Bombay High Court
Kamalbai W/O. Vilas Waghmare vs Gunda @ Gundaji Devrao More And Others on 21 February, 2025
2025:BHC-AUG:5369
(1) 917 cri wp 1378.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1378 OF 2022
Kamalbai w/o. Vilas Waghmare,
Age: 55 years, Occ : H.H. R/o Shirur Tajband,
Tq. Ahmedpur, Dist. Latur. ... PETITIONER
V/s.
1. Gunda @ Gundaji S/o Devrao More
Age: 70 years, Occu: Labour
2. Ashok S/o Dagdoba Gaikwad
Age: 60 years, Occu: Labour
3. Manohar S/o Narayan Kamble
Age: 50 years, Occu: Labour
4. Ravi S/o Laxmikant Eklare
Age: 30 years, Occu: Labour
All R/o Shivajinagar Mukhed,
Tq. Mukhed, Dist. Nanded.
5. The State of Maharashtra
Through P.S.O. Police Station, Ahmedpur,
Tq. Ahmedpur, Dist. Latur. ... RESPONDENTS
.....
Mr. K.T. Shirurkar, Advocate for the Petitioner
Ms. K.K. Naik, APP for the Respondent-State
Mr. Aniket Avhad h/f. Nitin S. Kadarale, Advocate for the Respondents
.....
CORAM : Y.G. KHOBRAGADE, J.
DATE : 21.02.2025
(2) 917 cri wp 1378.22
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the consent of
both the sides the petition is heard finally at the admission stage.
2. By the present petition under Article 227 read with Section 482 of
the Cr.P.C., the Petitioner takes exception to the order dated 29.06.2022,
passed by the learned Sessions Judge, Ahmedpur, Dist. Latur in Criminal
Revision Application No.3/2019 and thereby upheld the order of refusal of
directions u/s 156(3) of Cri. P. C. passed by the JMFC, Court No.2, Ahmedpur
in Cri. Misc. Application No.213/2018 on 20.04.2019.
3. In brief facts giving rise to the present petition are that, the
Petitioner filed Cri. Misc. Application No. 213/2018 before the learned JMFC,
Ahmedpur, alleging that, she is owner and in possession of agricultural land
bearing Survey No.123 total ad-measuring 1 H 25 R in pursuance of sale-deed
executed in the year 2008. Her husband was serving with the Mumbai
Municipal Corporation. She alone is cultivating the said land, however, the
Respondent Nos.1 to 4 (Accused) by taking disadvantage executed the
agreement to sale in respect of her agricultural field and under her fake and
false signature prepared documents i.e. Agreement to Sale. Since the
Respondent Nos. 1 to 4/Accused created false and fabricated agreement to sale,
therefore, they have committed an offence punishable under Section 119, 120,
(3) 917 cri wp 1378.22
420, 120-B, 463, 464, 467, 468, 470, 471, 474, 141, 142 read with Section 34
of the I.P.C., hence, prayed for direction to register an FIR and further
investigation under Section 156(3) of the Cr.P.C. The Complainant/Petitioner
further alleged that, the Respondent No.1 filed a Civil Suit bearing RCC
No.258/2014 before the Civil Court, Ahmedpur and prayed for decree of
specific performance of the contract on the basis of false and fabricated
agreement to sale.
4. On 20.04.2019, the learned JMFC passed an order holding that,
the present Respondent No.1 has already instituted a civil suit bearing RCC
No.258/2014 and prayed for decree of specific performance of the contract on
the basis of same cause of action, so also, the dispute between the Petitioner
and Respondents are of civil nature, hence, rejected the prayer of the
Petitioner/Complainant for issuance of further investigation under Section
156(3) of the Cr.P.C.
5. Being aggrieved by said order the Petitioner/Complainant filed
Criminal Revision Application No.3/2019. On 29.06.2022, the learned
Revisional Court passed the impugned order holding that, the allegations made
in the complaint itself does not constitute an offence as alleged. The learned
trial Court considered allegations made in the complaint and declined to pass
an order under Section 156(3) of the Cr.P.C.
(4) 917 cri wp 1378.22
6. In the case of Sachin Raosaheb Jadhav Vs. The State of
Maharashtra, 2015 Cri. Law Journal 733 it is held that, when a petition or
complaint is presented before the Magistrate, in which a request is made for
taking action as mentioned in section 2(d) of the Code, the Magistrate is
expected to apply his mind. The Magistrate has to ascertain whether the
contentions made in the petition/complaint constitute any offence. If they
constitute some offence then the Magistrate is expected to take decision as to
whether the matter needs to be referred to police for investigation as provided
in section 156(3) of the Code or he needs to proceed further as provided in
section 200 and subsequent sections of Chapter XV of the Code. There is a
discretion with the Magistrate in this regard. Though, police officer is duty
bound to register a FIR on receiving information of cognizable offence, the
Magistrate is not bound to refer the matter to police under section 156(3) of
the Code.
7. In the case of Priyanka Srivastava and another Vs. State of U.P. and
others, Supreme Court Criminal Appeal No.781 of 2012, (2015) 6 SCC 287 :
(MANU/SC/0344/2015), wherein it is held that, if mere allegations are taken
to be sufficient, there would be flood of the registration of the cases in
compliance of the order passed under Section 156(3) of the Code of Criminal
Procedure. The application of power under this section is to be made when
circumstance really justify for it. Though, the complainant has complied with
(5) 917 cri wp 1378.22
the provisions of Section 154(3), the application is required to be supported by
an affidavit. The Hon'ble Supreme Court in paragraph No. 27, held thus:-
"In our considered opinion, a stage has come in this country where Section 156(3) of
Cr.P.C. Applications are to be supported by an affidavit duly sworn by the applicant
who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an
appropriate case the learned Magistrate would be well advised to verify the veracity of
the allegations. This affidavit can make the applicant more responsible. We are
compelled to say so as such kind of applications are being filed in routine manner
without taking any responsibility whatsoever only to harass certain persons..."
"The warrant for giving a direction that an the application U/s. 156(3) be
supported by an affidavit so that the person making the application should be
conscious and endavour to see that, no false affidavit is made. It is because once an
affidavit is found to be false, he will be liable for the prosecution in accordance with
law. This will deter him to casually invoke the authority of Magistrate Under section
156(3)."
8. In recent judgment dated 16.01.2025, Criminal Appeal No.352 of
2020, Om Prakash Ambadkar Vs. The State of Maharashtra and others ,
MANU/SC/0134/2025, passed by the Hon'ble Supreme Court it is held in
paragraph Nos. 24 as under:-
"24. Thus, there are prerequisites to be followed by the complainant before
approaching the Magistrate Under Section 156(3) of the Code of Criminal Procedure
which is a discretionary remedy as the provision proceeds with the word 'may'. The
Magistrate is required to exercise his mind while doing so. He should pass orders only
if he is satisfied that the information reveals commission of cognizable offences and
also about the necessity of police investigation for digging out of evidence neither in
possession of the complainant nor can be procured without the assistance of the
police. It is, thus, not necessary that in every case where a complaint has been filed
Under Section 200 of the Code of Criminal Procedure the Magistrate should direct the
Police to investigate the crime merely because an application has also been filed
Under Section 156(3) of the Code of Criminal Procedure even though the evidence to
be led by the complainant is in his possession or can be produced by summoning
witnesses, with the assistance of the court or otherwise. The issue of jurisdiction also
becomes important at that stage and cannot be ignored."
(6) 917 cri wp 1378.22
9. On consideration of the scope of Section 156(3) of Cr.P.C., as it is
in discretionary nature. The Hon'ble Supreme Court in cited cases held that, the
provision of Sec. 156(3) of Cri. P. C. it is not mandatory on part of the learned
Magistrate to issue directions for investigation in each and every complaint
instituted u/s 156 (3) of Cr.P.C., unless cognizable offence is made out. If the
learned Magistrate is satisfied about existence of such cognizable offence then
directions for investigation u/s 156 (3) of Cr.P.C. can be issued. Therefore,
considering the allegations made in Criminal M.A. No. 42 of 2019, about
tampering of documents, cheating, forgery, criminal breach of trust by
conspiracy, common intention and abetment does not warrant any
investigation through police machinery under section 156(3) of Cr.P.C.
10. In the case in hand, the Petitioner/Complainant specifically alleged
that, on 25.08.2011, her signature were obtained on blank paper by the
Accused No.1. Subsequently, the Accused Nos.1 to 4 in furtherance of common
intention prepared false and bogus agreement to sale in respect of her land
bearing survey no.123 situated at village Hokarna with an intention to grab
said land.
11. Needless to say that, the present Respondent No.1 has already
instituted a civil suit bearing RCC No.258/2014 and prayed for decree of
specific performance of contract. Therefore, the Petitioner/Complainant can
(7) 917 cri wp 1378.22
raise objections in her defence by filing Written Statement in said civil suit. The
Petitioner can also examine the hand writing expert, if she desires. Therefore, I
do not find that, the impugned orders passed by both the Courts below suffer
from any infirmity, illegality or are bad in law, hence, no interference is called
at the hands of this Court. Accordingly, the petition is dismissed. Rule is
discharged.
[Y.G. KHOBRAGADE, J.]
mub
