Bombay High Court
Sakharam S/O. Dagduji Jadhav vs The State Of Maharashtra And Others on 5 August, 2024
2024:BHC-AUG:18982
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1219 OF 2018
WITH
CRIMINAL APPLICATION NO. 1273 of 2019
Sakharam s/o Dagduji Jadhav
Age : 80 years, Occ : Pensioner & Agriculture
R/o Plot No.9, Deogiri Housing Society,
Khokadpura, Aurangabad. ..Petitioner
VERSUS
1. State of Maharashtra
Through AGP (Hon'ble High Court of judicature of
Bombay Bench at Aurangabad), Aurangabad.
2. Rameshkumar S/o Jitmal Bagdiya,
Age: 60 yrs, Occu: Busniess,
R/o: Plot No. 5, Gururamdasnagar, Maheshnagar,
Baijipura Road, Aurangabad.
3. Ashwin S/o Rameshkumar Bagdiya,
Age: 28 yrs, Occu: Busniess,
R/o: Plot No. 5, Gururamdasnagar, Maheshnagar,
Baijipura Road, Aurangabad.
4. Sambhaji S/o Daulat Shinde,
Age: 55 yrs, Occu: Business,
R/o: Peer Bazar, Patil Niwas, Osmanpura,
Aurangabad.
5. Sanjay @ Raju Katariya,
Age: 45 yrs, Occu: Service,
R/o: Plot No. 5, Gururamdasnagar, Maheshnag
Baijipura Road, Aurangabad.
6. Sandip S/o Kisan Rathod,
Age: 30 yrs, Occu: Business,
R/o: Galli No. 4, Hanuman Nagar, Near Sudhakar
Naik School, Pundliknagar Road, Near Water Tank,
Garkheda Parisar, Aurangabad.
7. Happy Seth Sardarji,
Age: 55 yrs, Occu: Business,
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(2)
R/o: Osmanpura, Near Gurudwara, Aurangabad.
Mob No. 9850140061. ..Respondents
...
Advocate for the Petitioner : Mr. Joshi Rahul G.
APP for Respondent/State : Mr. S.B. Narwade
Advocate for Respondent No.2, 3 & 5 : Mr. S.P. Shah
Advocate for Respondent No.4 : Mr. V.S. Sakhare h/f Mr. S.A. Ambad
...
CORAM : S.G. MEHARE, J.
DATED : AUGUST 05, 2024
ORDER :
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1. Heard the learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has impugned the order of the learned
Judicial Magistrate First Class, Aurangabad, dated 01.10.2016, passed
in Criminal M.A. No.1341 of 2016 on the application/complaint
under Section 156(3) and 200 of the Criminal Procedure Code.
3. The Trial Court recorded the finding that there was no
material to believe that the offence under Section 307 of the Indian
Penal Code is made out. The Revisional Court also dismissed the
revision by the order dated 04.07.2018 in Criminal Revision No.222
of 2016.
4. The learned counsel for the petitioner would submit that
the prayers were twofold. Firstly, the prayer was for directing the
police to register the crime under Section 156(3), and in alternative,
the application be treated complaint. If the Court was of the opinion
that the petitioner has no case to direct the police under Section
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156(3), the Trial Court should have passed the order under Section
202 of the Criminal Procedure Code. None of the Courts below
granted him an opportunity to prove the allegations. The matter was
serious. The JCB was taken into the field forcefully. The plants were
uprooted. The Tahsildar had drawn the panchnama of the
removal/cutting of the plants and trees. The tone of his argument was
that once the complaint is filed, the Court shall pass an order under
Section 156(3) or 202 of the Criminal Procedure Code. To bolster his
argument, he relied on the case of Pranati Das Vs. State of West
Bengal, 2020 SCC Online Cal 132 . In that case, the complaint was
rejected on the report submitted by the officer in charge of the police
station. It has been further observed that our Apex Court has also
observed in the decision cited by Learned Magistrate (Priyanka
Shrivastava Vs. State of U.P) that in an appropriate case, the
Magistrate would be well advised to verify the truth and also verify
the veracity of the allegations contained in the petition of complaint.
This judgment is self-speaking. The Magistrate must apply the mind
based upon the veracity of the allegation. In other words, it may be
stated that barely lodging the complaint is not sufficient. The
allegations should inspire confidence that the cognizable offence has
happened.
5. As against this, counsel for the contesting respondent
submits that the issuance of the order under Section 156(3) and 202
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of the Criminal Procedure Code is not a mechanical process. There
should be sufficient material to form an opinion that it is a matter in
which action is required to be taken to make justice with the person
knocking on the doors of the Court of law. The complaint is silent.
The complainant suppressed the fact from the Court in the pleading
that some of the portions of the same land were purchased by the
respondents from the complainant and after litigation, he handed
over its possession. The portion which was sold to the respondents
was not demarcated by boundaries. Since the petitioner was
disinterested in handing over the possession after receiving the
consideration, he was searching for a cause to lodge the complaint,
and he automatically got the right and tried to encash it.
6. Section 200 speaks of the examination of the
complainant, and Section 202 speaks of the postponement of issue of
process. The law is crystal clear. Hence, no discussion that the
complainant or any witnesses present should be examined under
Section 200 the Magistrate is bound to examine the complainant and
witnesses and it should be recorded whether other witnesses are
present in the Court or not. Thereafter, the question of issuance of
summons would come up. Then, the Magistrate may issue summons
to the accused o order an inquiry under Section 202 or dismiss the
complaint under section 203. After considering the statement of the
complainant on oath or witness, the Magistrate is satisfied that there
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are no sufficient grounds for proceeding, then he shall dismiss the
complaint. For taking the cognizance there must be sufficient ground
to proceed with the matter. Issuing of summons is not a matter of
course. There should be sufficient grounds to initiate the action
against the opponent.
7. Section 156(3) Cr.P.C. provides for the powers of the
Magistrate to order such an investigation as provided under sub-
section (1) and (2) of the said section. Under this section, the
investigation order may be directed before examining the
complainant and taking cognizance.
8. The Hon'ble Supreme Court in Dilawar Singh Vs. State of
Delhi, AIR 2007 SC 3234 observed that Section 156 falling within
Chapter XII, deals with powers of police officers to investigate
cognizable offences. Investigation envisaged in Section 202 contained
in Chapter XV is different from the investigation contemplated under
Section 156 of the Cr.P.C. Chapter XII of the Cr.P.C. contains
provisions relating to "information to the police and their powers to
investigate". Whereas Chapter XV, which contains Section 202, deals
with provisions relating to the steps which a Magistrate has to adopt
while and after taking cognizance of any offence on a complaint.
Provisions of the above two chapters deal with two different facets
altogether, though there could be a common factor i.e. complaint filed
by a person. Section 156, falling within Chapter XII deals with powers
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of the police officers to investigate cognizable offences. True, Section
202, which falls under Chapter XV, also refers to the power of a
Magistrate to "direct an investigation by a police officer". But the
investigation envisaged in Section 202 is different from the
investigation contemplated in Section 156 of the Cr.P.C. The various
steps to be adopted for investigation under Section 156 of the Cr.P.C.
have been elaborated in Chapter XII of the Cr.P.C. Such investigation
would start with making the entry in a book to be kept by the officer
in charge of a police station, of the substance of the information
relating to the commission of a cognizable offence. The investigation
started thereafter can end up only with the report filed by the police
as indicated in Section 173 of the Cr.P.C. The investigation
contemplated in that chapter can be commenced by the police even
without the order of a Magistrate. But that does not mean that when
a Magistrate orders an investigation under Section 156(3) it would be
a different kind of investigation. Such investigation must also end up
only with the report contemplated in Section 173 of the Cr.P.C. But
the significant point to be notice is, when a Magistrate orders
investigation under Chapter XII he does so before he takes cognizance
of the offence. The clear position therefore is that any Judicial
Magistrate, before taking cognizance of the offence, can order
investigation under Section 156(3) of Cr.P.C. If he does so, he is not to
examine the complainant on oath because he was not taking
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cognizance of any offence therein. For the purpose of enabling the
police to start investigation it is open to the Magistrate to direct the
police to register an FIR. There is nothing illegal in doing so. After all,
registration of an FIR involves only the process of entering the
substance of the information relating to the commission of the
cognizable offence in a book kept by the officer in charge of the police
station as indicated in Section 154 of Cr.P.C. Even if a Magistrate does
not say in so many words while directing investigation under Section
156(3) of the Cr.P.C. that an FIR should be registered, it is the duty of
the officer in charge of the police station to register the FIR regarding
the cognizable offence disclosed by the complaint because that police
officer could take further steps contemplated in Chapter XII of the
Cr.P.C. only thereafter.
9. In case of Suresh Chand Jain Vs. State of Madhya
Pradesh and another, AIR 2001 SC 571 , it has been observed that any
judicial Magistrate, before taking cognizance of the offence, can order
investigation under S. 156(3) of the Code. If he does so, he is not to
examine the complainant on oath because he was not taking
cognizance of any offence therein. For the purpose of enabling the
police to start investigation it is open to the Magistrate to direct the
police to register an FIR. There is nothing illegal in doing so. After all
registration of an FIR involves only the process of entering the
substance of the information relating to the commission of the
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cognizable offence in a book kept by the officer-in-charge of the police
station as indicated in S. 154 of the Code. Even if a Magistrate does
not say in so many words while directing investigation under S.
156(3) of the Code that an FIR should be registered, it is the duty of
the officer-in-charge of the police station to register the FIR regarding
the cognizable offence disclosed by the complaint because that police
officer could take further steps contemplated in Chapter XII of the
Code only thereafter.
10. The Hon'ble Supreme Court in Mohd. Yousuf Vs. Smt.
Afaq Jahan and Anr, AIR 2006 SC 705 observed that Section 156
falling within Chap. XII, deals with powers of Police Officers to
investigate cognizable offences. Investigation envisaged in s. 202
contained in Chap. XV is different from the investigation
contemplated under S. 156. The investigation contemplated in Chap.
XII can be commenced by the police even without the order of a
Magistrate. But that does not mean that when a Magistrate orders an
investigation under S. 156(3) it would be a different kind of
investigation. Such investigation must also end up only with the
report contemplated in S. 173. But the significant point to be noticed
is, when a Magistrate orders investigation under Chap. XII he does so
before he takes cognizance of the offence. But a Magistrate need not
order any such Investigation if he proposes to take cognizance of the
offence. Once he takes cognizance of the offence he has to follow the
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procedure envisaged in Chap. XV of the Code. A reading of S. 202(1)
of the Code makes the position clear that the investigation referred to
therein is of a limited nature. Such investigation is only for helping
the Magistrate to decide whether or no there is sufficient ground for
him to proceed further.
11. Perused the complaint. There is no pleading that some
portion of the land arising out of the same field survey number has
been sold to the respondents and handed over to them. The learned
Counsel for the petitioner was unable to satisfy the Court that there
were pleadings as such in the complaint. In these circumstances, there
is a great possibility of claiming the portion of the land which the
respondent had purchased. The pleadings were not specific. There
was no material before the Court. Hence, the Court has correctly
considered that neither it was a case falling under Section 156(3) nor
a complaint under Section 200.
12. This Court has also gone through the papers as referred
to by the learned counsel for the petitioner and satisfied that the
material before the Court was not sufficient to believe that the
allegations were sufficient to proceed with the matter. It seems to be
just assumptions and presumptions of the petitioner that he was tried
to be killed, and the non-applicants tried to encroach upon the
portion of his land. Issuing the process against anybody is not a
mechanical process. There should be sufficient material to believe that
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a cognizable offence is made out, or at least there should be some
material to proceed to take criminal law in motion. Nothing is on
record that may inspire the confidence to exercise0 the powers under
Section 156(3) or 200 of the Criminal Procedure Code. The complaint
was devoid of merit and rightly rejected by both Courts. The writ
petition is devoid of merit. Hence, it stands dismissed. No order as to
costs.
13. Criminal Application No.1273 of 2019 stands disposed of.
(S.G. MEHARE, J.)
Mujaheed//
