Bombay High Court
Shahrukh Ziya Mohammad vs The State Of Maharashtra Through ... on 1 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10982-DB
Judgment wp783.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 783/2024.
Shahrukh Ziya Mohammad,
aged about 31 years, Occupation -
Business, resident of Plot No.104,
Rose Colony, Rajaram Layout,
Rukhmini Nagar, Katol Road,
Nagpur, District Nagpur. ... PETITIONER.
VERSUS
1.State of Maharashtra,
through Superintendent of Police,
State CID (Crime Investigation
Department) Nagpur.
2.Ritika @ Ritu Dinesh Maloo,
Age 39 years, Occupation - Business,
resident of Deshpande Layout,
Nandanwan, Nagpur. ... RESPONDENTS.
---------------------------------
Mr.A.G. Hunge, Advocate for the Petitioner.
Mr. D.V. Chavhan, Senior Advocate/G.P. with Mr.N.H. Joshi, A.P.P.
for Respondent No.1.
Mr.S.P. Bhandarkar, Advocate for Respondent No.2.
Mr. F.T. Mirza, Senior Advocate with Mr. A. Kukday, Advocate for
Registrar, High Court Bombay.
----------------------------------
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2
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : OCTOBER 01, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Rule. Rule made returnable forthwith and with
the consent of the learned Counsel appearing for the parties, the
matter is taken up for final disposal.
2. In this Writ Petition we are confronted with an unusual
situation, wherein the action of the learned Sessions Judge, Nagpur of
suo moto taking cognizance of the order passed by the learned Judicial
Magistrate First Class, Court No.4, Nagpur (Magistrate), has been
called in question. The petitioner is one of the kin of deceased in the
incident who has raised challenge to the action of Sessions Judge of
suo moto invoking revisional jurisdiction vide impugned order dated
30.09.2024. The challenge is on the ground that there is neither
propriety, nor cause for the learned Sessions Judge to invoke suo moto
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powers for examining the order of the Magistrate.
3. It necessitates us to make a brief reference of few facts
which are necessary for the purpose of deciding this petition. The
genesis of the entire episode is a 'road accident' which took place on
25.02.2024 around 1.30 to 1.45 a.m. at Ramjhula Bridge in which
two innocents lost their lives. The police have registered Crime
No.122/2024 initially for the offences punishable under Section 304-
A, 279, 337, 338 of the Indian Penal Code and Section 184 of the
Motor Vehicles Act. Later on the police have invoked Section 304 of
the Indian Penal Code. The accused/respondent no.2 was initially
arrested and released on bail for the offence punishable under Section
304-A of the Code. After invocation of Section 304, the respondent
no.2 attempted to secure pre-arrest bail, however, failed upto this
Court. By virtue of the order passed by this Court in Criminal Writ
Petition No.441/2024 dated 30.08.2024, the investigation has been
transferred to State CID.
4. The transferred investigating agency has applied for
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cancellation of bail and permission to rearrest. After hearing the
parties, the learned Sessions Judge vide order dated 25.09.2024 has
canceled the bail granted by the Judicial Magistrate as well as,
permitted the investigating agency i.e. C.I.D. to arrest respondent
no.2/accused.
5. Since the changed investigating agency has crossed all the
barriers in arrest, immediately they have moved to the jurisdictional
Magistrate seeking permission to arrest. As the accused is a lady and
the investigating agency inclined to immediately arrest the accused
after sunset and before sunrise, permission was sought. Record
indicates that the said application was moved to the Magistrate on the
very day i.e. 25.09.2024 at 10.11 p.m. The learned Magistrate having
regard to the facts and the provisions of Section 46[4] of the Code of
Criminal Procedure (Section 43[5] of the Bhartiya Nagrik Suraksha
Sanhita, 2023), has permitted the investigating agency to arrest
respondent no.2/accused during night hours with a rider that the
arrest shall be made by a woman police officer by following due
process of law.
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6. It is informed that after passing of the said order in late
hours of 25.09.2024, the Investigating Officer has effected arrest of
respondent no.2/accused in the midnight. On the following day, the
accused was produced before the Magistrate around 3.50 p.m. The
Investigating Officer has sought police custody remand for 10 days,
which was resisted by the accused. The learned Magistrate has
rejected the prayer for police custody vide order dated 26.09.2024.
The said order is challenged by State, which is subjudice before the
Sessions Court.
7. In the wake of said position, the learned Sessions Judge suo
moto invoked revisional powers in terms of Section 397[1] of the
Code of Criminal Procedure to examine the order of Magistrate dated
25.09.2024. The Sessions Judge has directed to register revision in
order to ascertain the correctness, legality and propriety of the order of
the Magistrate dated 26.09.2024, by which the Magistrate has
permitted the investigating agency to arrest the accused after sunset
and before sunrise.
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8. For the sake of convenience we wish the reproduce the
impugned order of the Sessions Judge dated 30.09.2024, which reads
as under :
"IN THE COURT OF SESSIONS AT NAGPUR.
(Presided over by Dinesh P.Surana, Principal District
and Sessions Judge, Nagpur)
Order for entertaining Suo Moto Criminal Revision in
Crime No.122/2024.
(Passed on this 30th day of September, 2024.)
It has come to my knowledge that by order
dated 25.09.2024, the learned Judicial Magistrate First
Class (Curt No.4), Nagpur in Crime No.122/2024 of
Tahsil Police Station, Nagpur has granted permission
to Tahsil police station Nagpur to arrest a woman
accused namely Ritika @ Ritu Malu in the said crime
and after sunset ans before sunrise.
2] Utilizing the powers under section 397 of
the Cr.P.C. i.e. section 438 of The Bhartiya Nagarik
Suraksha Sanhita, 2023, this Court of Sessions
presiding over by the Sessions Judge, is entertaining
this Suo Moto Revision for the purpose of satisfaction
as to the correctness, legality and properiety of the
findings and order dated 25.09.2024 passed by the
Judicial Magistrate First Class, (Court No.4), Nagpur
in Crime No.122/2024 of Tahsil police station,
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Nagpur.
3] The Office is directed to register suo moto
criminal revision.
4] Office is directed to call for R & P of Crime
No.122/2024 registered with Tahsil police station,
Nagpur from the Judicial Magistrate First Class,
(Court No.4), Nagpur.
5] Issue notice to the prosecution/
investigating agency and a woman accused namely
Ritika @ Ritu Dinesh Malu, returnable on
03.10.2024.
6] The learned Addl. Prosecutor G.N. Dubey
waived the notice for the prosecution/investigating
agency.
Nagpur. [Dinesh P. Surana]
Date : 30.09.2024 Sessions Judge, Nagpur."
9. We have no doubt in our mind that the Sessions Judge has
concurrent powers like this Court to call for and examine the record of
any proceedings before the inferior criminal Court to satisfy about its
correctness, legality or propriety. The Sessions Judge took suo moto
cognizance of the order of the Magistrate dated 25.09.2024 to
examine the order on above parameters. At the cost of repetition, we
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may say that vide order dated 25.09.2024, the Magistrate has
permitted the investigating agency to effect arrest of a female accused
after sunset and before sunrise in terms of Section 46[4] of the Code,
which is now Section 43[5] of the BNSS.
10. The learned Counsel for the petitioner would submit that
no reason is assigned by the learned Sessions Judge to exercise the suo
moto powers. He would submit that, it would hamper the further
process and may have impact on some pending/related proceedings.
It is brought to our notice that the order of Magistrate dated
26.09.2024, rejecting police custody has been challenged under
revisional jurisdiction and the said revision is still pending. He would
submit that unnecessarily those proceeding may either prolong or the
revisional Court may get influenced by the action of the Sessions
Judge of taking suo moto cognizance.
11. The learned Counsel for respondent no.2/accused has
supported petitioner's stand by echoing the submission that there is
no propriety for the Sessions Judge in invoking suo moto revisional
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powers. He has also thrown light on one other aspect, that, pendency
of suo moto revision may come in his way i.e. in case of securing bail.
He has expressed fear that pendency of the sou moto revision may
cause impact on the merits, as well as in securing bail. According to
him, the bail application, may get prolonged due to pendency, which
would directly affect her right to liberty.
12. The learned Government Pleader appearing for
respondent no.1 State CID has joined the submissions canvassed by
the earlier two Counsel by contending that the order passed by the
learned Magistrate was perfectly justifiable in that situation and thus,
there was no occasion or cause for the learned Sessions Judge to suo
moto step in.
13. Since the action of Sessions Judge of suo moto invoking
the revisional jurisdiction is under challenge, on our request, the
learned Senior Counsel Shri F.T. Mirza, who earlier was a panel
Advocate for High Court, has advanced his submissions. So also we
have heard the existing High Court panel Advocate Shri Kukday to
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understand the justification for exercising suo moto revisional powers.
Both are fair enough to concede that they do not see any justification
in exercising suo moto power. They conceded that, nothing is
reflected in the order which necessitates to examine the order of the
Magistrate. Precisely, they have to say nothing about the impugned
order.
14. The issue posed before us for consideration is very limited
i.e. to see whether the learned Sessions Judge is right in exercising suo
moto revisional jurisdiction in taking up for examination the order of
Magistrate permitting police to arrest the accused during night hours.
The first and foremost thing which strikes us is that the accused may
have got aggrieved by such a permission, but, the accused has nothing
to say. Rather the accused has no grievance about grant of such
permission to arrest during night hours. Learned Counsel appearing
for respondent no.2/accused has specifically stated that they have no
grievance against the order of Magistrate dated 25.09.2024 permitting
to arrest during night hours. In such a background we have
considered the limited controversy.
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15. Though the Code empowers the Sessions Judge to exercise
suo moto revisional powers, we feel that there must be some cause,
reason or trigger for the Sessions Judge to form an opinion that this is
a fit case to examine the order. The impugned order dated
30.09.2024 is totally silent as to what caused or prompted the Sessions
Judge to exercise suo moto powers. We may repeat that neither the
State CID is aggrieved, nor the accused is aggrieved by the order of
the Magistrate. The impugned order is also silent as to what has
caused to exercise suo moto powers. Certainly the Sessions Judge has
power to examine and satisfy about the correctness, legality and
propriety of the order, but, prima facie there must be some reason to
exercise such powers. The judicial orders cannot be on personal
whims, but, it shall be backed by at least some prima facie reasons.
Needless to say that assignment of reasons is the heart of judicial
system.
16. On the count of legality, Section 43[5] of the BNSS
permits the Magistrate to grant permission to arrest a female during
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night hours. There exists a statutory provision to grant permission,
which the learned Magistrate in his discretion has exercised. The
decision of Magistrate does not fail on the premise of procedural
illegality.
17. On account of correctness, the Magistrate has expressed in
his order that he has gone through the grounds placed by the
investigating agency for seeking permission to arrest during night
hours. The Magistrate has considered the submission that the offence
is serious and accused may abscond, if not arrested immediately, and
having found substance in the same, has granted permission. We have
been taken through Clause 5 of the reasons placed by the investigating
agency for seeking permission to arrest, which indicates that there is
likelihood that the accused may abscond or there are chances that she
may leave the country. It is also stated that in past, after rejection of
pre-arrest bail, the accused has fled from the State and went to State of
Rajasthan. Perhaps this reason might have weighed the Magistrate in
exercising powers to hold that an exceptional case has been made out.
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18. On the ground of propriety also we see no justification to
take sou moto action. The phrase 'propriety' means need, suitability,
necessity, requirement of time, but, on these lines the action is
unsustainable. Rather, the action of taking suo moto cognizance in
the matter which is of no avail would yield nothing, but, would slow
down the ongoing proceedings. Neither we get any clue from the
order of Sessions Judge as to what is the reason to invoke the powers,
nor after going through the order of Magistrate, we see any reason to
hold that the order is improper, against the provisions of law or passed
in absence of any propriety.
19. When the statute has invested powers to the Court, it also
carries responsibility. The Statute has invested simultaneous
revisional powers on the Sessions Court, at par with the High Court
by reposing faith, confidence and under expectation of exercising the
powers to see that justice is done in accordance with the Rules and
jurisprudential principles. Inferior Courts do not exceed the
jurisdiction or abuse the powers vested in the said Court or the
situation warrants so. Sou moto powers are to be exercised sparingly
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when the orders of inferior Court are against the law, procedure or
there is a glaring mistake. The uncalled activism would put
unnecessary hindrance in the smooth legal proceedings. Unless there
are reasons, Court cannot resort the powers as there are various
repercussions of the pendency of uncalled proceedings. Suo moto
revision may certainly hamper the expeditious disposal of the pending
revision filed by the State CID seeking police custody. Likewise, the
bail application, if any, filed by the accused may get delayed for the
reason of pendency of this revision. There may be some other
repercussions which we cannot speculate, but, we are sure that it
would cause hurdle in the process which is already delayed as the long
history depicts so. While exercising the powers, the Judge should
carry sense of responsibility and shall not step in unless there are
reasons to prompt judicial mind that it is a fit case to exercise suo
moto powers.
20. Moreover, Section 397[2] of the Code precludes to invoke
revisional jurisdiction, if the order is of interlocutory nature. The
Three-Judge Bench of Supreme Court in case of Madhu Limaye .vrs.
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The State of Maharashtra - [1977] 4 SCC 551 has clarified the
position that the order which will not culminate the proceedings, can
be termed as interlocutory order. The order of Magistrate does not
deal with the final rights of the parties, but, it is merely on a matter of
procedure. The order which has no bearing on the proceeding nor
would terminate the proceeding is purely of interlocutory nature,
which is not revisable. Despite such statutory rider, revisional powers
are invoked that too suo moto. This aspect also ought to have been
taken into consideration while passing the impugned order.
21. At the cost of repetition, we say that at the most the
aggrieved person by such order of Magistrate is the accused, who has
no grievance at all. The learned Sessions Judge would have assigned
some reasons to give signal that there are grounds which necessitates
him to exercise suo moto powers. Apart from that, the order
permitting arrest during night hours, has already been executed, as the
accused was arrested, produced before the Magistrate and the matter
has traveled much beyond. We see no fruitful purpose in testing the
said order as the things cannot be reversed.
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22. In view of above, we find that the learned Sessions Judge
seriously erred in invoking suo moto revisional power. We expect that
the Sessions Judge shall keep restrain in exercising such powers and
also think about the impact of such order on other pending
proceedings. The higher Courts must act with higher responsibility.
Moreover, nothing has to be gained by testing the order, and
therefore, uncalled, unreasoned order of the Sessions Judge would not
sustain in the eyes of law. As a result of above discussion, Writ
Petition succeeds. The order passed by the Sessions Judge, Nagpur
dated 30.09.2024 in Suo moto Criminal Revision in Crime
No.122/2024 is hereby quashed and set aside.
We may clarify that the action of the Sessions Judge in
taking cognizance or any observations made in this judgment, will
have no impact on all the pending proceedings, including the revision
and bail application, which shall be decided expeditiously.
Rule is made absolute in aforesaid terms.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 01/10/2024 20:12:34
