High Court
Facts
939-Cri-WP-1443-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1443 OF 2024Dashrath Madhav KhedkarAge: 55 years, Occu. Agri.,R/o Tinkhadi, Tq. Pathardi,Dist. Ahmednagar… PETITIONER VERSUSThe State of MaharashtraThrough Police InspectorPathardi Police Station,Tq. Pathardi, Dist. Ahmednagar … RESPONDENT .…Mr. A. R. Hange, Advocate for the Petitioner Mr. S. M. Ganachari, APP for the Respondent – State .…CORAM: Y. G. KHOBRAGADE, J.RESERVED ON : 07.02.2025PRONOUNCED ON : 14.02.2025JUDGMENT :- 1.Rule. Rule made returnable forthwith and with theconsent of both the parties it is heard finally. 2.By the present Petition under Article 227 of theConstitution of India, the Petitioner challenged the order dated03.04.2024 passed by the learned Judicial Magistrate First Class,Pathardi, District Ahmednagar, in Criminal (O) M.A. No.27 of2024, whereby prayer of the Petitioner for issuance of directions 1 of 11
Legal Reasoning
(( 7 ))939-Cri-WP-1443-2024(2015) 6 SCC 287 : (MANU/SC/0344/2015), wherein it is held that,if mere allegations are taken to be sufficient, there would be flood ofthe registration 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 reallyjustify for it. Though the complainant has complied with theprovisions of Section 154(3), the application is required to besupported by an affidavit. 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 besupported by an affidavit duly sworn by the applicant whoseeks the invocation of the jurisdiction of the Magistrate. Thatapart, in an appropriate case the learned Magistrate would bewell advised to verify the veracity of the allegations. Thisaffidavit can make the applicant more responsible. We arecompelled to say so as such kind of applications are being filedin routine manner without taking any responsibility whatsoeveronly to harass certain persons…”“The warrant for giving a direction that an theapplication U/s. 156(3) be supported by an affidavit so that theperson making the application should be conscious andendavour to see that, no false affidavit is made. It is becauseonce an affidavit is found to be false, he will be liable for theprosecution in accordance with law. This will deter him tocasually invoke the authority of Magistrate Under section156(3).” 7 of 11 (( 8 ))939-Cri-WP-1443-202412.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 whiledoing so. 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 UnderSection 156(3) of the Code of Criminal Procedure even thoughthe evidence to be led by the complainant is in his possession orcan be produced by summoning witnesses, with the assistanceof the court or otherwise. The issue of jurisdiction also becomesimportant at that stage and cannot be ignored.”13.Therefore, considering the scope of Sec. 156(3) of Cr.P.C.,as well as law laid down by the Hon’ble Supreme Court in then citedcases, it is not mandatory on part of the learned Magistrate to issuedirections for investigation in each and every complaint instituted u/s 8 of 11 (( 9 ))939-Cri-WP-1443-2024156 (3) of Cri. P. C., unless cognizable offence is made out and thelearned Magistrate is satisfied about existence of such cognizableoffence. 14.In case-in-hand, the Petitioner filed a complaint Criminal(O) M.A. No.27 of 2024 alleging that, on 14.01.2024, at about 5.30p.m., when he was coming from Ahmednagar on his motorcycle andreached near Mali Babhulgaon, Nagar Road, at that time, the accusedShri Dashrath Madhav Khedkar with his four unknown associatesblocked his way and assaulted him with hockey stick and thrownchilli powder in his eyes and robbed him by snatching of Rs.50,000/-from his pocket and issued life threat in case he lodge the report andfled away from the spot. 15.It is submitted that, though the petitioner alleged aboutcommitting offence of robbery against him by throwing chilly powerin his eyes, however, the Petitioner has not produced any documentto show that soon after occurrence of incident of robbery he lodgedthe Report with the concern Police Station. The petitioner has also notproduced any document to show that, he was approached to theMedical Officer for medical treatment for injuries which he allegedly 9 of 11 (( 10 ))939-Cri-WP-1443-2024received due to assault and to show symptoms about pouring of chillipowder in his eyes. 16.It is contended on behalf of the petitioner that, on19.01.2024, the petitioner had lodged the Report with the SeniorPolice Officer but no action was taken, hence, the petitionerapproached with the Superintendent of Police under Section 154(3)of Cr.P.C., but still no action has been taken, therefore, the petitionerprayed for inquiry/investigation under Section 156(3) of Cr.P.C. On03.04.2024, the learned J.M.F.C. passed the impugned order holdingthat, the Petitioner/complainant failed to prove his prima-facie caseto issue directions of investigation under Section 156(3) of Cr.P.C. andcalled upon the Petitioner to give his statement under Section 200 ofCr.P.C.. 17. On perusal of the complaint filed by the petitioner it itselfappears that, the Petitioner failed to file the complaint Criminal (O)M.A. No.27 of 2024 on affidavit/solemn affirmation as per law laiddown in case of Priyanka Srivastava and another, cited (supra).Therefore, this fact itself creates doubt about the occurrence of thealleged incident. Hence, calling upon the petitioner to give a 10 of 11
Arguments
(( 2 ))939-Cri-WP-1443-2024against the Police Station Officer, Pathardi Police Station, DistrictAhmednagar, to register F.I.R./ to conduct investigation has beendeclined.3.Heard at length Mr. Hange, the learned counsel for thePetitioner and the learned APP for State. 4.Mr. Hange, the learned counsel appearing for thePetitioner canvassed that, the Petitioner filed a complaint Criminal(O) M.A. No.27 of 2024 and stated that, series of crimes areregistered as against the accused No.1 Shri Balu @ Balasaheb GovindKhedkar and his associates as under:-Sr. No.Crime Nos. Offences U/s1Crime No.193 of 2013Sec. 395, 365 of I.P.C.2Crime No.159 of 2011Sec. 326 of I.P.C.3Crime No.377 of 2013Sec. 395, 341, 365 of I.P.C. 4Summary Case No.425 of 2022Section 382 of Cr.P.C5.It is further canvassed that, on 14.01.2024, at about 5.30p.m., when the petitioner was returning from Ahmednagar andreached near Mali Babhulgaon, Nagar Road, at that time, the accusedShri Dashrath Madhav Khedkar with his four unknown associatesblocked his way, assaulted him with hockey stick and thrown chilli 2 of 11 (( 3 ))939-Cri-WP-1443-2024powder in his eyes and forcefully took out Rs.50,000/-, i.e. 100currency notes of Rs.500/ from his pocket. The Accused also issued alife threat, saying that if the petitioner lodged a report about theincident, he would be killed. The accused then fled from the spot. Thesaid incident was witnessed by Shri Yogesh Bapurao Bade and ShriJagdish Ankush Khedkar. Therefore, the Petitioner has made out aprima-facie case for taking cognizance for cognizable offences.However, the learned J.M.F.C., failed to consider the facts andcircumstances of the case and, instead of treating the complaint underSection 200 of Cr.P.C., could have passed an order under Section156(3) of the Code of Criminal Procedure. However, the learnedJ.M.F.C., treated the complaint u/s 200 of Cri. P.C., hence, impugnedorder is illegal bad in law.6.According to the learned counsel for the petitioner, whenthe petitioner specifically prayed for order under Section 156(3) ofCri.P.C., therefore, it is mandatory on the part of the learnedMagistrate either to grant the prayer for further investigation or toreject the said prayer. However, the learned Magistrate is notempowered to convert the complaint u/s 156(3) of the Cri.P.C. into achapter case, i.e. a private complaint u/s 200 of Cri. P. C.. However, 3 of 11 (( 4 ))939-Cri-WP-1443-2024the learned Magistrate passed the impugned order and directed thepetitioner to give his statement on oath. Therefore, the impugnedorder is illegal and bad in law, hence, prayed for quash and set asidethe same. 7.To buttress these submissions, the learned counsel for thePetitioner placed reliance on Order dated 05.05.2020, passed by thisCourt (Coram: R. G. Avachat, J.) in Criminal Writ Petition No.1808 of2018, Dr. Mamta Mahindra Kabra Vs. State of Maharashtra, and orderdated 17.03.2023 passed by this Court (Coram: Kishore C. Sant, J.) inCriminal Writ Petition No. 1641 of 2022, Dattatray Raghunath KaleVs. The State of Maharashtra and others, wherein, it is held that, thePetitioner had sought an order under Section 156(3) of Cr.P.C.,therefore, the learned Magistrate was not justified in passing theorder directing the placement of the matter for recording Petitioner’sstatement on oath under Chapter XV (complaints to Magistrates) ofCr.P.C. 8.Per contra, the learned APP submits that, the petitionermade allegations about committing robbery by snatching amount ofRs. 50,000/-from his pocket after throwing chilli powder in his eyes, 4 of 11 (( 5 ))939-Cri-WP-1443-2024issuance of life threat and witnessing said incident by two witness.However, the petitioner neither produced any document to show thathe lodged the report nor produced an injury certificate to corroboratethe assault with Hockey sticks and throwing Chilli Powder in his eyes.Therefore, the story narrated by the petitioner does not inspireconfidence and it is concocted story, hence, no prima-facie case ismade out for cognizable offences. Therefore, considering the law laiddown in the case of Sachin Raosaheb Jadhav Vs. The State ofMaharashtra, 2015 Cri. Law Journal 733, the learned Magistratepassed the impugned order calling upon the Petitioner to give hisstatement on oath to testify allegations made in the complaint.Therefore, impugned order is just and proper, hence, prayed fordismissal of the Petition. 9.Upon hearing both sides, the point that falls for myconsideration is whether the learned J.M.F.C., can either issuedirections for further investigation u/s 156(3) of Cri.P.C. straightawayor reject the prayer for further investigation u/s 156(3) of Cri. P. C., oreven the learned Magistrate can call upon the complainant to give hisstatement on oath under Section 200 of Cr.P.C., if the learnedMagistrate was not prima-facie satisfied that, the complainant/ 5 of 11 (( 6 ))939-Cri-WP-1443-2024petitioner failed to made out for further investigation of alleged crimeunder Section 156(3) of Cr.P.C?. 10.It is submitted that, the learned trial Court considered thecase of Sachin Raosahab Jadhav, cited (supra), wherein it is held that,when a petition or complaint is presented before the Magistrate, inwhich a request is made for taking action as mentioned in section2(d) of the Code, the Magistrate is expected to apply his mind. TheMagistrate has to ascertain whether the contentions made in thepetition/complaint constitute any offence. If they constitute someoffence then the Magistrate is expected to take decision as to whetherthe matter needs to be referred to police for investigation as providedin section 156(3) of the Code or he needs to proceed further asprovided in section 200 and subsequent sections of Chapter XV of theCode. There is a discretion with the Magistrate in this regard. Thoughpolice officer is duty bound to register case on receiving informationof cognizable offence, the Magistrate is not bound to refer the matterto police under section 156(3) of the Code. 11.In the case of Priyanka Srivastava and another Vs. Stateof U.P. and others, Supreme Court Criminal Appeal No.781 of 2012, 6 of 11
Decision
(( 11 ))939-Cri-WP-1443-2024statement on oath u/s 200 of Cri.P.C., does not appear to be illegal orbad in law. Therefore, the Writ Petition is dismissed. Rule discharged. [ Y. G. KHOBRAGADE, J. ] SMS 11 of 11