High Court
Legal Reasoning
68-cwp-1219-2018.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1219 OF 2018WITHCRIMINAL APPLICATION NO. 1273 of 2019Sakharam s/o Dagduji JadhavAge : 80 years, Occ : Pensioner & AgricultureR/o Plot No.9, Deogiri Housing Society,Khokadpura, Aurangabad...PetitionerVERSUS1. State of MaharashtraThrough AGP (Hon'ble High Court of judicature ofBombay Bench at Aurangabad), Aurangabad.2.Rameshkumar S/o Jitmal Bagdiya,Age: 60 yrs, Occu: Busniess,R/o: Plot No. 5, Gururamdasnagar, Maheshnagar,Baijipura Road, Aurangabad.3. Ashwin S/o Rameshkumar Bagdiya,Age: 28 yrs, Occu: Busniess,R/o: Plot No. 5, Gururamdasnagar, Maheshnagar,Baijipura Road, Aurangabad.4. Sambhaji S/o Daulat Shinde,Age: 55 yrs, Occu: Business,R/o: Peer Bazar, Patil Niwas, Osmanpura,Aurangabad.5. Sanjay @ Raju Katariya,Age: 45 yrs, Occu: Service,R/o: Plot No. 5, Gururamdasnagar, MaheshnagBaijipura Road, Aurangabad.6. Sandip S/o Kisan Rathod,Age: 30 yrs, Occu: Business,R/o: Galli No. 4, Hanuman Nagar, Near SudhakarNaik School, Pundliknagar Road, Near Water Tank,Garkheda Parisar, Aurangabad.7. Happy Seth Sardarji,Age: 55 yrs, Occu: Business,
Legal Reasoning
68-cwp-1219-2018.odt(2)R/o: Osmanpura, Near Gurudwara, Aurangabad.Mob No. 9850140061...Respondents...Advocate for the Petitioner : Mr. Joshi Rahul G.APP for Respondent/State : Mr. S.B. NarwadeAdvocate for Respondent No.2, 3 & 5 : Mr. S.P. ShahAdvocate for Respondent No.4 : Mr. V.S. Sakhare h/f Mr. S.A. Ambad... CORAM : S.G. MEHARE, J. DATED : AUGUST 05, 2024ORDER :-1.Heard the learned counsel for the petitioner and learnedcounsel for the respondents.2.The petitioner has impugned the order of the learnedJudicial Magistrate First Class, Aurangabad, dated 01.10.2016, passedin Criminal M.A. No.1341 of 2016 on the application/complaintunder Section 156(3) and 200 of the Criminal Procedure Code. 3. The Trial Court recorded the finding that there was nomaterial to believe that the offence under Section 307 of the IndianPenal Code is made out. The Revisional Court also dismissed therevision by the order dated 04.07.2018 in Criminal Revision No.222of 2016. 4.The learned counsel for the petitioner would submit thatthe prayers were twofold. Firstly, the prayer was for directing thepolice to register the crime under Section 156(3), and in alternative,the application be treated complaint. If the Court was of the opinionthat the petitioner has no case to direct the police under Section 68-cwp-1219-2018.odt(3)156(3), the Trial Court should have passed the order under Section202 of the Criminal Procedure Code. None of the Courts belowgranted him an opportunity to prove the allegations. The matter wasserious. The JCB was taken into the field forcefully. The plants wereuprooted. The Tahsildar had drawn the panchnama of theremoval/cutting of the plants and trees. The tone of his argument wasthat once the complaint is filed, the Court shall pass an order underSection 156(3) or 202 of the Criminal Procedure Code. To bolster hisargument, he relied on the case of Pranati Das Vs. State of WestBengal, 2020 SCC Online Cal 132. In that case, the complaint wasrejected on the report submitted by the officer in charge of the policestation. It has been further observed that our Apex Court has alsoobserved in the decision cited by Learned Magistrate (PriyankaShrivastava Vs. State of U.P) that in an appropriate case, theMagistrate would be well advised to verify the truth and also verifythe veracity of the allegations contained in the petition of complaint.This judgment is self-speaking. The Magistrate must apply the mindbased upon the veracity of the allegation. In other words, it may bestated that barely lodging the complaint is not sufficient. Theallegations should inspire confidence that the cognizable offence hashappened. 5.As against this, counsel for the contesting respondentsubmits that the issuance of the order under Section 156(3) and 202 68-cwp-1219-2018.odt(4)of the Criminal Procedure Code is not a mechanical process. Thereshould be sufficient material to form an opinion that it is a matter inwhich action is required to be taken to make justice with the personknocking on the doors of the Court of law. The complaint is silent.The complainant suppressed the fact from the Court in the pleadingthat some of the portions of the same land were purchased by therespondents from the complainant and after litigation, he handedover its possession. The portion which was sold to the respondentswas not demarcated by boundaries. Since the petitioner wasdisinterested in handing over the possession after receiving theconsideration, he was searching for a cause to lodge the complaint,and he automatically got the right and tried to encash it. 6. Section 200 speaks of the examination of thecomplainant, and Section 202 speaks of the postponement of issue ofprocess. The law is crystal clear. Hence, no discussion that thecomplainant or any witnesses present should be examined underSection 200 the Magistrate is bound to examine the complainant andwitnesses and it should be recorded whether other witnesses arepresent in the Court or not. Thereafter, the question of issuance ofsummons would come up. Then, the Magistrate may issue summonsto the accused o order an inquiry under Section 202 or dismiss thecomplaint under section 203. After considering the statement of thecomplainant on oath or witness, the Magistrate is satisfied that there 68-cwp-1219-2018.odt(5)are no sufficient grounds for proceeding, then he shall dismiss thecomplaint. For taking the cognizance there must be sufficient groundto proceed with the matter. Issuing of summons is not a matter ofcourse. There should be sufficient grounds to initiate the actionagainst the opponent. 7. Section 156(3) Cr.P.C. provides for the powers of theMagistrate to order such an investigation as provided under sub-section (1) and (2) of the said section. Under this section, theinvestigation order may be directed before examining thecomplainant and taking cognizance. 8.The Hon’ble Supreme Court in Dilawar Singh Vs. State ofDelhi, AIR 2007 SC 3234 observed that Section 156 falling withinChapter XII, deals with powers of police officers to investigatecognizable offences. Investigation envisaged in Section 202 containedin Chapter XV is different from the investigation contemplated underSection 156 of the Cr.P.C. Chapter XII of the Cr.P.C. containsprovisions relating to "information to the police and their powers toinvestigate". Whereas Chapter XV, which contains Section 202, dealswith provisions relating to the steps which a Magistrate has to adoptwhile and after taking cognizance of any offence on a complaint.Provisions of the above two chapters deal with two different facetsaltogether, though there could be a common factor i.e. complaint filedby a person. Section 156, falling within Chapter XII deals with powers 68-cwp-1219-2018.odt(6)of the police officers to investigate cognizable offences. True, Section202, which falls under Chapter XV, also refers to the power of aMagistrate to "direct an investigation by a police officer". But theinvestigation envisaged in Section 202 is different from theinvestigation contemplated in Section 156 of the Cr.P.C. The varioussteps to be adopted for investigation under Section 156 of the Cr.P.C.have been elaborated in Chapter XII of the Cr.P.C. Such investigationwould start with making the entry in a book to be kept by the officerin charge of a police station, of the substance of the informationrelating to the commission of a cognizable offence. The investigationstarted thereafter can end up only with the report filed by the policeas indicated in Section 173 of the Cr.P.C. The investigationcontemplated in that chapter can be commenced by the police evenwithout the order of a Magistrate. But that does not mean that whena Magistrate orders an investigation under Section 156(3) it would bea different kind of investigation. Such investigation must also end uponly with the report contemplated in Section 173 of the Cr.P.C. Butthe significant point to be notice is, when a Magistrate ordersinvestigation under Chapter XII he does so before he takes cognizanceof the offence. The clear position therefore is that any JudicialMagistrate, before taking cognizance of the offence, can orderinvestigation under Section 156(3) of Cr.P.C. If he does so, he is not toexamine the complainant on oath because he was not taking 68-cwp-1219-2018.odt(7)cognizance of any offence therein. For the purpose of enabling thepolice to start investigation it is open to the Magistrate to direct thepolice to register an FIR. There is nothing illegal in doing so. After all,registration 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 the policestation as indicated in Section 154 of Cr.P.C. Even if a Magistrate doesnot say in so many words while directing investigation under Section156(3) of the Cr.P.C. that an FIR should be registered, it is the duty ofthe officer in charge of the police station to register the FIR regardingthe cognizable offence disclosed by the complaint because that policeofficer could take further steps contemplated in Chapter XII of theCr.P.C. only thereafter.9.In case of Suresh Chand Jain Vs. State of MadhyaPradesh and another, AIR 2001 SC 571, it has been observed that anyjudicial Magistrate, before taking cognizance of the offence, can orderinvestigation under S. 156(3) of the Code. If he does so, he is not toexamine the complainant on oath because he was not takingcognizance of any offence therein. For the purpose of enabling thepolice to start investigation it is open to the Magistrate to direct thepolice to register 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 the 68-cwp-1219-2018.odt(8)cognizable offence in a book kept by the officer-in-charge of the policestation as indicated in S. 154 of the Code. Even if a Magistrate doesnot say in so many words while directing investigation under S.156(3) of the Code that an FIR should be registered, it is the duty ofthe officer-in-charge of the police station to register the FIR regardingthe cognizable offence disclosed by the complaint because that policeofficer could take further steps contemplated in Chapter XII of theCode only thereafter. 10.The Hon’ble Supreme Court in Mohd. Yousuf Vs. Smt.Afaq Jahan and Anr, AIR 2006 SC 705 observed that Section 156falling within Chap. XII, deals with powers of Police Officers toinvestigate cognizable offences. Investigation envisaged in s. 202contained in Chap. XV is different from the investigationcontemplated under S. 156. The investigation contemplated in Chap.XII can be commenced by the police even without the order of aMagistrate. But that does not mean that when a Magistrate orders aninvestigation under S. 156(3) it would be a different kind ofinvestigation. Such investigation must also end up only with thereport contemplated in S. 173. But the significant point to be noticedis, when a Magistrate orders investigation under Chap. XII he does sobefore he takes cognizance of the offence. But a Magistrate need notorder any such Investigation if he proposes to take cognizance of theoffence. Once he takes cognizance of the offence he has to follow the 68-cwp-1219-2018.odt(9)procedure envisaged in Chap. XV of the Code. A reading of S. 202(1)of the Code makes the position clear that the investigation referred totherein is of a limited nature. Such investigation is only for helpingthe Magistrate to decide whether or no there is sufficient ground forhim to proceed further.11.Perused the complaint. There is no pleading that someportion of the land arising out of the same field survey number hasbeen sold to the respondents and handed over to them. The learnedCounsel for the petitioner was unable to satisfy the Court that therewere pleadings as such in the complaint. In these circumstances, thereis a great possibility of claiming the portion of the land which therespondent had purchased. The pleadings were not specific. Therewas no material before the Court. Hence, the Court has correctlyconsidered that neither it was a case falling under Section 156(3) nora complaint under Section 200. 12.This Court has also gone through the papers as referredto by the learned counsel for the petitioner and satisfied that thematerial before the Court was not sufficient to believe that theallegations were sufficient to proceed with the matter. It seems to bejust assumptions and presumptions of the petitioner that he was triedto be killed, and the non-applicants tried to encroach upon theportion of his land. Issuing the process against anybody is not amechanical process. There should be sufficient material to believe that
Decision
68-cwp-1219-2018.odt(10)a cognizable offence is made out, or at least there should be somematerial to proceed to take criminal law in motion. Nothing is onrecord that may inspire the confidence to exercise0 the powers underSection 156(3) or 200 of the Criminal Procedure Code. The complaintwas devoid of merit and rightly rejected by both Courts. The writpetition is devoid of merit. Hence, it stands dismissed. No order as tocosts.13.Criminal Application No.1273 of 2019 stands disposed of. (S.G. MEHARE, J.)Mujaheed//