High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4135 OF 20231Sayed Fazlulla Sayed Sifagatulla,Age 40 yrs., Occ. Agri.,R/o Shahinshah Nagar, behind Mehraj Masjid, Beed. 2Syed Anwar Syed Sifagatulla,Age 55 yrs., Occ. Driver,R/o Shahinshah Nagar, behind Mehraj Masjid, Beed. 3Syed Junaid Syed Anwar,Age 30 yrs., Occ. Business,R/o New Shahinshah Nagar, Beed. 4Sayyad Azmattulla Rafatulla,Age 35 yrs., Occ. Business,R/o Bashir Gunj, Near Royal Lodge,Beed. … Applicants… Versus …1The State of MaharashtraThrough Police Station, Neknoor,Tq. & Dist. Beed. 2Balu Babru Kale,Age 40 yrs., Occ. Agri.,R/o Gat No.257 (Old Sy.No.45),Sakhre Borgaon, Tq. & Dist. Beed. … Respondents... 2936_Cri.Appln_4135_2023Mr. Sayyed Tauseef Yaseen, Advocate for applicantsMr. G.A. Kulkarni, APP for respondent No.1Mr. S.S. Jadhav, Advocate for respondent No.2 - absent...CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.DATE :29th NOVEMBER, 2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1By invoking the inherent powers of this Court under Section 482of the Code of Criminal Procedure, 1973 the applicants have challengedorder dated 27.09.2023 passed by learned Special Judge, under the S.C. &S.T. Act/Additional Sessions Judge, Beed, whereby directions were given tothe Police Station Officer to investigate the complaint filed by presentrespondent No.2 under Section 156(3) of the Code of Criminal Procedureand for quashing the First Information Report vide Crime No.304/2023 dated03.10.2023 registered with Police Station, Neknoor, Tq. & Dist. Beed, for theoffence punishbale under Sections 35, 36, 37, 38, 120(C), 120(D), 141, 142,143, 144, 150, 268, 354, 436 read with Section 34 of the Indian Penal Code,1860 and under Sections 3, 6 and 7 of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, 1989 on the basis of saidorder.
Legal Reasoning
3936_Cri.Appln_4135_20232Heard learned Advocate Mr. Sayyed Tauseef Yaseen forapplicants and learned APP Mr. G.A. Kulkarni for respondent No.1. 3Learned Advocate for applicants has submitted that learnedSpecial Judge has failed to consider before passing the impugned order thatthere was no compliance of the decision in Priyanka Srivastava and others vs.The State of Uttar Pradesh and others [(2015) 6 SCC 287]. Respondent No.2had filed Criminal Miscellaneous Application No.115/2023 before the Courtof Sessions, Beed. Thereafter, it appears that the matter was assigned toDistrict Judge-1 as per the endorsement on 21.09.2023. Thereafter, theimpugned order came to be passed on 27.09.2023. It was not accompaniedby the affidavit of complainant and there is absolutely no statement that thecomplaint discloses cognizable offence. Which documents were consideredare not gathered and without application of mind when the impugned orderis passed, it cannot be allowed to sustain. Though, now, it appears that afterthe investigation ‘A’ Summary has been filed on 29.11.2023 before theSessions Judge, it is not yet been decided and the Investigating Officer is ofthe opinion that no evidence is existing to support the complaint. 4Learned APP made available the police papers and submittedthat the Investigating Officer is of the opinion that the material collected in 4936_Cri.Appln_4135_2023the investigation transpires that there were civil disputes in respect of land,which according to informant, he had taken for cultivation on contract of 11months. Informant – respondent No.2 was not at all the owner of land and itappears that informant and his family members had left the spot on theirown. Except the interested witnesses nobody has come forward to supportcontents of complaint. 5The first and the foremost fact that is required to be noted is thatthe applicants have challenged the impugned order of sending the case forinvestigation under Section 156(3) of the Code of Criminal Procedure. Fromthe police papers it can be seen that the application which was presentedbefore the learned Special Judge was not accompanied with the affidavit. Itis the mandatory requirement as per the decision in Priyanka Srivastava(supra) and specifically in Babu Venkatesh and others vs. State of Karnatakaand another [(2022) 5 SCC 639] it was held that if such application iswithout affidavit duly sworn by complainant, then it cannot be entertained bythe Magistrate. As per Section 14 of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, the Special Court has power to takecognizance of the offence and, therefore, it can be certainly said that theSpecial Court under the S.C. & S.T. Act has the same powers as Magistrate inrespect of the private complaints, those would be filed and, therefore, same
Decision
5936_Cri.Appln_4135_2023rules would then be applicable to the applications under Section 156(3) ofthe Code of Criminal Procedure to the application filed before the SpecialCourt. When the application in the present case was not accompanied by aduly sworn affidavit of the complainant, the Special Judge ought to haverestrained himself from passing the order of directing investigation underSection 156(3) of the Code of Criminal Procedure. One more aspect to benoted is that while passing the order the learned Special Judge has alsostated that the Investigating Officer should not arrest any person withoutprior permission of his Court. We are of the considered opinion that whenthe order of investigation is passed under Section 156(3) of the Code ofCriminal Procedure, then the concerned Police Officer/Investigating Officerwould all the powers which are there with the police under Section 154(1) ofthe Code of Criminal Procedure including the power to arrest. It cannot beso controlled or restrained by any Court of Law. The third aspect to be notedfrom the impugned order is that a clear statement has not been made that thefacts disclosed in the complaint are disclosing cognizable offence. Unless thatfinding is arrived at, order for investigation under Section 156(3) of the Codeof Criminal Procedure cannot be passed. Thus, the impugned order appearsto have been without any application of mind and for the aforesaid defects itdeserves to be quashed and set aside. 6936_Cri.Appln_4135_20236When the impugned order is quashed and set aside, the naturalcorollary would be that the First Information Report deserves to be quashedand set aside. 7During the pendency of this application, as aforesaid, theinvestigation has been completed and ‘A’ final has been filed before theSpecial Judge on 29.11.2023. According to the Investigating Officer, the saidSummary is yet to be accepted. When such summaries are filed, theMagistrate/Special Judge should act swiftly and should undertake the furtherprocedure without consummation of time. Therefore, on both counts weallow the application. Hence, following order. ORDERi)Criminal Application stands allowed.ii)Order dated 27.09.2023 passed by learned Special Judge, underthe S.C. & S.T. Act/Additional Sessions Judge, Beed and consequent FirstInformation Report vide Crime No.304/2023 dated 03.10.2023 registeredwith Police Station, Neknoor, Tq. & Dist. Beed, for the offence punishableunder Sections 35, 36, 37, 38, 120(C), 120(D), 141, 142, 143, 144, 150, 268,354, 436 read with Section 34 of the Indian Penal Code, 1860 and under 7936_Cri.Appln_4135_2023Sections 3, 6 and 7 of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989, stand quashed and set aside as againstapplicants viz. 1) Sayed Fazlulla Sayed Sifagatulla, 2) Syed Anwar SyedSifagatulla, 3) Syed Junaid Syed Anwar and 4) Sayyad Azmattulla Rafatulla.( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd