Akriti Kakar D/O. Sanjiv Kakar vs The State Of Maharashtra And Anr
2023 Latest Caselaw 4902 Bom

2023:BHC-AS:14930-DB

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                        WRIT PETITION NO.3990 OF 2017

                       Akriti Kakar D/o Sanjiv Kakar                      ..... Petitioner
                              Vs.
                       The State of Maharashtra and Anr.                 ..... Respondents


                       Mr. Ashok M. Saraogi for the Petitioner.
                       Mrs. S. D. Shinde, APP for Respondent No.1.
                       Ms. Rina H. Pujara for Respondent No.2.


                                               CORAM : NITIN W. SAMBRE &
                                                      SHARMILA U. DESHMUKH, JJ.

DATE : 5 JUNE 2023

P. C.

1. Heard.

2. On the complaint filed by Respondent No.2 before

Metropolitan Magistrate, Railway Mobile Court, Andheri Mumbai

vide C. C. No.70/SW/2017, the Metropolitan Magistrate has

passed the following order dated 4/8/2017:

"1. Perused complaint and documents filed on

record. Heard counsel for the complainant at length.

2. Complaint reveals primafacie an information

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relating to the committal of an offence which is

cognizable, hence, it is necessary that such offence be

investigated by the police. Matter be sent for

investigation to Oshiwara Police Station U/Sec.156(3) of

Cr.P.C. on due P. F. The concerned police station to

register the F.I.R. immediately first, then, complete the

investigation and file final report in this case. The matter

is disposed off."

3. The aforesaid order is impugned in the present writ

petition. It is the case of the petitioner that she is singer by

profession and her services were hired pursuant to an agreement

dated 10/1/2014. According to her she has discharged her

obligation under the aforesaid agreement after having received

honorarium. Respondent No.2 has alleged that the performance

was not carried out by the petitioner as per the assurances given to

respondent No.2; that there is no discharge of the obligation and

the offence is alleged to have been committed.

4. The aforesaid order is questioned by the petitioner

amongst other grounds on the ground that the Magistrate has failed

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to apply his mind while exercising power under section 156 (3) of

Cr. P. C. Learned counsel for the petitioner would urge that the

learned Magistrate though, has referred to in his order, that he has

perused the complaint and the documents filed on record, however

has not reflected the material which has formed to be the basis for

the order of issuance of process against the petitioner. By

application of mind, we mean to say that the consideration and the

reasons for forming an opinion for issuance of process must be

reflected in the order of issuance of process. So as to substantiate

such claim, support is drawn from the judgment of the Apex Court

in the case of Anil Kumar vs. M. K. Aiyappa, 5 (2013) 10 SCC.

Paragraph No. 11 of the said judgment is sought to be relied upon

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 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

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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)

5. In addition to above, it is also claimed that the Apex

Court in the matter of Priyanka Srivastava V. State of U.P., (2015)

6 SCC 287 has made a similar observations based on the judgment

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in the matter of Anil Kumar (cited supra).

6. Our attention is also invited to the position that the

views expressed in the aforesaid matter are being followed by this

court in catena of judgments. While countering the aforesaid

submission, learned counsel for respondent No.2 would urge that

pursuant to the order, offence is already registered and that being

so, this court cannot turn the clock in reverse direction quashing

the order impugned. According to learned counsel, Respondent

No.2 has already submitted an affidavit in support of the complaint

which is found to be one of the basis for passing the order

impugned thereby directing the investigation and then registration

of offence. She would as such urge that the order is just and proper

as the material placed on record before the learned Magistrate

discloses commission of cognizable offence.

7. We have appreciated the aforesaid submission.

8. The Apex Court repeatedly in the matter of Anil

Kumar (cited supra) so also in the matter of Priyanka Srivastava

(cited supra) has categorically stated that the learned Magistrate are

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required to consider the material available before it while dealing

with the prayer under section 156(3) of Cr.P.C. and application of

mind is to be reflected in the orders to be passed whereby process is

issued or prayed as required. While doing so the learned Magistrate

must in its order reflect the material on the basis of which the

opinion is formed. In the order impugned, the learned Magistrate

has only referred to complaint being perused and also the

documents and has noticed that prima facie case is made out

without assigning any reasons in support of such opinion formed

by the learned Magistrate. As such the order of the learned

Magistrate goes contrary to the scheme laid down by the Apex

Court in the matter Anil Kumar (cited supra) so also in the matter

of Priyanka Srivastava (cited supra).

9. In view of the discussion above, the impugned order is

not sustainable, as such same is quashed and set aside. We deem it

appropriate to refer the parties back to the Court of Metropolitan

Magistrate which shall pass an appropriate order.

10. In light of above, the petition is partly allowed in the

above terms.

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       SHARMILA U. DESHMUKH, J.           NITIN W. SAMBRE, J.