High Court
Legal Reasoning
( 5 ) 917 cri wp 1378.22the provisions of Section 154(3), the application is required to be supported byan affidavit. The Hon’ble Supreme Court in paragraph No. 27, held thus:- “In our considered opinion, a stage has come in this country where Section 156(3) ofCr.P.C. Applications are to be supported by an affidavit duly sworn by the applicantwho seeks the invocation of the jurisdiction of the Magistrate. That apart, in anappropriate case the learned Magistrate would be well advised to verify the veracity ofthe allegations. This affidavit can make the applicant more responsible. We arecompelled to say so as such kind of applications are being filed in routine mannerwithout taking any responsibility whatsoever only to harass certain persons…”“The warrant for giving a direction that an the application U/s. 156(3) besupported by an affidavit so that the person making the application should beconscious and endavour to see that, no false affidavit is made. It is because once anaffidavit is found to be false, he will be liable for the prosecution in accordance withlaw. This will deter him to casually invoke the authority of Magistrate Under section156(3).”8.In recent judgment dated 16.01.2025, Criminal Appeal No.352 of2020, Om Prakash Ambadkar Vs. The State of Maharashtra and others,MANU/SC/0134/2025, passed by the Hon'ble Supreme Court it is held inparagraph Nos. 24 as under:-“24. Thus, there are prerequisites to be followed by the complainant beforeapproaching the Magistrate Under Section 156(3) of the Code of Criminal Procedurewhich is a discretionary remedy as the provision proceeds with the word 'may'. TheMagistrate is required to exercise his mind while doing so. He should pass orders onlyif he is satisfied that the information reveals commission of cognizable offences andalso about the necessity of police investigation for digging out of evidence neither inpossession of the complainant nor can be procured without the assistance of thepolice. It is, thus, not necessary that in every case where a complaint has been filedUnder Section 200 of the Code of Criminal Procedure the Magistrate should direct thePolice to investigate the crime merely because an application has also been filedUnder Section 156(3) of the Code of Criminal Procedure even though the evidence tobe led by the complainant is in his possession or can be produced by summoningwitnesses, with the assistance of the court or otherwise. The issue of jurisdiction alsobecomes important at that stage and cannot be ignored.” ( 6 ) 917 cri wp 1378.229.On consideration of the scope of Section 156(3) of Cr.P.C., as it isin discretionary nature. The Hon’ble Supreme Court in cited cases held that, theprovision of Sec. 156(3) of Cri. P. C. it is not mandatory on part of the learnedMagistrate to issue directions for investigation in each and every complaintinstituted u/s 156 (3) of Cr.P.C., unless cognizable offence is made out. If thelearned Magistrate is satisfied about existence of such cognizable offence thendirections for investigation u/s 156 (3) of Cr.P.C. can be issued. Therefore,considering the allegations made in Criminal M.A. No. 42 of 2019, abouttampering of documents, cheating, forgery, criminal breach of trust byconspiracy, common intention and abetment does not warrant anyinvestigation through police machinery under section 156(3) of Cr.P.C.10.In the case in hand, the Petitioner/Complainant specifically allegedthat, on 25.08.2011, her signature were obtained on blank paper by theAccused No.1. Subsequently, the Accused Nos.1 to 4 in furtherance of commonintention prepared false and bogus agreement to sale in respect of her landbearing survey no.123 situated at village Hokarna with an intention to grabsaid land.11.Needless to say that, the present Respondent No.1 has alreadyinstituted a civil suit bearing RCC No.258/2014 and prayed for decree ofspecific performance of contract. Therefore, the Petitioner/Complainant can ( 7 ) 917 cri wp 1378.22raise objections in her defence by filing Written Statement in said civil suit. ThePetitioner can also examine the hand writing expert, if she desires. Therefore, Ido not find that, the impugned orders passed by both the Courts below sufferfrom any infirmity, illegality or are bad in law, hence, no interference is calledat the hands of this Court. Accordingly, the petition is dismissed. Rule isdischarged. [Y.G. KHOBRAGADE, J.]mub
Arguments
( 1 ) 917 cri wp 1378.22IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1378 OF 2022Kamalbai w/o. Vilas Waghmare,Age: 55 years, Occ : H.H. R/o Shirur Tajband,Tq. Ahmedpur, Dist. Latur....PETITIONERV/s.1.Gunda @ Gundaji S/o Devrao MoreAge: 70 years, Occu: Labour2.Ashok S/o Dagdoba GaikwadAge: 60 years, Occu: Labour3.Manohar S/o Narayan KambleAge: 50 years, Occu: Labour4.Ravi S/o Laxmikant EklareAge: 30 years, Occu: LabourAll R/o Shivajinagar Mukhed,Tq. Mukhed, Dist. Nanded. 5.The State of MaharashtraThrough P.S.O. Police Station, Ahmedpur,Tq. Ahmedpur, Dist. Latur....RESPONDENTS.....Mr. K.T. Shirurkar, Advocate for the PetitionerMs. K.K. Naik, APP for the Respondent-StateMr. Aniket Avhad h/f. Nitin S. Kadarale, Advocate for the Respondents ..…CORAM : Y.G. KHOBRAGADE, J.DATE :21.02.2025 ( 2 ) 917 cri wp 1378.22ORAL JUDGMENT:-1.Rule. Rule made returnable forthwith and with the consent ofboth the sides the petition is heard finally at the admission stage.2.By the present petition under Article 227 read with Section 482 ofthe Cr.P.C., the Petitioner takes exception to the order dated 29.06.2022,passed by the learned Sessions Judge, Ahmedpur, Dist. Latur in CriminalRevision Application No.3/2019 and thereby upheld the order of refusal ofdirections u/s 156(3) of Cri. P. C. passed by the JMFC, Court No.2, Ahmedpurin Cri. Misc. Application No.213/2018 on 20.04.2019.3.In brief facts giving rise to the present petition are that, thePetitioner filed Cri. Misc. Application No. 213/2018 before the learned JMFC,Ahmedpur, alleging that, she is owner and in possession of agricultural landbearing Survey No.123 total ad-measuring 1 H 25 R in pursuance of sale-deedexecuted in the year 2008. Her husband was serving with the MumbaiMunicipal Corporation. She alone is cultivating the said land, however, theRespondent Nos.1 to 4 (Accused) by taking disadvantage executed theagreement to sale in respect of her agricultural field and under her fake andfalse signature prepared documents i.e. Agreement to Sale. Since theRespondent Nos. 1 to 4/Accused created false and fabricated agreement to sale,therefore, they have committed an offence punishable under Section 119, 120, ( 3 ) 917 cri wp 1378.22420, 120-B, 463, 464, 467, 468, 470, 471, 474, 141, 142 read with Section 34of the I.P.C., hence, prayed for direction to register an FIR and furtherinvestigation under Section 156(3) of the Cr.P.C. The Complainant/Petitionerfurther alleged that, the Respondent No.1 filed a Civil Suit bearing RCCNo.258/2014 before the Civil Court, Ahmedpur and prayed for decree ofspecific performance of the contract on the basis of false and fabricatedagreement to sale. 4.On 20.04.2019, the learned JMFC passed an order holding that,the present Respondent No.1 has already instituted a civil suit bearing RCCNo.258/2014 and prayed for decree of specific performance of the contract onthe basis of same cause of action, so also, the dispute between the Petitionerand Respondents are of civil nature, hence, rejected the prayer of thePetitioner/Complainant for issuance of further investigation under Section156(3) of the Cr.P.C.5.Being aggrieved by said order the Petitioner/Complainant filedCriminal Revision Application No.3/2019. On 29.06.2022, the learnedRevisional Court passed the impugned order holding that, the allegations madein the complaint itself does not constitute an offence as alleged. The learnedtrial Court considered allegations made in the complaint and declined to passan order under Section 156(3) of the Cr.P.C. ( 4 ) 917 cri wp 1378.226. In the case of Sachin Raosaheb Jadhav Vs. The State ofMaharashtra, 2015 Cri. Law Journal 733 it is held that, when a petition orcomplaint is presented before the Magistrate, in which a request is made fortaking action as mentioned in section 2(d) of the Code, the Magistrate isexpected to apply his mind. The Magistrate has to ascertain whether thecontentions made in the petition/complaint constitute any offence. If theyconstitute some offence then the Magistrate is expected to take decision as towhether the matter needs to be referred to police for investigation as providedin section 156(3) of the Code or he needs to proceed further as provided insection 200 and subsequent sections of Chapter XV of the Code. There is adiscretion with the Magistrate in this regard. Though, police officer is dutybound to register a FIR on receiving information of cognizable offence, theMagistrate is not bound to refer the matter to police under section 156(3) ofthe Code. 7.In the case of Priyanka Srivastava and another Vs. State of U.P. andothers, Supreme Court Criminal Appeal No.781 of 2012, (2015) 6 SCC 287 :(MANU/SC/0344/2015), wherein it is held that, if mere allegations are takento be sufficient, there would be flood of the registration of the cases incompliance of the order passed under Section 156(3) of the Code of CriminalProcedure. The application of power under this section is to be made whencircumstance really justify for it. Though, the complainant has complied with