Learned Advocate for the v. State of Maharashtra and Ors., reportedin AIR Online

Legal Reasoning

1criappln No.656-2025IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD12 CRIMINAL APPLICATION NO. 656 OF 2025Shivprasad S/o. Sarjerao Sakrate, Age : 35 Years, Occu. : Service, R/o. Phule Nagar, Majalgaon, Tq. Majalgaon, Dist. Beed. …. ApplicantVERSUS1.The State of MaharashtraThrough The Police Inspector,Majalgaon City Police Station,Tq. Majalgaon, Dist. Beed.2.Damodhar S/o. Ganpatrao Ghatul,Age : 66 years, Occu. : Retired Govt. Servant,R/o. Mangrul No.1, Tq. Majalgaon, Dist: Beed.At Present Chhatrapati Nagar, By Pass Road, Majalgaon, Tq. Majalgaon Dist: Beed. …. Respondents....Advocate for Applicant : Mr. Sharad S. Solanke APP for Respondent No.1-State : Mr. G.A. Kulkarni.…CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.Dated : 26th February 2025ORDER :-1.The present application has been filed by the applicantchallenging the order dated 29.01.2025, passed by learned designatedCourt i.e. Special Judge under the Maharashtra Protection of Interest 2criappln No.656-2025of Depositors (in Financial Establishments) Act, (for short “the MPIDAct”), Majalgaon, Dist. Beed, in Criminal Miscellaneous ApplicationNo.79 of 2024, thereby directing the investigation under Section175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short“the BNSS”).2.Heard learned Advocate for the applicant and learnedAPP for respondent No.1-State. There is no necessity to issue notice torespondent No.2.3.The applicant challenges the order on the ground that, inview of mandatory provision of Section 175(3) of the BNSS,the Magistrate was duty bound to hear the police officer, but here inthis case, though the notice was issued and it is stated that theinvestigating officer was present, the impugned order does not showthat he was heard. It rather shows that the officer has filed hissubmissions.4.Learned Advocate for the applicant relies on the decisionin Om Prakash Ambadkar Vs. State of Maharashtra and Ors., reportedin AIR Online 2025 SC 63, wherein a comparison was made betweenSection 175(3) of the BNSS with Section 156(3) of the Cr.P.C. and itis observed thus :- 3criappln No.656-2025“ A comparison of S. 175(3) of the BNSS with S. 156(3) of the Cr.P.C.indicates three prominent changes that have been introduced by theenactment of BNSS as follows :a. First, the requirement of making an application to the Superintendentof Police upon refusal by the officer in charge of a police station tolodge the FIR has been made mandatory, and the applicant making anapplication under S. 175(3) is required to furnish a copy of theapplication made to the Superintendent of Police Under S. 173(4),supported by an affidavit, while making the application to theMagistrate under S. 175(3).b. Secondly, the magistrate has been empowered to conduct suchenquiry as he deems necessary before making an order directingregistration of FIR.c. Thirdly, the Magistrate is required to consider the submissions of theofficer in charge of the police station as regards the refusal to registeran FIR before issuing any directions under S. 175(3). The changesintroduced by S. 175 (3) of the BNSS to the existing scheme of S.156(3) merely codify the procedural practices and safeguards whichhave been introduced by judicial decisions aimed at curbing the misuseof invocation of powers of a Magistrate by unscrupulous litigants forachieving ulterior motives. Further, by requiring the Magistrate toconsider the submissions made by the concerned Police Officer beforeproceeding to issue directions under S. 175(3), BNSS has affixedgreater accountability on the Police Officer responsible for registeringFIRs under S. 173. Mandating the Magistrate to consider thesubmissions of the concerned Police Officer also ensures that theMagistrate applies his mind judicially while considering both thecomplaint and the submissions of the Police Officer thereby ensuringthat the requirement of passing reasoned orders is complied with in amore effective and comprehensive manner. ” 4criappln No.656-20255.The second point that has been raised is that alreadyfirst information report (for short “the FIR”) has been filed at thebehest of another person and the investigation has been handed overto the Economic Offence Wing. The investigation is at the verge.Therefore, now the second FIR is not maintainable and therefore, herelies on the decision in State of Rajasthan Vs. Surendra SinghRathore, Criminal Appeal No. 000847 of 2025 (Arising out of SLP(Crl.) No.16358 of 2024), decided by the Hon’ble Apex Court on19.02.2025, wherein after taking note of the previous decision,permissibility of registration of second FIR has been carved out whichruns thus :-“9.1 When the second FIR is counter-complaint or presents arival version of a set of facts, in reference to which an earlierFIR already stands registered. 9.2 When the ambit the two FIRs is different even thoughthey may arise from the same set of circumstances.9.3 When investigation and/or other avenues reveal theearlier FIR or set of facts to be part of a larger conspiracy.9.4 When investigation and/or persons related to the incidentbring to the light hithero unknown facts or circumstances.9.5 Where the incident is separate; offences are similar ordifferent.” 5criappln No.656-20256.The third point that has been raised is that the applicantis merely an employee. He is serving as Chief Executive Officer. He isnot the Director or responsible for the policy decisions of theinstitution i.e. Muktai Urban Co-operative Credit Society Limited,Majalgaon. Therefore, no offence can be said to have been committedby him. 7.The last point the learned Advocate wants to raise is that,now, few more persons are coming forward and lodging the report orfiling applications for investigation and similar orders have beenpassed by the designated Court. When already the investigation isgoing on, the investigating officer can expand the area ofinvestigation and can also include those persons who will comeforward in support of the FIR. Different FIRs need not be registeredand investigated separately. 8.As regards the first point raised, when the law has beencrystallized by the Hon’ble Apex Court in Om Prakash (Supra), itwould be bounden duty of the Magistrate while passing an orderunder Section 175(3) of the BNSS to hear the police officer. Here therecord that has been produced by the applicant and the impugnedorder would show that notice was served upon the police officer and 6criappln No.656-2025the Roznama dated 02.01.2025 would show that Police Inspectorfrom Majalgaon Police Station attended the Court and orally asked forthe adjournment by saying that he would file say on next date. Thenext date was 13.01.2025, but on that day, say was not filed. Thesubmissions on behalf of the applicant were heard by the concernedJudge on 23.01.2025. Even on 29.01.2025, no say was filed by PoliceInspector attached to Majalgaon Police Station and therefore, on thesame day, the order was passed. Thus, it can be seen that the recordis available that opportunity was given to the police officer to putforth his say i.e. sufficient compliance under Section 175(3) of theBNSS.9.As regards the second point raised, in State of Rajasthan(Supra), the principles emerging regarding the permissibility ofregistration of second FIR have been stated. Now, here the presentinformant states that, he had invested amount in fixed deposits in thesaid credit society. He wanted to withdraw the amount prematurelyafter he had reinvested taking into consideration the earlier period.But then, he says that he was not allowed to withdraw and onlypromises were given. Here as regards the present applicant isconcerned, he states that even the present applicant had made arepresentation to him when he had visited the society’s office in June 7criappln No.656-20252021. He says that even the present applicant was present in theprogramme, wherein he was honoured and was given a Shawl, Shrifaland Bouquet. 10.The present informant further states that, at that time, apromise was made by the applicant that if he invests in the society,then the interest would be given @ 13% per annum. He says that, ashe believed in those words, he invested to the extent ofRs.27,00,000/- i.e. 27 fixed deposits amounting to Rs.1,00,000/-each. After the period of fixed deposit was over, he says that, hecontinued with 18 fixed deposits worth Rs.23,00,000/-, but then hewanted to withdraw it prematurely. Only promises were given and hewas abstained from withdrawing his amount.11.All above contentions are very much personal in respectof the applicant which could not have been covered in the earlier FIR,because the earlier FIR or the other FIR would have been restricted tothe investment by that informant. The incidences are separate andtherefore, permissibility of registration of second FIR is governedunder principle 9.5 given in State of Rajasthan (Supra) i.e. where theincident is separate; offences are similar or different. 8criappln No.656-202512.The third ground which has been raised is that theoffences are not attracted. However, we have considered the contentsof the application in the earlier para and there are stipulations againstthe present applicant and thereby the informant intends to contendthat the applicant has committed a offence under Section 318(4) ofthe Bharatiya Nyaya Sanhita, 2023 and therefore, there is nosubstance as regards to third point also. 13.As regards the last point, it cannot be the point to quashthe present FIR. Each FIR will have to be considered on its own meritsand therefore, we do not find this to be a fit case where we canexercise our powers under Section 528 of the BNSS. The applicationis dismissed at the threshold. [ SANJAY A. DESHMUKH ] JUDGE[ SMT. VIBHA KANKANWADI ] JUDGEasd