Criminal Application No. 1833 of 2023 · Bombaybench High Court
Case Details
2025:BHC-AUG:2859-DB (1) Cri. Appln. No. 1833-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1833 OF 20231.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)VERSUS1.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. SalunkeA.P.P. for Respondent No.1/State : Mr. A. R. KaleAdvocate for Respondent No.2 : Mr. E. S. Potdar h/f Adv. Mr. D. K. Rajput ….CORAM :SMT. VIBHA KANKANWADI AND ROHIT W. JOSHI, JJRESERVED ON : 14.01.2025PRONOUNCED ON : 29.01.2025JUDGMENT (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
Facts
(2) Cri. Appln. No. 1833-2023.odtPolice Station Gevrai, District Beed on 27.01.2022 for the offencepunishable under Sections 166A of the Indian Penal Code (herein afterreferred to as 'IPC" for brevity). The said First Information Report isregistered pursuant to order dated 24.01.2022 passed by the learnedJudicial Magistrate First Class Court No. 2 (hereinafter referred to as'J.M.F.C' for brevity)- Gevrai District Beed on application at Exhibit 7in Criminal Misc. Application No. 391 of 2021. The applicant Nos. 1and 2 were posted as Police Inspector and Police Station Officer atPolice Station Gevrai on 21.03.2016. Respondent No.2-informant isan Advocate. He has stated that he had visited police station Gevraion 21.03.2016 for lodging First Information Report against one AniketRadheshyam Attal and 12 others for the offence punishable underSections 420, 465, 467, 468, 471, 477-A, 120B and 109 of the IPC.He states that the present applicants were duty bound to register theFirst Information Report since the offence was a cognizable offence,however, they failed to perform their mandatory duty and as suchcommitted offence punishable under Section 166-A of the I. P. C.2.Respondent No.2 had initially filed a private complaint on25.07.2021 against the present applicants vide Criminal Misc.Application No. 391 of 2021. The said complaint was posted forrecording verification statement vide order dated 09.10.2021.Thereafter, respondent No.2 filed application dated 18.12.2021 videExhibit 7 stating that rather than taking cognizance of the complaint, (3) Cri. Appln. No. 1833-2023.odtappropriate order could be passed under section 156(3) of the Code ofCriminal Procedure (hereinafter referred to as ‘Cr.P.C.) directingGevrai Police Station to register First Information Report andinvestigate the matter. The learned J.M.F.C was pleased to pass theorder dated 24.01.2022 directing the police inspector, Gevrai PoliceStation to register First Information Report against the presentapplicants for offence punishable under Section 166A of the IPC andto investigate the matter in accordance with law. In compliance of thesaid order, respondent No.1 has registered offence against the presentapplicants for offence punishable under Section 166A of the IPC on27.01.2022 vide First Information Report No. 42 of 2022. Theapplicants are aggrieved by the said order dated 24.01.2022 and theFirst Information Report registered on 27.01.2022. They havetherefore, challenged the same in the present proceeding which isfiled under Section 482 of the Cr.P.C.3.Learned Advocate Shri. S. J. Salunke for the applicants hasraised the following contentions :- (i)Offence under Section 166A of the IPC is not made out onaccount of failure to register First Information Report with respect tooffences under Sections 420, 468, 477A, 120B and 109 of the I.P.C. ;(ii)Misc. Criminal Application No. 391 of 2021 was not supportedby an affidavit and was, therefore, liable to be rejected in view ofjudgments of Hon’ble Supreme Court in the matters of Babu (4) Cri. Appln. No. 1833-2023.odtVenkatesh Vs. State of Karnataka reported in (2022) 5 SCC 639 andMrs. Priyanka Shrivasatva and Another Vs. State of Uttar Pradeshreported in AIR (2015) SC 1758 ;(iii)Application under Section 156 (3) of the Cr. P. C could not havebeen 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 beenpassed without prior sanction in view of proviso to Section 156(3)introduced vide Code of Criminal Procedure (MaharashtraAmendment) Act 2015 which has come into force w.e.f. 01.11.2016 ; (v)The complaint and First Information Report are barred bylimitation in view of Section 468(2)(b) of the Cr.P.C. ; and (vi)First Information Report registered pursuant to an illegal orderalso deserves to be quashed. 4.Per contra, Shri. A.R. Kale learned A.P.P. representing respondentNo.1 opposed the application raising contention that the applicantshad failed to perform their mandatory duty of registering FirstInformation Report with respect to a cognizable offence and were,therefore, liable to be prosecuted for the offence of disobedience ofdirection under law, punishable under Section 166A of the IPC. Herefers to Section 154(1) of the Cr.P.C and judgment of Hon’bleSupreme Court in the matter of Lalita kumari Vs. State of UttarPradesh, reported in AIR 2014 SC 187 , in support of his contention.He submits that since the applicants have failed to register the First (5) Cri. Appln. No. 1833-2023.odtInformation Report, ingredients of Section 166A of the IPC areestablished. He states that Section 166-A(c) is attracted in case offailure to register First Information Report with respect to anycognizable offence and not only with respect to sections mentioned inthe said provision. On the point of sanction he makes reference toExplanation to Section 197 (1) of the Cr.P.C and contends thatsanction is not required when a public servant is accused of offenceunder Section 166A of the IPC. He further makes a submission in thealternate that offence under Section 166 of the IPC is clearly made outeven if it is held that Section 166A(c) is not attracted. He replies tothe contention with respect to failure on the part of respondent No.2to file an affidavit in support of his complaint/application underSection 156 (3) of the Cr.P.C. by stating that it is a technical defect andcriminal prosecution cannot be quashed on account of technical errorsor defects.5. The learned Advocate for respondent No.2 has also advancedsubmission in line with the submission made by the learned A.P.P. Hefurther submits that sanction as contemplated under Section 156(3) ofthe Cr. P. C need not be prior to filing complaint and it can also beobtained subsequently. He also contends that the applicants are liableto be prosecuted for having committed breach of mandatory dutyimposed by law i.e. failure to register First Information Report withrespect to a cognizable offence. He argues that assuming that offence (6) Cri. Appln. No. 1833-2023.odtunder Section 166A(c) is not made out, the applicants are liable forprosecution for offence under Section 166. As regards sanctioncontemplated by proviso to Section 156 of the Cr. P. C which isintroduced by Maharashtra Amendment he submits that the offence iscommitted on 21.03.2016 i.e. the date on which there was failure onthe part of the applicants to register the F.I.R. and the MaharashtraAmendment which has come into force on 01.11.2016 will not beapplicable since it cannot have retrospective operation. 6. We are concerned with Section 166A(c) of the Indian PenalCode 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 itto 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, (7) Cri. Appln. No. 1833-2023.odtSection 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 Section166A(c) will be attracted only when a police officer fails to registerFirst Information Report in relation to cognizable offence punishableunder 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 509of the IPC. Sections 420, 465, 467, 468, 471, 477-A, 120B and 109are not mentioned in Section 166A(c), therefore, on account of failureto register First Information Report with respect to the said provision,the offence under Section 166-A of the IPC will not be made out. Theoffence under Section 166A(c) will be made out only when there isfailure to register First Information Report pertaining to the Sectionsmentioned in the said provision.8.The learned A.P.P. offers alternate interpretation to the saidprovision. He submits that there is 'comma' after the word ‘‘fails torecord any information given to him under sub-section (1) of Section154 of the Cr.P.C, 1973 ”, these words are followed by the words, “inrelation to cognizable offence punishable under Sections ……..”appear. His contention is that offence under Section 166-A of the IPCis made out on failure to register any cognizable offence as per Section (8) Cri. Appln. No. 1833-2023.odt154(1) and also when offence is not registered with respect tooffences specifically mentioned in 166A(c). He therefore, contendsthat apart from sections which have been mentioned in Section166A(c), the said provision will be attracted in case of failure toregister offence with respect to any cognizable offence, in view ofSection 154(1) of the Cr.P.C.. He submits that the amplitude ofSection 154(1) will not be restricted by specific reference to some ofthe sections of the Indian Penal Code in Section 166-A of the IPC.9.We are unable to accept the interpretation offered by thelearned A.P.P. All the sections of the Indian Penal Code which havebeen mentioned specifically in Section 166-A are cognizable offencesunder the first schedule appended to the Cr.PC. It is no doubt truethat a police officer is duty bound to register First Information Report,when information pertaining to a cognizable offence is received byhim. Failure to register First Information Report will amount tobreach 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 InformationReport with respect to a cognizable offence will be liable forprosecution and punishment under Section 166A(c) of the I.P.C. evenif the offence does not pertain to specific sections mentioned inSection 166A(c). We find that all the provisions which have beenspecifically mentioned are pertaining to cognizable offence. If the (9) Cri. Appln. No. 1833-2023.odtintention of the Legislature was to punish a police person underSection 166A(c) for failure to register First Information Report withrespect to any cognizable offence, specific provisions of IPC would nothave been mentioned in Section 166A(c). The reason for mentioningthe said provisions is that offence under Section 166A(c) will beconstituted only when there is failure on the part of the police personsto register offence pertaining to the provisions specifically enumeratedin Section 166A(c). If the interpretation of learned A.P.P. is accepted,the words, 'in relation to cognizable offence punishable under Sections326-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 renderedsuperfluous. It is well settled that, the Legislature does not use oremploy any word without any reason. Every word in Section has aspecific meaning and it cannot be ignored as a surplusage. If theinterpretation offered by the learned A.P.P. is accepted, the said wordswill be rendered meaningless. The provision is clear and precise anddoes not admit any other interpretation than the one that we haveadopted i.e. offence under Section 166A(c) will be committed by apolice person only when there is refusal/failure on his part to registeroffence which are specifically mentioned in Section 166A(c) and noton failure to register First Information Report with respect to acognizable offence which is not mentioned in the said provision. (10) Cri. Appln. No. 1833-2023.odt10.In view of the aforesaid, we hold that Section 166A(c) is notattracted in the present case since the failure on the part of theapplicants was not to register First Information Report with respect toany provision specifically mentioned in Section 166A(c), and that itwas pertaining to sections 420, 465, 467, 468, 471, 477-A, 120-B and109 IPC I.e. cognizable offences which are not mentioned in Section166A(c).11. The alternate submission by the learned A.P.P is that even ifSection 166A (c) is not attracted, Section 166 of the Indian PenalCode will certainly be attracted. Section 166 of the Indian Penal Codeprovides punishment for simple imprisonment up to one year or fineor both against a public servant who knowingly disobeys any directionof law relating to his conduct as public servant intending to cause orknowing that his conduct is likely to cause injury to any person.Failure to register First Information Report in case of non cognizableoffence will amount to disobedience of a direction of law i.e. Section154(1) of the Cr.P.C.. However, in order to proceed with prosecutionof a public servant under Section 166, previous sanction of the StateGovernment will be needed in view of mandate of Section 197 of theCr.P.C.. The explanation to Section 197 (1) will not be attracted incase a public servant is prosecuted under Section 166.12.That apart, in the present case, the First Information Report is (11) Cri. Appln. No. 1833-2023.odtregistered pursuant to an order passed by the learned J.M.F.C. underSection 156(3) of the Cr.P.C.. Two provisos have been added afterSection 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 firstproviso prescribes that no Magistrate shall order an investigationunder sub section 156(3) against any public servant in respect of anyact done by him while acting or purporting to act in discharge of hisofficial duties except with the previous sanction of the Governmentunder Section 197 of the Cr.P.C. Such sanction is admittedly notreceived till date. The second proviso prescribes that in case whereproposal is sent to the sanctioning authority and no decision is takenthereon for a period of 90 days then the sanction shall be deemed tobe granted. In the present case previous sanction was not granted bythe sanctioning authority before the learned J.M.F.C. passed order forregistration of First Information Report under Section 156(3) of theCr.P.C., likewise no proposal is sent to the sanctioning authority forgrant of sanction and as such question of deemed sanction also doesnot arise. The order passed by the learned J.M.F.C. directingregistration of First Information Report will, therefore, not besustainable even if offence was to be registered under Section 166 ofthe Indian Penal Code. Consequently, the First Information Reportwhich is registered pursuant to such order will also not bemaintainable and will have to be quashed. (12) Cri. Appln. No. 1833-2023.odt13.We also need to refer to Section 468 of the Cr.P.C. whichprovides for limitation for taking cognizance of offences. Section468(2) of the Cr.P.C. provides limitation of one year for offence whichis punishable with imprisonment for a term not exceeding one year.Offence under Section 166 of the IPC is punishable with six monthsand as such the limitation for taking cognizance of the said offencewill be governed by Section 468(1)(b) of the Cr.P.C. Perusal ofCriminal Misc. Application No. 391 of 2021 demonstrates that theapplicants had refused to register First Information Report on21.03.2016 and as such have allegedly committed the offence on thesaid date. The Criminal Misc. Application which was initially filed as aprivate 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. Thecomplaint is filed after a period of over four years and three monthsfrom the date on which the limitation has expired. In this complaintan application dated 18.12.2021 was filed praying that direction maybe issued to respondent No.1 to register offence against the applicantsas per Section 156(3)of the Cr.P.C. There appears to be delay of overfour years and three months in filing the complaint. The delay is notexplained 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 aprivate complaint under Section 200 of the Cr.P.C. and as such (13) Cri. Appln. No. 1833-2023.odtrespondent No.2 ought to have explained the delay in the complaintitself. The order directing Magistrate under Section 156(3) Cr. P.C ispassed without considering the aspect of delay. Delay can be condonedin the interest of justice even if not explained. However, even on thisaspect nothing is mentioned in the complaint or the order passed bythe learned Magistrate directing registration of the FIR. We need notcomment much on the aspect of delay since we have already held onmerits that the offence under Section 166A(c) is not made out andorder under Section 156 (3) of the Cr. P. C could not have been passeddirecting investigation for offence under Section 166 of the IPC aswell, since prior sanction of the appropriate authority is not granted oreven deemed to be granted which is a statutory prerequisite as perproviso to Section 156 of the Cr. P. C. 14.There is another aspect which was very seriously canvassed bythe learned Advocate for the applicants. He submitted that the privatecomplaint which was thereafter treated as application under Section156(3) of the Cr.P.C. was not supported by affidavit and the sameought to have been rejected on this count alone. In support of hiscontention he has placed reliance on two authorities of the Hon’bleSupreme Court viz Babu Venkatesh and Others and State of Karnatakaand another (supra) and Mrs. Priyanka Srivastava and Another(supra) referred in paragraph No.3 above. The Hon’ble SupremeCourt has held in the matter of Mrs. Priyanka Srivastava (supra)as
Legal Reasoning
(14) Cri. Appln. No. 1833-2023.odtunder :-“In our considered opinion, a stage has come in thiscountry where Section 156(3), Cr.P.C applications are tobe supported by an affidavit duly sworn by the applicantwho seeks the invocation of the jurisdiction of theMagistrate. …...The warrant for giving a direction that an applicationunder Section 156(3) be supported by an affidavit sothat the person making the application should beconscious and also endeavour to see that no falseaffidavit is made. It is because once an affidavit is foundto be false, he will be liable for prosecution inaccordance with law. This will deter him to casuallyinvoke the authority of the Magistrate under Section156(3). That apart, we have already stated that theveracity of the same can also be verified by the learnedMagistrate, regard being had to the nature of allegationsof the case. We are compelled to say so as a number ofcases pertaining to fiscal sphere, matrimonialdispute/family disputes, commercial offences, medicalnegligence cases, corruption cases and the case wherethere is abnormal delay/laches in initiating criminalprosecution, as are illustrated in Lalita Kumari are being (15) Cri. Appln. No. 1833-2023.odtfiled. That apart, the learned Magistrate would also beaware of the delay in lodging of the FIR.”15.The direction that application under Section 156(3) must besupported by affidavit came to be reiterated by the Hon’ble SupremeCourt in the case of Babu Venkatesh (supra). The Hon’ble SupremeCourt has taken note of the said direction issued in the matter of Mrs.Priyanka Srivastava (supra) and was pleased to dismiss applicationfiled under Section 156(3) of the Cr.P.C. on the ground that it was notsupported 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 notregister First Information Report in relation to a cognizable offenceunless 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 ofan officer-in-charge of a police station to register First InformationReport may send the substance of such information, in writing to theSuperintendent of Police concerned. The Superintendent of Policeupon receipt of such information is required to consider as to whetherthe information discloses commission of a cognizable offence , and incase he has arrived at the satisfaction that cognizable offence isdisclosed, he may conduct investigation in the matter himself or direct (16) Cri. Appln. No. 1833-2023.odtsome other police officer to conduct the investigation. The Hon’bleSupreme 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 registerthe First Information Report. This procedure is also not followed in thepresent matter by respondent No.2. The application under Section156(3) of the Cr.P.C. filed by respondent No.2 was also liable to berejected on this count.17.The learned Advocate for respondent No.2 has filed a note ofargument dated 17.01.2025, raising contentions in addition to theones that were raised by him during the course of hearing held on14.01.2025. The following three contentions have been raised in thesaid note of argument. (i)Maharashtra State Amendment introduced vide Code ofCriminal Procedure ( Maharashtra Amendment) Act 2015 is repugnantto Section 197 of the Code of Criminal Procedure and as such it is voidand unenforceable.(ii)The Code of Criminal Procedure Maharashtra Amended Act,(herein after referred to as " Cr. P. C. Maharashtra Amendment Act2015') has come into force with effect from 01.11.2016 and theapplicants had committed offene by not registering First InformationReport in relation to cognizable offence on 31.03.2016 i.e. prior tothe commencement of the said Act. He states that, Code of Criminal (17) Cri. Appln. No. 1833-2023.odtProcedure Maharashtra Amendment Act cannot have retrospectiveoperation and as such requirement of sanction will not be required inthe case at hand.(iii)He states that Section 166A(c) of IPC will be attracted in everycase where there is refusal on the part of police authority inregistering First Information Report with respect to any cognizableoffence and not only offences that has been specifically enumeratedin the said provision. For this purpose he has placed reliance uponnotifications issued by Government of India Ministry of Home Affairsdated 10.05.2013, 12.10.2015 and 06.02.2014.18. As regards the ground regarding repugnancy between Code ofCriminal Procedure Maharashtra Amendment Act and Section 197 ofthe Code of Criminal Procedure, the argument is recorded only to berejected. The Code of Criminal Procedure Maharashtra AmendmentAct 2015 has received Presidential assent and is published in theMaharashtra Government Gazette after having received the assent on30.08.2016. The said contention is therefore, rejected in view ofArticle 254(2) of the Constitution of India.19.As regards the second contention that the offence was allegedlycommitted on 21.03.2016 and the Code of Criminal ProcedureMaharashtra Amendment Act which has come into force on01.11.2016 does not have retrospective effect and as such shall not be (18) Cri. Appln. No. 1833-2023.odtapplicable to the case at hand, the said contention is also fallacious.The two provisos to Section 156 introduced vide MaharashtraAmendment 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 codeof 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 anembargo on the jurisdiction/power of the Magistrate to order aninvestigation under the said Section against public servants in respectof any offence committed while acting or purporting to act indischarge of the official duty. The prohibition therefore, applies as onthe date of the order. After 01.11.2016, in the absence of prior (19) Cri. Appln. No. 1833-2023.odtsanction, a Magistrate cannot pass an order under Section 156(3) ofthe Cr. P. C for investigation of the offence against a public servant ifsuch offence is committed or purported to be committed in dischargeof his official duties. The date of offence is not relevant. Even ifoffence is committed prior to 01.11.2016, no order under Section 156can be passed without prior sanction after 01.11.2016. The baroperates 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 byrespondent No.2 on 25.07.2021 and prayer for treating it as anapplication 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 aresubsequent to 01.11.2016 i.e. the date of commencement ofMaharashtra Amendment. We therefore hold that the proviso asintroduced by Code of Criminal Procedure Maharashtra AmendmentAct 2015 will be applicable to the present case and the Magistrate hadno jurisdiction to order investigation against the applicants withoutthere being prior sanction, actual or deemed from the competentsanctioning authority qua Section 166 of the IPC. Similar view is takenby 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 :- (20) Cri. Appln. No. 1833-2023.odt“ 9. It is thus apparent, as has been rightly submitted bythe learned Advocate for the applicant, whenever, adirection is sought to be issued under Section 156(3) ofthe Cr. P.C. 1973 against a public servant in respect of anyact done by such public servant while acting or purportingto act in the discharge of his official duties, a Magistratecannot order investigation without their being a previoussanction obtained under Section 197 of the Cr. P. C orunder any other law for the time being in force. Thesecond proviso is in the nature of a deeming provisionand the person applying for sanction can proceed to file acomplaint if the sanctioning authority fails to grantsanction within ninety days of the application for seekingsanction. In the matter before hand, when according tothe averments in the complaint, the respondent No.2 hadapplied for sanction to the Superintendent of Police,Osmanabad on 27.09.2016, the amended provision ofSection 156(supra) had not come into force and whichcame in force only on 01.11.2016. Therefore, when thelaw did not expect her to have obtained previous sanctionwhen she actually applied for it, apparently no fault couldbe found with her in filing complaint without suchsanction. 10.However, a careful look into the facts and lawwould reveal that when actually the respondent No.2 filedthe complaint on 20.12.2016 the amended provision ofSection 156 of Cr. P.C were already in force and going bythe clear wording of the first proviso (supra) in fact themandate of law required a Magistrate not to pass anyorder for investigation under Section 156(3) except witha previous sanction. Therefore, even though when the (21) Cri. Appln. No. 1833-2023.odtrespondent No.2 actually sought sanction from theSuperintendent of Police, the law did not require any suchprevious sanction as a condition precedent for aMagistrate to direct investigation under Sub-section (3) ofSection 156, as on the date on which the impugned orderwas passed by the learned Magistrate on 23.12.2016 hispowers were curtailed by the legislature and the conditionlaid down by the first proviso (supra) would indeed go tothe root of the jurisdiction of a Magistrate in directinginvestigation under that provision. In short, as on thedate of which the learned Magistrate passed the orderdirecting such investigation by the impugned order, hisjurisdiction was circumscribed by the newly addedproviso. When admittedly no sanction was obtainedbefore passing of the impugned order, the learnedMagistrate had no jurisdiction to issue direction for theinvestigation.12.In substance, we conclude that the learnedMagistrate had no jurisdiction to pass the impugned orderdirecting investigation for want of sanction and for thisreason alone the application deserves to be allowed intoto.” 21. As regards the contention that section 166A(c) of the IPC willbe attracted in the event of failure on the part of the police officer inregistering First Information Report with respect to every cognizableoffence even though the said sections are not specifically mentioned inSection 166A(c), the learned Advocate has placed reliance uponaforesaid three circulars issued by the Government of India. At the (22) Cri. Appln. No. 1833-2023.odtoutset, the said circulars are not binding on us. Even otherwise failureto follow circular does not amount to offence. At the most it may givereason to start departmental inquiry. Even otherwise, the circularsdated 10.05.2013 and 12.10.2015 are in the nature of advisory topolice authority advising that even if there is uncertainty in relation toterritorial jurisdiction of the police station, the police authority mustregister First Information Report if cognizable offence is disclosedfrom the complaint/information received.22.The third circular dated 06.02.2014 is issued in the light of lawlaid down in the matter of Lalita Kumari. The learned Advocate relieson 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 IPCshall apply in cases of non registration of First Information Report foroffence mentioned under Section 166-A of the IPC. The circular doesnot support the contention of the learned Advocate for respondentno.2. It rather clarifies that Section 166A will be attracted only incases of failure to register offence with respect to provisionmentioned therein and not with respect to failure to register FirstInformation Report with respect to any other cognizable offence. (23) Cri. Appln. No. 1833-2023.odt24.The learned Advocate has placed reliance on thejudgment 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 hisargument that failure to register First Information Report with respectto cognizable offence will be punishable under Section 166A(c) of theIPC.25. He has then relied upon judgment of the Hon’ble SupremeCourt in the matter of M. Karunanidhi Vs. Union of India reported inAIR 1979 SC 898 and Deep Chand Vs. State of Uttar Pradesh reportedin AIR 1959 SC 648. The said judgments are pressed into service tocontends that Section 156(3) as amended by the Code of CriminalProcedure Maharashtra Amendment Act by inserting two provisos isrepugnant to Sections 190 and 197 of the Code of Criminal Procedurethere cannot be any quarrel with the law laid down in the aforesaidtwo judgments. However, since presidential assent has been obtainedas noted above, the ratio laid down in the said judgments is not of anyassistance 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 incase where a officer-in-charge of police station refuses to register (24) Cri. Appln. No. 1833-2023.odtoffence with respect to a cognizable offence, except when the refusalto register the offence is with respect to sections enumerated underSection 166A(c) of the IPC. In other words, if failure to registeroffence is with respect to cognizable offences not included underSection 166A(c) of the IPC, the offence under the said provision willnot be made out.(B)The impugned order dated 24.01.2022 also cannot be pressedinto service in order to prosecute the applicants under Section 166 ofthe IPC since prior sanction as contemplated by proviso to Section 156is neither obtained nor deemed to be granted. (C) The private complaint/ application filed by the respondent No.2is liable to be rejected as barred by limitation since delay of over fouryears and three months is not explained and also because that it willnot be in the interest of justice to condone the delay since it will notserve any fruitful purpose in as much as prior sanction for prosecutionunder Section 166 of the IPC is not obtained and Section 166A(c) ofthe IPC is not attracted at all.(D) The impugned order directing investigation under Section156(3) of the Cr.P.C is liable to be quashed since the application wasnot supported by an affidavit and also on the ground that procedureunder Section 154(3) was not followed prior to filing of the saidapplication.27.In view of the aforesaid, we are of the considered opinion that (25) Cri. Appln. No. 1833-2023.odtthe 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 2021directing respondent No.1 Police Inspector Gevrai Police Station toregister First Information Report against the applicants for offencepunishable under Section 166A of the IPC and consequent FirstInformation Report No. 42 of 2022 registered by the said policestation on 27.01.2022 for offence under Section 166A of the IPC areliable to be quashed and are quashed accordingly.(ROHIT W. JOSHI) (SMT. VIBHA KANKANWADI ) JUDGE JUDGEY.S. Kulkarni