CHITRA KISHOR WAGH v. MAHEBOOB IBRAHIM SHAIKH AND ANOTHER
Legal Reasoning
20-*Cri-WP-1680-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD20 CRIMINAL WRIT PETITION NO. 1680 OF 2024CHITRA KISHOR WAGH VERSUS MAHEBOOB IBRAHIM SHAIKH AND ANOTHER.… Mr. V. D. Salunke, Advocate h/f Mr. M. V. Salunke, Advocatefor the Petitioner Ms Chaitali Chaudhari – Kutti, APP for Respondent No.2 – State .…CORAM: Y. G. KHOBRAGADE, J.DATE:20.01.2025PER COURT :- 1.Heard the learned counsel for the Petitioner at length.2.By the present Petition under Article 227 of theConstitution of India, the Petitioner questioned the legality andvalidity of order dated 23.07.2024 passed by the learnedAdditional Sessions Judge, Beed, in Criminal Revision ApplicationNo. 21 of 2023, thereby affirmed order of issuance of processpassed by the learned Judicial Magistrate on 09.12.2022 inCriminal Misc. Application No. 153 of 2021 for the offencepunishable under Section 500 of the Indian Penal Code, 1860. 1 of 8 (( 2 ))20-*Cri-WP-1680-20243.The facts which give rise to the present Petition are that,the Respondent No. 1 filed a private criminal complaint bearingCriminal Misc. Application No. 153 of 2021 before the learnedJudicial Magistrate First Class, Shirur (K) alleging that, on18.07.2021, the Petitioner/accused has given speech in the public andmade defamatory statement that, the Respondent No.1 hascommitted rape on the girl, but the police did not arrest him. So also,the Police Authority hurriedly filed "B" summary report againstRespondent No.1. The Video of the speech was recorded anduploaded on the social media platforms like WhatsApp and You-tube.According to the Respondents, the Petitioner/accused made adefamatory statement and circulated the said video clips in thesociety. Therefore, the conduct of the Petitioner/accused has causedhis defamation, hence, on 22.07.2021, Respondent No.1 lodged areport with the Police Station, but no any action was taken by thePolice. Therefore, he filed an application with the Superintendent ofPolice, Beed, on 02.08.2021, but N.C. report No. 358 of 2021 wascame to be registered against the present Petitioner for the offenceunder Section 499 punishable under Section 500 of I.P.C., and he wasgiven understanding to lodge appropriate complaint in the Court of 2 of 8 (( 3 ))20-*Cri-WP-1680-2024law. Therefore, he approached before the learned Judicial Magistrateand prayed for an inquiry under Section 156(3) of Cr. P.C. 4.On face of record it prima-facie appears that, on10.01.2022, the learned Judicial Magistrate First Class, recorded thestatement of Respondent No.1/complainant on oath. Thereafter, on25.02.2022, the learned Judicial Magistrate First Class passed anorder below Exh.1 and called the Report under Section 202 of theCode of Criminal Procedure from the concerned Police Station.Accordingly, on 05.04.2022, the Investigating Officer submitted it’sinquiry report. On 09.12.2022, the learned Judicial Magistrate FirstClass, passed an order below Exh.1 in Criminal Misc. Application No.153 of 2021 and issued process against the present Petitioner /accused under Section 499 punishable under Section 500 of theIndian Penal Code holding that, as per the Report submitted by theconcerned Police Station under Section 202 of Cr.P.C., prima-faciecase is made out against the present Petitioner/accused. 5.Being aggrieved by the said order, the Petitioner/accusedfiled Criminal Revision Application No. 21 of 2023. On 23.07.2024,the learned Additional Sessions Judge, passed the impugned orderholding that, as per inquiry report under Section 202 of Cr.P.C., the 3 of 8
Legal Reasoning
(( 4 ))20-*Cri-WP-1680-2024present Petitioner/accused has made defamatory statement in thepublic against Respondent No.1/complainant. While issuing theprocess, the learned Magistrate is required to consider whetherprima-facie case is made out.6.The learned counsel for the Petitioner canvassed invehemence that, Respondent No.1/complainant has filed a privatecomplaint and thereby prayed for an inquiry under Section 156(3) ofCr.P.C. However, Respondent No.1/complainant failed to comply withmandatory provisions of Section 156(3) of Cr.P.C. Therefore, thelearned Magistrate as well as the learned Revisional Court ought tohave dismissed the complaint for non compliance of the mandatoryprovisions. 7.To buttress these submission the learned counsel for thePetitioner relied on the case of Sayed Anwar Ahmed and Another Vs.State of Maharashtra and Another, 2017 ALL M.R. (Cri) 4457,wherein the Division Bench of this Court has held that, while dealingwith an application seeking action under Section 156(3) of Cr.P.C., itis necessary to comply with sub-section (1) and (3) of Section 154 ofCr.P.C. and observed in paragraph No. 25 as under:- 4 of 8 (( 5 ))20-*Cri-WP-1680-2024“25. To summarise, (a) While dealing with a Complaint seeking an action underSub-Section (3) of Section 156 of Cr.P.C, the learned Magistratecannot act mechanically. He is required to apply his mind to thecontents of the Complaint and the documents produced alongwith the Complaint ; (b) An Order passed on the said Complaint must record reasonsin brief which should indicate application of mind by theMagistrate. However, it not necessary to record detailedreasons; (c) The power under Sub-Section (3) of Section 156 isdiscretionary. Only because on plain reading of the Complaint,a case of commission of cognizable offence is made out, anOrder of investigation should not be mechanically passed. In agiven case, the learned Magistrate can go in to the issue of theveracity of the allegations made in the Complaint. The learnedMagistrate must also consider the other relevant aspects such asthe inordinate delay on the part of the Complainant. The natureof the transaction and pendency of civil proceedings on thesubject are also relevant considerations; (d) When a Complaint seeking an action under Sub-Section (3)of Section 156 is brought before the learned MetropolitanMagistrate or the learned Judicial Magistrate, it must beaccompanied by an affidavit in support as contemplated by thedecision of the Apex Court in Priyanka Srivastava. The affidavitmust substantially comply with the requirements set out inChapter VII of the Criminal Manual and especially paragraphs 5and 8 which are quoted above; and (e) Necessary averments recording compliance with Sub-Sections (1) and (3) of Section 154 of the CrPC should beincorporated with material particulars. Moreover, thedocuments in support of the said averments must filed onrecord.” 5 of 8 (( 6 ))20-*Cri-WP-1680-20248.He further relied on Devidas Waman Shinkar and othersVs. State of Maharashtra and others, (2018) 2 Bombay CR (Cri.) 185,wherein the case of Sayed Anwar cited (supra), was considered andheld that, the application for issuance of direction to the InvestigatingOfficer under Section 156(3) of Cr.P.C. shall be supported by affidavitduly sworn in by the Applicant, who seeks invocation of jurisdictionof Magistrate and non filing of affidavit in support of the averments inapplication/ complaint, is mere irregularities cannot be accepted. 9.In the case in hand, prima-facie it appears that though theRespondent No.1/complainant filed a complaint Criminal Misc.Application No.153 of 2021 and thereby prayed for an inquiry underSection 156(3) of Cr.P.C. on ground that, he had lodge a report withthe concerned Police Station on 22.07.2021, but no any action wastaken. Thereafter, he approached the Superintendent of Police, Beed,with written complaint on 02.08.2021. Thereafter, Shirur PoliceStation registered a N. C. No. 358 of 2021 under Section 499, 500 ofI.P.C. and given understanding to him to approach the Court.However, on 10.01.2022, the learned Judicial Magistrate First Class,examined the complainant on oath. Thereafter, on 25.02.2022, thelearned J.M.F.C. passed an order below Exh.1 in Criminal Misc. 6 of 8 (( 7 ))20-*Cri-WP-1680-2024Application No.153 of 2021 and called the investigation report underSection 202 of Cr.P.C. from the concerned Police Station. Accordingly,after investigation, on 05.04.2022, the Investigating Officer submittedit’s detail report, which shows that, the petitioner/Accused has madedefamatory statement against Respondent No.1/complainant in thepublic and circulated the video on social media.10.On 09.12.2022, the learned Judicial Magistrate FirstClass, passed an order and issued process against the presentPetitioner/accused for the offence under Section 499 punishableunder Section 500 of I.P.C., after considering and being satisfied that,as per the investigation report under Section 202 of Cr.P.C., thecomplainant has made out prima-facie case against the accused. 11.Since the offence under Section 499 punishable underSection 500 of I.P.C., is non-cognizable one, therefore, to my view,Section 154 sub-section (1) and (3) does not come into play, because,as per Section 154(1) of Cr.P.C., if the Police Authority failed to takecognizance in respect of cognizable offence, then the complainant isrequired to submit an application u/s 154(3) of Cri. P. C., with theSuperintendent of Police of the concerned district and even if the 7 of 8 (( 8 ))20-*Cri-WP-1680-2024Superintendent of Police did not take any cognizance, then the victimof the complainant having right to approach before the Court byprivate complaint. Thereafter, the learned Magistrate is required toconsider whether there is compliance of Section 154(1) and (3) ofCr.P.C. or not while making order u/s 156 (3) of Cri. P. C.12.In the case in hand, the learned Magistrate himselfsatisfied that, the complainant has made out prima-facie case againstthe present Petitioner for the offence under Section 499 punishableunder Section 500 of Cr.P.C. and issued process. The learnedRevisional Court passed the impugned order and affirmed order ofissuance of process passed by the learned Judicial Magistrate FirstClass, which does not appear perverse and illegal. Therefore, nointerference is called at the hands of this Court to disturn findings ofboth the courts below. So also, no prima-facie case is made out forissuance of notice against the Respondents. In view of abovediscussion, present Writ Petition is dismissed. No order as to cost. [ Y. G. KHOBRAGADE, J. ] SMS 8 of 8