Full Text
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3420 OF 2017
Pandurang Shripati Magadum, Occu: Service, Age:48 years, R/at: Flat No.1904, 7th
Building, Vasant Lawns, Near Jupiter Hospital, Thane (West), Pin Code: 400 606 … Petitioner
Age: about 51 years, Occ: Labourer, R/at: Gaware House, Near Chowdhary Chawl, Thakur Pada, Mumbai, Thane ...
2. Bhanudas Shivdas Naik
Age: About 39 years, Occ: Nil, R/at: Village: Vaiswi, Taluka: Uran, Dist: Raigad. ...
3. Tansukhlal Panalal Jain
Age: 45 years, Occ: Business, R/at: Uran Bazar Peth, Taluka : Uran, District :Raigad ...
4. A. A. Shaikh
Age: Adult Occ: Notary
R/at: D.N.S. Tower, near Thane
District Court, Thane ...
5. Sanjay Patil
R/at: Vashvi, Karayalay, Post: Mukkam Vashvi, Near Anganwadi VasaiUran, Raigad ...
6. Circle Officer Banker, Office at District Head Office
Alibaug, District: Raigad ... hcs
7. The State of Maharashtra
At the instance of Mumbra Police Station, District: Thane. … Respondents
Mr. Sandesh D. Patil i/b Mr. Prithviraj S. Gole for the Petitioner.
Mr. Vijay S. Gharat for the Respondent No.1.
Mr. S. H. Yadav, APP for Respondent No.7.
JUDGMENT
2) Heard Mr. Patil, the learned Advocate for the Petitioner, Mr. Gharat, the learned Advocate for the Respondent No.1 and Mr. Yadav, the learned APP for the Respondent-State. Perused the record.
3) Rule. Rule made returnable forthwith. By consent of the parties taken up for final hearing. Mr. Gharat and the learned APP waived the notice. hcs
4) Facts giving rise to this Petition are that:-
4.1) Respondent No.1 filed a criminal complaint bearing No.OMA No.824 of 2015 in the Court of Judicial Magistrate First Class, at Thane. The Respondent Nos.[2] to 6 and the Petitioner were arrayed as accused Nos.[1] to 6 therein, for commission of the aforesaid alleged offences. (Hereinafter the parties are being referred to by their said original status i.e., Respondent No.1 as the ‘complainant’; Respondent Nos.[2] to 6 as the ‘accused Nos.[1] to 5 [A[1] to A5]’ and the Petitioner as ‘accused No.6 [A6]’).
4.2) In the said complaint it was alleged that on 26th February 2007, the A1-Bhanudas Shivdas Naik visited the complainant at Mumbra with a proposal to develop the land bearing Survey No.59, Hissa No.2 of village Ballondkhare, admeasuring 31 gunthas, owned and belonging to the complainant and a witness, on 50%-50% basis and induced the complainant and the witness, to execute a Power of Attorney (“PoA”, for short) in favour of the A[1]. Thereafter the PoA was prepared and the A[1] obtained the signatures of the complainant and other co-owners thereon. However, the A[1] did not give its copy to the complainant. Thereafter, the A[1] asked the complainant to execute an agreement, giving an allurement of getting good price for the land, but the complainant refused to do so. Then the A[1] alongwith A[2] hcs changed the contents of the PoA and, prepared a fabricated document by attaching/removing (changing) the last page of the original PoA and getting it attested by A[3], a Notary, before whom the complainant and witnesses never appeared or signed. It was alleged that, the A[3] intentionally omitted to properly notarize and register the said PoA. It was alleged that, thereafter, the A[1] and A[2] used the forged and fabricated PoA and transferred the said land of the complainant to other accused (A[3]). It was alleged that, the A[4], being a Talathi dealing with the land record, in collusion with the agents and local criminals, illegally manipulated the records of the land for unlawful profit and to cause a wrongful loss to the complainant, carried out the mutation entry without following a legal procedure. It was alleged that, one Devkibai Naga Mahtre was shown to have gave her thump impression on the PoA. However, the photograph was of some another woman, not Devikibai Naga Mahtre. It was alleged that, the A[5] and A[6] were also beneficiaries as application filed before them was suo moto rejected, without following due process of law. Thus, all the accused persons caused wrongful gain to themselves and wrongful loss to the complainant and committed the alleged offences. Accordingly, the complainant prayed that, Police station Mumbra be directed to investigate into the present offence u/s 156 (3) of Cr.P.C. hcs
4.3) On 20.08.2015, the erstwhile learned Magistrate passed the following Order on the said complaint: “Read Complainant. Heard ld. counsel for complainant at length. Put up the case for orders on 24/8/2015.” sd/- 20/08/2015.
4.4) On dated 06.11.2015, the subsequent learned Magistrate passed the following Order on the said complaint: “Perused complaint and the documents. Heard the learned counsel for the complainant. My learned Predecessor by order dt. 24-8-15 passed below Exh 1 ordered to lead the evidence u/s 200 of the Cr.P.C. Accordingly the complainant has recorded his verification. The accused are not residing within the local jurisdiction of this court. Hence call report u/s. 202 from the concerned police station.” Sd/- 06/11/2015.
4.5) On dated 20.07.2016, another learned Magistrate passed the following Order on the said complaint: “Call say of APP & P.S., Mumbra u/sec. 156(3) Cr.P.C.” sd/- 20/07/2016. hcs
4.6) On dated 01.10.2016, the Magistrate passed the following Order on the said complaint: “Perusal the Exh. 1 & the documents. Heard learned advocate for the applicant. It is alleged in the Exh-1 that the accused forged documents & that the accused have sold the property by means of complainant’s forged power of attorney. The matter thus requires detail investigation. Despite calling say of APP & P.S. Mumbra on 20/7/2016, no say is filed even though reminder was sent to Police Station. Hence, the application is allowed u/Sec. 156 (3) Cr.P.C. directing the concerned Police Station to investigate the case under Sec. 156(3) of Cr.P.C. immediately.” sd/- 01/10/2016.
5) Mr. Patil, the learned counsel, first submitted that the Orders dated 20.07.2015, 24.08.2015 and 06.11.2015 indicate that, initially, the learned Magistrate had taken the cognizance of the offences. Accordingly, the verification/examination of Respondent No.2 was recorded under Section 200 of Cr.P.C. and the police was directed to submit the report u/S.202 of Cr.P.C. It is trite that, once the Magistrate has examined the complainant as above, he is deemed to have taken the cognizance of the offences stated in the complaint. Thereafter, there is no scope to refer such complaint for registration hcs of the F.I.R., investigation and submission of report, as provided under Section 156 (3) of Cr.P.C. Secondly, Mr. Patil submitted that, the subject complaint does not claim that before filing the same, the complainant availed the remedy provided in Section 154 (1) and (3) of Cr.P.C. and, nor the said complaint was supported with affidavit.
5.1) Mr. Patil, submitted that, admittedly, the impugned F.I.R. has been registered pursuant to the Orders dated 20.07.2016 and 01.10.2016, passed under Section 156 (3) of Cr.P.C. However, no justifiable reasons were recorded in the said Orders to indicate that, the Magistrate applied his mind to the text of the complaint and the documents enclosed therewith and then, satisfied himself about the necessity to pass the said Orders against the Petitioner. Hence, said Orders are vague. Lastly, he submitted that, the Petitioner has only decided the Revenue Appeal filed by Respondent No.1 against the mutation entry in question. But in fact, it was duty of the Petitioner to pass such lawful Order in the said Appeal, acting as a statutory authority. Said Order was passed by recording justifiable reasons. Except this no other role was attributed to the Petitioner, in the subject complaint. The said Order passed by the Petitioner was appealable before an appropriate Court or forum, at the instance of the Respondent No.1. However, taking recourse to the said complaint, hcs The Respondent No. falsely implicated the Petitioner in this crime.
6) In contrast, Mr. Gharat the learned counsel for the Respondent No.1 submitted that the mutation complained against was based on forged documents. Secondly, said mutation was effected without following due process of law. Nevertheless, the Petitioner upheld the said mutation, dismissing the Appeal filed by Respondent No.1, for flimsy reasons. This fact clearly indicates that, the Petitioner was also involved with the co-accused persons in the alleged offences. Therefore, registration of the said F.I.R. against the Petitioner is lawful and cannot be rated as abuse of process of law. In the backdrop, there is no substance in the Petition.
7) Learned APP for the Respondent-State fairly submitted that, considering the facts of the case, appropriate Orders may be passed in the interest of justice.
8) We have carefully considered the rival submissions in the light of the record. In the case of Tula Ram vs. Kishore Singh[1], the Hon’ble Supreme Court observed that, the question as to what is meant by taking cognizance is no longer res integra as it has been decided by several decisions of the Apex Court. Then reference was made to the decision in the case of R.R. Chari vs. State of Uttar
1. (1977) 4 SCC 459. hcs Pradesh[2], wherein the Apex Court observed that, “Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence”.
8.1) In the case of Smt. Mona Panwar vs. The Hon'ble High Court of Judicature at Allahabad through its Registrar and others[3], the Hon’ble Supreme Court held that, “……. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156 (3) of the Code. The Magistrate can also issue warrant for production, before taking cognizance. If after cognizance has been taken and the Magistrate wants any investigation, it will be under Section 202 of the Code. The phrase “taking cognizance of” means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the
2. 1951 SCR 312.
3. (2011) SCC 3 496. hcs Magistrate can be said to have taken cognizance of an offence under Section 190 (1) (b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156 (3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.”
8.2) Recently, in Vinubhai Haribhai Malaviya vs. The State of Gujarat[4], in para 51, the Hon’ble Supreme Court has held that, “….The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is
4. AIR 2019 SC 5222. hcs in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. …..”. Considering the decision in the case of Vinubhai (supra), in the case of Paraji Sheshrao Madan vs. State of Maharashtra (AIR Online 2020 Bom. 3123), this Court observed that, “when Order of investigation is made under Section 202 of Cr.P.C., such Order is made after taking cognizance of the matter and after making such Order, the Magistrate cannot make Order under Section 156 (3) of Cr.P.C. It is made clear that Order of investigation made under Section 202 of Cr. P.C. is not of the nature of further investigation as contemplated under Section 173 (8) of Cr.P.C.”
9) Now turning to the another facet of the case. As held in the case of Dharmeshbhai Vasudevbhai and Ors vs. State of Gujarat and Ors[5], “It is well settled that any person may set the criminal law in motion subject of course to the statutory interdicts. When an offence is committed, a first information report can be lodged under Section 154 of the Code of Criminal Procedure. A complaint petition may also be filed in terms of Section 200 thereof. However, in the event for some reasons or the other, the first information report is not recorded in terms of sub-section (1) of Section 156 of the Code, the
5. 2009 (6) SCC 576 hcs magistrate is empowered under sub-Section (3) of Section 156 thereof to order an investigation into the allegations contained in the complaint petition. Thus, power to direct investigation may arise in two different situations – (1) when a first information report is refused to be lodged; or (2) when the statutory power of investigation for some reason or the other is not conducted. …..”.
10) On scrutiny of the subject complaint, we noticed that the said complaint does not mention that prior to filing of the same, the complainant approached the Police Station concerned and filed the F.I.R. narrating the story of the alleged offence. As observed in the case of Panchabhai Popatbhai Bhutani & Ors. vs. State of Maharashtra[6], in the scheme of the Cr.P.C., it is difficult to hold that, even without approaching the Police Officer-in-charge of a Police Station, a complaint can be made to the Court in terms of Section 156 (3) of the Cr.P.C. Therefore, it is held that, “Normally a person should invoke the provisions of Section 154 of the Code before he can take recourse to the powers of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156 (3). Atleast an intimation to the police of commission of a cognizable offence under Section 154 (1) would be a condition precedent for
6. 2010 All MR (Cri.) 244. hcs invocation of powers of the Magistrate under Section 156 (3) of the Code. We would hasten to add here that this dictum of law is now free from exception”. Similarly, in Priyanka Srivastava and Another vs. State of Uttar Pradesh and Ors.7, it is held that, there has to be prior applications under Section 154 (1) and 154 (3) of Cr.P.C. while filing a petition under Section 156 (3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.
11) It is the settled position of law and as has been enunciated by this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of Maharashtra & Anr.8, “While dealing with a Complaint seeking an action under Sub-Section (3) of Section 156 of Cr.P.C, the learned Magistrate cannot act mechanically. He is required to apply his mind to the contents of the Complaint and the documents produced along with the Complaint. An Order passed on the said Complaint must record reasons in brief which should indicate application of mind by the Magistrate. However, it is not necessary to record detailed reasons. The power under Sub-Section (3) of Section 156 is discretionary. Only because on plain reading of the Complaint, a case of commission of cognizable offence is made out, an Order of
7. (2015) 6 SCC 287.
8. 2017 SCC Online Bom 3972. hcs investigation should not be mechanically passed. In a given case, the learned Magistrate can go into the issue of the veracity of the allegations made in the Complaint. The learned Magistrate must also consider the other relevant aspects such as the inordinate delay on the part of the Complainant. The nature of the transaction and pendency of civil proceedings on the subject are also relevant considerations. Necessary averments recording compliance with Sub-Sections (1) and (3) of Section 154 of the Cr.P.C. should be incorporated with material particulars. Moreover, the documents in support of the said averments must be filed on record”.
12) In view of the aforesaid settled position of law, we have cautiously looked into the subject complaint in the light of the Orders passed therein by the learned Magistrates and as reproduced above. On such exercise being carried, we noticed that the Orders dated 20.07.2015, 24.08.2015 and 06.11.2015 were passed by different Magistrates. Similarly, the Orders dated 20.07.2016 and 01.10.2016 were passed by different Magistrates. From all this noted above, it is evident that, since inception the erstwhile learned Magistrates were intending to proceed with the complaint under ‘Chapter XV’ and not under ‘Chapter XII’ of Cr.P.C. This approach of the learned Magistrate is appropriate in the light of the facts and circumstances, hcs as the said learned Magistrates wanted to ascertain as to whether there is substance in the complaint to proceed further with the case or not, because the A[4], A[5] and A6-Petitioner were in public service. Secondly, the accused were not residing within the local jurisdiction of the said Magistrates’ Court. Therefore, by taking judicial notice of the allegations in the complaint i.e., taking cognizance of the complaint, the first learned Magistrate perused the complaint, heard the counsel for the complainant and adjourned the matter to 24.08.2015 for passing the Order. Accordingly, the Order dated 24.08.2015 was passed to lead the evidence u/S.200. Thereafter, the subsequent learned Magistrate recorded the verification/examination u/S.200 and passed the Order dated 06.11.2015 and called for the report u/S.202. of Cr.P.C.
13) However, it appears that, meanwhile, no report was submitted. It also appears that the learned Magistrate was not properly assisted in the matter or informed about the Orders previously passed. Hence, said learned Magistrate passed the Orders dated 20.07.2016 and 01.10.2016, directing investigation u/S.156 (3) of Cr.P.C., which finally led to registration of the impugned F.I.R. This is wholly in contrast to the scheme of the Cr.PC. which, in the above circumstances, provides for inquiry/investigation under hcs Section 202 only and not investigation under Section 156 (3) thereof. Thus, on this count alone the impugned F.I.R. is liable to be quashed.
14) That apart, insofar as the allegations against the Petitioner are concerned, the complaint only mentioned that, the A[5] and A[6] were also beneficiary as the application filed to them were suo moto rejected, without following due process of law. However, by this act how the Petitioner/A[6] contributed to the fabrication of the PoA and the alleged illegal mutation, was not described. Thus, what exact role the Petitioner played in the alleged offences was not clear from the complaint. It was not the case that, the complainant was prevented by the Petitioner from prosecuting his Appeal against the mutation entry, with due diligence. As such, there was no verifiable material to conclude that, the Petitioner has committed the alleged offences and to pass the said Orders dated 20.07.2016 and 01.10.2016 u/S.156 (3) of Cr.P.C. to direct the investigation and the report. This shows that, said Orders are lacking proper consideration of the matter against the Petitioner. It appears that, said Orders were passed only because the complaint made the claim of commission of the cognizable offences.
15) Conspectus of the above discussion is that, the complaint was not preceded by filing report u/S.154 (1) of Cr.P.C. and sending the substance of the information u/S.154 (3) to the superior of the hcs police concerned. There is procedural illegality in passing the Orders u/S.156 (3) of Cr.P.C. for the investigation. Except vague assertion that the Petitioner/A[6] has committed the alleged offence, the complaint prima facie did not reveal the commission of the said offences by the Petitioner. Thus, the said Orders u/S.156 (3) of Cr.P.C. were result of improper consideration of the material on record. Ultimately, said Order led to registration of the F.I.R. in question. This is not permissible in law. Therefore, continuation of the said F.I.R. would be abuse of the process of law qua the Petitioner.