
      As Police Inspector, presently working at
      Sadar Bazar Police Station, Jalna
      Resident of Jalna, District Jalna.                   ...      Applicant

                       Versus

1.    The State of Maharashtra
      Through in-charge
      Washi Police Station, Tq. Washi,
      District Osmanabad.

2.    Smt. Manisha Mahadeo Sandase,
      Age : 30 years, Occ. Agriculturist,
      R/o Washi, Post. Washi, Tq. Washi,
      District Osmanabad.                                  ...      Respondents

                                     -----
Mr. V.D. Sapkal, Advocate for the Applicant.
Mr. A.R. Borulkar, A.P.P. for the Respondent/State.
Mr. A.N. Nagargoje, Advocate for Respondent No.2.
                                     -----

                                    CORAM :   S.S. SHINDE &
                                              MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 04.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 10.10.2017 ...

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of

the parties matter is heard finally.

(2) cri.appln 192.17

2. This is an application under Section 482 of the Criminal

Procedure Code for quashment of F.I.R. bearing Crime no. 263 of 2016

registered with Washi Police Station, District Osmanabad for the offence

punishable under Section 306, 167 and 120-B read with Section 34 of

the Indian Penal Code as well as for quashing and setting aside the order

passed by the learned Judicial Magistrate First Class, Washi in Misc.

Criminal Application No. 257 of 2016 dated 23.12.2016, whereby the

learned Magistrate passed an order under Section 156(3) of the Cr.P.C.

and in pursuance whereof the aforementioned F.I.R. has been registered.

3. Stated in brief the facts leading to the filing of this application

are as under:

The husband of the respondent no.2 by name Mahadeo had

borrowed money from a private money lender and the latter had

extorted huge amount under the guise of recovering interest against a

paltry loan of Rs. 50,000/-. The money lender had allegedly recovered

more than Rupees Thirteen Lakhs and still was insisting for more. Fed up

with such harassment Mahadeo hanged himself to a tree on 04.10.2015.

(3) cri.appln 192.17

The officer in charge of the Police Station, Washi registered

Accidental Death case no. 59 of 2015 on the basis of the information

furnished by Mahadeo's father. Inquiry was made by Police Head

Constable Choudhari, B.No. 323. During that inquiry two suicidal notes

found in the pocket of Mahadeo were seized under a panchnama. In one

of the chits (Exhibit-R2) he had narrated the aforementioned facts of

having obtained loan of Rs.50,000/- and in spite of having paid more

than Rupees Thirteen to Fourteen Lakhs the money lender was

demanding more money and that is why he was committing suicide.

The respondent no.2 is the widow of the deceased according to her

the applicant was posted as a Police Inspector at Washi Police Station at

the relevant time. She used to approach him to inquire as to what steps

he was intending to take on the basis of the suicidal note. He used to

send her back either by saying that he would be transmitting suicidal

note to the handwriting expert or that it was already sent to the

handwriting expert. However, he never sent the suicidal note for any

such examination of handwriting expert, just to help the money lender.

She ultimately lodged a complaint with the Superintendent of Police and

filed a private complaint in the form of Misc. Criminal Application No. 257

of 2016. The learned Magistrate directed the matter to be inquired into

(4) cri.appln 192.17

by passing an order under Section 156(3) of Cr.P.C. On the basis of such

order the concerned Police Station registered the offence as mentioned

herein-above. Hence this application.

4. According to the applicant, the complaint has been lodged

with mala fide intention and without any basis. He has admitted that the

suicidal note was recovered and seized under a panchnama during the

inquiry of the accidental death case. The father of the deceased

Mahadeo had no grievance and on the basis of his request the accidental

death case was registered. All the while the suicidal note was in the

custody of Police Head Constable Choudhari who was inquiring into the

accidental death case and the applicant had no role to play. The

complaint has been filed against him with a vengeance. Even if the

contents of the complaint are accepted at their face value the offence

punishable under Section 306, 167 and 120-B read with Section 34 of

the I.P.C. cannot be made out. Lastly, it has been contended that in view

of amendment to Section 156 of the Cr.P.C., which has come in to effect

in the year 2016, the respondent no.2 had not obtained any sanction to

prosecute the applicant, for want of such sanction the learned Magistrate

had no jurisdiction to pass the impugned order.

5. We have heard the learned Advocate for the applicant as well

(5) cri.appln 192.17

as the learned A.P.P. The learned Advocate for the applicant made

submissions in consonance with the averments in the application and

sought to rely upon the decision in the case of State of Haryana Vs.

Bhajanlal (AIR 1992 SCC 604) and also the amended provision of

Section 156 of Cr.P.C.

6. Per contra, the learned Advocate for the respondent no.2

submitted that since the alleged offence committed by the applicant

cannot be said to have been committed in discharge of his official duties

and therefore sanction as contemplated even under amended Section

156 is not necessary. The learned Advocate cited the decision in the

case of Rajib Ranjan and Ors. V/s. R. Vijaykumar; (2015) 1 SCC

513. The learned Advocate also submitted that even if the offence

punishable under Section 306, 167 and 120-B read with Section 34 of

the Indian Penal Code cannot be made out on the basis of the averments

in the complaint, the Investigating Officer is at liberty to apply a suitable

provision from the Indian Penal Code.

7. The learned A.P.P. also supported the impugned order. We

have perused the affidavit in reply of the Superintendent of Police,

Osmanabad.

(6) cri.appln 192.17

8. At the outset, we propose to meet the law point raised by the

learned Advocate for the applicant regarding sanction as well as

jurisdiction of the Magistrate while passing the order under Section

156(3). Suffice for the purpose to observe that by Maharashtra Act No.

33 of 2016, the Code of Criminal Procedure (Maharashtra Amendment)

Act, 2015 which came into force with effect from 01.11.2016, in view of

the Government notification dated 27.10.2016, a couple of provisos have

been added to Section 156 after Sub-section (3) which read as under:

"Provided that, no Magistrate shall order an investigation under this section against a person who is or was a public servant as defined under any other law for the time being in force, in respect of the act done by such public servant while acting or purporting to act in the discharge of his official duties, except with the previous sanction under section 197 of the Code of Criminal Procedure, 1973 or under any law for the time being in force :

Provided further that, the sanctioning authority shall take a decision within a period of ninety days from the date of receipt of the proposal for sanction and in case the sanctioning authority fails to take the decision within the said stipulated period of ninety days, the sanction shall be deemed to have been accorded by the sanctioning authority".

9. It is thus apparent, as has been rightly submitted by the

learned Advocate for the applicant, whenever, a direction is sought to be

(7) cri.appln 192.17

issued under Section 156(3) of the Cr.P.C. against a public servant in

respect of any act done by such public servant while acting or purporting

to act in the discharge of his official duties, a Magistrate cannot order

investigation without their being a previous sanction obtained under

Section 197 of the Cr.P.C. or under any other law for the time being in

force. The second proviso is in the nature of a deeming provision and

the person applying for sanction can proceed to file a complaint if the

sanctioning authority fails to grant sanction within ninety days of the

application for seeking sanction. In the matter before hand, when

according to the averments in the complaint, the respondent no.2 had

applied for sanction to the Superintendent of Police, Osmanabad on

27.09.2016, the amended provision of Section 156 (supra) had not come

into force and which came in force only on 01.11.2016. Therefore, when

the law did not expect her to have obtained previous sanction when she

actually applied for it, apparently no fault could be found with her in filing

complaint without such sanction.

10. However, a careful look into the facts and law would reveal

that when actually the respondent no.2 filed the complaint on

20.12.2016 the amended provision of Section 156 of Cr.P.C. were already

in force and going by the clear wording of the first proviso (supra) in fact

(8) cri.appln 192.17

the mandate of law required a Magistrate not to pass any order for

investigation under Section 156(3) except with a previous sanction.

Therefore, even though when the respondent no.2 actually sought

sanction from the Superintendent of Police, the law did not require any

such previous sanction as a condition precedent for a Magistrate to direct

investigation under Sub-section (3) of Section 156, as on the date on

which the impugned order was passed by the learned Magistrate on

23.12.2016 his powers were curtailed by the legislature and the condition

laid down by the first proviso (supra) would indeed go to the root of the

jurisdiction of a Magistrate in directing investigation under that provision.

In short, as on the date of which the learned Magistrate passed the order

directing such investigation by the impugned order, his jurisdiction was

circumscribed by the newly added proviso. When admittedly no sanction

was obtained before passing of the impugned order, the learned

Magistrate had no jurisdiction to issue direction for the investigation.

11. True it is, as is observed in the matter of Rajib Ranjan

(supra), hypothetically a distinction can indeed be made in respect of the

acts which can be said to be done while acting or purporting to act in the

discharge of official duties and such other acts which do not form part of

the official duties but done during the course of the employment.

(9) cri.appln 192.17

However, this analogy in our considered opinion does not apply to the

facts in the matter before hand. Even assuming for the sake of

arguments that the suicidal note was in the custody of the applicant and

he failed to act upon it may be with a view to shield the money lender,

his such act in not transmitting the suicidal note to the handwriting

expert or misleading the respondent no.2 by falsely stating about having

already forwarded the suicidal note for handwriting examination would

amount to an act done by him in discharge or purported discharge of his

official duties. Consequently, the respondent no.2 cannot seek any

benefit from the decision in the case of Rajib Ranjan (supra).

12. In substance, we conclude that the learned Magistrate had no

jurisdiction to pass the impugned order directing investigation for want of

sanction and for this reason alone the application deserves to be allowed

in toto.

13. Even otherwise, independent of the above reasoning,

applying the principles laid down by the Supreme Court in the case of

Bhajanlal (supra), even by accepting the allegations made in the

complaint lodged by the respondent no.2 as it is, neither of the offences

registered by the Police viz., Section 306, 167 and 120-B read with

Section 34 of the Indian Penal Code can be made out. It seems that

( 10 ) cri.appln 192.17

simply because in the complaint filed by the respondent no.2 these

sections have been mentioned the Police seem to have registered the

offence under those sections only. In our considered view whenever a

direction is issued by a Magistrate by invoking powers under Section

156(3) of Cr.P.C., the rights of the Investigating Officer are not curtailed

or circumscribed by such direction and it shall always be open for the

Investigating Officer to carry out the investigation freely. The direction

under Section 156(3) of the Cr.P.C. is only to enable the police to register

the offence and to carry out investigation and it is always open for the

Investigating Officer to apply such sections as would be revealed, as a

result of the investigation carried out by him.

14. However, when the allegations in the complaint do not make

out even prima facie the necessary ingredients for the offence registered

in the matter in hand, the F.I.R. deserves to be quashed.

15. It is necessary to mention here that the Superintendent of

Police, Osmanabad in his affidavit has specifically stated that it was a

lapse on the part of the present applicant in not promptly taking steps in

accordance with law in respect of the suicidal notes. It has also been

made abundantly clear that department is proceeding against the

( 11 ) cri.appln 192.17

applicant for disciplinary action. Be that is it may, the observations

made herein-above are only restricted in respect of decision of this

application and shall not affect the disciplinary proceedings which shall

be conducted independently.

15. In the circumstances, for more reasons than one the

application deserves to be allowed and is accordingly allowed. Rule is

made absolute in terms of prayer clause 'B' and 'C'.

      [MANGESH S. PATIL, J.]                      [S.S. SHINDE, J.]

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