Abdul Kuddus S/O Abdul Hamid vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 8027 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                      Criminal Writ Petition No.333 of 2016

        Abdul Kuddus s/o Abdul Hamid,
        Aged about 70 years,
        Occupation - Retd. H.M.,
        R/o Bhadhari Pura, Mangrulpir,
        Tah. Mangrulpir, Distt. Washim.               ... Petitioner

            Versus

        1. State of Maharashtra,
           through P.S.O., Mangrulpir,
           Distt. Washim.

        2. Mohd. Matin Mohd. Amin,
           R/o Madar Takiya,
           Mangrulpir,
           Tah. Mangrulpir,
           Distt. Washim.

        3. Abdul Khalik s/o Sher Mohd,
           R/o Diwanpura, Mangrulpir,
           Tah. Mangrulpir,
           Distt. Wahsim.                             ...Respondents



        Shri J.R. Kidilay, Advocate for Petitioner.
        Smt.   Geeta   Tiwari,   Additional   Public   Prosecutor   for 
        Respondent No.1.
        Shri R.D. Karode, Advocate for Respondent No.2.




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                     Coram : R.K. Deshpande, J.

th Dated : 11 October, 2017

Oral Judgment :

1. Rule, made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

2. In Regular Criminal Case No.9 of 2015 instituted on

a complaint filed under Section 200 read with Section 190 of

the Criminal Procedure Code (Cr.P.C.) in respect of the

offences under Sections 409, 417, 420, 465, 467, 468,

471(a) read with section 34 of the Indian Penal Code, the

learned Judicial Magistrate First Class, Mangrulpir directed

conducting of investigation under Section 156(3) of Cr.P.C.

Criminal Revision No.01 of 2015 preferred against this order

is dismissed by the learned Additional Sessions Judge,

Mangrulpir on 21-1-2016. Hence this petition by the person

accused of the said offences.

3. The contention of Shri Kidilay, the learned counsel

appearing for the petitioner, relying upon the decision of the

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Apex Court in the case of Mrs. Priyanka Srivastava & Anr. v.

State of U.P. & Ors., reported in 2015 ALL SCR 1592, and the

decision of the Full Bench of this Court in the case of

Mr. Panchabhai Popotbhai Butani & Ors. v. State of

Maharashtra & Ors., reported in 2010 ALL MR (Cri) 244,

submits that unless it is alleged and demonstrated that the

complainant had approached the police authorities under

Section 154 of Cr.P.C., the Magistrate was not competent to

order an investigation under Section 156(3) of Cr.P.C.

According to him, even otherwise there is no case made out

for directing an investigation under Section 156(3) of Cr.P.C.

by the Magistrate even if it may be permissible for him in the

exceptional circumstances.

4. The law laid down by the Apex Court and by the Full

Bench of this Court in the decisions cited by the learned

counsel for the petitioner cannot be disputed. The decision

of the Apex Court in the case of State of Gujarat v. Girish

Radhakrishnan Varde, reported in (2014) 3 SCC 659, relied

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upon by Shri Karode, the learned counsel for the respondent

No.2/complainant, lays down the options for the Magistrate

exercising jurisdiction under Section 190(1) of Cr.P.C. in

para 12 of the decision. Shri Karode has also relied upon the

following decisions :

1. 2008 Cri.L.J. 1986 -

Ravendra alias Hawaldar & Ors. v. State of U.P. & Ors.

2. 2011(2) Mh.L.J. (Cri.) 605 -

Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and others.

3. AIR 2011 SC (Criminal) 1174 -

Srinivas Gundluri & Ors. v. SEPCO Electric Power Construction Corporation & Ors.

4. 2012(1) Bom.C.R. (Cri.) 267 -

Bhavrabai Parashramji Atal v. Sanjay Ramchandra Gandhewar & Anr.

5. 2014(3) Bom.C.R. (Cri.) 152 -

Savitrabai Sureshchandra Khatod (Smt.) v. State of Maharashtra

wp333.16.odt

5. It is not in dispute that the complaint is under

Section 200 of Cr.P.C. and the relief claimed in the complaint

is to punish the petitioner for the offences alleged against

him. It is not the case where the complainant has prayed for

an investigation under Section 156(3) of Cr.P.C. However,

while dealing with the complaint under Section 200 read

with Section 190(1) of Cr.P.C., it is permissible for the

Magistrate to direct an investigation under Section 156(3),

and for that purpose, he is not bound to see that there is no

complaint under Section 154 of Cr.P.C. made to the police

authorities. The contention raised by the learned counsel for

the petitioner, relying upon the decisions in Priyanka and

Panchabhai's cases, cited supra, is, therefore, rejected.

6. So far as the merits of the matter are concerned, the

learned counsel for the petitioner has invited my attention to

the proceedings undertaken by the Collector and the

Education Officer and it is urged that the report submitted

has not been taken into consideration by the Magistrate, as

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there was failure to provide an opportunity to the petitioner.

The contention cannot be accepted, for the reason that the

order of the Magistrate under Section 156(3) of Cr.P.C. is a

reasoned order, based on the relevant considerations. It was

not necessary for him to hear the petitioner before passing an

order under Section 156(3) of Cr.P.C.

7. In view of above, I do not find any substance in the

petition. The same is dismissed.

8. Rule stands discharged. No costs.

9. The learned Magistrate to proceed further in the

matter expeditiously.

JUDGE.

Lanjewar