Bombay High Court
Devidas S/O Waman Shinkar And ... vs The State Of Maharashtra And Anr on 8 September, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 379 OF 2017
1. Devidas S/o Waman Shinkar,
Age : 70 years, Occ : Business,
2. Uday S/o Devidas Shinkar,
Age : 48 years, Occ : Business,
3. Dr. Abhay S/o Devidas Shinkar,
Age : 44 years, Occ : Doctor,
4. Sau. Vimalbai W/o Devidas Shinkar,
Age : 68 years, Occ : Household,
Petitioner Nos. 1 to 4 are
R/o : Plot No.1411,
Shinkar Matrusadan, Lane No.4,
Dhule, Tq. & Dist. Dhule.
5. Arun S/o Soniram Shinkar,
Age : 68 years, Occ : Household,
6. Sau. Savita Arun Shinkar,
Age : 48 years, Occ : Household,
7. Shri. Shashikant S/o Soniram Shinkar,
Age : 48 years, Occ : Household,
Petitioner Nos. 5 to 7 are
R/o : 704, Silver Bel,
Yogi Park, Baner, Pune.
8. Sau. Pramila Shashikant Shinkar,
Age : 48 years, Occ : Household,
R/o : Deopur, Dist. Dhule.
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9. Shri. Ajay S/o Prabhulal Kasodekar,
Age : 50 years, Occ : Business,
R/o : Garud Colony, Nakane Road,
Deopur, Dist. Dhule.
10. Shri. Kapurchand Laxman Baviskar,
Age : 55 years, Occ : Service,
R/o : 24, Govardhan Nagar,
Near Chavra School, Devpur,
Dhule, Dist. Dhule.
11. Anil S/o Gangadhar Songire,
Age : 50 years, Occ : Business,
R/o : Lane No.6, near Bhayanghy
Maruti Gym, Dhule, Dist. Dhule.
12. Sanjay S/o Vitthal Amrutkar,
Age : 51 years, Occ : Service,
working as a Manager of Dadasaheb
Waman Vishnu Shinkar
Nagari Sahakari Pathpedi Ltd.,
Dhule.
PETITIONERS
-VERSUS-
1. The State of Maharashtra,
Through its Police Inspector,
Deopur Police Station, Dhule,
Tq. & Dist. Dhule.
2. Ashok S/o Shravan Patkar,
Age : 61 years, Occ : Agricultural,
R/o : 17, Patkar Nagar, Devpur,
Dhule, Dist. Dhule.
RESPONDENTS
...
Mr. P.M. Shah, Senior Counsel i/b Mr. D.S.
Bagul, advocate for petitioners.
Mr. V.M. Kagne, APP for Respondent No. 1 -
State.
Mr. C.R. Deshpande, advocate for Respondent
No.2.
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CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 18.07.2017
Pronounced on : 08.09.2017
JUDGMENT: (Per S.S.Shinde, J.):
Rule. Rule made returnable forthwith
and heard finally with the consent of learned
counsel appearing for the parties.
2. This Petition is filed with the
following prayers :-
"C. By way of appropriate order or
direction in the like nature, the
impugned proceeding bearing No.
22/2017 filed by present respondent
no.2 in the Court of learned District
Sessions Court, Dhule under sections
406, 409, 417, 418, 420, 467, 468,
471, 120-B and 34 of the Indian Penal
Code and under sections 3 and 4 of the
M.P.I.D. Act, may kindly be quashed
and set aside.
D. By way of appropriate order or
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direction in the like nature, the
impugned order dated 28.02.2017 passed
by the learned District and Sessions
Judge, Dhule in proceeding bearing
No.22/2017 filed by present respondent
no.2 in the Court of learned
Additional Sessions Court, Dhule under
sections 406, 409, 417, 418, 420, 467,
468, 471, 120-B and 34 of the Indian
Penal Code and under sections 3 and 4
of the M.P.I.D. Act, may kindly be
quashed and set aside.
E. By way of appropriate order or
direction in the like nature, the
F.I.R. bearing Crime No. 14/2017
registered with Deopur Police Station
in pursuance to the order dated
28.02.2017 passed by the learned
District and Sessions Court, Dhule for
the offence punishable under sections
406, 409, 417, 418, 420, 467, 468,
471, 120-B and 34 of the Indian Penal
Code and under sections 3 and 4 of the
M.P.I.D. Act, may kindly be quashed
and set aside."
3. Learned Senior counsel appearing for
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the petitioners submits that, initially, on
10th April, 2016, present respondent no.2
approached the Police Officer under section
154(1) of Code of Criminal Procedure (for
short Cr.P.C.) with a single allegation that,
the accused while repaying the loan has
availed concession/rebate on the rate of
interest of loan. Thereafter, he filed the
complaint under the provisions of Indian
Penal Code bearing Criminal Misc. Application
No.875/2016 in the Court of Judicial
Magistrate, First Class at Dhule. Thereafter,
the Judicial Magistrate, First Class vide its
order dated 12th August, 2016 passed the order
that, "I do not think it necessary to send
the case for investigation under section
156(3) of Cr.P.C.. Hence put up for
verification". He submits that, thereafter
the Judicial Magistrate, First Class, vide
its order dated 17th August, 2016 directed the
complainant to lead evidence vide Section
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202(1) of Cr.P.C. Lastly, the Judicial
Magistrate, First Class vide order dated 6th
September, 2016 fixed the matter for
argument. He submits that, on 21st December,
2016, the complainant has withdrawn the
Criminal Complaint on the pretext that, he
got more documentary evidence after inquiry
under the Right to Information Act. As such,
there is sufficient evidence against the
accused for commission of an alleged
offences, therefore, he had withdrawn the
said complaint with permission to file a
fresh complaint.
4. Learned Senior counsel submits that,
after withdrawal of the said complaint, the
complainant was duty bound to first approach
under section 154 of Cr.P.C. to an officer
Incharge of Police Station, and to produce
the additional material, which he has
received under Right to Information Act.
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However, without availing of the remedy under
section 154 of Cr.P.C., an immediately within
a period of two months from withdrawing an
earlier complaint and without producing any
additional material/allegations, present
respondent no.2 has filed Criminal Misc.
Application No.22/2017, before the District
and Sessions Court, Dhule, by merely adding
sections 3 and 4 of the Maharashtra
Protection of Interest of Depositors (In
Financial Establishment) Act, 1999 (for short
M.P.I.D. Act, 1999). He submits that, the
District and Sessions Judge, Dhule, while
passing the impugned order dated 28th
February, 2017, has not applied his mind, and
further directed registration of an offence
taking recourse to section 156(3) of Cr.P.C.,
without assigning single reason and in
contravention of the order passed by the
Supreme Court of India in the case
of Priyanka Srivastava and another V/s
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State of Uttar Pradesh and others 1. He
submits that, it appears from the record
of the District Court and perusal of Criminal
Misc. Application No. 22/2017 filed by
present respondent no. 2 (complainant) that,
the same was filed without there being any
affidavit in support of averments in said
application filed under section 156 (3) of
the Cr.P.C. It is observed by the Supreme
Court in the case of Priyanka Srivastava
(supra) that, an affidavit duly sworn by the
complainant makes him more responsible, it is
because, once the affidavit is found false,
he would be liable for prosecution in
accordance with law. The Magistrate is duty
bond to verify veracity of the same and
the nature of the allegations of the case.
In the present case, the trial Court has
failed to follow the law laid down by the
Hon'ble Supreme Court in the case of
1 2015(6) S.C.C. 287
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Priyanka Srivastava (supra).
5. Learned Senior Counsel further
submits that, respondent no.2 in the present
case should have filed the affidavit in terms
of dictum of the Hon'ble Supreme Court of
India, which should have been consist of
(i) previous complaint, if any, the orders
passed by the Court on that complaint, if
any, subsequent events and the information
received after filing of the said complaint,
(ii) Delay in lodging complaint, (iii) The
application filed under section 154(1)
contains same allegation as impugned
proceeding and (iv) The orders passed by any
competent court in any proceeding touching
the same subject of impugned proceeding. He
submits that, even though petitioner nos.1,
2, 9, 10 and 11 are the Directors of
Dadasaheb Waman Vishnu Shinkar Nagari
Sahakari Pathpedi Ltd., Dhule (hereinafter
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referred to as "the Pathpedi"), and
therefore, the provisions of sections 3 and 4
of M.P.I.D. Act are not applicable to the Co-
operative Society, there is no whisper in the
impugned order dated 28th February, 2017 as to
how the provisions of sections 3 and 4 of the
M.P.I.D. Act, would attract, or to whom the
deposits are not returned.
6. Learned senior counsel further
submits that, the complainant and his wife
availed the loan facility from the said
Pathpedi and since they failed to repay the
said loan amount, the Pathpedi obtained the
Recovery Certificate under Section 101 of the
Maharashtra Co-operative Societies Act, 1960
(M.C.S. Act, 1960). He submits that, in order
to repay the said loan amount, the
complainant and his wife issued two different
cheques; the said cheques were dishonored. As
such the Pathpedi filed two different
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proceedings bearing S.T.C. No. 4246/2003
(Dadasaheb Waman Vishnu Shinkar Nagari
Patpedhi Ltd., V/s Ashok Shravan Patkar) and
S.T.C. No.4247/2003 (Dadasaheb Waman Vishnu
Shinkar Nagari Pathpedi V/s Ashok Shravan
Patkar) under section 138 of the Negotiable
Instruments Act (for short N.I. Act). Learned
senior counsel submits that, the Judicial
Magistrate, First Class on 30th June, 2005
after recording the evidence, convicted
present respondent no.2 in S.T.C.
No.4247/2003 (Dadasaheb Waman Vishnu Shinkar
Nagari Pathpedi V/s Ashok Shravan Patkar).
The Magistrate on 5th July, 2005 after
recording evidence convicted the wife of
present respondent no.2 in S.T.C.
No.4246/2003 (Dadasaheb Waman Vishnu Shinkar
Nagari Pathpedi V/s Ashok Shravan Patkar).
7. It is further submitted that, the
Joint Charity Commissioner appointed present
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respondent no.2 as a fit person under section
41(D), on the trust namely "Ladshakiya Wani
Samaj Sanstha" registered by present
petitioner no.1 and his family members. The
family members of petitioners approached
High Court by filing Writ Petition
No.7256/2010 (Shri Nandlal Taniram Sonje and
others V/s The State of Maharashtra and
others) and the High Court by considering the
past record of respondent no.2 quashed the
appointment of present respondent no.2 as a
fit person. He submits that, the Advocate
General of Maharashtra State has prosecuted
the present respondent no.2 under the
provisions of the Maharashtra Vexatious
Litigation (Prevention) Act, 1971. Learned
Senior counsel submits that, in order to take
revenge, respondent no.2 has filed the
present proceeding against the family members
of Shinkar family. The present proceeding is
not initiated against all the Directors of
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Pathpedi, however, the same is initiated by
adopting the method of pick and choose
policy, that too members of Shinkar family
only. One of the allegation in
complaint/proceeding is that, petitioner nos.
1, 2, 3, 4, 8, 9 and 10 have taken
concession/rebate on the rate of interest of
loan. However, the proceeding shows that,
present respondent no.2 has not filed
affidavit duly sworn by him indicating
that, how many persons have taken
concession/rebate on the rate of interest of
loan, and which provisions of law have been
flouted while sanctioning concession/rebate
on the rate of interest. Learned counsel
submits that, it is a matter of record that,
present respondent no.2 and his wife has also
availed the facility of concession/rebate on
the rate of interest of loan. Though present
respondent no.2 has filed interventions in
Writ Petition no.3330/2014 (Shri Devidas
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Waman Shinkar and others V/s The State of
Maharashtra and others) and Writ Petition
No.7883/2015 (Shri Devidas Waman Shinkar and
others V/s The State of Maharashtra and
others), present respondent no.2 deliberately
with an ulterior motive for wreaking
vengeance, withheld the said orders from the
District and Sessions Court. Therefore,
learned senior counsel submits that, the
complaint/proceeding instituted by respondent
no.2, is manifestly attended with malafide
and/or the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance. In support of aforesaid
contentions, the reliance is also placed on
the exposition of law by the Hon'ble Apex
Court in the case of State of Haryana V/s
Bhajan Lal2.
8. Learned senior counsel submits that,
2 1992 AIR (SC) 604
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the allegations in the first information
report or the complaint, even if taken at its
face value and read in its entirety, the same
does not constitute any offence or make out a
case against the petitioners. He submits
that, the allegations made in the first
information report or the complaint are so
absurd and inherently improbable on the basis
of which no prudent person can ever reach to
a conclusion for proceeding against the
accused. The allegations clearly depicts that
the present proceeding manifestly attended
with malafide and/or the same is instituted
with an ulterior motive to take revenge
against Shinkar family only. Learned Senior
counsel submits that, the complainant has
neither made all the Directors as a party
accused nor made any allegations against the
said Directors. Therefore, this is nothing
but a pick and choose policy adopted by
respondent no.2 just to settle his personal
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grudge.
9. It is further submitted that, Bombay
High Court at Principal Seat in the case of
Sayed Anwar Ahmed and ors V/s The State of
Maharashtra and ors3 has reiterated the view
taken by the Supreme Court in the case of
Priyanka Srivastava (supra).
10. So far as, an allegation in first
information report against petitioner no.1
Shri Devidas S/o Waman Shinkar that the order
under Sections 88 and 98 of the Maharashtra
Co-operative Societies Act, 1960 is passed in
the year 2012, and the liability of
Rs.1,03,29,152/- is fixed upon him is
concerned; it is submitted that, both the
orders dated 31.03.2012 and recovery
certificate dated 30.08.2012 issued under
section 98 are challenged before the High
3 MANU/MH/0680/2017
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Court by filing Writ Petition No. 3330 of
2014 (Shri. Devidas Waman Shinkar and others
V/s The State of Maharashtra and others), and
High Court vide order dated 8th August, 2014
has granted stay to the enforcement of both
the orders. It is further submitted that,
after the orders were passed, the Pathpedi
has recovered Rs.1.43 Crores by taking an
action under section 101 of the M.C.S. Act
and under section 138 of the Negotiable
Instruments Act. It is submitted that, the
orders are of the year 2012. In view of the
proposition laid down by the Supreme Court in
the case of Priyanka Srivastava (supra), more
particularly, in para 31, present respondent
no.2 should have filed affidavit giving
explanation of delay and the Magistrate
should have applied its mind on the aspect of
delay.
11. So far as, allegation in first
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information report against petitioner no.1
that, he has withdrawn excess amount from the
cash credit account is concerned, it is
submitted that, the cash credit account was
closed long back in the year 2004 by paying
interest @ 16% to 18% per annum. Petitioner
no.1 has paid an amount of Rs.74,13,557/-
towards interest only.
12. It is submitted that, already C.R.
No.97/2013 is registered for purchase of
Mangal Karyalaya by the Department and
charge-sheet bearing No.660 of 2014 is filed
and therefore, in view of provisions of
Article 20(2) of the Constitution of India,
no person shall be prosecuted and punished
for the same offence more than once. In
respect of allegations of purchase of Mangal
Karyalaya by Pathpedi are concerned, it is
submitted that, already the F.I.R. is
registered and the charge-sheet is filed,
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therefore, in view of law laid down by the
Supreme Court in the case of T.T. Antony V/s
State of Kerala and others4, in particular,
paras 26 and 27 thereof, the second F.I.R.
crime No. 14/2017 registered on the basis of
the impugned order is not maintainable. It is
submitted that, so far registration of R.C.C.
No. 566 of 2007 is concerned, it is submitted
that, the High Court in Criminal Writ
Petition No. 496/2007 (Dadasaheb Waman Vishnu
Shinkar Nagari Sahakari Pat Sanstha Ltd., V/s
The State of Maharashtra and others) has
quashed the proceedings in R.C.C. No.
566/2007.
Another allegation against
petitioner no.1 that, he has availed the
concession/rebate on interest of loan account
is concerned, it is submitted that, on this
charge, proceeding under section 88 of the
4 (2001) 6 SCC 181
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M.C.S. Act, was initiated, however, no charge
is fixed. It is also submitted that, this
Court in Writ Petition No.7883/2015 (Shri
Devidas S/o Waman Shinkar and others V/s The
State of Maharashtra and ors) vide order
dated 3rd August, 2015 granted stay to the
said proceeding initiated under section 88.
It is also submitted that, the Commissioner
for Co-operation issued circulars dated 30th
October, 1998, 1st April, 2004 and 27th
April, 2006 and further reduced the rate of
interest of loan of Credit Societies. It is
also submitted that, by passing the
Resolution in the Annual General Body
meeting, the Pathpedi has unanimously
resolved and accepted the said circulars and
further given rebate on interest to all the
loan accounts. It is also submitted that, the
Pathpedi has given rebate on interest amount
to near about 452 loan account holders.
Respondent no.2 and his wife have also
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availed the said benefit of rebate on an
interest amount. It is submitted that, as per
bye-law no.1.11 of the Pathpedi, the rate of
interest is 16%. The petitioner no.1 has paid
interest on the loan amount at the rate of
16% to 18%. The rebate is given in the year
2004 and account is made Nil in the year
2004, as such there is delay in lodging the
complaint and present respondent no.2 has not
offered any explanation of 13 years or delay
in making such grievance.
13. So far as an allegation against
petitioner no.2 - Uday S/o Devidas Shinkar
that, he has availed of the concession/rebate
on interest of loan account is concerned, it
is submitted that, already his loan account
is made Nil in the year 2005, and therefore,
the said allegation cannot survive, and there
is no question of further investigation of
the said allegation.
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14. So far as an allegation against
petitioner no.3 - Dr. Abhay S/o Devidas
Shinkar that, he has availed of
concession/rebate on interest of loan account
is concerned, it is submitted that, he is not
the Director or employee of the said Pathpedi
and his account is already made Nil in the
year 2005 itself.
15. So far as an allegation in respect
of petitioner no.4 Sau. Vimal Devidas Shinkar
that the order under sections 88 and 98 of
the M.C.S. Act is passed in the year 2002 is
concerned, it is submitted that the said
order is challenged before the High Court in
the aforementioned Writ Petition
No. 3330/2014 (Shri Devidas Waman Shinkar and
others V/s The State of Maharashtra and
others). Even the allegation in respect of
availing of concession/rebate on interest of
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loan account is concerned, the case of
petitioner no.4 is like petitioner no.1. It
is submitted that, F.I.R. bearing C.R. No.698
of 2012 is registered wherein petitioner no.4
is an accused, and therefore, on the same set
of allegations, petitioner no.4 cannot be
prosecuted or punished in view of the
provisions of Article 20(2) of the
Constitution of India. The registration of
second F.I.R. on the same set of allegations
like made in C.R. No. 698/2012 is not
permissible in view of the law laid down by
the Supreme Court in the case of T.T. Antony
(supra).
16. It is submitted that, there is
allegation against petitioner no.5 - Shri
Arun Shinkar that, on 31st March, 2006 he has
availed loan facilities and the same was not
repaid. It is submitted that, in respect of
the said allegation already C.R. No.92/2016
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is registered with Deopur Police Station
under sections 420, 465, 466, 467, 471, 406
read with 34 of I.P. Code and under sections
3 and 4 of the M.P.I.D. Act at the instance
of Shri Bhupesh Devidas Patil Auditor, and
therefore, the second F.I.R. is not
maintainable on the same set of allegation.
So far as petitioner no.6 - Sau.
Savita Arun Shinkar is concerned, he is wife
of accused no.5 and she has not availed of
any loan. She is neither director nor
employee of the said Pathpedi.
17. It is submitted that, so far an
allegation of order passed under sections 88
and 98 of the M.C.S. Act, 1960 in the year
2012 as against petitioner no.7 is concerned,
it is submitted that, the same is subject
matter of Writ Petition No. 3330/2014 (Shri
Devidas Waman Shinkar and others V/s The
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State of Maharashtra and others) and the same
arguments, which are already advanced qua
petitioner no.1, are also adopted in the case
of petitioner no.7. Already C.R. No. 97/2013,
making allegations in respect of purchase of
Mangalkaryalaya is already registered against
petitioner no.7, and therefore, on the same
set of allegations the second F.I.R. i.e.
Crime No. 14/2017, is not maintainable.
18. It is further submitted that, so far
as petitioner no.8 - Sau.Pramila Shashikant
Shinkar is concerned, she is already made
accused in C.R. No. 97/2013, and therefore,
on the same set of allegations, there cannot
be second FIR in respect of purchase of
Mangalkaryalaya. So far availing of any
concession/rebate on the rate of interest on
the borrowed amount of petitioner no.8 is
concerned, it is submitted that, the loan
transaction is of 2006. She was neither
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Director nor the employee.
19. So far as allegations against
petitioner no.9 - Shri Ajay S/o Prabhulal
Kasodekar in respect of recovery certificate
issued against the father of petitioner is
concerned, the same is the subject matter of
Writ Petition No. 3330 of 2014 (Shri Devidas
Waman Shinkar and others V/s The State of
Maharashtra and others) and along with
petitioner no.1, he is also one of the
petitioner in the said Writ Petition. It is
submitted that, the recovery certificate was
not issued in respect of the petitioner. The
said certificate was issued against the
father of petitioner no.9. It is submitted
that, so far as concession/rebate on the rate
of interest is concerned, it is submitted
that, the loan transaction is of 2004 to 2006
and the said account is made Nil in the year
2006, and the explanation offered by
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petitioner no.1 in respect of allegation of
availing of concession/rebate on the rate of
interest is also applicable in the case of
petitioner no.9.
20. So far as allegations against
petitioner no.10 Shri Kapporchand Baviskar is
concerned, it is submitted that, he has
became the Director in the year 2015 and the
allegations made in the first information
report that, he is the close relative of
Shinkar family and the present Managing
Committee members, are not maintainable
against him. The allegations which relates to
the period, prior to year 2006 cannot be made
applicable in the case of petitioner no.10.
21. So far as allegation against
petitioner no.12 - Shri Sanjay Amrutkar in
respect of the concession/rebate on rate of
interest is concerned, it is submitted that,
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since he has not taken loan, the question of
availing of concession/rebate of rate of
interest does not arise. Therefore, learned
senior counsel relying upon the pleading in
the Petition, grounds taken therein and
annexures thereto, submits that the Petition
may be allowed.
22. Learned counsel appearing for
respondent no.2 submits that, since already
the first information report is registered
pursuant to the directions issued by the
Additional Sessions Judge, Dhule, it is not
desirable to quash the first information
report. It is submitted that, it is observed
by the Sessions Court that, without carrying
out proper investigation, it is not desirable
to issue process against accused by the Court
at initial stage. Thus the Additional
Sessions Judge has not taken the cognizance
and referred the matter to the police. It is
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submitted that, in view of the above,
position, the order passed by the Sessions
Court on 28th February, 2017 cannot be
challenged by way of filing Writ Petition or
application under section 482 of the Cr.P.C.
The only remedy available is to file the
criminal revision application before the
appropriate Court. In support of the
aforesaid contentions, the reliance is placed
on the judgment of the Division Bench of the
Bombay High Court Bench at Aurangabad in Writ
Petition No.159/2014 (Avinash S/o Trimbakrao
Dhondage V/s The State of Maharashtra and
another decided on 21st October, 2015) and
connected matters thereto. It is submitted
that, the said judgment has been confirmed by
the Supreme Court.
23. The Supreme Court in the case of
HDFC Securities Limited and others V/s State
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of Maharashtra and another5 has laid down the
law that the order passed under section
156(3) directing registration of the first
information report and submission of report
after investigation, if challenged by way of
filing Writ Petition or under section 482 of
Cr.P.C., the same is premature challenge. It
is submitted that, therefore, the Supreme
Court in the said case held that the stage of
taking the cognizance arises only after the
investigation report is filed before the
Magistrate concerned. Therefore, the
challenge to an order under section 156(3) of
Cr.P.C. is premature, as the stage of
cognizance comes after the report is filed by
the police after completing the
investigation. It is submitted that, after
making compliance of the provisions of
sections 154(1) and 154(3) by the
complainant, there are averments made in the
5 (2017) 1 SCC 640
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complaint. Learned counsel invites our
attention to para 15 of the complaint filed
before the Sessions Court and submits that
the complaint was filed in Deopur Police
Station by respondent no.2. Thereafter, as
the cognizance was not taken, on 18th April,
2016, the complaint was filed before the
Superintendent of Police, Dhule. The said
complaint is filed after full-fledged
compliance of provisions of sections 154(1)
and 154(3) of the Cr.P.C. On the basis of the
complaint filed by respondent no.2 i.e.,
original complainant, the Superintendent of
Police, Dhule had issued letter to the Police
Inspector of Deopur Police Station, Dhule to
register the crime if the offence is made
out. It is submitted that, in the case of
Priyanka Shrivastav (supra), the Supreme
Court was pleased to direct that, the
application under section 156(3) of Cr.P.C.
should be supported by the affidavit. The
379.17WP.odt+
said directions have been issued only with a
view that, if the averments in the
application are found false, the appropriate
legal action can be taken against the
complainant/applicant. Non-filing of the
affidavit in support of the application is an
irregularity covered under section 460 of
Cr.P.C., which does not vitiate the
proceedings. Even otherwise, the complainant
cannot be directed to file the affidavit in
support of his complaint application.
24. It is submitted that, while deciding
the Writ Petition No. 3713 of 2015 in case of
Enercon GMBH a Company V/s The State of
Maharashtra, the judgment is relied upon by
the petitioners in Criminal Writ Petition
No.379/2017 and the point decided relates to
compliance of the provisions of sections
154(1) and 154(3) of Cr.P.C. and point of
requirement of affidavit along with the
379.17WP.odt+
application under section 156(3) of Cr.P.C.
had not been adjudicated in the said case. It
is submitted that, it is true that,
respondent no.2 had filed Criminal Misc.
Application No.817/2016 before the Chief
Judicial Magistrate, however, the same was
withdrawn and to that effect respondent no.2
has disclosed the said fact in the complaint.
It is submitted that, there are avernments in
the complaint, which would attract the
offences under the provisions of M.P.I.D.
Act. The complainant/applicant has enclosed
the important evidence from which the
offences under sections 406, 409, 417, 418,
467, 468, 471, 120(B) read with 34 of the
Indian Penal Code and offence under the
M.P.I.D. Act are prima facie evident. It is
submitted that, it is true that, the
complainant and his wife were convicted for
the offence punishable under section 138 of
the Negotiable Instruments Act, 1881 and the
379.17WP.odt+
sentence till rising of the Court was
ordered. Infact the complainant and his wife
have deposited the amount in that case, but
still the financial institute continued the
proceeding. The said fact cannot be a reason
to say that, the complaint is malafide. It is
submitted that, the allegations in respect of
cancellation of appointment of the
complainant in connection with "Ladshakhiya
Wani Samaj Sanstha" have no concern with the
present complaint. It is further submitted
that, the other factors stated by the
petitioners against the complainant are the
statements disclosing the entire story or
happening, so also the circumstances. The
said factors are being brought before this
Court only to cause prejudice against the
complainant and the said facts have no
concern with the prayers in the Petition and
the impugned order.
379.17WP.odt+
25. It is submitted that, the various
submissions made by the petitioners about
their non-involvement in the offence or
involvement of others into the crime in
question are their probable defence, however,
the same cannot be taken into consideration
at this preliminary stage, where the order
passed under section 156(3) is under
challenge in Criminal Writ Petition. It is
submitted that, the complaint application was
filed by the complainant on 10th April, 2016
in Deopur Police Station, Dhule and on 18th
April, 2016, he had filed the application
before Superintendent of Police, Dhule. So
also there is report of Deopur Police Station
dated 2nd June, 2016, wherein it is stated in
column no.16 that "izHkkjh vf/kdkjh ;kaph f'kQkjl
Lor% pkSd'kh dsyh vkgs-" and from this it is
evident that, the concerned Police Officer
had made the inquiry and recommended for
registration of the crime. In other words, it
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is the satisfaction of the Police Officer,
that, the cognizable offence has been prima
facie made out. In these circumstances, it
was the bounden duty of the police to
register the crime and to investigate the
same. In support of abovesaid contentions,
the learned counsel placed reliance on the
exposition of law by the Supreme Court in the
case of Ramesh Karmari V/s State (N.C.T. of
Delhi) and ors6. It is submitted that, on the
basis of the order dated 28th February, 2017,
the crime no. 14 of 2017 has been registered
in Deopur Police Station, Dhule. The
investigation has been commenced and
thereafter some of the accused have been
arrested by the Police. The statements of
some of the witnesses must have been
recorded. What is done by the police would be
nullified if the first information report is
quashed at this stage, when the investigation
6 AIR 2006 S.C. 1322
379.17WP.odt+
has been substantially proceeded. If the
police found that, the first information
report is false, the police would take
appropriate action against the complainant.
If the first information report is quashed
the serious crime would remain uninvestigated
even after the registration of crime.
Therefore, learned counsel appearing for
respondent no.2 submits that, the Petition
may be rejected.
26. Learned A.P.P. appearing for the
respondent/State submits that, pursuant to
the directions issued by Additional Sessions
Judge, Dhule vide order dated 28th February,
2017, the F.I.R. bearing C.R. No. 14 of 2017
is registered and pursuant to registration of
said F.I.R., the investigation has been
carried out. He further submits that,
Mr.Bhupesh Devidas Patil, the Auditor has
also registered the F.I.R. bearing C.R.
379.17WP.odt+
No.92/2016 for the offences punishable under
Sections 420, 465, 466, 467, 471, 408 read
with 34 of the I.P. Code and under Sections 3
and 4 of the M.P.I.D. Act. The said F.I.R.
is registered on the basis of the enquiry
made by the Auditor and also the audit report
and in pursuance to the directions issued by
the Divisional Joint Registrar. He further
submits that, crime no.97/2013 is registered
alleging illegalities committed by the
Pathpedi while purchasing the Mangal
Karyalaya.
27. We have heard the learned senior
counsel appearing for the petitioners,
learned A.P.P. appearing for the
respondent/State and the learned Advocate
appearing for respondent no.2 at length. With
their able assistance, we have carefully
perused the pleadings in the Petition,
grounds taken therein, reply filed by
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respondent no.2 and affidavit in rejoinder
and also the written notes of arguments
submitted by the learned counsel appearing
for the petitioners, learned counsel
appearing for respondent no.2, and also
investigation papers made available for
perusal by the learned A.P.P. appearing for
respondent/State.
28. An important point raised by the
learned senior counsel appearing for the
petitioners that, respondent no.2 in the
present case did not file the affidavit duly
sworn by him in support of Criminal Misc.
application filed by him before the Sessions
Court at Dhule in terms of dictum of Hon'ble
Supreme Court of India in the case of
Priyanka Srivasta (supra) goes to the root
of the matter. Admittedly, the Criminal M.A.
No. 22/2017 filed by respondent no.2 was not
supported by the affidavit sworn by him.
379.17WP.odt+
The Supreme Court in the case of Priyanka
Srivasta (supra) held thus :-
"27. Regard being had to the aforesaid
enunciation of law, it needs to be
reiterated 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. The present is a case where the
accused persons are serving in high
positions in the Bank. We are absolutely
conscious that the position does not
matter, for nobody is above the law.
But, the learned Magistrate should take
note of the allegations in entirety, the
date of incident and whether any
cognizable case is remotely made out. It
is also to be noted that when a borrower
of the financial institution covered
under the SARFAESI Act, invokes the
jurisdiction under Section 156(3)
Cr.P.C. and also there is a separate
procedure under the Recovery of Debts
Due to Banks and Financial Institutions
379.17WP.odt+
Act, 1993, an attitude of more care,
caution and circumspection has to be
adhered to.
28. Issuing a direction stating "as per
the application" to lodge an FIR creates
a very unhealthy situation in society
and also reflects the erroneous approach
of the learned Magistrate. It also
encourages unscrupulous and unprincipled
litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous
steps with courts to bring the financial
institutions on their knees. As the
factual exposition would reveal,
Respondent 3 had prosecuted the earlier
authorities and after the matter is
dealt with by the High Court in a writ
petition recording a settlement, he does
not withdraw the criminal case and waits
for some kind of situation where he can
take vengeance as if he is the emperor
of all he surveys. It is interesting to
note that during the tenure of
Appellant 1, who is presently occupying
the position of Vice-President, neither
was the loan taken, nor was the default
made, nor was any action under the
SARFAESI Act taken. However, the action
under the SARFAESI Act was taken on the
379.17WP.odt+
second time at the instance of the
present Appellant 1. We are only stating
about the devilish design of Respondent
3 to harass the appellants with the sole
intent to avoid the payment of loan.
When a citizen avails a loan from a
financial institution, it is his
obligation to pay back and not play
truant or for that matter play possum.
As we have noticed, he has been able to
do such adventurous acts as he has the
embedded conviction that he will not be
taken to task because an application
under Section 156(3) Cr.P.C. is a simple
application to the court for issue of a
direction to the investigating agency.
We have been apprised that a carbon copy
of a document is filed to show the
compliance with Section 154(3),
indicating it has been sent to the
Superintendent of Police concerned.
29. At this stage it is seemly to state
that power under Section 156(3) warrants
application of judicial mind. A court of
law is involved. It is not the police
taking steps at the stage of Section 154
of the Code. A litigant at his own whim
cannot invoke the authority of the
Magistrate. A principled and really
379.17WP.odt+
grieved citizen with clean hands must
have free access to invoke the said
power. It protects the citizens but when
pervert litigations takes this route to
harass their fellow citizens, efforts
are to be made to scuttle and curb the
same.
30. In our considered opinion, a stage
has come in this country where Section
156(3) Cr.P.C. applications are to be
supported by an affidavit duly sworn by
the applicant who seeks the invocation
of the jurisdiction of the Magistrate.
That apart, in an appropriate case, the
learned Magistrate would be well advised
to verify the truth and also can verify
the veracity of the allegations. This
affidavit can make the applicant more
responsible. We are compelled to say so
as such kind of applications are being
filed in a routine manner without taking
any responsibility whatsoever only to
harass certain persons. That apart, it
becomes more disturbing and alarming
when one tries to pick up people who are
passing orders under a statutory
provision which can be challenged under
the framework of the said Act or under
Article 226 of the Constitution of
379.17WP.odt+
India. But it cannot be done to take
undue advantage in a criminal court as
if somebody is determined to settle the
scores.
31. We have already indicated that there
has to be prior applications under
Sections 154(1) and 154(3) while filing
a petition under Section 156(3). Both
the aspects should be clearly spelt out
in the application and necessary
documents to that effect shall be filed.
The warrant for giving a direction that
an application under Section 156(3) be
supported by an affidavit is so that the
person making the application should be
conscious and also endeavour to see that
no false affidavit is made. It is
because once an affidavit is found to be
false, he will be liable for prosecution
in accordance with law. This will deter
him to casually invoke the authority of
the Magistrate under Section 156(3).
That apart, we have already stated that
the veracity of the same can also be
verified by the learned Magistrate,
regard being had to the nature of
allegations of the case. We are
compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial
379.17WP.odt+
dispute/family disputes, commercial
offences, medical negligence cases,
corruption cases and the cases where
there is abnormal delay/laches in
initiating criminal prosecution, as are
illustrated in Lalita Kumari7 are being
filed. That apart, the learned
Magistrate would also be aware of the
delay in lodging of the FIR."
(Underlines added)
Therefore, it follows from the
authoritative pronouncement of the Hon'ble
Supreme Court in the case of Priyanka
Srivasta (supra) that, the application under
section 156 (3) of Cr.P.C. should be
supported by affidavit duly sworn by the
applicant, who seeks invocation of
jurisdiction of the Magistrate. In an
appropriate case, the learned Magistrate
would be well advised to verify the truth and
also can verify the veracity of the
allegations. This affidavit can make the
7 (2014) 2 SCC 1
379.17WP.odt+
applicant more responsible. It is observed in
the said judgment that, the Court is
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing and
alarming when one tries to pick up people who
are passing orders under a statutory
provision which can be challenged under the
framework of the said Act or under Article
226 of the Constitution of India. But it
cannot be done to take undue advantage in a
criminal court as if somebody is determined
to settle the scores.
29. As already observed, in the present
case, respondent no.2 did not support the
application by affidavit duly sworn by
him. The law laid down by the Hon'ble Supreme
Court in the case of Priyanka Srivasta
379.17WP.odt+
(supra) is binding on all subordinate Courts
exercising jurisdiction within their local
limits and situate within the territory of
India, as has been provided under Article 142
of the Constitution of India. The judgment in
the case of Priyanka Srivasta (supra) was
circulated to all the Magistrates, Sessions
Judges and High Courts. Therefore, the
Additional Sessions Judge, who passed the
impugned order, was bound by the dictum of
the Hon'ble Supreme Court in the case of
Priyanka Srivasta (supra). It is unfortunate
that, the learned Judge did not follow the
dictum of Hon'ble Supreme Court and proceeded
to pass the impugned order on the basis of
the application which was not supported by
the affidavit sworn by respondent no.2.
30. The Bombay High Court at Principal
Seat at Mumbai, in the case of Syed Anwar
Ahmed (supra) had occasion to consider the
379.17WP.odt+
fact situation of filing the application
under section 156(3) of Cr.P.C. not supported
by the affidavit sworn by the complainant.
The Division Bench has in extenso made
reference to the judgment of the Supreme
Court in the case of Priyanka Srivasta in
para 19 and also to other judgments of the
Hon'ble Apex Court in para nos. 17, 18, 20,
21, and in paras 22 to 25 held thus :-
"17. As far as power under Sub-section (3)
of Section 156 of the Cr.P.C. is
concerned, there are various decisions of
the Apex Court and this Court. In the case
of Anil Kumar and Others. v. M.K. Aiyappa
and Another MANU/SC/1002/2013 : (2013) 10
SCC, the Apex Court considered the scope
of powers under Sub-section (3) of Section
156. What is material is paragraph 11 of
the said decision which reads thus:-
"11. The scope of Section 156(3) Cr.P.C.
came up for consideration before this
Court in several cases. This Court in
Maksud Saiyed Case examined the
requirement of the application of mind
379.17WP.odt+
by the Magistrate before exercising
jurisdiction under Section 156(3) and
held that where 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 complaint, documents and hearing the
complainant, what weighed with the
Magistrate to order investigation under
Section 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."
(emphasis added)
379.17WP.odt+
18. Thus, the Apex Court held that when
the learned Magistrate orders
investigation under Sub-section (3) of
Section 156 what weighed with the learned
Magistrate to order investigation should
be reflected from his order, though a
detailed expression of his views is not
warranted. While passing an order under
Sub-section (3) of Section 156 of Cr.P.C,
surely some reasons are required to be
recorded after going through the Complaint
as well as the documents produced with the
complaint and after hearing the
complainant. The reasons should be
sufficient to indicate that the learned
Magistrate had applied his mind.
20. The relevant decisions of the Apex
Court including the decision in the case
of Lalita Kumari, were considered by
another Division Bench to which one of us
(Anuja Prabhudessai, J.) is a member. In
paragraph No. 15 of the decision dated
30th March, 2015 in Writ Petition No. 4775
of 2014 (Mr. Pandharinath Narayan Patil &
Ors. v. The State of Maharashtra and Anr.)
the Division Bench held thus:-
"15. It is thus well settled that the
powers under section 156(3) of the Code
379.17WP.odt+
cannot be exercised mechanically but are
required to be exercised judiciously.
The magistrate is not required to embark
upon an in-depth roving enquiry as to
the reliability or genuineness of the
allegations, nonetheless, he has to
arrive at a conclusion that the
application discloses necessary
ingredients of the offence for which
investigation is intended to be ordered.
Furthermore, the reasons for arriving at
such conclusion should be clearly
reflected in the order."
(emphasis added)
21. After considering the decision of the
Apex Court in the case of Lalita Kumari v.
State of U.P., the Apex Court in the case
of Priyanka, reminded the learned
Magistrates that the Court of Law is
involved when power under Sub-section (3)
of Section 156 is invoked and it is not
the case of the Police taking steps as per
Section 154 of the said Code. The Apex
Court has reminded the learned Magistrates
that there is a difference between the
Court of Law exercising the power under
Sub-section (3) of Section 156 and the
Police acting under Section 154.
Therefore, only on the ground that the
379.17WP.odt+
allegations made in the Complaint
constitute a cognizable offence, an order
under Sub-section (3) of Section 156
cannot be mechanically passed. The Apex
Court observed that the power under
Section 156(3) warrants application of
judicial mind. The mandate of law laid
down in the case of Lalita Kumari is only
against the Police in the context of
mandatory provisions of Sub-section (1) of
Section 154 of Cr.P.C. From paragraph 29
of the decision in the case of Priyanka,
it is apparent that even in a case where
the Complaint is seeking an action under
Section 156(1) discloses commission of a
cognizable offence, it is not necessary
that in every such case the learned
Magistrate should pass an order under Sub-
section (3) of Section 156. It is
ultimately the discretion of the learned
Magistrate which is to be exercised after
considering several factors. What we
emphasis even at the risk of repetition is
that only because the Complaint filed
seeking an action under Sub-section (3) of
Section 156 discloses commission of a
cognizable offence, the learned Magistrate
should not mechanically the exercise power
without application of judicial mind.
379.17WP.odt+
22. The Apex court has laid emphasis on
the complainant supporting his case under
Sub-section (3) of Section 156 of the Code
by filing an affidavit. As observed in
paragraph No. 31 of the decision, mere
filing of affidavit is not sufficient. In
a given case, the learned Magistrate will
be well advised to verify the truth and
veracity of the allegation. Advantages of
filing of such affidavit are also
mentioned in the said decision of the Apex
Court.
23. Filing of an affidavit is also not
empty formality. The manner in which
affidavit is to be filed is prescribed in
Chapter VII of the Criminal Manual
published by this Court in paragraph Nos.
1 to 5, 7 and 8:-
"1. (1) The heading of every affidavit
to be used in a Court of Justice shall
be "in the Court of....at..... ".
naming such Court.
(2) If there be a case pending in
Court, the affidavit in support of, or
opposition to, an application
respecting it, must also begin with the
heading "In the matter of the case
of..... " in the case.
379.17WP.odt+
(3) If there be no case pending in
Court heading shall be: In the matter
of the application of.
2. Every affidavit shall be drawn up
clearly and legibly and, as far as
possible, in a language which the
person making it understands. It shall
be drawn up in the first person and
divided into paragraphs numbered
consecutively, and each paragraph, as
far as may be, shall be confined to a
distinct subject or portion thereof.
3. (1) Every person making an affidavit
shall state his full name, father's
name, surname, age, profession or trade
and place of residence and shall give
such other particulars as will make it
possible to identify him clearly.
(2) The affidavit shall be signed by
him in his own hand or he shall make
his finger impression thereon.
4. Unless it is otherwise provided, an
affidavit may be made by any person
having knowledge of the facts deposed
to.
379.17WP.odt+
5. (1) Every affidavit should clearly
specify what portion of the statement
is made on the declarant's knowledge
and what portion of the statement is
made on his information or belief.
2) When a particular portion is not
within the declarant's own knowledge
but it is stated from information
obtained from others, the declarant
must use the expression "I am informed"
and if it is made on belief should add
"I verily believe it to be true." He
must also state the source or ground of
the information or belief, and give the
name and address of, and sufficiently
described for the purpose of
identification, the person or persons
from whom he had received such
information.
(3) When the statement rests on facts
disclosed in documents or copies of
documents procured from any Court or
other person, the declarant shall state
the source from which they were
procured and his information, or
belief, as to the truth of the facts
disclosed in such documents.
379.17WP.odt+
7. All erasures, errors,
interlineations, etc, in the affidavit
shall be legibly initialed and dated by
the declarant.
8. (1) The Officer authorised in this
behalf, shall, before administering the
oath ask the declarant if he has read
the affidavit and understood the
contents thereof, and if the latter
states that he has not read it, or
appears not to understand fully, the
contents thereof, or appears to be
blind, illiterate or ignorant of the
language in which it is written, the
Officer administering the oath shall
read and explain or cause some other
competent person to read and explain in
his presence the affidavit to the
declarant in the language which both
the declarant and the Officer
administering the oath understood.
(2) When an affidavit is read,
translated or explained as herein
provided the Officer administering the
oath shall certify in writing at the
foot of the affidavit that it has been
so read, translated or explained in his
379.17WP.odt+
presence and that the declarant
understood the same at the time of
making the affidavit and made his
signature or finger impression in the
presence of the Officer."
24. Thus, the requirement of law is that
every affidavit should clearly specify
what portion of the statement is made on
declarant's personal knowledge and what
portion of the statement is made on his
information or belief. When a particular
statement is made on the basis of
information and belief, the affidavit must
state that the declarant believes the said
statement to be true. Particulars of the
source or ground of information or belief
as provided in clause (2) of paragraph No.
5 of the Chapter VII of the Criminal
Manual are required to be disclosed. The
manner in which an affidavit should be
executed is also laid down in paragraph
No. 8 of Chapter VII. An affidavit filed
without substantially complying with the
requirements of Chapter VII cannot be said
to be an affidavit filed in compliance
with the directions issued by the Apex
Court in the case of Priyanka Srivastava.
As stated in the said decision, the object
of filing an affidavit is to ensure that
379.17WP.odt+
the complainant must face consequences, if
his statements made therein are found to
be false. To achieve the object of filing
an affidavit, it must substantially comply
with the requirements specified in Chapter
VII of the Criminal Manual.
25. To summarise,
"(a) While dealing with a Complaint
seeking an action under Sub-section (3) of
Section 156 of Cr.P.C, the learned
Magistrate cannot act mechanically. He is
required to apply his mind to the contents
of the Complaint and the documents
produced along with the Complaint;
(b) An Order passed on the said Complaint
must record reasons in brief which should
indicate application of mind by the
Magistrate. However, it not necessary to
record detailed reasons;
(c) The power under Sub-section (3) of
Section 156 is discretionary. Only because
on plain reading of the Complaint, a case
of commission of cognizable offence is
made out, an Order of investigation should
not be mechanically passed. In a given
case, the learned Magistrate can go in to
379.17WP.odt+
the issue of the veracity of the
allegations made in the Complaint. The
learned Magistrate must also consider the
other relevant aspects such as the
inordinate delay on the part of the
Complainant. The nature of the transaction
and pendency of civil proceedings on the
subject are also relevant considerations;
(d) When a Complaint seeking an action
under Sub-section (3) of Section 156 is
brought before the learned Metropolitan
Magistrate or the learned Judicial
Magistrate, it must be accompanied by an
affidavit in support as contemplated by
the decision of the Apex Court in Priyanka
Srivastava. The affidavit must
substantially comply with the requirements
set out in Chapter VII of the Criminal
Manual and especially paragraphs 5 and 8
which are quoted above; and
(e) Necessary averments recording
compliance with Sub-sections (1) and (3)
of Section 154 of the Cr.P.C. should be
incorporated with material particulars.
Moreover, the documents in support of the
said averments must filed on record."
In the light of discussion
379.17WP.odt+
hereinbefore, the Criminal Misc. Application
filed by respondent no.2 without supporting
the affidavit sworn by him ought to have been
held not maintainable. The contention of the
learned counsel appearing for respondent no.2
that already the directions were given by the
Superintendent of Police to the concerned
Police Officer to register the first
information report would by any stretch of
imagination cannot be said to be the
compliance of filing affidavit in support of
averments in the application, in the light of
discussion in foregoing paragraphs.
31. We have carefully perused the ground
no.1 taken in Criminal Misc. Application by
respondent no.2. The contention of the
learned counsel appearing for respondent no.2
that, not filing affidavit in support of
averments in the application/complaint is
mere irregularity cannot be accepted in view
379.17WP.odt+
of the exposition of law by the Hon'ble Apex
Court in the case of Priyanka Srivasta
(supra) and the judgment of the Division
Bench in the case of Syed Anwar Ahmed (supra)
32. The view taken by the Division Bench
in the case of Syed Anwar Ahmed (supra) is
reiterated in the case of Nirmal Bang
Securities Private Limited (Formerly M/s.
Nirmal Bang) and others V/s State of
Maharashtra8, and in para no.9 it is held
thus :-
"9. We have given careful consideration
to the submissions. As far as the
provision of Sub-Section (3) of Section
156 is concerned, the law is summarised
by this Bench in the case of Sayed Anwar
Ahmed Vs. State of Maharashtra in
Criminal Writ Petition No. 924 of 2016
decided on 27th and 28th February, 2017.
This Court has extensively considered the
decision of the Apex Court in the case of
Priyanka Srivastava as well as Lalita
Kumari v. State of Uttar Pradesh. The law
8 2017 SCC Online Bom 699
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has been summarised in paragraph 25 of
the said decision which reads thus:--
"25. To summarise,
(a) While dealing with a Complaint
seeking an action under Sub-Section (3)
of Section 156 of Cr.P.C, the learned
Magistrate cannot act mechanically. He is
required to apply his mind to the
contents of the Complaint and the
documents produced along with the
Complaint;
(b) An Order passed on the said Complaint
must record reasons in brief which should
indicate application of mind by the
Magistrate. However, it not necessary to
record detailed reasons;
(c) The power under Sub-Section (3) of
Section 156 is discretionary. Only
because on plain reading of the
Complaint, a case of commission of
cognizable offence is made out, an Order
of investigation should not be
mechanically passed. In a given case, the
learned Magistrate can go in to the issue
of the veracity of the allegations made
in the Complaint. The learned Magistrate
must also consider the other relevant
aspects such as the inordinate delay on
the part of the Complainant. The nature
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of the transaction and pendency of civil
proceedings on the subject are also
relevant considerations;
(d) When a Complaint seeking an action
under Sub-Section (3) of Section 156 is
brought before the learned Metropolitan
Magistrate or the learned Judicial
Magistrate, it must be accompanied by an
affidavit in support as contemplated by
the decision of the Apex Court in
Priyanka Srivastava. The affidavit must
substantially comply with the
requirements set out in Chapter VII of
the Criminal Manual and especially
paragraphs 5 and 8 which are quoted
above; and
(e) Necessary averments recording
compliance with Sub-Sections (1) and (3)
of Section 154 of the CrPC should be
incorporated with material particulars.
Moreover, the documents in support of the
said averments must filed on record."
In the said judgment, the Division Bench
considered the judgment in the case of HDFC
Securities Ltd., (supra) and in particular
para 16 held thus :-
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"16.Now, we turn to the decision of the
Apex Court in the case of HDFC Securities
Limited. In the said case there was an
order passed under Sub-Section (3) of
Section 156 of Cr.PC on the basis of which
FIR was registered. Writ Petitions were
filed by the appellants before the Apex
Court for quashing FIR. The Writ Petitions
were dismissed by the High Court by
holding the same as premature. The order
passed by the learned Magistrate under
Sub-section (3) of Section 156 of Cr.P.C.
is quoted in paragraph 12 which records
reasons in brief. The order shows that the
learned Magistrate had applied his mind to
the contents of the complaint and came to
the conclusion that the complaint
disclosed commission of cognizable
offence. The order was not made only on
this ground. The learned Magistrate
recorded a satisfaction that considering
the nature of the offence, it needs to be
sent to the police for investigation under
Sub-Section (3) of Section 156. The order
records that he has even perused the
documents filed along with the complaint.
Therefore, this was not a case where a
single line order was passed ordering
investigation. This was a case where the
order under Sub-Section (3) of Section 156
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disclosed that the learned Magistrate had
applied his mind to the complaint. It is
in the facts of the case before the Apex
Court that the observations were made in
paragraph 27 that the Petitions filed
before the High Court were filed at
premature stage. We are of the view, if
the order made under Sub-Section (3) of
Section 156 is illegal, the FIR registered
on the basis of the order can be quashed
to avoid abuse of process of law."
33. It is contended by the petitioners
that, respondent no.2 is habitual litigant,
various proceedings are pending against
respondent no.2. He is rival of Shinkar
family. In the year 2001, he and his wife
availed the loan facility from the Pathpedi
borrowed the loan. Said amount, which was
borrowed as loan, was not paid, which
resulted into filing the proceedings under
section 101 of the Maharashtra Co-operative
Societies Act, 1960 (for short M.C.S. Act,
1960) by the said Pathpedi. The Pathpedi
obtained Recovery Certificate under Section
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101 of the M.C.S. Act, 1960 against
respondent no.2 and his wife.
34. In reply to the aforesaid contention
of the petitioners, it is admitted by
respondent no.2 that the aforesaid
proceedings were initiated against respondent
no.2 and his wife, and they were convicted
and the sentence awarded was till rising of
the Court. There is no denial to the fact
that, the Advocate General of Maharashtra
State has prosecuted the present respondent
no.2 under the provisions of the Maharashtra
Vexatious Litigation (Prevention) Act, 1971.
Therefore, we find considerable force in the
arguments of the learned senior counsel
appearing for the petitioners that,
respondent no.2 has grudge in his mind
against the petitioners, and therefore, the
criminal proceedings i.e. filing of present
complaint by the complainant, is manifestly
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attended with malafide and maliciously
instituted with malafide intention to wreak
vengeance. The Supreme Court in the case of
"State of Haryana V/s Bhajan Lal9" in para
108 of the judgment held thus :-
"108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the extra-
ordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give
9 AIR 1992 SC 604
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an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint,
even if they are taken at their face
value and accepted in their entirety do
not prima facie constitute any offence
or make out a case against the accused.
2. Where the allegations in the First
Information Report and other materials,
if any, accompanying the F.I.R. do not
disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of
Section 155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against
the accused.
4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order of
a Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of
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which no prudent person can ever reach
a just conclusion that there is
sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.
7. Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge."
(Underlines supplied)
35. In the light of the aforesaid
discussion, the contention of the petitioners
that, the criminal proceedings are manifestly
attended with malafide and maliciously with
ulterior motive for wreaking vengeance on the
accused deserves acceptance keeping in view
the category no.7 i.e. where a criminal
proceeding is manifestly attended with mala
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fide and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the accused
and with a view to spite him due to private
and personal grudge.
36. Respondent no.2 in his application
made allegation in respect of purchase of
Mangal Karyalaya. However, in that respect
already crime No. 97 of 2013 came to be
registered. Therefore, in view of the
judgment of the Supreme Court in the case of
T.T. Antony (supra), on the same set of
allegation, crime no. 14/2017 is not
maintainable.
37. Pursuant to the directions issued by
the Divisional Joint Registrar, Co-operative
Societies to the District Social Auditor
Class-I, the Auditor has lodged the complaint
with Deopur Police Station, Dhule and on the
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basis of the said complaint, on 29th
September, 2016 the crime No.92/2016 for the
offences punishable under Sections 420, 465,
466, 467, 471 and 342 of the IP Code as well
as sections 3 and 4 of the M.P.I.D. Act has
been registered. The said complaint submitted
by the Auditor is in respect of very same
Pathpedi. In the said crime, one of
petitioners is already made accused. Since
the allegations in the said first information
report relates to the affairs of Dadasaheb
Waman Vishnu Shinkar Nagari Sahakari Pathpedi
and also about the illegalities and
irregularities committed while conducting the
affairs of the society and at the time of
disbursement of loan etc., and therefore, it
was not necessary to register the separate
offence. In the crime No.92/2016 registered
with Deopur Police Station, Dhule for the
offences punishable under Sections 420, 465,
466, 467, 471 and 342 of the IP Code as well
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as sections 3 and 4 of the M.P.I.D. Act, the
Investigating Officer is at liberty to
investigate about the allegations made even
against the present petitioners so as to find
out their role. An investigation is an
exclusive domain of the Investigating Officer
and the Investigating officer would be at
liberty to investigate even about the
involvement of present petitioners, and there
cannot be any impediment for such
investigation. Even the statement of present
respondent no.2 can also be recorded in the
said crime by the Investigating officer. It
appears that, since the Special Auditor did
not take any steps to file the complaint with
Police Station inspite of the directions by
the Superior Officer about the alleged
illegalities and irregularities committed by
the Directors, employees and borrowers etc.,
including the petitioners to register the
first information report on the basis of such
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complaint, respondent no.2 presented the
complaint before the Magistrate and the
complaint was subsequently withdrawn and
thereafter the Criminal Misc. Application No.
22/2017, was presented before the Court of
Additional Sessions Judge at Dhule. Since as
already observed the crime No. 92/2016 is
already registered on the basis of the
complaint filed by the Special Auditor on
20th August, 2016, the allegations as against
the petitioners made in the present F.I.R.
i.e. Crime No.14/2017 can also be gone into
in the said first information report. There
is no need of further investigation of said
F.I.R., which is registered pursuant to
directions issued by the Additional Sessions
Judge, Dhule.
38. There is also another reason to
cause interference in the impugned order
directing registration of the first
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information report. In the impugned order,
the cryptic reasons are assigned by the
concerned Court without assigning any single
reason how the provisions of sections 3 and 4
of the M.P.I.D. Act are attracted. While
passing the impugned order, learned Judge did
not even consider the fact that, Mohammad
Abdul Arif was working as Divisional Joint
Registrar, Co-operative Societies as public
servant and therefore, to prosecute him,
valid sanction is necessary. However, after
registration of F.I.R. pursuant to the
directions issued by the Additional Sessions
Judge, Dhule, very same learned Judge while
entertaining an application and granting
anticipatory bail to Mohammad Abdul Arif, who
was working as Divisional Joint Registrar
made observation that, there was no valid
sanction to prosecute him. Therefore, there
was no proper application of mind by the
learned Judge and as a result, by cryptic
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reasons, the impugned order is passed and on
the basis of the said order, the first
information report no.14/2017 with Deopur
Police Station for the offence punishable
under sections 406, 409, 417, 418, 420, 467,
468, 471, 120-B and 34 of I.P. Code and under
sections 3 and 4 of the M.P.I.D. Act is
registered.
39. Though the learned counsel appearing
for respondent no.2 has placed reliance on
the judgment in the case of HDFC Securities
Limited, in the facts of that case, the issue
of filing the affidavit in support of
application by the applicant/complainant
therein was not involved. In the present
case, as already observed, in the light of
mandate of the Supreme Court in the case of
Priyanka Srivasta (supra) and the judgment of
the Bombay High Court at Principal Seat in
the case of Syed Anwar Ahmed (supra), it was
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incumbent upon the learned Judge, who passed
the impugned order, to seek compliance from
respondent no.2 to file the affidavit in
support of Criminal Misc. Application. In the
facts of the present case, as already
observed the order passed by Additional
Sessions Judge is cryptic and without
assigning any valid reasons for invoking
provisions of sections 3 and 4 of the
M.P.I.D. Act. Therefore, the ratio laid down
in the case of HDFC Securities Limited cannot
be made applicable in the facts of the
present case, when there is no affidavit
sworn by respondent no.2 in support of
averments in the Misc. Application and order
suffers from non-application of mind.
However, we make it clear that, the
allegations made against the petitioners
cannot go unattended and the Investigating
Officer making investigation in Crime
No.92/2016 will be at liberty to cause the
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investigation even in respect of the present
petitioners also, since the said first
information report is lodged on the basis of
the complaint filed by the Special Auditor
with Deopur Police Station, Dhule. We further
make it clear that, there is no impediment to
the Investigating Officer to cause the
investigation keeping in view the allegations
in the first information report registered on
the basis of complaint lodged by the Special
Auditor even against the petitioners, even
though there are certain directions by the
Minister and in turn the Special Auditor
mentioned in that respect that, no offence
should be registered against Devidas Waman
Shinkar. As already observed, the
investigation is an exclusive domain of the
Investigating Officer and the Investigating
Officer is at liberty to add any
person/persons as an accused in ongoing
investigation keeping in view the allegations
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in the first information report, and can also
cause the further investigation. In
substance, the allegations made in the First
Information Report no. 14/2017 can be taken
care of in ongoing investigation in crime
no.92/2016 for the offence punishable under
Sections 420, 465, 466, 467, 471, 406 read
with section 34 of I.P. Code and under
Sections 3 and 4 of the M.P.I.D. Act, and the
Investigating Officer can record the
statement of respondent no.2.
40. The contention of the learned
counsel appearing for respondent no.2 that,
the revision as against the impugned order
passed by the Additional Sessions Judge is
maintainable, and therefore, the present
Petition under Article 226 of the
Constitution of India read with section 482
of the Cr.P.C. may not be entertained, cannot
be accepted. It needs to be emphasized that
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the scope of exercise of jurisdiction of
section 482 of Cr.P.C. is explained in
greater details by the Supreme Court in the
case of State of Haryana V/s Bhajan Lal and
various pronouncement of the Supreme Court in
recent past. The Supreme Court in the case of
Prabhu Chawla Vs. State of Rajasthan and Anr.
in Criminal Appeal No. 842 of 2016 with
Criminal Appeal No. 844 of 2016, decided on
5th September, 2016, in para 3 held thus :
3. While considering all these
matters at the SLP stage, on
05.07.2013, a Division Bench
found the impugned order of the
High Court to be against the law
stated in Dhariwal Tobacco
Products Ltd. v. State of
Maharashtra10. In that case the
Division Bench concurred with the
proposition of law that
availability of alternative
remedy of criminal revision under
Section 397 Cr.P.C. by itself
10 [2009] 2 SCC 370
379.17WP.odt+
cannot be a good ground to
dismiss an application under
Section 482 of Cr.P.C. But it
noticed that a later Division
Bench judgment of this Court in
the case of Mohit alias Sonu v.
State of Uttar Pradesh11
apparently held to the contrary
that when an order under assail
is not interlocutory in nature
and is amenable to the revisional
jurisdiction of the High Court
then there should be a bar in
invoking the inherent
jurisdiction of the High Court.
In view of such conflict, these
cases were directed to be placed
before the Hon'ble Chief Justice
for reference to a larger Bench
and that is how the matters are
before this Bench for resolving
the conflict.
41. The Supreme Court after detailed
discussion in paras 4 and 5; in para 6 of the
said judgment held thus:
11 [2013] 7 SCC 789
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6. In our considered view any
attempt to explain the law
further as regards the issue
relating to inherent power of
High Court under Section 482
Cr.P.C. is unwarranted. We would
simply reiterate that Section
482 begins with a non-obstante
clause to state: "Nothing in
this Code shall be deemed to
limit or affect the inherent
powers of the High Court to make
such orders as may be necessary
to give effect to any order
under this Code, or to prevent
abuse of the process of any
Court or otherwise to secure the
ends of justice." A fortiori,
there can be no total ban on the
exercise of such wholesome
jurisdiction where, in the words
of Krishna Iyer, J. "abuse of
the process of the Court or
other extraordinary situation
excites the court's
jurisdiction. The limitation is
self-restraint, nothing more."
We venture to add a further
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reason in support. Since Section
397 Cr.P.C. is attracted against
all orders other than
interlocutory, a contrary view
would limit the availability of
inherent powers under Section
482 Cr.P.C. only to petty
interlocutory orders! A
situation wholly unwarranted and
undesirable.
42. It clearly emerges that, the Supreme
Court approved the law laid down in the case
of Dhariwal Tobacco Products Ltd. and ors.
Vs. State of Maharashtra and another12 and
ultimately held that, the availability of
alternative remedy of criminal revision under
Section 397 of the Code of Criminal Procedure
by itself cannot be a good ground to dismiss
an application under Section 482 of the Code
of Criminal Procedure. The judgment in the
case of Dhariwal Tobacco Products Ltd.
[supra] is holding the field, since the date
12 [2009] 2 SCC 370
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of its pronouncement of the said judgment in
the year 2009.
43. It is further not necessary to
elaborate the reasons. Suffice it to say
that, in the light of discussion in the
foregoing paragraphs, we are of the
considered view that, the impugned order
passed by the Additional Sessions Judge,
Dhule, deserves to be quashed and
of 2017 registered on the basis of the same
also deserves to be quashed.
44. Accordingly, the impugned order
dated 28th February, 2017 passed by the
Additional Sessions Judge, Dhule in Criminal
Misc. Application No. 22/2017 is quashed and
set aside. Consequently, the first
information report i.e. Crime No. 14/2017
registered with Deopur Police Station for the
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offence punishable under sections 406, 409,
417, 418, 420, 467, 468, 471, 120-B and 34 of
the I.P. Code and under sections 3 and 4 of
the M.P.I.D. Act on the basis of the said
order is also quashed. Rule made absolute on
above terms.
An observations made hereinbefore on
the merits of the allegations in the first
information report No. 14/2017 are prima
facie in nature and cannot be construed as an
impediment to the Investigating Officer, who
is investigating into the F.I.R. no.92/2016
registered with Deopur Police Station, Dhule
to proceed with the investigation in
accordance with law. The Investigating
Officer is free to cause the investigation
even in respect of the petitioners in said
crime, however, in accordance with law.
45. The Registrar (Judicial), High Court
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of Judicature of Bombay, Bench at Aurangabad
shall ensure that the copy of this judgment
and order is circulated by e-mail or any
other fastest mode of communication to all
the learned Judges working in District and
Sessions Courts and also trial Courts dealing
with the criminal matters and also all
Judicial Magistrates functioning within the
territorial jurisdiction of the Bombay High
Court.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
SAG
