Bombay High Court
Reggie Peter Dias vs The State Of Maharashtra And Ors on 15 March, 2023
Bench: Amit Borkar
40-apl128-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.128 OF 2023
Digitally
signed by
ATUL
Reggie Peter Dias ... Applicant
V/s.
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2023.03.16
The State of Maharashtra & Ors. ... Respondents
10:43:59
+0530
Mr. Prashant Pandey with Mr. Dinesh Jadhwani i/by
Aigon Zakir Memon for the applicant.
Mr. M.G. Patil, APP for the respondent/State.
CORAM : AMIT BORKAR, J.
DATED : MARCH 15, 2023
P.C.:
1. The challenge in this application is to the order dated 23 rd
August 2022 rejecting prayer of the complainant sending the
complaint for investigation under section 156(3) of the Criminal
Procedure Code, 1973 (hereafter "Code", for short).
2. The complaint was filed by the applicant contending that the
death of applicant's sister occurred in suspicious circumstances and
according to him persons named in paragraph 12 of the complaint
are the reasons behind the demise of his sister. According to him,
due to such demise wrongful gain occurred to the persons named
in that paragraph. He, therefore, filed complaint before the
Magistrate for carrying out investigation.
3. The learned Magistrate by the impugned order transferred
40-apl128-2023.doc
the complaint for verification.
4. According to the applicant, in the facts of the case the
Magistrate ought to have conducted investigation under section
156(3) of the Code and the nature of allegations requires
investigation under section 156(3) of the Code.
5. Learned Magistrate referring judgment of this Court in State
of Maharashtra v. Shashikant Shinde reported in 2013 All
Mr (Cri.) 3060 held that though the police officer is duty bound to
register first information report on receipt of information of
cognizable offence, the Magistrate is not bound to refer the matter
to the police officer under section 156(3) of the Code. According
to the learned Magistrate, the allegations levelled against the
persons named in paragraph 12 can be proved by oral and
documentary evidence and, therefore, there is no requirement to
send the case for investigation under section 156(3) of the Code.
6. On perusal of the allegations in the complaint, in my
opinion, the applicant in the facts of the case cannot insist for
sending it for investigation under section 156(3) as the
observations made in the impugned order are prima facie in nature
and it is always open for the Magistrate to adopt appropriate
course as available in law after the verification of the complainant.
7. Learned advocate for the applicant relied on the judgments
of the Apex Court Srinivas Gundluri v. SEPCO Electric
Power Construction & Ors in Criminal Appeal Nos.1377 and
1378 of 2010, Lalita Kumari v. Government of Uttar
Pradesh & Ors. In Criminal Writ Petition No.68 of 2008,
40-apl128-2023.doc
Vinubhai Haribhai Malaviya & Ors. v. The State of
Gujarat & Anr in criminal Appeal Nos.478-479 of 2017,
Anusha Deepak Tyagi v. The State of Madhya Pradesh &
Ors. In Criminal Appeal No.1184 of 2022 and judgment of this
Court in Dinesh S. Sonawane v. The State of Maharashtra
& Ors. in Criminal Revision Application No.156 of 2021. On
perusal of the judgments, none of the judgment held that the
applicant in his endeavour to show that the Magistrate has no
discretion to refer the complaint for verification. All the judgments
lay down a principle of law that whenever cognizable offence is
made out in a complaint, the Magistrate shall order an
investigation under section 156(3), however, none of the judgment
hold that the Magistrate has no discretion to send the complaint
for verification under section 200 of the Criminal Procedure Code,
1973.
8. The exercise of discretion is not contrary to either provisions
of statute or can be termed as perverse. The criminal application
has no merit.
9. The criminal application is dismissed. No costs.
(AMIT BORKAR, J.)
