Bombay High Court
Surendra Hanmanlu Gandam And Another vs The State Of Maharashtra And Another on 29 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:2859-DB
(1)
Cri. Appln. No. 1833-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1833 OF 2023
1. Surendra Hanmanlu Gandam,
Age : 58 Years, Occ. Pensioner,
R/o. C/o. Sainath Ambegaonkar,
Sailila Building, Canal Road,
Near D-Mart, Wadi (Kh), Nanded.
2. Dayanand Narayanrao Shinde,
Age : 48 Years, Occ. Service,
R/o. Gramsevak Colony, Nagar Road,
Beed. .. Applicants
(Orig. Accused)
VERSUS
1. The State of Maharashtra,
Through In-charge Officer,
Police Station, Georai, Dist. Beed
2. Sandesh S/o Shivajirao Potdar,
Age : 63 Years, Occ. Advocate,
R/o. Bag Pimpalgaon Tq. Georai,
Dist. Beed. .. Respondents
(Resp. No.2/Orig. informant)
....
Advocate for the Applicants : Mr. S. J. Salunke
A.P.P. for Respondent No.1/State : Mr. A. R. Kale
Advocate for Respondent No.2 : Mr. E. S. Potdar h/f Adv.
Mr. D. K. Rajput
....
CORAM : SMT. VIBHA KANKANWADI AND
ROHIT W. JOSHI, JJ
RESERVED ON : 14.01.2025
PRONOUNCED ON : 29.01.2025
JUDGMENT (PER ROHIT W. JOSHI, J):
-
1. The applicants in the present matter are arrayed as accused Nos.
1 and 2 in First Information Report No. 42 of 2022 registered with
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Police Station Gevrai, District Beed on 27.01.2022 for the offence
punishable under Sections 166A of the Indian Penal Code (herein after
referred to as 'IPC" for brevity). The said First Information Report is
registered pursuant to order dated 24.01.2022 passed by the learned
Judicial Magistrate First Class Court No. 2 (hereinafter referred to as
'J.M.F.C' for brevity)- Gevrai District Beed on application at Exhibit 7
in Criminal Misc. Application No. 391 of 2021. The applicant Nos. 1
and 2 were posted as Police Inspector and Police Station Officer at
Police Station Gevrai on 21.03.2016. Respondent No.2-informant is
an Advocate. He has stated that he had visited police station Gevrai
on 21.03.2016 for lodging First Information Report against one Aniket
Radheshyam Attal and 12 others for the offence punishable under
Sections 420, 465, 467, 468, 471, 477-A, 120B and 109 of the IPC.
He states that the present applicants were duty bound to register the
First Information Report since the offence was a cognizable offence,
however, they failed to perform their mandatory duty and as such
committed offence punishable under Section 166-A of the I. P. C.
2. Respondent No.2 had initially filed a private complaint on
25.07.2021 against the present applicants vide Criminal Misc.
Application No. 391 of 2021. The said complaint was posted for
recording verification statement vide order dated 09.10.2021.
Thereafter, respondent No.2 filed application dated 18.12.2021 vide
Exhibit 7 stating that rather than taking cognizance of the complaint,
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appropriate order could be passed under section 156(3) of the Code of
Criminal Procedure (hereinafter referred to as 'Cr.P.C.) directing
Gevrai Police Station to register First Information Report and
investigate the matter. The learned J.M.F.C was pleased to pass the
order dated 24.01.2022 directing the police inspector, Gevrai Police
Station to register First Information Report against the present
applicants for offence punishable under Section 166A of the IPC and
to investigate the matter in accordance with law. In compliance of the
said order, respondent No.1 has registered offence against the present
applicants for offence punishable under Section 166A of the IPC on
27.01.2022 vide First Information Report No. 42 of 2022. The
applicants are aggrieved by the said order dated 24.01.2022 and the
First Information Report registered on 27.01.2022. They have
therefore, challenged the same in the present proceeding which is
filed under Section 482 of the Cr.P.C.
3. Learned Advocate Shri. S. J. Salunke for the applicants has
raised the following contentions :-
(i) Offence under Section 166A of the IPC is not made out on
account of failure to register First Information Report with respect to
offences under Sections 420, 468, 477A, 120B and 109 of the I.P.C. ;
(ii) Misc. Criminal Application No. 391 of 2021 was not supported
by an affidavit and was, therefore, liable to be rejected in view of
judgments of Hon'ble Supreme Court in the matters of Babu
Cri. Appln. No. 1833-2023.odt
Venkatesh Vs. State of Karnataka reported in (2022) 5 SCC 639 and
Mrs. Priyanka Shrivasatva and Another Vs. State of Uttar Pradesh
reported in AIR (2015) SC 1758 ;
(iii) Application under Section 156 (3) of the Cr. P. C could not have
been entertained since procedure contemplated under Section 154 (3)
Cr. P.C. was not followed ;
(iv) Order under Section 156(3) of the Cr.P.C. could not have been
passed without prior sanction in view of proviso to Section 156(3)
introduced vide Code of Criminal Procedure (Maharashtra
Amendment) Act 2015 which has come into force w.e.f. 01.11.2016 ;
(v) The complaint and First Information Report are barred by
limitation in view of Section 468(2)(b) of the Cr.P.C. ; and
(vi) First Information Report registered pursuant to an illegal order
also deserves to be quashed.
4. Per contra, Shri. A.R. Kale learned A.P.P. representing respondent
No.1 opposed the application raising contention that the applicants
had failed to perform their mandatory duty of registering First
Information Report with respect to a cognizable offence and were,
therefore, liable to be prosecuted for the offence of disobedience of
direction under law, punishable under Section 166A of the IPC. He
refers to Section 154(1) of the Cr.P.C and judgment of Hon'ble
Supreme Court in the matter of Lalita kumari Vs. State of Uttar
Pradesh, reported in AIR 2014 SC 187 , in support of his contention.
He submits that since the applicants have failed to register the First
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Information Report, ingredients of Section 166A of the IPC are
established. He states that Section 166-A(c) is attracted in case of
failure to register First Information Report with respect to any
cognizable offence and not only with respect to sections mentioned in
the said provision. On the point of sanction he makes reference to
Explanation to Section 197 (1) of the Cr.P.C and contends that
sanction is not required when a public servant is accused of offence
under Section 166A of the IPC. He further makes a submission in the
alternate that offence under Section 166 of the IPC is clearly made out
even if it is held that Section 166A(c) is not attracted. He replies to
the contention with respect to failure on the part of respondent No.2
to file an affidavit in support of his complaint/application under
Section 156 (3) of the Cr.P.C. by stating that it is a technical defect and
criminal prosecution cannot be quashed on account of technical errors
or defects.
5. The learned Advocate for respondent No.2 has also advanced
submission in line with the submission made by the learned A.P.P. He
further submits that sanction as contemplated under Section 156(3) of
the Cr. P. C need not be prior to filing complaint and it can also be
obtained subsequently. He also contends that the applicants are liable
to be prosecuted for having committed breach of mandatory duty
imposed by law i.e. failure to register First Information Report with
respect to a cognizable offence. He argues that assuming that offence
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under Section 166A(c) is not made out, the applicants are liable for
prosecution for offence under Section 166. As regards sanction
contemplated by proviso to Section 156 of the Cr. P. C which is
introduced by Maharashtra Amendment he submits that the offence is
committed on 21.03.2016 i.e. the date on which there was failure on
the part of the applicants to register the F.I.R. and the Maharashtra
Amendment which has come into force on 01.11.2016 will not be
applicable since it cannot have retrospective operation.
6. We are concerned with Section 166A(c) of the Indian Penal
Code which reads as under :-
" 166. Whoever, being a public servant, knowingly disobeys
any direction of the law as to the way in which he is to conduct
himself as such public servant, intending to cause, or knowing it
to be likely that he will, by such disobedience, cause injury to
any person, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine or with both.
(a).........
(b).......
(c) fails to record any information given to him under sub-
section(1) of Section 154 of the Code of Criminal Procedure,
1973 ( 2 of 1974), in relation to cognizable offence punishable
under Section 326-A, Section 326-B, Section 354, Section 354-
B, Section 370, Section 370-A, Section 376, Section 376-A,
[Section 376-AB, Section 376-B, Section 376-C, Section 376-D,
Cri. Appln. No. 1833-2023.odt
Section 376-DA. Section 376-DB], Section 376-E or section 509,
shall be punished with rigorous imprisonment for a term which
shall not be less than six months but which may extend to two
years, and shall also be liable to fine.)
7. Perusal of the provision will indicate that the rigors of Section
166A(c) will be attracted only when a police officer fails to register
First Information Report in relation to cognizable offence punishable
under Sections 326-A,326-B, 354, 354-B, 370, 370-A, 376, 376-A,
376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, 376-E or Section 509
of the IPC. Sections 420, 465, 467, 468, 471, 477-A, 120B and 109
are not mentioned in Section 166A(c), therefore, on account of failure
to register First Information Report with respect to the said provision,
the offence under Section 166-A of the IPC will not be made out. The
offence under Section 166A(c) will be made out only when there is
failure to register First Information Report pertaining to the Sections
mentioned in the said provision.
8. The learned A.P.P. offers alternate interpretation to the said
provision. He submits that there is 'comma' after the word '' fails to
record any information given to him under sub-section (1) of Section
154 of the Cr.P.C, 1973 ", these words are followed by the words, "in
relation to cognizable offence punishable under Sections ........"
appear. His contention is that offence under Section 166-A of the IPC
is made out on failure to register any cognizable offence as per Section
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154(1) and also when offence is not registered with respect to
offences specifically mentioned in 166A(c). He therefore, contends
that apart from sections which have been mentioned in Section
166A(c), the said provision will be attracted in case of failure to
register offence with respect to any cognizable offence, in view of
Section 154(1) of the Cr.P.C.. He submits that the amplitude of
Section 154(1) will not be restricted by specific reference to some of
the sections of the Indian Penal Code in Section 166-A of the IPC.
9. We are unable to accept the interpretation offered by the
learned A.P.P. All the sections of the Indian Penal Code which have
been mentioned specifically in Section 166-A are cognizable offences
under the first schedule appended to the Cr.PC. It is no doubt true
that a police officer is duty bound to register First Information Report,
when information pertaining to a cognizable offence is received by
him. Failure to register First Information Report will amount to
breach of statutory duty imposed under Section 154(1) of the Cr. P. C.
However, the question that falls for consideration is as to whether,
such a police person, who has failed to register First Information
Report with respect to a cognizable offence will be liable for
prosecution and punishment under Section 166A(c) of the I.P.C. even
if the offence does not pertain to specific sections mentioned in
Section 166A(c). We find that all the provisions which have been
specifically mentioned are pertaining to cognizable offence. If the
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intention of the Legislature was to punish a police person under
Section 166A(c) for failure to register First Information Report with
respect to any cognizable offence, specific provisions of IPC would not
have been mentioned in Section 166A(c). The reason for mentioning
the said provisions is that offence under Section 166A(c) will be
constituted only when there is failure on the part of the police persons
to register offence pertaining to the provisions specifically enumerated
in Section 166A(c). If the interpretation of learned A.P.P. is accepted,
the words, 'in relation to cognizable offence punishable under Sections
326-A,326-B, 354, 354-B, 370, 370-A, 376, 376-A, 376-AB, 376-B,
376-C, 376-D, 376-DA, 376-DB, 376-E or 509' shall be rendered
superfluous. It is well settled that, the Legislature does not use or
employ any word without any reason. Every word in Section has a
specific meaning and it cannot be ignored as a surplusage. If the
interpretation offered by the learned A.P.P. is accepted, the said words
will be rendered meaningless. The provision is clear and precise and
does not admit any other interpretation than the one that we have
adopted i.e. offence under Section 166A(c) will be committed by a
police person only when there is refusal/failure on his part to register
offence which are specifically mentioned in Section 166A(c) and not
on failure to register First Information Report with respect to a
cognizable offence which is not mentioned in the said provision.
Cri. Appln. No. 1833-2023.odt
10. In view of the aforesaid, we hold that Section 166A(c) is not
attracted in the present case since the failure on the part of the
applicants was not to register First Information Report with respect to
any provision specifically mentioned in Section 166A(c), and that it
was pertaining to sections 420, 465, 467, 468, 471, 477-A, 120-B and
109 IPC I.e. cognizable offences which are not mentioned in Section
166A(c).
11. The alternate submission by the learned A.P.P is that even if
Section 166A (c) is not attracted, Section 166 of the Indian Penal
Code will certainly be attracted. Section 166 of the Indian Penal Code
provides punishment for simple imprisonment up to one year or fine
or both against a public servant who knowingly disobeys any direction
of law relating to his conduct as public servant intending to cause or
knowing that his conduct is likely to cause injury to any person.
Failure to register First Information Report in case of non cognizable
offence will amount to disobedience of a direction of law i.e. Section
154(1) of the Cr.P.C.. However, in order to proceed with prosecution
of a public servant under Section 166, previous sanction of the State
Government will be needed in view of mandate of Section 197 of the
Cr.P.C.. The explanation to Section 197 (1) will not be attracted in
case a public servant is prosecuted under Section 166.
12. That apart, in the present case, the First Information Report is
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registered pursuant to an order passed by the learned J.M.F.C. under
Section 156(3) of the Cr.P.C.. Two provisos have been added after
Section 156(3) of the Cr.P.C. vide Maharashtra Act No. 33 of 2016.
The amendment was brought into force w.e.f. 01.11.2016. The first
proviso prescribes that no Magistrate shall order an investigation
under sub section 156(3) against any public servant in respect of any
act done by him while acting or purporting to act in discharge of his
official duties except with the previous sanction of the Government
under Section 197 of the Cr.P.C. Such sanction is admittedly not
received till date. The second proviso prescribes that in case where
proposal is sent to the sanctioning authority and no decision is taken
thereon for a period of 90 days then the sanction shall be deemed to
be granted. In the present case previous sanction was not granted by
the sanctioning authority before the learned J.M.F.C. passed order for
registration of First Information Report under Section 156(3) of the
Cr.P.C., likewise no proposal is sent to the sanctioning authority for
grant of sanction and as such question of deemed sanction also does
not arise. The order passed by the learned J.M.F.C. directing
registration of First Information Report will, therefore, not be
sustainable even if offence was to be registered under Section 166 of
the Indian Penal Code. Consequently, the First Information Report
which is registered pursuant to such order will also not be
maintainable and will have to be quashed.
Cri. Appln. No. 1833-2023.odt
13. We also need to refer to Section 468 of the Cr.P.C. which
provides for limitation for taking cognizance of offences. Section
468(2) of the Cr.P.C. provides limitation of one year for offence which
is punishable with imprisonment for a term not exceeding one year.
Offence under Section 166 of the IPC is punishable with six months
and as such the limitation for taking cognizance of the said offence
will be governed by Section 468(1)(b) of the Cr.P.C. Perusal of
Criminal Misc. Application No. 391 of 2021 demonstrates that the
applicants had refused to register First Information Report on
21.03.2016 and as such have allegedly committed the offence on the
said date. The Criminal Misc. Application which was initially filed as a
private complaint is dated 15.07.2021 and it is filed on 16.07.2021.
The limitation of one year had already expired on 21.03.2017. The
complaint is filed after a period of over four years and three months
from the date on which the limitation has expired. In this complaint
an application dated 18.12.2021 was filed praying that direction may
be issued to respondent No.1 to register offence against the applicants
as per Section 156(3)of the Cr.P.C. There appears to be delay of over
four years and three months in filing the complaint. The delay is not
explained at all. Normally, the delay can be explained to the J.M.F.C.
while he decides as to whether cognizance should be taken or not.
However, in the present matter respondent No.2 had initially filed a
private complaint under Section 200 of the Cr.P.C. and as such
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respondent No.2 ought to have explained the delay in the complaint
itself. The order directing Magistrate under Section 156(3) Cr. P.C is
passed without considering the aspect of delay. Delay can be condoned
in the interest of justice even if not explained. However, even on this
aspect nothing is mentioned in the complaint or the order passed by
the learned Magistrate directing registration of the FIR. We need not
comment much on the aspect of delay since we have already held on
merits that the offence under Section 166A(c) is not made out and
order under Section 156 (3) of the Cr. P. C could not have been passed
directing investigation for offence under Section 166 of the IPC as
well, since prior sanction of the appropriate authority is not granted or
even deemed to be granted which is a statutory prerequisite as per
proviso to Section 156 of the Cr. P. C.
14. There is another aspect which was very seriously canvassed by
the learned Advocate for the applicants. He submitted that the private
complaint which was thereafter treated as application under Section
156(3) of the Cr.P.C. was not supported by affidavit and the same
ought to have been rejected on this count alone. In support of his
contention he has placed reliance on two authorities of the Hon'ble
Supreme Court viz Babu Venkatesh and Others and State of Karnataka
and another (supra) and Mrs. Priyanka Srivastava and Another
(supra) referred in paragraph No.3 above. The Hon'ble Supreme
Court has held in the matter of Mrs. Priyanka Srivastava (supra)as
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under :-
"In our considered opinion, a stage has come in this
country where Section 156(3), 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. ......
The warrant for giving a direction that an application
under Section 156(3) be supported by an affidavit so
that the person making the application should be
conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is found
to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the
veracity of the same can also be verified by the learned
Magistrate, regard being had to the nature of allegations
of the case. We are compelled to say so as a number of
cases pertaining to fiscal sphere, matrimonial
dispute/family disputes, commercial offences, medical
negligence cases, corruption cases and the case where
there is abnormal delay/laches in initiating criminal
prosecution, as are illustrated in Lalita Kumari are being
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filed. That apart, the learned Magistrate would also be
aware of the delay in lodging of the FIR."
15. The direction that application under Section 156(3) must be
supported by affidavit came to be reiterated by the Hon'ble Supreme
Court in the case of Babu Venkatesh (supra). The Hon'ble Supreme
Court has taken note of the said direction issued in the matter of Mrs.
Priyanka Srivastava (supra) and was pleased to dismiss application
filed under Section 156(3) of the Cr.P.C. on the ground that it was not
supported by the affidavit.
16. The Hon'ble Supreme Court has also held in the matter of Mrs,
Priyanka Srivastava (supra) that an application under Section 156(3)
will not be maintainable in the event the police authority does not
register First Information Report in relation to a cognizable offence
unless the informant takes recourse to Section 154(3) of the Cr.P.C.
which provides that any person aggrieved by a refusal on the part of
an officer-in-charge of a police station to register First Information
Report may send the substance of such information, in writing to the
Superintendent of Police concerned. The Superintendent of Police
upon receipt of such information is required to consider as to whether
the information discloses commission of a cognizable offence , and in
case he has arrived at the satisfaction that cognizable offence is
disclosed, he may conduct investigation in the matter himself or direct
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some other police officer to conduct the investigation. The Hon'ble
Supreme Court has held that the application under Section 156(3)
should not be entertained unless recourse to Section 154(3) of the Cr.
P.C. is taken by the informant who is aggrieved by refusal to register
the First Information Report. This procedure is also not followed in the
present matter by respondent No.2. The application under Section
156(3) of the Cr.P.C. filed by respondent No.2 was also liable to be
rejected on this count.
17. The learned Advocate for respondent No.2 has filed a note of
argument dated 17.01.2025, raising contentions in addition to the
ones that were raised by him during the course of hearing held on
14.01.2025. The following three contentions have been raised in the
said note of argument.
(i) Maharashtra State Amendment introduced vide Code of
Criminal Procedure ( Maharashtra Amendment) Act 2015 is repugnant
to Section 197 of the Code of Criminal Procedure and as such it is void
and unenforceable.
(ii) The Code of Criminal Procedure Maharashtra Amended Act,
(herein after referred to as " Cr. P. C. Maharashtra Amendment Act
2015') has come into force with effect from 01.11.2016 and the
applicants had committed offene by not registering First Information
Report in relation to cognizable offence on 31.03.2016 i.e. prior to
the commencement of the said Act. He states that, Code of Criminal
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Procedure Maharashtra Amendment Act cannot have retrospective
operation and as such requirement of sanction will not be required in
the case at hand.
(iii) He states that Section 166A(c) of IPC will be attracted in every
case where there is refusal on the part of police authority in
registering First Information Report with respect to any cognizable
offence and not only offences that has been specifically enumerated
in the said provision. For this purpose he has placed reliance upon
notifications issued by Government of India Ministry of Home Affairs
dated 10.05.2013, 12.10.2015 and 06.02.2014.
18. As regards the ground regarding repugnancy between Code of
Criminal Procedure Maharashtra Amendment Act and Section 197 of
the Code of Criminal Procedure, the argument is recorded only to be
rejected. The Code of Criminal Procedure Maharashtra Amendment
Act 2015 has received Presidential assent and is published in the
Maharashtra Government Gazette after having received the assent on
30.08.2016. The said contention is therefore, rejected in view of
Article 254(2) of the Constitution of India.
19. As regards the second contention that the offence was allegedly
committed on 21.03.2016 and the Code of Criminal Procedure
Maharashtra Amendment Act which has come into force on
01.11.2016 does not have retrospective effect and as such shall not be
Cri. Appln. No. 1833-2023.odt
applicable to the case at hand, the said contention is also fallacious.
The two provisos to Section 156 introduced vide Maharashtra
Amendment Act of 2015 reads as under :-
" Provided that, no Magistrate shall order an investigation
under this section against a person who is or was a public
servant as defined under any other law for the time being in
force, in respect of the act done by such public servant while
acting or purporting to act in the discharge of his official duties,
except with the previous sanction under section 197 of the code
of Criminal Procedure, 1973 or under any law for the time
being in force :
Provided further that, the sanctioning authority shall take a
decision within a period of ninety days from the date of the
receipt of the proposal for sanction and in case the sanctioning
authority fails to take the decision within the said stipulated
period of ninety days, the sanction shall be deemed to have
been accorded by the sanctioning authority."
20. Perusal of the first proviso shall indicate that it creates an
embargo on the jurisdiction/power of the Magistrate to order an
investigation under the said Section against public servants in respect
of any offence committed while acting or purporting to act in
discharge of the official duty. The prohibition therefore, applies as on
the date of the order. After 01.11.2016, in the absence of prior
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sanction, a Magistrate cannot pass an order under Section 156(3) of
the Cr. P. C for investigation of the offence against a public servant if
such offence is committed or purported to be committed in discharge
of his official duties. The date of offence is not relevant. Even if
offence is committed prior to 01.11.2016, no order under Section 156
can be passed without prior sanction after 01.11.2016. The bar
operates in relation to the power to pass order under Section 156(3)
of the Cr. P. C. In the present case, the complaint was filed by
respondent No.2 on 25.07.2021 and prayer for treating it as an
application under Section 156(3) was made thereafter on 18.12.2021.
The said application came to be allowed vide order dated 24.01.2022.
The dates of filing of complaint and order directing investigation are
subsequent to 01.11.2016 i.e. the date of commencement of
Maharashtra Amendment. We therefore hold that the proviso as
introduced by Code of Criminal Procedure Maharashtra Amendment
Act 2015 will be applicable to the present case and the Magistrate had
no jurisdiction to order investigation against the applicants without
there being prior sanction, actual or deemed from the competent
sanctioning authority qua Section 166 of the IPC. Similar view is taken
by this Court in the matter of Mr. Sainath S/o Ramrao Thombre Vs.
State of Maharashtra and another reported in (2018) 1 AIRBomR
(Cri) 479. (relevant paragraphs 9, 10 & 12) are as under :-
Cri. Appln. No. 1833-2023.odt
" 9. It is thus apparent, as has been rightly submitted by
the learned Advocate for the applicant, whenever, a
direction is sought to be issued under Section 156(3) of
the Cr. P.C. 1973 against a public servant in respect of any
act done by such public servant while acting or purporting
to act in the discharge of his official duties, a Magistrate
cannot order investigation without their being a previous
sanction obtained under Section 197 of the Cr. P. C or
under any other law for the time being in force. The
second proviso is in the nature of a deeming provision
and the person applying for sanction can proceed to file a
complaint if the sanctioning authority fails to grant
sanction within ninety days of the application for seeking
sanction. In the matter before hand, when according to
the averments in the complaint, the respondent No.2 had
applied for sanction to the Superintendent of Police,
Osmanabad on 27.09.2016, the amended provision of
Section 156(supra) had not come into force and which
came in force only on 01.11.2016. Therefore, when the
law did not expect her to have obtained previous sanction
when she actually applied for it, apparently no fault could
be found with her in filing complaint without such
sanction.
10. However, a careful look into the facts and law
would reveal that when actually the respondent No.2 filed
the complaint on 20.12.2016 the amended provision of
Section 156 of Cr. P.C were already in force and going by
the clear wording of the first proviso (supra) in fact the
mandate of law required a Magistrate not to pass any
order for investigation under Section 156(3) except with
a previous sanction. Therefore, even though when the
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respondent No.2 actually sought sanction from the
Superintendent of Police, the law did not require any such
previous sanction as a condition precedent for a
Magistrate to direct investigation under Sub-section (3) of
Section 156, as on the date on which the impugned order
was passed by the learned Magistrate on 23.12.2016 his
powers were curtailed by the legislature and the condition
laid down by the first proviso (supra) would indeed go to
the root of the jurisdiction of a Magistrate in directing
investigation under that provision. In short, as on the
date of which the learned Magistrate passed the order
directing such investigation by the impugned order, his
jurisdiction was circumscribed by the newly added
proviso. When admittedly no sanction was obtained
before passing of the impugned order, the learned
Magistrate had no jurisdiction to issue direction for the
investigation.
12. In substance, we conclude that the learned
Magistrate had no jurisdiction to pass the impugned order
directing investigation for want of sanction and for this
reason alone the application deserves to be allowed in
toto."
21. As regards the contention that section 166A(c) of the IPC will
be attracted in the event of failure on the part of the police officer in
registering First Information Report with respect to every cognizable
offence even though the said sections are not specifically mentioned in
Section 166A(c), the learned Advocate has placed reliance upon
aforesaid three circulars issued by the Government of India. At the
Cri. Appln. No. 1833-2023.odt
outset, the said circulars are not binding on us. Even otherwise failure
to follow circular does not amount to offence. At the most it may give
reason to start departmental inquiry. Even otherwise, the circulars
dated 10.05.2013 and 12.10.2015 are in the nature of advisory to
police authority advising that even if there is uncertainty in relation to
territorial jurisdiction of the police station, the police authority must
register First Information Report if cognizable offence is disclosed
from the complaint/information received.
22. The third circular dated 06.02.2014 is issued in the light of law
laid down in the matter of Lalita Kumari. The learned Advocate relies
on the following sentence at page No.2 of the said circular
"It may be mentioned that Section 166 A of Cr.P.C prescribes a
penalty of imprisonment up to two years and also fine for non-
registration of a FIR for an offence described under Section 166
A."
23. The said sentence clearly states that Section 166A of the IPC
shall apply in cases of non registration of First Information Report for
offence mentioned under Section 166-A of the IPC. The circular does
not support the contention of the learned Advocate for respondent
no.2. It rather clarifies that Section 166A will be attracted only in
cases of failure to register offence with respect to provision
mentioned therein and not with respect to failure to register First
Information Report with respect to any other cognizable offence.
Cri. Appln. No. 1833-2023.odt
24. The learned Advocate has placed reliance on the
judgment of the Hon'ble Supreme Court in the matter of Lalita Kumari
(supra). The law laid down in the said judgment cannot be disputed.
However, it does not help respondent No.2 to advance further his
argument that failure to register First Information Report with respect
to cognizable offence will be punishable under Section 166A(c) of the
IPC.
25. He has then relied upon judgment of the Hon'ble Supreme
Court in the matter of M. Karunanidhi Vs. Union of India reported in
AIR 1979 SC 898 and Deep Chand Vs. State of Uttar Pradesh reported
in AIR 1959 SC 648. The said judgments are pressed into service to
contends that Section 156(3) as amended by the Code of Criminal
Procedure Maharashtra Amendment Act by inserting two provisos is
repugnant to Sections 190 and 197 of the Code of Criminal Procedure
there cannot be any quarrel with the law laid down in the aforesaid
two judgments. However, since presidential assent has been obtained
as noted above, the ratio laid down in the said judgments is not of any
assistance to the learned Advocate for respondent No.2.
26. In the light of aforesaid, we sum up our conclusions as under :-
(A) Offence under Section 166A(c) of the IPC is not made out in
case where a officer-in-charge of police station refuses to register
Cri. Appln. No. 1833-2023.odt
offence with respect to a cognizable offence, except when the refusal
to register the offence is with respect to sections enumerated under
Section 166A(c) of the IPC. In other words, if failure to register
offence is with respect to cognizable offences not included under
Section 166A(c) of the IPC, the offence under the said provision will
not be made out.
(B) The impugned order dated 24.01.2022 also cannot be pressed
into service in order to prosecute the applicants under Section 166 of
the IPC since prior sanction as contemplated by proviso to Section 156
is neither obtained nor deemed to be granted.
(C) The private complaint/ application filed by the respondent No.2
is liable to be rejected as barred by limitation since delay of over four
years and three months is not explained and also because that it will
not be in the interest of justice to condone the delay since it will not
serve any fruitful purpose in as much as prior sanction for prosecution
under Section 166 of the IPC is not obtained and Section 166A(c) of
the IPC is not attracted at all.
(D) The impugned order directing investigation under Section
156(3) of the Cr.P.C is liable to be quashed since the application was
not supported by an affidavit and also on the ground that procedure
under Section 154(3) was not followed prior to filing of the said
application.
27. In view of the aforesaid, we are of the considered opinion that
Cri. Appln. No. 1833-2023.odt
the order dated 24.01.2022 passed by learned J.M.F.C. Court No.2,
Gevrai District Beed, in Criminal Misc. Application No. 391 of 2021
directing respondent No.1 Police Inspector Gevrai Police Station to
register First Information Report against the applicants for offence
punishable under Section 166A of the IPC and consequent First
Information Report No. 42 of 2022 registered by the said police
station on 27.01.2022 for offence under Section 166A of the IPC are
liable to be quashed and are quashed accordingly.
(ROHIT W. JOSHI) (SMT. VIBHA KANKANWADI )
JUDGE JUDGE
Y.S. Kulkarni
