Bombay High Court
Chikulal Hiralal Rahangdale ... vs The State Of Maharashtra, Through ... on 26 September, 2017
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.497 OF 2013.
PETITIONERS : 1. Mohammad Illiyas Mahammad Shafi,
aged about 51 years, Occu: President,
Millat Education Society, R/o Railway
Station Road, Darwha, Tq.Darwha, Distt.
Yavatmal.
2. Sau.Kausarjahan w/o Mohd.Illiyas,
Aged about 46 years, Occu: Service,
R/o Railway Station Road,Darwha, Tq.
Darwha, Distt.Yavatmal.
3. Mudassar Khan Musa Khan,
aged about 35 years, Occu: Service,
Head Master, H.K.M.C. Urdu High School,
Talegaon, Tq. and Distt.Yavatmal.
..VERSUS..
RESPONDENTS : 1. Shaheen Parveen Ziaulmallan Khan,
aged about 40 years, Occu: Service, R/o Co.
Shri M.Z.Khan, Riyaz Manzil, Ward No.4, Tq.
Wani, Distt.Yavatmal.
2. State of Maharashtra,
through the Police Station Officer, Darwha
Police Station, Darwha, Distt.Yavatmal.
CRIMINAL WRIT PETITION NO.496 OF 2013.
PETITIONERS : 1. Vitthal s/o Pandurang Patil,
aged about 61 years, Occu: Retired
Education Officer, R/o Vaishali Society
Yavatmal, Tq. And Distt.Yavatmal.
::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:12 :::
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2. Mahadev Chendu Jumale,
Aged about 58 years, Occu: Retired Asstt.
Deputy Director, Aurangabad, At present
House No.154, Ward No.16, Tirupati Nagar,
Lande Layout, Buldhana, Tq. and
Distt.Buldana.
..VERSUS..
RESPONDENTS : 1. Shaheen Parveen Ziaulmallan Khan,
aged about 40 years, Occu: Service, R/o Co.
Shri M.Z.Khan, Riyaz Manzil, Ward No.4, Tq.
Wani, Distt.Yavatmal.
2. State of Maharashtra,
through the Police Station Officer, Darwha
Police Station, Darwha, Distt.Yavatmal.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.A.A.Naik, Advocate for the petitioners.
Mr.J.B.Kasat, Advocate for respondent no.1.
Mr.S.D.Shirpurkar, APP for the State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : P.N. DESHMUKH, J.
DATE OF RESERVING THE JUDGMENT :12th SEPT., 2017.
DATE OF PRONOUNCMENT OF JUDGMENT: 26th SEPT., 2017.
ORAL JUDGMENT :
1. Both these petitions are decided by this common judgment
and order in view of the fact that challenge in both these petitions is to
impugned judgments dated 13th July, 2012 and 25th October, 2012
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passed in Criminal Revision No.15 of 2012 and Criminal Revision
No.30 of 2012, respectively, by learned Additional Sessions Judge
Darwha, Distt.Yavatmal, thereby dismissing both the Criminal
Revisions, filed against order dated 26 th March, 2012, passed by
learned Judicial Magistrate (F.C.) Darwha in R.C.C.No.145 of 2012,
whereby learned Court of Magistrate had ordered to issue process
against the petitioners for the offence punishable under Sections 406,
409, 417, 418, 420, 465, 467, 471, 477-A, 166, 120B read with Section
109 of the Indian Penal Code.
2. Facts involved in the petitions can be briefly stated as
under :-
Complainant Shahin Parveen is the teacher and petitioner
nos.1 and 2 are the husband and wife. Petitioner No.1 was running
Millat Eduction Society, while petitioner No.2 was running Mahila
Bahuudeshiy Shikshan Prasarak Mandal, Talegaon (Deshmukh). Both
education societies were running schools. Petitioner No.3 is their son-
in-law, while petitioners in Criminal Writ Petition No.496 of 2013
were Education Officer, Yavatmal and Education Officer, Akola,
respectively.
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3. It is contended that respondent no.1 was appointed as
Assistant Teacher to the school i.e. Hazrat Khawaja Moinuddin Chisti.
Her post was sanctioned by the Education Department. In the year
2003 she as posted as Head Master. Petitioner nos.1 and 2 were
causing interference in day to day functioning and affairs of the school.
Therefore, she resigned from the post of Head Master on 30 th June,
2005. Thereafter one Ejazbaig was appointed as Head Master. He was
also harassed by the petitioner nos.1 and 2, therefore he also resigned.
Thereafter petitioner no.3 was posted as Head Master of the said
school in the year 2005-2006. Meanwhile marriage of daughter of
petitioner nos.1 and 2 was performed with petitioner no.3. Thereafter
petitioner Nos.1 to 3 prepared false documents, to gain financial
benefits and administrative benefits to petitioner no.3. It is further
alleged that petitioner no.3 was never appointed during the tenure of
respondent no.1 as Head mistress and her signatures were forged on
appointment order of petitioner no.3. It is also alleged that the
seniority list was also fabricated in the year 2003-2004 so as to give
financial benefits to petitioner no.3.
4. In a nutshell, it is the case of respondent no.1 that
petitioner nos.1 and 2 by preparing false documents have given undue
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financial benefits to petitioner no.3 and petitioners in Writ Petition
No.496 of 2013 who at the material time were posted in Education
Department by not making any equiry against the allegations made by
respondent no.1, helped petitioner nos.1 to 3 (petitioners in Writ
Petition No.497 of 2013) for committing such serious crimes. Thus, it
is the case of respondent no.1 that petitioners in both these above
numbered petitions had committed illegal acts and helped each other
to extend benefits to petitioner no.3 and thus, filed complaint before
the learned Judicial Magistrate (F.C.) Darwha on 17th August, 2010.
5. The learned Judicial Magistrate (F.C.), Darwha ordered an
investigation into the allegations made by the respondent against the
present petitioners by an order passed under Section 156 (3) of the
Code of Criminal Procedure (hereinafter referred to as "the Code").
Pursuant to the said order passed by the learned Judicial Magistrate
(F.C.), Darwha a thorough investigation was carried out into the
allegations made by the present respondent against the present
petitioners. Various documents were verified and even statements of
witnesses were recorded. After completion of the investigation a report
dated 15th July, 2011 came to be filed before the leaned Judicial
Magistrate (F.C.), Darwha Court by the Assistant Police Inspector,
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Darwha, in which it was clearly mentioned that there was no substance
in the allegations made by the present respondent against the
petitioners and that the complaint was filed by the respondent only due
to a grudge which the respondent was nursing against the present
petitioners as she was transferred from the school at Talegaon to the
school at Kamptee. Even after the report dated 15 th July 2011 was
submitted by the Investigating agency in which it was clearly
mentioned that there is no substance in the allegations made by the
present respondent against the petitioners, even then the learned
Judicial Magistrate (F.C.), Darwha passed an order dated 26 th March,
2012 and issued process against the present petitioners and others for
the offences punishable under Sections 406, 409, 417, 418, 420, 465,
467, 468, 471, 477A, 166, 120(B) read with 109 of Indian Penal Code.
6. Learned Counsel Shri Akshay Naik for petitioners in both
the petitions submitted that by passing order impugned, the learned
trial Court had committed grave error by not considering the police
report in which it is clearly mentioned that on carrying thorough
investigation into the allegations levelled in the complaint, no
substance was found in it. On the contrary, it was found that
complaint was made only because respondent no.1 had grudge against
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the petitioners, as she was transferred from a School at Talegaon to
other School at Kamptee. It is, therefore, contended that the impugned
order is passed in mechanical manner and the learned Magistrate has
even gone to the extent of saying that police did not investigate the
matter in its correct perspective which observations, in fact, are stated
to be sufficient to establish that the learned Magistrate had not
considered various documents collected by the investigating agency as
well as statements of witnesses recorded in connection with the alleged
crime and passed order to issue process, though the material clearly
establish that no offence at all is made out against the petitioners and
that the allegations levelled are false and baseless.
7. Learned counsel for the petitioners has pointed out as to
how the order impugned lacks any cogent reasons since not given in
the impugned order and has submitted that once the investigation is
ordered under Section 156(3) of the Code of Criminal Procedure and a
report is received pursuant to that order, the learned Magistrate is
bound to consider the report, and if at all the learned Magistrate
disagrees with the investigation report filed by the police authorities,
the Magistrate has to give cogent reasons for not relying upon the said
report.
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8. It is also contended that along with documents submitted
with the police report, there were documents in respect of earlier Writ
Petition No.1553 of 2011 filed by respondent no.1 which was disposed
of on 5th July, 2011 by giving direction to hold enquiry, wherein she
had made similar allegations of petitioners forging her signatures on
various documents for extending financial benefits to petitioner no.3 in
which petition, directions were issued to the Deputy Director of
Education, Amravati Division, Amravati to enquire into and in
pursuance to such order of holding enquiry complaint made by
respondent no.1 was dismissed by said authority and said dismissal was
an outcome of approach of respondent no.1 who in spite of directions
issued by Deputy Director of Education, Amravati to remain present for
the purpose of enquiry since conveyed said authority that she is not
ready to cooperate with the above manner of investigation and as such
will not remain present before the enquiry and did not attend nor
extend cooperation by not providing her specimen signatures and
finger prints and thus, no enquiry could be properly adjudicated and
thus, the Officers concerned were left with no other alternative but to
draw adverse inference against respondent no.1 and accordingly
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dismissed her complaint/representation.
9. Against dismissal of said complaint, respondent no.1
preferred second round of litigation by filing Writ Petition No.4433 of
2011 and same was withdrawn on 25th July, 2012. In the background
of above facts, it is therefore submitted that, respondent no.1 herself is
not interested in getting the allegations made in her complaint
adjudicated through a proper channel and is interested only to harass
the petitioners and for that reason had filed complaint on 17 th August,
2010 wherein the learned Court of Magistrate passed order under
Section 156(3) of the Code directing investigation to be done into the
allegations in the complaint and on receipt of police report on 15 th July,
2011 without considering it in its true perspective, and without
assigning any reasons to not to accept it, on 26th March, 2012 ordered
to issue process against petitioners which order is therefore stated to be
bad in law and is prayed to be quashed and set aside.
10. Learned counsel for the petitioners in support of the petition
has relied upon decisions in the cases of M/s. Pepsi Foods Ltd. and
anr. ..vs.. Special Judicial Magistrate and ors. reported in 1998 SC
128, Mehmood Ul Raheman ..vs.. Khazir Mohammad Tunda and
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ors. reported in (2015) 12 SCC 420 and Madhao and anr. ..vs.. State
of Mah. and anr., reported in (2013)5 SCC 615. It is, therefore,
submitted on behalf of the petitioners that as there are no reasons
stated in the order impugned for not accepting police report and on the
contrary, since from the allegations made in the complaint as no
offence, in fact, can be said to be made out by the petitioners or at the
most, dispute of a Civil nature can be said to have been established for
which police machinery is being misused, order passed by learned
Judicial Magistrate issuing process against the petitioners is prayed to
be quashed.
11. Learned counsel for respondent no.1, supported the
impugned order and advanced submissions on two counts. Learned
counsel by referring to the copy of complaint on record as Annexure 'A'
submits that as per endorsement made on the complaint itself by the
learned Magistrate on 17th August, 2010 same is established to be
presented on that day which was ordered to be registered as criminal
complaint No.145 of 2010 and by further endorsement learned
Magistrate by endorsing as "put up for verification", had taken
cognizance as required under Section 190 of the Code of Criminal
Procedure. It is therefore, submitted that as learned trial Court on the
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day of presentation of complaint itself, has passed order to put up the
same for verification, has on the same day taken cognizance as
contemplated under Section 190 of the Code. It is therefore contended
that since the learned Court of Magistrate has chosen to adopt said
procedure, it was not open for the Magistrate to pass order under
Section 156(3) of the Code. It is, therefore, contended that since
challenge in this petition is to order under Section 156(3) of the Code,
passed by the learned Magistrate on 26 th March, 2012, petitions are
liable to be dismissed on this ground itself in view of the fact that on
17th August, 2010 itself learned Magistrate had taken cognizance
directing to put up the complaint for verification which order is not
impugned in this petitions. It is therefore submitted that petitions are
liable to be dismissed on this count alone.
12. Learned counsel for respondent no.1 while submitting on
merits of the case has contended that all the grounds put forth by
petitioners are duly considered by the revisional court and found that
complaint prima facie establishes ingredients of the alleged offences
and also that the petitioners had failed to point out any illegality or
impropriety in the order of the learned trial Court and has dismissed
the revision. In fact, it is contended that while issuing process against
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petitioners, the learned Magistrate had given cogent reasons on
considering entire material on record like complaint itself, verification
statement of complainant, her witnesses and other statements recorded
by police and thus, on denying that respondent no.1 had any grudge
against the petitioners, petitions are prayed to be dismissed.
13. Learned counsel for respondent no.1 in the set of present
facts and submissions has relied upon the cases of Devarapalli
Lakshminarayana Reddy and ors. ..vs.. Narayana Reddy and ors.
reported in AIR 1976 SC 1672, National Bank of Oman ..vs..
Barakara Abdul Aziz and anr., reported in (2013)2 SCC 488 and
Gangadhar Janardan Mhatre ..vs.. State of Mah. and ors. reported
in (2004)7 SCC 768.
14. Learned Additional Public Prosecutor for respondent no.2
adopted submissions advanced on behalf of respondent no.1 and
prayed for dismissal of petitions.
15. Having considered submissions advanced as aforesaid and
particularly, with regards to the arguments of respondent no.1 that
since on the day of presentation of complaint on 17 th August, 2010 the
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learned Magistrate by passing order, to put up complaint for
verification, has taken cognizance and as such, had no recourse
available to him thereafter to pass order under Section 156(3) of the
Code, said submissions as advanced are required to be dealt with first
to satisfy if order passed under Section 156(3) of the Code needs
interference. With regard to the first limp of argument advanced on
behalf of respondent no.1 it is necessary to state that cognizance of an
offence on complaint is taken for the purpose of issuing process to the
accused. Since it is a process of taking judicial notice of certain facts
which constitute an offence, there has to be application of mind as to
whether the allegations in the complaint, when considered along with
the statements recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to appear before the
criminal Court. It is not a mechanical process or matter of course. By
now, it is well established that to set the process of criminal law in
motion against a person is a serious matter. Though no formal or
speaking or reasoned orders are required at the stage of Sections
190/204 of the Code, there must be sufficient indication in the order of
the application of mind by the Magistrate to the facts constituting
commission of an offence and the statements recorded under Section
200 of the Code so as to proceed against the offender. Chapter XV of
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the Code deals with further procedure for dealing with "Complaints to
Magistrate". Under Section 200 of the Code, the Magistrate, taking
cognizance of an offence on a complaint, shall examine upon oath the
complainant and the witnesses, if any, present and the substance of
such examination should be reduced to writing and the same shall be
signed by the complainant, the witnesses and the Magistrate. Under
Section 202 of the Code, the Magistrate, if required, is empowered to
either inquire into the case himself or direct an investigation to be
made by a competent person "for the purpose of deciding whether or
not there is sufficient ground for proceeding". If, after considering the
statements recorded under Section 200 of the Code and the result of
the inquiry or investigation under Section 202 of the Code, the
Magistrate is of the opinion that there is no sufficient ground for
proceeding, he should dismiss the complaint, after briefly recording the
reasons for doing so or if, in the opinion of the Magistrate taking
cognizance of an offence, there is sufficient ground for proceeding, the
Magistrate has to issue process under Section 204(1) of the Code for
attendance of the accused. ThIs, procedure as contemplated under
Chapter XV of the Code, deals with complaints before Magistrate.
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In the instant case, the only ground put forth on behalf of
respondent no.1 to establish that prior to passing impugned order
under Section 156(3) of of the Code, learned Magistrate on 17 th
August, 2010 i.e. on the date of presentation of complaint itself, had
taken cognizance is therefore not at all convincing as merely by
endorsing upon complaint as "Put up for verification", by itself is not
sufficient to hold that by passing such order Court has applied its mind
or found reasons, sufficient to take cognizance.
16. In the light of above facts, law in the case of Mehmood Ul
Rehman cited (supra) can usefully be made applicable, wherein the
Hon'ble Apex Court has held that the process must not be issued in a
mechanical manner or as a matter of course, but order issuing process
should reflect application of mind of the learned Magistrate in taking
cognizance and has further held that though no formal or speaking or
reasoned orders is required at the stage of Ss. 190/204 of the Code,
there must be sufficient indication in the order that the Magistrate is
satisfied that : (1) the facts alleged in the complaint constitute an
offence, and (ii) these facts when considered along with the statements
recorded under S.200 of the Code and the result of inquiry or report of
investigation under S.202 of the Code, if any, prim facie make the
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accused answerable before the criminal Court. In absence of any such
indication in the order, High Court under S.482 the Code is bound to
invoke its inherent power in order to prevent abuse of power of
criminal court since, to be called to appear before criminal court as an
accused is a serious matter affecting one's dignity, self-respect and
image in society, process under S.204 of the Code must not be made a
weapon of harassment.
17. In the light of observations of the Hon'ble Apex Court, bare
perusal of order passed by the learned Magistrate on the day of
presentation of complaint on its first page directing to put up the case
for verification thus, in no manner indicates application of mind by him
and as such by no reason can be construed to be the order taking
cognizance, as has been submitted by respondent no.1.
18. In the case of Devarapalli Lakshminarayana Reddy (supra)
relied by respondent No.1, the Hon'ble Apex Court while considering
the question as to what is meant by "taking cognizance of an offence"
by the Magistrate as contemplated under Section 190 of the Code., in
para no.14 of its judgment has observed thus :-
"14. This expression has not been defined in the Code.
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But from the scheme of the Code, the content and
marginal heading of Section 190 and the caption of
Chapter XIV under which Sections 190 to 199 occur, it
is clear that a case can be said to be instituted in a
Court only when the Court takes cognizance of the
offence alleged therein. The ways in which such
cognizance can be taken are set out in clauses (a)(b)
and (c) of Section 190(1). Whether the Magistrate has
or has not taken cognizance of the offence will depend
on the circumstances of the particular case including
the mode in which the case is sought to be instituted,
and the nature of the preliminary action, if any, taken
by the Magistrate. Broadly speaking , when on
receiving a complaint, the Magistrate applies his mind
for the purposes of proceeding under Section 200 and
the succeeding sections in Chapter XV of the Code of
1973, he is said to have taken cognizance of the
offence within the meaning of Section 190(1)(a). If,
instead of proceeding under Chapter XV, he, has in the
judicial exercise of his discretion, taken action of some
other kind, such as issuing a search warrant for the
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purpose of investigation, or ordering investigation by
the police under Section 156(3), he cannot be said to
have taken cognizance of any offence."
19. In view of the pronouncement as afore said also, therefore
by no stretch of imagination it can be said that on the date of
presentation of complaint and by making an endorsement on it to
place it for verification, Magistrate on that day cannot be said to have
taken cognizance as put forth on behalf of respondent no.1 and in view
of findings as aforesaid thus, it cannot be said that having taking
cognizance on the day of presentation of complaint on 17 th August,
2010, the learned Magistrate was precluded from taking recourse to
Section 156(3) of the Code.
20. Section 156(3) occurs in Chapter XII, under the caption:
"information to the Police and their powers to investigate", while
Section 202 is in Chapter XV which bears the heading "Of complaints
to Magistrate". The power to order police investigation under Section
156(3) is different from the power to direct investigation conferred by
Sec.202(1). The two operate in distinct spheres at different stages.
The first is exercisable at the pre-cognizance stage, the second at the
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post-cognizance stage when the Magistrate is in seisin of the case.
That is to say in the case of a complaint regarding the commission of a
cognizable offence, the power under Sec.156(3) can be invoked by the
Magistrate before he takes cognizance of the offence under Section
190(1)(a). But once if he takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to switch back
to the pre-cognizance stage and avail of Section 156(3). It may be
noted further that an order made under sub-section (3) of Section 156,
is in the nature of a peremptory reminder or intimation to the police to
exercise their plenary powers of investigation under Section 156(1).
Such an investigation embraces the entire continuous process which
begins with the collection of evidence under Section 156 and ends with
a report or charge-sheet under Section 173. On the other hand,
Section 202 comes in at a stage when some evidence has been
collected by the Magistrate in proceedings under Chapter XV, but the
same is deemed insufficient to take a decision as to the next step in the
prescribed procedure. In such a situation, the Magistrate is
empowered under Section 202 to direct, within the limits
circumscribed by that section, an investigation "for the purpose of
deciding whether or not there is sufficient ground for proceeding."
Thus the object of an investigation under Section 202 is not to initiate
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a fresh case on police report but to assist the Magistrate in completing
proceedings already instituted upon a complaint before him."
21. In view of above stated procedure available under the Code
and on considering case of respondent no.1 of learned Magistrate, to
have taken cognizance on 17th August, 2010 on the date of filing of
complaint does not stand for any reason as there is nothing to
establish that the Magistrate by passing such an endorsement on date
of presentation of complaint has examined the complainant or his
witnesses under Section 200 of the Code which is first step in the
procedure required to be complied with under Chapter XV of the Code.
Thus, question of taking next step under Section 202 of the Code did
not arise at all and in fact, it is thus found that the learned Magistrate
instead of taking cognizance of the offence has, in the exercise of its
discretion sent the complaint for investigation by police under Section
156(3) of the Code. In the circumstances, there are sufficient reasons
to hold that endorsement made on complaint, to place it for
verification, on the date of its presentation, cannot be an order, taking
cognizance of case.
22. In view of discussion as aforesaid, thus it is now necessary
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to consider submissions of petitioners that the order impugned is
passed mechanically, without application of mind and is without any
sufficient reasons put forth to not to accept the police report. It is
material to note that whenever Magistrate disagrees with the police
report, he has to state the reason as to how he disagreed with the same
and on what material. This is necessary because, the judicial authority
is bound to act in conformity with the rules of principles of fairness and
natural justice. In the instant case, since the Magistrate has directed
the police enquiry or investigation under Section 156(3) of the Code, it
implies that the Court was not prima facie satisfied with the
allegations made in the complaint and has therefore passed said order
to investigate. In that view of the matter, on receipt of police report,
the learned Magistrate is duty bound to at least indicate in its order as
to on what material he is relying before taking cognizance and issuing
process against the accused as it cannot be kept out of mind that taking
cognizance of an offence is a serious matter and by doing so the court
is implicating the citizen for an offence, directing him to face the trial,
which affects his right and reputation.
23. In the case of M/s. Pepsi Foods Ltd. cited (supra), in para
no.28 the Hon'ble Apex Court has held thus:
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"28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused.
Magistrate has to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
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allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
24. In the background of above requirement of law, bare
perusal of order impugned would reveal that same is passed
mechanically without considering the police report when it is clearly
mentioned therein that, there is no substance in the allegations made
in the complaint and the same, on investigation, were found to be
raised by respondent no.1 having grudge against the petitioners who
had transferred her from one place to another. Order further reveals
that none of the various documents referred by the police in its report
are considered in it, as it is silent in that respect. In other words, there
are no reasons put forth by the learned Magistrate for not relying upon
the police report which is contrary to the settled law that once the
investigation is ordered under Section 156(3) of the Code and a report
is received pursuant to that order, the learned Magistrate is bound to
consider the report, and if it at all the learned Magistrate disagrees
with the investigation report filed by the police authorities, the
Magistrate has to give cogent reasons for not relying upon the said
report.
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25. Bare perusal of order issuing process reveals that while
passing the same, learned Magistrate had relied upon contents of the
complaint only, without assigning any reason for not accepting the
police report except for a bare observation that the complaint was sent
for police investigation but it appears that police did not investigate the
offence in correct perspective. The learned Magistrate though had
further observed that in fact, the complaint ought to have sent to the
economic offences branch for its investigation, had not passed any such
directions for further investigation in the complaint by such branch but
by not relying upon the police report, passed order that there is no
substance in the police report and issued process finding that
complainant was appointed as an Assistant Teacher in the year 2000
and was promoted as a Headmaster in the year 2003 and till the year
2004 though petitioner no.3 was serving on periodical basis and
though there is no name of said petitioner in the pay bill of July, 2004
or in September, 2006 nor his name is mentioned in the seniority list of
1st July, 2004, and he was given increment, twice as per the enquiry
held by petitioner no.1 (in Cri.W.P.No.496/2013), who in fact had not
considered, that date of appointment of complainant was not 1st July,
2002 but it was 2nd September, 2000 and thus found petitioners in both
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the petitions to have gained unlawfully by cheating the Government
officials having hands-in-gloves with each other, who at the material
time were working as a public servant and had aided petitioners (in
Cri.W.P.No.497/2013) in commission of present crime, inspite of
knowing that petitioner nos.1 to 3 have misappropriated government
amount to extend financial benefits to petitioner no.3.
26. From the above stated contents of impugned order it is thus,
found that the learned Magistrate while issuing process had considered
facts narrated in the complaint alone, without considering the police
report and fact of non-cooperation on the part of respondent no.1
during the investigation carried out by police as respondent no.1
refused to provide her specimen signatures finger prints specimen,
required for the purpose of investigation and in fact for non-
cooperation as aforesaid, even the enquiry which was initiated as per
directions of this Court passed in W.P.No.1553 of 2011 could not be
complete as in the said enquiry, also respondent no.1 refused to give
her fingerprints and specimen signatures for the purpose of verification
and for that reason did not remain present before the Deputy Director
of Education who thus, dismissed the complaint by drawing adverse
inference.
cwp497.13 26/27
27. Impugned order also lacks of findings of order passed by
this Court in W.P.No.1553 of 2011 on the basis of which above enquiry
was initiated and of withdrawal of petition being W.P.No.4433 of 2011
by respondent no.1, filed by her challenging dismissal of her complaint
by Deputy Director of Education. In that view of the matter, order
impugned, on the face of it, appears to be without proper appreciation
of facts, material on record and as such suffers from vice of non-
application of mind and is thus, bad in law.
28. Since Magistrate had not accepted the police investigation
report, or if he had disagreed with the same, it was necessary to state
reasons for disagreeing with it and was further required to pass
directions for further investigation by the team of Officers from the
economic offence branch. However, neither of these orders are passed
by the learned Magistrate before not accepting the police report and
have passed the impugned order.
29. It is true that at that stage that the Magistrate need not
enumerate all the evidence in detail but still it is his duty to indicate
based on what materials he has implicated the accused. Since this
cwp497.13 27/27
aspect of the matter is lacking in the order, the Magistrate's order
suffers from the vices of non-conformity with the rules of principles of
fairness and natural justice.
30 For the said reasons, orders impugned in the petitions are
liable to be set aside by remanding the case back to the Magistrate to
pass a reasoned order. Accordingly, matter is sent back for
reconsidering the case even at this stage, to order reinvestigation, of
the matter for more cogent and reliable material for taking cognizance
of the case.
31. In the result , the order impugned is set aside. The matter is
remitted back to the Magistrate for passing fresh orders in the light of
observations made herein above.
Rule is made absolute in the above terms.
JUDGE
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