Bombay High Court
Anantrao Shankarrao Jagtap vs Prakash Nivruthi Tajanpure And Anr on 6 December, 2023
Author: A. S. Gadkari
Bench: A. S. Gadkari
2023:BHC-AS:36854-DB
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1880 OF 2010
Anantrao Shankarrao Jagtap
Age about 67 years, Occ: Legal Practitioner,
R/o. Sai Palace, Opp. To Durga Gardens,
Nashik Road, Tal & Dist. Nashik. .. Petitioner
(Org. Accused No.1)
vs.
1. Prakash Nivruthi Tajanpure,
Age: about 53 years, Occ: Legal Practitioner,
and Farmer, R/o: Annsaya Apartment,
Jail Road, Nashik Road, Tal. & Dist. Nashik.
2. The State,
Through the Police Inspector,
Nashik Road Police Station,
Nashik.
3. Gangubai K. Wadhavane
Age: 60yrs, Occ: Housewife,
R/o; Kelkarwadi, Sinnar Phata,
Nashik Road, Dist: Nashik. .. Respondents
WITH
CRIMINAL WRIT PETITION NO. 2816 OF 2012
Gangubai K. Wadhavane
Age: Adult, Occ: Housewife,
R/o; Kelkarwadi, Sinnar Phata,
Nashik Road, Dist: Nashik .. Petitioner
(Org. Accused No.2)
vs.
1. Prakash Nivruti Tajanpure
Age: Adult, Occ: Legal Practitioner
1/12
::: Uploaded on - 08/12/2023 ::: Downloaded on - 08/12/2023 21:16:15 :::
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
R/o: Annsaya Apts, Jail Road,
Nashik Road, Tal & Dist: Nashik.
2. Anantrao Shankarrao Jagtap
Age: Adult, Occ: Legal Practitioner,
R/o: Sai Palace, Opp Durga Garden,
Nashik Road, Tal & Dist: Nashik.
3. The State
Through the Police Inspector,
Nashik Road Police Station,
Nashik. .. Respondents
Mr. Harshad M. Inamdar, a/w. Sahil A Pandire, Ashok S. Pandire for the
Petitioner in WP/1880/2010 and for Respondent No.2 in WP/2816/2012.
Mr. R. S. Alange for the Petitioner in WP/2816/2012 and for Respondent
No.3 in WP/1880/2010.
Mr. H. J. Dedhia, APP, for the Respondent-State in both Petitions.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 26th OCTOBER, 2023.
PRONOUNCED ON : 06th DECEMBER, 2023.
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Both the Writ Petitions have been filed under Article 227 of the
Constitution of India,1950 and under Section 482 of the Code of Criminal
Procedure, 1973, seeking quashing and setting aside of the Order dated
11th May, 2010 passed by the Learned Judicial Magistrate First Class, at
Nashik Road, District - Nashik, below Exhibit 1, in Criminal Miscellaneous
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
Application No.195/2010, whereby the learned Magistrate referred the said
Application for investigation under Section 156 (3) Cr.P.C. and pursuant to
which, Nashik Road Police Station registered MAG. C.R. No.16 of 2010 on
13th May, 2010 against the Petitioners.
2) Heard Mr. Harshad Inamdar, learned Counsel for Accused no.1
and for Respondent No.3 in WP/1880/2010, Mr. R.S. Alange, learned
Counsel for Accused No.2 and for Respondent No.2 in WP/2816/2012 and
Mr. H.J. Dedhia, learned APP for the Respondent-State in both the Petitions.
3) Rule was granted in the Petitions on 17 th July, 2012 and
22nd March, 2023 respectively. The Complainant has filed his Affidavit-in-
Reply in Writ Petition No.1880 of 2010. But none present for the
Complainant.
4) Facts giving rise to these writ petitions are as under:
4.1) Respondent No.1-Prakash Nivruti Tajanpure [hereinafter
referred to as the "Complainant"] has filed the said Cril. Misc. Appln.
No.195/2010 against the Petitioners namely, Anantrao Shankarrao Jagtap
and Gangubai K. Wadhavane [hereinafter referred to as "Accused Nos.1 and
2" respectively]. In the application it is alleged that, the Complainant and
Accused No.1 had social relations with each other. Therefore, Accused No.1
knew about the family members and properties of the Complainant. That,
Sundarabai Lahanu Tajanpure [hereinafter referred to as "Sundarabai"] was
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
grandmother of the Complainant. After death of the grandfather of
Complainant, Sundarabai performed second marriage. After the second
marriage, Sundarabai was known as Sundarabai Laxman Aringale. Accused
No.2 is daughter of Sundarabai from the second marriage. Thus, Accused
No.2 is step aunt of the Complainant.
4.2) It is alleged that Sundarabai, Complainant's father Nivruti
Lahanu Tajanpure, Bhausaheb Lahanu Tajanpure and Madhukar Lahanu
Tajanpure had entered into a registered Partition Deed dated 4 th July, 1972
bearing Serial No.1296/72 registered on 20th July, 1972. As recorded in the
said Partition Deed, lands bearing Survey No.190/1 and Survey No.299, out
of which ¼ share, were the self-acquired property of the Complainant's
grandfather. Sundarabai has no right or interest in the said lands. However,
the rest three executant gave the land bearing Survey No.299 to Sundarabai
and entitled her to cultivate the said land till her life time, as a provision of
her maintenance. Further, it was decided that after death of Sundarabai,
Survey No.299 will be divided equally amongst father Nivruti Lahanu
Tajanpure, Bhausaheb Lahanu Tajanpure and Madhukar Lahanu Tajanpure.
However, Accused Nos.1 and 2, with an intention to grab Survey No.299,
prepared a false and bogus 'Will Deed' dated 1 st July, 1994 in the name of
Sundarabai by showing her name as Sundarabai Lahanu Tajanpure, even
though she was not medically fit between May, 1994 to August, 1994.
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
Thereafter, both the accused used the said bogus 'Will Deed' as genuine for
the purpose of entry in the 7/12 record. Thus, both the accused have
committed the offences punishable under Sections 406, 418, 420, 468 and
471 read with 34 of the Indian Penal Code, 1860.
5) After considering the above allegations in the said Application
and the documents annexed, the learned Magistrate held that the
Application discloses the allegations of cognizable offences. Therefore,
thorough investigation is needed at the hands of the Police. According to the
Complainant, the Accused have committed criminal breach of trust, forgery
and cheating. Hence, by the impugned order, the learned Magistrate referred
the said Application for investigation under Section 156 (3) of Cr.P.C. to
Nashik Road Police Station with a direction to register the crime against both
the Accused, to make an investigation and submit the report as per Chapter
12 of the Cr.P.C. Therefore, Nashik Road Police Station registered the said
Application at M.A.G.C.R. No.16 of 2010 on 13th May, 2010 against the
Petitioners. Hence, these Writ Petitions.
6) The respective learned Counsels for Accused Nos.1 and 2 have
submitted that the allegations levelled in the Application are general and
vague in nature. So, it does not constitute the offences alleged. Even though,
the alleged offences were committed in the year 1994, the said Application
was filed very late. Hence, the narration in the Application is nothing but
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
false and concocted. There is no averment in Application that, first the
Complainant lodged the F.I.R. and since the said F.I.R. was not acted upon,
the Complainant filed the said Application for the needful. In the backdrop,
the impugned Order of referring the Application under Section 156(3) of the
Cr.P.C. for registration of the Crime and investigation, is not sustainable in
law. Hence, the impugned Order and the consequent F.I.R. bearing MAG.
C.R. No.16 of 2010 are liable to be quashed and set aside and so the said
Application.
7) Learned APP submitted that looking at the allegations in the
said Application, there is prima facie case against both the Accused.
Therefore, the learned Magistrate is right in referring the said Application
for registration of the crime and investigation, under the impugned Order.
Learned APP further submitted that this is an exceptional case, therefore, the
fact that the said Application is not preceded by filing of the F.I.R. under
Section 154 (1) and sending the substance of the information under Section
154 (3) of the Cr.P.C., is of no consequence. In the backdrop, there is no
substance in the Writ Petitions, hence, the same are liable to be dismissed.
8) As held in the case of Dharmeshbhai Vasudevbhai and Ors vs.
State of Gujarat and Ors1, "It is well settled that any person may set the
criminal law in motion subject of course to the statutory interdicts. When an
1 2010 2009 CRI.L.J. 2969
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
offence is committed, a first information report can be lodged under Section
154 of the Code of Criminal Procedure. A complaint petition may also be
filed in terms of Section 200 thereof. However, in the event for some reasons
or the other, the first information report is not recorded in terms of sub-
section (1) of Section 156 of the Code, the magistrate is empowered under
sub-Section (3) of Section 156 thereof to order an investigation into the
allegations contained in the complaint petition. Thus, power to direct
investigation may arise in two different situations - (1) when a first
information report is refused to be lodged; or (2) when the statutory power
of investigation for some reason or the other is not conducted. .....".
9) On careful scrutiny of the said Application, we noticed that the
said Application does not mention that prior to filing of the same, the
Complainant approached the Police Station and filed the F.I.R. alleging that
both the Accused have forged the 'Will Deed' and used it as a genuine. As
observed in the case of Panchabhai Popatbhai Bhutani & Ors. vs. State of
Maharashtra2, cited by learned Counsel Mr. Harshad Inamdar, in the scheme
of the Cr.P.C., it is difficult to hold that, even without approaching the Police
Officer-in-charge of a Police Station, a complaint can be made to the Court
in terms of Section 156(3) of the Cr.P.C. Therefore, it is held that, " Normally
a person should invoke the provisions of Section 154 of the Code before he
2 2010 All MR (Cri) 244
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
can take recourse to the powers of the Magistrate competent to take
cognizance under Section 190 of the Code, under Section 156(3). Atleast an
intimation to the police of commission of a cognizable offence under Section
154(1) would be a condition precedent for invocation of powers of the
Magistrate under Section 156(3) of the Code. We would hasten to add here
that this dictum of law is now free from exception". Similarly, in Priyanka
Srivastava and Another vs. State of Uttar Pradesh and Ors 3, it is held that,
there has to be prior applications under Section 154(1) and 154(1) of
Cr.P.C. 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.
10) It is the settled position of law and as has been enunciated by
this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of
Maharashtra & Anr.,4, "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 . An
Order passed on the said Complaint must record reasons in brief which
should indicate application of mind by the Magistrate. However, it is not
necessary to record detailed reasons. The power under Sub-Section (3) of
3 (2015) 6 SCC 287
4 2017 SCC OnLine Bom 3972
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
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 into 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. 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 be filed on record".
11) In the case in hand, there is no dispute that the offence alleged
took place in the year 1994, the Complainant however, did not lodge the
F.I.R. or the said Application promptly. It was not the case that had if the
Complainant lodged the F.I.R. under Section 154 of the Cr.P.C., the police
would have failed to act upon it, instantly. The facts of the case do not show
that there was possibility of the evidence of commission of the offence being
destroyed and/or tampered with. Hence, this was not an exceptional case
where non-recourse to the remedies under Section 154(1) and 154 (3) of
Cr.P.C. could have been exempted. These short comings, however, have not
been noticed by the learned Magistrate before passing the impugned Order.
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
12) Nowhere in said Application and in his affidavit-in-reply
Respondent No.1 has stated as to when he came to know that the 'Will Deed'
is bogus and on what basis he has been claiming so. According to the
Complainant, Accused No.1 has forged the 'Will Deed' and got it Notarised.
But the name of the said Notary/Advocate is not stated in the complaint and
the affidavit-in-reply. It is not explained as to how Accused No.2 was
involved in forging the Will. Thus, the allegation or assertion that the 'Will
Deed' is bogus, is vague. As can be gathered from the said Application, it was
supported by the documents as per the list stated at the end. But there is
neither reference of the 'Will Deed' in the list of the documents nor a copy
thereof was annexed. As such, there was no adequate verifiable material to
conclude that the Petitioners have committed the alleged offences and to
pass the impugned Order. This shows that the impugned Order is lacking
proper application of mind. In fact, the impugned Order is recorded only
because the said Application makes a claim of the commission of a
cognizable offence of forgery, cheating and breach of trust etc. Even copy of
the said 'Will Deed' is not annexed to the affidavit-in-reply.
13) Conspectus of the above discussion is that Cril. Misc. Appln.
No.195/2010 was suffering from legal infirmity i.e. not lodging the F.I.R.
under Section 154 (1) and sending the substance of the information under
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
section 154 (3) of Cr.P.C. to the superior of the Police. The said Application
was not supported by the bogus 'Will Deed'. Except vague assertion that the
'Will Deed' is bogus, there was nothing in the Application to prima facie
conclude so. There is great delay in filing the said Application, which is not
satisfactorily explained. The learned Magistrate, therefore, ought not to have
entertained the said Application and acceded to the request of the
Complainant for the investigation under section 156(3) of the Cr.P.C. by
passing the impugned Order dated 11th May, 2010. Consequently, the MAG.
C.R. No.16 of 2010 has been registered qua the Petitioners on 13 th May,
2010 by Nashik Road Police Station. Thus, the impugned Order is a result of
an unsuitable consideration of the material by the learned Magistrate. This is
not permissible in law. As a result, the impugned Order dated 11 th May, 2010
and the MAG. C.R. No.16 of 2010 are liable to be quashed. As such, there is
no point is continuing the Criminal Miscellaneous Application No.195/2010,
therefore, the same is also liable to be quashed. We order, accordingly.
(i) The impugned Order dated 11th May, 2010, is hereby
quashed and set aside. Consequently, the MAG. C.R. No.16
of 2010 registered on 13th May, 2010 at Nashik Road Police
Station against both the Accused/Petitioners and the
Criminal Miscellaneous Application No.195/2010 are
quashed and set aside;
Ganesh WP-1880-2010 & WP-2816-2012(J)final.doc
(ii) Writ Petition No. 1880 of 2010 and Writ Petition No. 2816
of 2012 are allowed in the aforesaid terms.
Digitally
signed by
GANESH
SUBHASH
14) Rule is made absolute.
GANESH
SUBHASH LOKHANDE
LOKHANDE Date:
2023.12.08
19:34:46
+0530
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
