High Court
Legal Reasoning
CrWP506-19 -scope of sec 156-3-crpc.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 506 OF 2019Sunil Dattatray Mali,Age 41 years, Occu: ServiceR/o Tushar Building,Govt. Officer Colony, Flat No.501, Near Church Gate Railway Station,Mumbai.… PetitionerVERSUS1.Dr. Manisha Lalchand Mahajan,Age 32 years, Occu: Service asMedical Officer, PHC,R/o Plot No.7, Tukaram Nagar,Near Highway No.6, BhusawalDistrict Jalgaon.2.The State of Maharashtra Through the Secretary, Home DepartmentMantralaya, Mumbai.… RespondentsMr. Rajendrraa Deshmukh, Senior Advocate a/w Ms. Tejshree K.Nalawade i/by Amol Sawant, Advocate for the Petitioner,Mr. Harshal Prakash Randhir, Advocate for Respondent No.1,Ms. Ashlesha S. Deshmukh, APP for Respondent No.2/StateCORAM : Y. G. KHOBRAGADE, J.Dated : 13th February, 2025JUDGMENT:-1.Rule. Rule made returnable forthwith and with the consentof both the parties and heard them finally. Page 1 of 14 CrWP506-19 -scope of sec 156-3-crpc.odt2.By the present Petition under Article 227 of theConstitution of India, the Petitioner has challenged the order dated28.02.2018, passed by the learned Judicial Magistrate First Class,Jalgaon, in Criminal Misc. Application No. 42 of 2019, whereby theprayer of the Petitioner to issue direction to the Police Station Officer,City Police Station, Jalgaon to register an F.I.R./to conduct investigationcame to be turned down and directed to register the complaint underSection 200 of Cr.P.C..3. Heard at length Mr. Rajendrraa Deshmukh, the learnedSenior Counsel for the Petitioner, Mr. Harshal Prakash Randhir, the learnedAdvocate for Respondent No.1 and Ms. Ashlesha S. Deshmukh, thelearned APP for Respondent No.2 State.4. The learned Senior Advocate canvassed that the presentpetitioner is working as Class-1 employee with the Government ofMaharashtra. In the year, 2016, the Petitioner was working as PrivateSecretary to the Hon’ble Minister of Public Health Department, State ofMaharashtra, whereas, the Respondent No.1 was working as MedicalOfficer with Primary Health Centre, Patoda, Tq. Chalisgaon, Dist. Jalgaon.On 16.03.2016, Respondent No.1 allegedly visited the Health Minister atMantralaya, Mumbai, however, on 21.06.2016, Respondent No.1 lodged aPage 2 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtfalse report with Marine Drive Police Station, Mumbai, alleging that on16.03.2016, when she visited the Petitioner in his Chamber, at that time,the Petitioner outraged her modesty. On the basis of said report, Crime No.199 of 2016 was registered against the present Petitioner with MarineDrive Police Station, Mumbai for the offences under sections 354(A) and506 of the Indian Penal Code,1860. The Investigating Officer conductedthe investigation, but he has filed “B” summary report on 10-11-2016 forwant of intimidatory evidence. However, the learned Chief MetropolitanMagistrate, Mumbai passed an order dated 06.03.2019 and therebyrefused to accept the “B” summary report and issued directions forreinvestigation of the said crime and to submit report afresh.5. The Petitioner filed Criminal Misc. Application No.42 of 2019before the Judicial Magistrate First Class alleging that, RespondentNo.1/accused illegally prepared false and fabricated Governmentaldocuments to implicate the Petitioner due to non co-operation by thePetitioner in her illegal activities while implementing digital PHC Softwareprogramme. So also, Respondent No.1/accused destroyed the Governmentdocuments. Further, Respondent No. 1 misused her position being MedicalOfficer and got scratched entries in the Inward and Outward Register,prepared false and bogus leave application and produced fake medicalcertificate about her ailment though she was unauthorizedly absent fromPage 3 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtduty and caused loss to the Government. Further, on 13.03.2016,Respondent No.1/accused submitted an application for earned leave w.e.f.14.03.2016 to 16.03.2016 on the day of Holiday i.e. Sunday. Not onlythis, but the Respondent accused used blade and whitener to scratch theentry at Sr No. 99 in Outward Register of the office and prepared false andbogus document and availed monetary benefits for her. Therefore, thepetitioner obtained copies of the relevant documents under Right toInformation Act and lodged a report with City Police Station Jalgaon on17.07.2018 for the offence punishable under sections 109, 166, 167, 177,193, 406, 409, 420, 465, 466, 4467, 468, 470, 474,477, 120-B read withsection 34 of the Indian Penal Code,1860. However, the Police authorityfailed to take cognizance of the complaint. Therefore, on 24.07.2018, thePetitioner again submitted reminder to the City Police Station, Jalgaonbut no cognizance was taken. Therefore, on 27.07.2018, the petitionersubmitted a representation with the Superintendent of Police about thesaid incident but no cognizance was taken. Therefore, the petitioner fileda complaint bearing Criminal M.A. No.42 of 2019 and thereby prayed foran investigation under section 156(3) of the Code of Criminal Procedure,1973 in the said offence.On 28.02.2019, the learned Judicial MagistrateFirst Class (I Court) Jalgaon passed an order in Criminal M.A. No. 42 of2019 and declined to grant investigation under section 156(3) of Cr.P.C.and directed to register the complaint under Section 200 of Cr.P.C.Page 4 of 14 CrWP506-19 -scope of sec 156-3-crpc.odt6. The learned Senior Counsel for the petitioner canvassed that,the petitioner filed the complaint and specifically made out a case forcognizable offence of cheating, forgery, criminal breach of trust byconspiracy, common intention and abetment with the help of Officer andemployees of the Public Health Department, under sections 109, 166, 167,177, 193, 406, 409, 420, 465, 466, 467, 468, 470, 474,477, 120-B r/wsection 34 of I.P.C., which are of serious nature. Therefore, the Ld.Judicial Magistrate could have directed investigation under section 156(3)of Cr.P.C., insteated of directing to register it under section 200 Cr.P.C.Therefore, impugned order is illegal and bad in law.7.In support of this submission, the learned Senior Counselplaced reliance on the following cases as under:i) Ramesh Kumari Vs. State (NCT of Delhi) & others, (2006) 2Supreme Court Cases 677, wherein the Hon’ble Supreme Court hasobserved in paragraph Nos. 3 and 4 as under:“3. ….. Genuineness or otherwise of the information can only beconsidered after registration of the case. Genuineness or credibility of theinformation is not a condition precedent for registration of a case. We arealso clearly of the view that the High Court erred in law in dismissing thepetition solely on the ground that the contempt petition was pending andthe appellant had an alternative remedy. The ground of alternativeremedy nor pending of the contempt petition would be no substitute inPage 5 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtlaw not to register a case when a citizen makes a complaint of acognizable offence against the Police Officer. 4. That the Police Officer mandatorily registers a case on a complaintof a cognizable offence by the citizen under Section 154 of the Code areno more res integra. The point of law has been set at rest by this Court inthe case of State of Haryana and Ors. v. Bhajan Lal and Ors., [1992]Supp. 1 SCC 335. This Court after examining the whole gamut andintricacies of the mandatory nature of Section 154 of the Code has arrivedat the finding in paras 31 and 32 of the judgment as under: 31. At the stage of registration of a crime or a case on the basis ofthe information disclosing a cognizable offence in compliance withthe mandate of Section 154(1) of the Code, the concerned policeofficer cannot embark upon an enquiry as to whether theinformation, laid by the informant is reliable and genuine orotherwise and refuse to register a case on the ground that theinformation is not reliable or credible. On the other hand, the officerin charge of a police station is statutorily obliged to register a caseand then to proceed with the investigation if he has reason tosuspect the commission of an offence which he is empowered underSection 156 of the Code to investigate, subject to the proviso toSection 157. (As we have proposed to make a detailed discussionabout the power of a police officer in the field of investigation of acognizable offence within the ambit of Sections 156 and 157 of theCode in the ensuing part of this judgment, we do not propose todeal with those sections in extenso in the present context). In case,an officer in charge of a police station refuses to exercise thejurisdiction vested in him and to register a case on the informationof a cognizable offence reported and thereby violates the statutoryduty cast upon him, the person aggrieved by such refusal can sendthe substance of the information in writing and by post to theSuperintendent of Police concerned who is satisfied that theinformation forwarded to him discloses a cognizable offence, shouldeither investigate the case himself or direct an investigation to bemade by any police officer subordinate to him in the mannerprovided by sub-section (3) of Section 154 of the Code.'' ii) Lallan Chaudhary & others Vs. State of Bihar & another,Page 6 of 14 CrWP506-19 -scope of sec 156-3-crpc.odt(2006) 12 Supreme Court cases 229, wherein, the Hon’ble SupremeCourt has held in paragraph No.10 as under:“10. The mandate of Section 154 of the Code is that at the stage ofregistration of a crime or a case on the basis of the informationdisclosing a cognizable offence, the police officer concerned cannotembark upon an enquiry as to whether the information, laid by theinformant is reliable and genuine or otherwise and refuse to registera case on the ground that the information is not relevant orcredible. In other words, reliability, genuineness and credibility ofthe information are not the conditions precedent for registering acase under Section 154 of the Code.”iii) The learned Senior counsel further relied on the case of Sakiri Vasu Vs. State of Uttar Pradesh & others, (2008) 2 Supreme Court Cases 409, wherein, in paragraph Nos. 11, 13 and 17, the Hon’ble Supreme Court observed as under:“12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT2006(1) SC 10, this Court observed:The clear position therefore is that any judicial Magistrate, beforetaking cognizance of the offence, can order investigation underSection 156(3) of the Code. If he does so, he is not to examine thecomplainant on oath because he was not taking cognizance of anyoffence therein. For the purpose of enabling the police to startinvestigation it is open to the Magistrate to direct the police toregister an FIR. There is nothing illegal in doing so. After allregistration of an FIR involves only the process of entering thesubstance of the information relating to the commission of thecognizable offence in a book kept by the officer in charge of thepolice station as indicated in Section 154 of the Code. Even if aMagistrate does not say in so many words while directingPage 7 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtinvestigating under Section 156(3) of the Code that an FIR shouldbe registered, it is the duty of the officer in charge of the policestation to register the FIR regarding the cognizable offencedisclosed by the complaint because that police officer could takefurther steps contemplated in Chapter XII of the Code onlythereafter.13. The same view was taken by this Court in Dilawar Singh vs. Stateof Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarifythat even if an FIR has been registered and even if the police has madethe investigation, or is actually making the investigation, which theaggrieved person feels is not proper, such a person can approach theMagistrate under Section 156(3) Cr.P.C., and if the Magistrate issatisfied he can order a proper investigation and take other suitablesteps and pass such order orders as he thinks necessary for ensuring aproper investigation. All these powers a Magistrate enjoys underSection 156(3) Cr.P.C.17.17. In our opinion Section 156(3) Cr.P.C. is wide enough to includeall such powers in a Magistrate which are necessary for ensuring aproper investigation, and it includes the power to order registration ofan F.I.R. and of ordering a proper investigation if the Magistrate issatisfied that a proper investigation has not been done, or is not beingdone by the police. Section 156(3) Cr.P.C., though briefly worded, inour opinion, is very wide and it will include all such incidental powersas are necessary for ensuring a proper investigation. 8. Per contra, Respondent No. 1 filed an affidavit in reply anddenied the averments made in the complaint. Adv. Harshal PrakashRandhir, the learned counsel for the Respondent No.1 canvassed that,the petitioner has suppressed material fact that, though theInvestigating Officer submitted “B” summary report on 10.11.2016,in Crime No. 199 of 2016 was registered against the presentPetitioner with Marine Drive Police Station, however, vide orderPage 8 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtdated 06.03.2019, the learned Chief Metropolitan Magistrate refusedto accept the “B Summary” report and directed the InvestigatingOfficer to reinvestigate in the crime and to submit report. It is furthercanvassed that, the Respondent No.1 is a Public servant, therefore, inabsence of sanction u/s 197 of Cri. P. C., from the competentauthority, the Respondent No. 1 can not be prosecuted. So also, theallegations made in the complaint are vexatious and it is just acounterblast to the FIR lodged by the Respondent No.1 with MarineDrive Police Station, Mumbai about outrage of her modesty.Therefore, the learned trial Court has rightly passed the impugnedorder in order to test veracity of the complaint, hence, prayed fordismissal of the Petition.9. Needless to say that, the present Petitioner/originalcomplainant filed Criminal M.A. No. 42 of 2019 against the presentRespondent No.1 and prayed for directions against the PoliceMachinery to investigate in respect of cognizable offences ofcheating, forgery, criminal breach of trust by conspiracy, commonintention and abetment with the help of Officer and employees of thePublic Health Department as contemplated u/Ss. 109, 166, 167, 177,193, 406, 409, 420, 465, 466, 467, 468, 470, 474,477, 120-B r/wsection 34 of I.P.C. According to the Petitioner/complainant, hefaced trial in Crime No. 199 of 2016 and acquitted from the chargesPage 9 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtunder section 354(A), 506 of IPC. The present Respondent No. 1 doesnot dispute that, at the relevant time, she was working as MedicalOfficer with Primary Health Centre, Patoda, Tq. Chalisgaon, Dist.Jalgaon. Therefore, to see whether she had moved an application forleave or tampered or forged any Government record, Outward/Inward Register, investigation through Police agency is not requiredas said documents are Public Record and it can easily be producedand can be proved by leading substantial evidence. The allegationsmade in the complaint prima facie appears about manufacturing,tampering or forging of official record while discharging official dutyand said documents can easily be produced by the petitioner and canprove in evidence. 10. In case of Sachin Raosaheb Jadhav Vs. The State ofMaharashtra, 2015 Cri. Law Journal 733 it is held that, when a petitionor complaint is presented before the Magistrate, in which a request ismade for taking action as mentioned in section 2(d) of the Code, theMagistrate is expected to apply his mind. The Magistrate has toascertain whether the contentions made in the petition/complaintconstitute any offence. If they constitute some offence then theMagistrate is expected to take decision as to whether the matter needsto be referred to police for investigation as provided in section 156(3)Page 10 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtof the Code or he needs to proceed further as provided in section 200and subsequent sections of Chapter XV of the Code. There is adiscretion with the Magistrate in this regard. Though police officer isduty bound to register case on receiving information of cognizableoffence, the Magistrate is not bound to refer the matter to police undersection 156(3) of the Code. 11.In the case of Priyanka Srivastava and another Vs. State ofU.P. and others, Supreme Court Criminal Appeal No.781 of 2012,(2015) 6 SCC 287 : (MANU/SC/0344/2015), wherein it is held that, ifmere allegations are taken to be sufficient, there would be flood of theregistration of the cases in compliance of the order passed underSection 156(3) of the Code of Criminal Procedure. The application ofpower under this section is to be made when circumstance really justifyfor it. Though the complainant has complied with the provisions ofSection 154(3), the application is required to be supported by anaffidavit. The Hon’ble Supreme Court in para 27, held thus:- “In our considered opinion, a stage has come in this countrywhere Section 156(3) of Cr.P.C. Applications are to be supportedby an affidavit duly sworn by the applicant who seeks theinvocation of the jurisdiction of the Magistrate. That apart, in anappropriate case the learned Magistrate would be well advised toverify the veracity of the allegations. This affidavit can make theapplicant more responsible. We are compelled to say so as suchkind of applications are being filed in routine manner withoutPage 11 of 14 CrWP506-19 -scope of sec 156-3-crpc.odttaking any responsibility whatsoever only to harass certainpersons…”“The warrant for giving a direction that an the applicationU/s. 156(3) be supported by an affidavit so that the personmaking the application should be conscious and endavour to seethat, no false affidavit is made. It is because once an affidavit isfound to be false, he will be liable for the prosecution inaccordance with law. This will deter him to casually invoke theauthority of Magistrate Under section 156(3).”12.In recent judgment dated 16.01.2025, Criminal AppealNo.352 of 2020, Om Prakash Ambadkar Vs. The State of Maharashtraand others, MANU/SC/0134/2025, passed by the Hon'ble SupremeCourt it is held in para 24 as under:-“24. Thus, there are prerequisites to be followed by thecomplainant before approaching the Magistrate Under Section156(3) of the Code of Criminal Procedure which is adiscretionary remedy as the provision proceeds with the word'may'. The Magistrate is required to exercise his mind while doingso. He should pass orders only if he is satisfied that theinformation reveals commission of cognizable offences and alsoabout the necessity of police investigation for digging out ofevidence neither in possession of the complainant nor can beprocured without the assistance of the police. It is, thus, notnecessary that in every case where a complaint has been filedUnder Section 200 of the Code of Criminal Procedure theMagistrate should direct the Police to investigate the crimemerely because an application has also been filed Under Section156(3) of the Code of Criminal Procedure even though theevidence to be led by the complainant is in his possession or canbe produced by summoning witnesses, with the assistance of thecourt or otherwise. The issue of jurisdiction also becomesPage 12 of 14 CrWP506-19 -scope of sec 156-3-crpc.odtimportant at that stage and cannot be ignored.”13.Considering the scope of Section 156(3) of Cr.P.C., as it is indiscretionary nature as well as law laid down by the Hon’ble SupremeCourt in the cited cases, it is not mandatory to the learned Magistrate toissue directions for investigation in each and every complaint institutedu/s 156 (3) of Cr.P.C., unless cognizable offence is made out and thelearned Magistrate is satisfied about existence of such cognizableoffence. Therefore, considering the nature of allegations made in CriminalM.A. No. 42 of 2019, alleging about tampering of documents, cheating,forgery, criminal breach of trust by conspiracy, common intention andabetment with the help of Officer and employees of the Public HealthDepartment, does not warrant any investigation through Police Machineryunder section 156(3) of Cr.P.C.14.On perusal of the impugned order it prima faie appearsthat, the learned trial Court has considered documents produced bythe Petitioner below list Exh.3 which are public documents and placeof commission of offence while discharging official duty, it would beproper to deal being a complaint case u/s 200 of Cri. P. C., instead ofdirecting investigation under section 156 (3) Cr.P.C., which does notappear to be illegal, bad in law. Therefore, to my view the petitionerPage 13 of 14 CrWP506-19 -scope of sec 156-3-crpc.odthas not made out substantial grounds to interfere with the findingsrecorded by the learned Judicial Magistrate, hence, I am not inclinedto grant present petition. Accordingly, the Criminal Writ Petition isdismissed. Rule is discharged.( Y. G. KHOBRAGADE, J. )JPChavanPage 14 of 14