In many of such cases,
we have come across that the learned Magistrates are passing
mechanical orders directing investigation under Section 156(3) of
Cr.P.C., without recording any reasons and without verifying as to
whether the complaint discloses the ingredients to constitute the offence
or not. It is needless to say that least that is expected of the learned
Magistrate before passing the order under Section 156(3) of Cr.P.C., is
to satisfy himself, that taking the allegations to be true in entirety, as to
whether the ingredients to constitute the offence alleged have been
made out or not. The least that is expected of the learned Magistrate
while passing an order, directing investigation is to at least give some
reasons, as to why he finds substance in the complaint and as to how
the complaint discloses ingredients to constitute the offence alleged.
The learned Magistrates ought to take into consideration, that passing
such mechanical orders in complaints which do not have any criminal
element causes great hardships, humiliation, inconvenience and
harassment to the citizens. For no reasons, the reputation of the
citizens is put to stake as immediately after said orders are passed,
innocent citizens are termed as accused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 258 OF 2013 (APL).
State of Maharashtra Vs Shashikant s/o Eknath Shinde,
CORAM: B.R.GAVAI & P.N.DESHMUKH,JJ
DATE : 2.7.2013
The State of Maharashtra has approached this Court being
aggrieved by the order passed by the learned Judicial Magistrate, First
Class, Nagpur in Misc. Criminal Application No. 683 of 2013, dated 30
th
March, 2013, thereby directing investigation to be conducted as per the
provisions of Section 156(3) of the Code of Criminal Procedure on a
complaint filed by respondent herein. Since during the pendency of the
present application, First Information Report came to be registered by
Police Station, Dhantoli Nagpur, the application has been amended so
as to raise the challenge to the registration of the said First Information
Report. Consequently, the State has also prayed for quashing and
setting aside the First Information Report.
2.
The facts, in brief, giving rise to the present application
arises as under.
The respondent, who is an Officer belonging to I.P.S. Cadre,
addressed communication to the Senior Police Inspector, Dhantoli
Police Station, Nagpur, contending therein that four Officers of the
State Government had committed offence punishable under Section
3(1) (ix) (x) and section 4 of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as
“the Atrocities Act” ) read with Section 191, 192 and 34 of the Indian
th
Penal Code. The complaint was lodged on 4 March, 2013. On
th
6 March, 2013 the Senior Police Station Officer, Dhantoli informed the
petitioner that, since the matter in the complaint is concerned with the
ig
Office of the Director of Police, State of Maharashtra, Mumbai, the same
has been forwarded for further inquiry to the Additional Director General
of Police, Protection of Civil Rights, Mumbai. It appears that further
communication was addressed by the respondent no.1 to the
Commissioner of Police Nagpur, Deputy Commissioner of Police (Zone
4) and Assistant Commissioner of Police, Ajni Division, Nagpur stating
therein, that the complaint was disclosing commission of cognizable
offence and in spite of lapse of 48 hours First Information Report was
not registered. A request was, therefore, made to take over the
investigation and direct registration of offence for congnizable offence.
Since the First Information Report was not registered, the respondent
no.1 made an application before the learned Judicial Magistrate, First
Class, Nagpur for directing the Police Station Officer, Dhantoli, Nagpur
to conduct investigation under Section 156 (3) of the Code of Criminal
Procedure. In the said complaint, learned Judicial Magistrate, First
th
Class, Nagpur passed the following order on 30 March, 2013.
“Order
Heard complainant personally as well as his counsel at
length. The offences so levelled are in respect of
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giving false information regarding complainant to other
public servant, insulting and humiliating treatment,
willful negligence to perform necessary duties by a
person other than SC or Tribe, in respect of such SC,
ST Person. On perusal of the record it reveals that it
discloses the commission of cognizable offences. It
requires the assistance of investigation machinery to
investigate present alleged crime.
Hence, I hereby direct that the investigation be
conducted as per section 156 (3) of Cr.P.C. by the
officer not below the rank of Dy. S.P. of said Zone or
concerned Police Station.”
3.
Being aggrieved thereby, the State has approached this
Court for invoking extra ordinary jurisdiction of this Court under Section
482 of the Code of Criminal Procedure. Subsequently, since the First
Information Report is also registered by Dhantoli Police Station, the
application has been amended and the prayer for quashing the same
has also been made.
Heard Shri D.J.Khambata, learned Advocate General for the
4.
5.
petitioner and Shri R.R.Vyas, learned counsel for respondent.
Shri D.J.Khambata, learned Advocate General appearing on
behalf of the State, submits that even if the allegations made in the
complaint are taken to be true at its face value, the ingredients to
constitute the offence under the provisions of Section 3(1) (ix) (x) and 4
of the Atrocities Act are not made out. The learned Advocate General
submits that at the most the respondent complainant may have a case
for approaching the learned Central Administrative Tribunal with respect
to his grievance regarding non granting of promotion when he was
entitled for the same. The learned Advocate General, further submits
that no ingredients to constitute the offences under the provisions of the
Atrocities Act are made out, even if allegations as made in the complaint
are taken to be true in totality. The learned Advocate General submits
that the proceedings initiated at the behest of the respondent no.1
complainant are nothing but an abuse of process of law.
The learned Advocate General further submits that the order
6.
ig
passed by the learned Magistrate under Section 156(3) of the Code of
Criminal Procedure is mechanical order, passed without giving any
reasons therefor. The learned Advocate General relied upon the
Judgment of the Apex Court in the case of Maksud Saiyed .vs. State of
Gujrat, reported in 2008 (5) Supreme Court Cases, 668, the judgment
of the Division Bench of this Court in the case of Yogiraj Vasantrao
Surve vs. State of Maharashtra and another, and the judgment of the
Division Bench of Karnataka High Court in the case of Guruduth Prabhu
and others vs. M.S.Krishna Bhat and others reported in 1999 CRI. L.J,
3909. The learned Advocate General further submits that this is a fit
case wherein this Court invoking the powers under Section 482 of Code
of Criminal procedure should quash and set aside the order passed by
the learned Magistrate under Section 156(3) of the Code of Criminal
7.
Procedure and subsequent registration of First Information Report.
Shri Vyas, the learned counsel for the respondent
complainant has raised two preliminary submissions, relying on the Full
Bench Judgment of the Allahabad High Court in the case of Father
ig
Thomas .vs. State of U.P. and another, reported in 2011 Cri. L.J., 2278.
The learned counsel submits that the Revision under section 397 or the
application under Section 482 of the Code of Criminal Procedure
against the order passed by the learned Magistrate directing
investigation under section 156(3) of the Code of Criminal Procedure
would not be tenable. In the alternative, he submits that since an
alternative remedy by way of Revision under Section 397 of the Code
of Criminal Procedure is available, the present application under section
482 of the Code of Criminal Procedure would not be tenable. The
learned Counsel further submits that in the present matter the aggrieved
persons could be at the most the persons who have been arrayed in the
First Information Report as accused and as such the application filed at
the behest of the State is not tenable on the ground of locus.
The learned counsel relying on the Judgment of this Court
8.
in the case of Panchabhai Popotbhai Butani and others vs. State of
Maharashtra reported in 2010(1) Mh. L.J., 421 submits that the
application under Section 156(3) of Cr.P.C. cannot be equated with the
criminal complaint as provided under section 2(d) of Cr.P.C.. The
ig
learned counsel further relying upon the Judgment of this Court in the
case of Rajendra Ramlal Jaiswal and others vs. State of Maharashtra
an another, reported in 2011 ALL MR (Cri.) 3107 submits
that the order directing investigation is an administrative order and the
challenge to the same is not tenable.
9.
Shri Vyas, learned counsel, however, fairly conceded that
though the case is made out by the complainant under section 3 (1) (ix)
of the Atrocities Act, there is no material so as to constitute the offence
under section 3 (1) (x) and section 4 of the Atrocities Act.
10.
In that view of the matter, we would only be required to
consider as to whether taking the allegations in the complaint at its face
Section 3(1) (ix) of the Atrocities Act are made out or not?
value, whether ingredients to constitute the offence punishable under
Section 3(1) (ix) of the Atrocities Act reads thus:
“3. Punishment for offences of atrocities;(1)
Whoever, not being a member of a Scheduled
ig
Caste or a Scheduled Tribe,(ix) gives any false
or frivolous information to any public servant and
thereby causes such public servant to use his
lawful power to the injury or annoyance of a
member of a scheduled caste or a Scheduled
Tribe.”
It, thus, would be clear that for bringing an offence under the
ambit of Section 3(1) (ix) of the Atrocities Act, the following ingredients
would be necessary.
i)
a person, who is accused of having committed
the offence, gives any false or frivolous
information to any public servant;
ii)
thereby causes such public servant to use his
lawful power;
iii)
said exercise of power is to the injury or
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10 Criminal Application No.258.13 (APL)
annoyance of a member of a Scheduled caste or a
11.
Scheduled Tribe.
Before we proceed to consider the rival submissions, it would
12.
ig
be necessary to spell out as to what has been alleged in the complaint.
We are aware about the limitations while exercising the
jurisdiction under Section 482 of the Code of Criminal Procedure.
Unless the allegations made in the complaint taken at its face value do
not make out ingredients to constitute the offence, it would not be
permissible for this court to interfere. Though the complaint is some
what lengthy, we have attempted to capsulize the allegations of the
complainant against the persons named in the complaint.
13.
Taking the allegations in the complaint lodged by the
respondent complainant under Section 156 of Cr.P.C. to be totally true
and correct, let us examine what is the case sought to be made out
against the four persons who, according to the complainant, have
committed the offence punishable under the Atrocities Act.
The allegations against Shri Kailash Bilonikar,
i)
Under Secretary (Pol 1), Home Department,
Mantralaya, Mumbai.
The allegation against Shri Bilonikar are that he
is a Controlling Officer of POL1 and handling subjects connected with
ig
establishment of IPS Officers and has handled all the proposals of
promotions. According to the complainant, Shri Bilonikar ought to have
brought to the notice of the Review Committee about inappropriate
decision taken by the Committee. According to the complainant, he has
failed in his responsibility and duty in not pointing the correct rules to the
notice of the Government and as such committed offence punishable
under Section 3(1) (ix) (x) and 4 of the Atrocities Act. It is further
alleged that when the complainant’s name should have been
incorporated in the proposal for confirmation into IPS of the Officers of
1998 batch, deliberately his confirmation is withheld by omitting his
name from the proposal of confirmation into IPS. It is the further
allegation that he had not brought to the notice of the Review
Committee for promotion to the rank of D.I.G. Police, that promotion
cannot be withheld unless charge sheet is served under the
departmental proceedings. According to the complainant, since the said
Mr. Bilonikar had failed in his legal duty, he had committed the offence
punishable under section 3(1) (ix) (x) and section 4 of the Atrocities Act.
It is the further allegation that Shri Bilonikar had not brought to the
notice of the Government about the fact that office of D.G.P. has not
submitted proposal for promotion and posting only on the ground of
proposed departmental inquiry. It is the further allegation that only after
the complainant has made complaint to the Scheduled Caste and
Scheduled Tribe Commission, Shri Bilonikar had informed the Office of
the D.G.P. about the legal provisions, which he could have done earlier
also. It is the further allegation that said Shri Bilonikar has not submitted
the proposal to the Government to initiate action against the officers
responsible for submission of illegal proposal. It is further alleged that
said Shri Bilonikar has acted with criminal conspiracy with the Office of
the D.G.P. and harassed and humiliated the complainant and has
committed the aforesaid offence.
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13 Criminal Application No.258.13 (APL)
Shri R.N.Deshmukh, Joint Secretary (Pol 0 1 and
2), Home Deaprtment, Mantralaya, Mumbai.
ii)
The only allegation against him is that, he is a
Supervising Officer of Under Secretaries in charge of Desk Pol – 1 and
2 and all files are routed and submitted through him to the Government.
Shri Sanjeev Dayal, Director General of Police,
ig
iii)
Maharashtra State, Mumbai.
That said Shri Dayal had submitted proposal for
Departmental Inquiry against the complainant to the Government, on
the basis of the news published in the Newspaper, forwarded by the Anti
Corruption Bureau on 15.7.2011. That he ought to have scrutinized the
report before submitting it to the Government. That the representation
th
made by the complainant on 25 August, 2011 was deliberately filed
without examining the contentions therein. That the promotions of the
complainant were deliberately withheld on the ground of proposed
departmental inquiry against him. That before submitting the report to
the State Government by the Director General of Police on the basis of
the news report, the Director General of Police ought to have obtained
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14 Criminal Application No.258.13 (APL)
complainant’s explanation on the news and only after receipt of the
explanation, the report could have been submitted to the Government.
That the proposal for conducting departmental inquiry against the
complainant was sent with a prejudicial mind so as to deprive the
complainant of his legal right of promotion. That deliberately the Anti
ig
Corruption Bureau was directed to inquire into the offence of
malpractices by the complainant. However, no malpractice was detected
by the Anti Corruption Bureau and only administrative action was
proposed and on that basis the proposal for departmental inquiry was
submitted to the Government. This was done by the Director General of
Police with deliberate intention of misleading the Government. That the
permission granted to the Anti Corruption Bureau for conducting open
inquiry into the complainant’s property was also illegal inasmuch as it
was not according to the norms of the Government. That the Director
General of Police has committed criminal conspiracy to insult and
humiliate the complainant.
iv)
Shri Umeshchandra Sarangi Additional Chief
Secretary ( Home Department) Mantralay,
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15 Criminal Application No.258.13 (APL)
Mumbai.
The allegation against this officer is that he has
entered the Indian Administrative Service, 1977 and retired in 2012 and,
therefore, he is aware about the Rules of the Indian Services. That
though the Director General of Police had recommended satisfactory
ig
completion of the period of probation, he had illegally taken a decision
to extend the period of probation. Though it was necessary for him to
intimate to the complainant the reasons for extending the probation, the
same were not communicated. This was done with an intention to stall
further promotions of the complainant, so that he faces humiliation and
insult in the society and Police Department and as such the offence
punishable under Section 3(1) (ix) (x) and section 4 of the Atrocities Act
is committed. Though the extended period of probation was completed
th
on 17.2.2011, still in the meeting dated 8 February 2011, the
complainant was illegally considered unfit for promotion. In spite of
being aware that the promotion cannot be withheld unless the charge
sheet is served, he was denied promotion to the post of Deputy
Inspector General of Police in contravention of the Judgments of the
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16 Criminal Application No.258.13 (APL)
th
Apex Court. Though in the meeting dated 8 February, 2011 chaired
by Shri Sarangi it was decided to give promotion to the post of Selection
Grade Police Superintendent, in the said meeting illegally he was
denied the promotion to the post of Deputy Inspector General of Police.
This amounted to an offence under Section 3(1)(ix) (x) and section 4 of
ig
the Atrocities Act. It is further alleged that though the complainant had
th
completed only 11 months at his posting, he was transferred on 26
May, 2011 which is in violation of the provisions of the Law.
14.
At the end of the complaint, the complainant has stated that
from the entries in his service record, the aforesaid four accused were
fully aware that the complainant was an officer belonging to Scheduled
Caste and that he had also brought this fact to their notice from time to
time. It is further stated that these officers had deliberately humiliated
the complainant in community, by not complying with the orders only of
the State Government but also of the Hon’ble Supreme court. It has
further been stated that the complainant has been humiliated just
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15.
because he is an officer belonging to Backward Class.
17 Criminal Application No.258.13 (APL)
In nutshell, it can be seen that the allegations of the
complainant against the Director General of Police Shri Dayal is that he
had recommended inquiry by Anti Corruption Bureau on erroneous
ig
grounds and that his case for promotion was not submitted to the State
Government on untenable ground. It is the contention of the
complainant that unless the charge sheet was served, the proposal for
giving him promotion could not have been withheld merely on the
ground of proposed departmental inquiry against him. The allegation
against the Under Secretary Shri Bilonikar is that he had not brought to
the notice of the Departmental Promotion Committee and Review
Committee the relevant Rules governing the promotion. The only
grievance against Shri R.N. Deshmukh, Joint Secretary is that he was
Supervising Officer of Under Secretaries and all files were routed
through him. The allegation against Shri Umeshchandra Sarangi, who
was the then Additional chief Secretary (Home), is that Shri Sarangi had
intentionally extended the probation of the complainant and that
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18 Criminal Application No.258.13 (APL)
16.
intentionally denied by said Shri Sarangi.
promotion to the post of Deputy Inspector General of Police was
It could, thus, be clearly seen that the entire thrust in the
complaint is that Shri Sanjeev Dayal, the Director General of Police had
submitted a report for initiation of open inquiry on account of the
ig
complaints into the complainant’s property, in illegal manner. It is the
further allegation against Mr. Sanjeev Dayal, that though promotion
could not have been denied unless the charge sheet was served, his
name was not recommended on the basis of the proposed departmental
inquiry. The allegation against Shri Bilonikar is that he did not place the
relevant Rules before the Committee. The allegation against Shri
Sarangi, who was the Additional Secretary (Home) is that he had
illegally extended the probation of the complainant and denied
promotion to him in the meeting dated 8.2.2011. As already stated
hereinabove that one of the necessary ingredients for bringing the
offence under the ambit of Section 3(1) (ix) is that a person accused to
have committed an offence must give a false or frivolous information to
any public servant. Another necessary ingredient is that by giving such
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19 Criminal Application No.258.13 (APL)
false or frivolous information, the public servant should be caused to use
his lawful power to the injury or annoyance of a member of a Scheduled
Caste or a Scheduled Tribe. Perusal of the entire complaint would
reveal that there is no averment stating that any of the accused had
given any false or frivolous information to any public servant. It is not
ig
even averred that on account of such frivolous information any of the
public servants were made to use their lawful authority so as to cause
injury or annoyance to the complainant.
17.
It can, thus, clearly be seen that the entire grievance of the
complainant is regarding denial of promotion to the post of Deputy
Inspector General of Police when according to him he was due. It is the
case of the complainant that same was done in breach of the various
Rules, Regulations and notifications issued by the Government and the
Judgments of the Apex Court. It can, thus, clearly be seen that dispute
of the present complainant with the State is purely a dispute pertaining
to service matter. However, the complainant has attempted to bring it
under the provisions of the Atrocities Act, taking advantage of the fact
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20 Criminal Application No.258.13 (APL)
that the complainant belongs to Scheduled Caste. As already
discussed hereinabove, we find that the complaint addressed to the
learned Magistrate even if taken at its face value and correct in entirety,
does not constitute ingredients so as to make out the offences
punishable under Section 3(1) (ix) of the Atrocities Act. As already
ig
stated hereinabove, the learned counsel for the respondent complainant
has fairly conceded that there are no ingredients to bring the offnece
under the ambit of Section 3(1) (x) and section 4 of the Atrocities Act.
As such we need not analyse the averments made in the complaint in
that regard. However, upon perusal of the entire complaint, it would be
clear that there are no averments to connect the accused even remotely
with the offence punishable under Section 3(1) (ix) and Section 4 of the
Atrocities Act. Perusal of section 3 (1) (x) of the Atrocities Act would
reveal that to constitute an offence a person must be accused of
intentionally insulting or intimidating with intent to humiliate a member of
a Scheduled caste or a Scheduled Tribe in any place within public view.
Whereas, Section 4 provides for penalty when the public servant not
being a member of the Scheduled Caste or a Scheduled Tribe willfully
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21 Criminal Application No.258.13 (APL)
neglects his duties required to be performed by him under the said Act.
We may state that there is not even a whisper regarding the same. No
averments could be found in the entire complaint as to what are the
duties which the accused were required to be performed under the Act
Apart from that we find that the complainant has been
18.
ig
and which are the duties neglected to be performed by them.
selective in choosing the persons against whom the accusation have
been made. The main grievance of the complainant appears to be
regarding the decision in the meeting of the Screening Committee/ SCM
held on 8.2.2011 for consideration of the promotion of IPS Officers to
the post of Deputy Inspector General of Police. The complainant himself
has annexed along with the complaint the minutes of the Screening
Meeting held on 8.2.2012. From perusal of the said minutes, it can be
seen that, the said Committee consisted of following three officers.
1. Shri Ratnakar Gaikwad,
Chief Secretary.
2. Shri Umesh Chandra Sarangi,
Additional Chief Secretary (Home) and also
non IPS Officer in the rank of Chief Secretary.
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3. Shri K. Subramanyam, IPS,
Director General and Inspector General of
Police, Maharashtra State.
22 Criminal Application No.258.13 (APL)
It will be relevant to refer to the following notings in the
minutes of the said meeting.
“The Committee considered the available ACRS/PAR
ig
up to 20092010 along with service record. In case of
S.E.Shinde, IPS1998, Committee observed that
there are no. of complaints received against him
regarding corruption and violation of All India Service
(Conduct) Rule, 1969. Though as per his ACRS/ PAR
he has got 65 marks out of 90, it is also necessary to
consider his overall service record. As Deputy
Inspector General of Police is a promotional post,
involves higher responsibilities. Committee
considered the overall record in case of Shri
S.E.Shinde, IPS.”
“11. Accordingly, the Committee recommended as follows:
A) Following Officers are found fit for promot on the post
in the Grade of Deputy Inspector General of Police:
1.
2.
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23 Criminal Application No.258.13 (APL)
3
16.
B.) Following Officer is found ‘Unfit’ for promotion to
the post in the grade of Deputy Inspector Director
General of police.
ig
1. Shri S.E.Shinde, IPS (MH:1998)”
It can, thus, clearly be seen that the Screening Committee
which consisted of Chief Secretary and Director General of Police apart
from Shri Sarangi, the then Additional Chief Secretary, has found that
there were number of complains received against the complainant
regarding corruption and violation of All India Services (Conduct) Rules,
1969. The Committee, therefore, found that though as per the ACRS he
has got 65 marks out of 90, it was also necessary to consider his overall
service record.
19.
It can, thus, be clearly seen that in the said meeting though
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24 Criminal Application No.258.13 (APL)
the Committee has found various persons to be fit to be promoted, has
found the present complainant to be unfit for promotion. It is to be noted
that the said decision is taken by three persons including Shri Sarangi.
However, the complainant has chosen only to name Shri Sarangi and
not other two persons i.e. Shri Ratnakar Gaikwad, Chief Secretary and
ig
Shri K. Subramanyam, Director General and Inspector General of
Police. It may not be out of place to mention that Shri Ratnakar
Gaikwad, the then Chief Secretary who has an outstanding and
exemplary record, incidentally belongs to Scheduled Caste. In our
considered view, the conduct of the complainant respondent in naming
only one person present in the meeting dated 8.2.2011 and not naming
two others, speaks volume of his conduct. In our considered view, if the
allegations in the complaint are to be entertained, then every person
belonging to Scheduled Caste or Scheduled Tribe who is denied
promotion, will have a cause of action to file complaint under the
provisions of Atrocities Act and name the persons who are the members
of the Departmental Promotional Committee as accused. It is not
impossible that a person with ingenious mind, if not selected in the
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25 Criminal Application No.258.13 (APL)
selection process may also invoke the provisions of the Atrocities Act
against the members of the Selection Committee alleging that he was
not selected since he belongs to Scheduled Caste or Scheduled Tribe
and as such offence is made out under the provisions of Atrocities Act.
If this is to be permitted, it would amount nothing else but gross abuse
20.
ig
of process of law.
We will now deal with the preliminary issue raised by the
learned counsel for the respondent complainant regarding locus. No
doubt that the present application under Section 482 of the Code of
Criminal Procedure is filed by the State. The administration of justice is
a paramount duty and function of the Sovereign State. The main aim of
the administration of justice is to have just society. In the administration
of criminal justice, while it is the duty of the State to make every effort to
see that every person guilty of crime is penalized, at the same time, it is
also its duty to ensure that innocent persons are not harassed and
victimized by abuse of process of the Court, at the hands of the
cantankerous complainants, by filing frivolous complaints. All the four
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26 Criminal Application No.258.13 (APL)
persons, against whom allegations have been made, are or were
Officers of the State. As has been discussed by us hereinabove and in
the following paragraphs, there is no material to proceed against the
said Officers for the offences alleged with. It is also the contentions of
the learned counsel for the respondent complainant that the accused
ig
persons do not have any locus to challenge the order passed under
Section 156 (3) of the Code of Criminal Procedure. In such a situation,
the question would be as to whether the Officers of the State should be
forced to face ignominy of being accused in a crime, which, in our
considered view, would not be made out even taking the allegations in
the complaint to be true in entirety. In this respect, we may gainfully
refer to the observations of the Full Bench of this Court in the case of
Sandeep Rammilan Shukla vs. State of Maharashtra and others,
reported in 2009(1) Mh.L.J., 97, which are thus:
“61. Rule of criminal jurisprudence make no
exception to the principle that a fair investigation is
the soul of proper administration of criminal justice
system. Criminal justice system has two
components. The role of the State and role of the
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27 Criminal Application No.258.13 (APL)
judiciary. Exercise of power or authority by any of
these components has to ensure due protection with
dignity to the rights of a complainant as well as
suspect and the society at large, while ensuring that
there is no adverse impact on the social fabric of the
Insofar as the contention of the learned counsel for the
ig
21.
society.”
respondent regarding the revision or application under Section 482 of
the Code of Criminal Procedure not being tenable against the order
passed by the learned Magistrate under Section 156 (3) of the Code of
Criminal Procedure is concerned, the learned counsel is right in relying
on the Judgment of the Full Bench of Allahabd High Court in the case of
Father Thomas (supra). In the case of Father Thomas, the Allahabad
High Court has taken a view that the revision as well as the application
under Section 482 of the Code of Criminal Procedure would not be
tenable against the order of directing investigation under Section 156(3)
of the Code of Criminal Procedure. However, in the said Judgment the
Allahabad High Court has taken a view that once the First Information
Report is registered and if taken at its face value, does not disclose
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28 Criminal Application No.258.13 (APL)
commission of an offence, the application under Section 482 of the
Code of Criminal Procedure for quashing the proceedings is very much
tenable. In the present case, now the First Information Report is already
registered and by way of amendment the prayer for quashing the same
Apart from that a different view has been taken by the
22.
ig
is also made.
Division Bench of this Court in the case of Yogiraj Vasantrao Surve .vs.
State of Maharashtra and another (Criminal Application No. 470 of
2011(APL) decided on 28.2.2013. The Division Bench after considering
Popotbhai Butani and others vs. State of Maharashtra and others
(supra) has held thus:
the Judgment of the Full Bench of this Court in the case of Panchabhai
“The Full Bench held that a petition under Section
156(3) cannot be strictly construed as a complaint
in terms of Section 2(d) but a petition under
Section 156(3) is maintainable provided it states
facts constituting ingredients of a cognizable
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29 Criminal Application No.258.13 (APL)
offence. Thus, sine qua non for filing a petition
under Section 156(3) of Cr.P.C. is commission of
cognizable offence. In the present case, we have
already held that the petition filed by nonapplicant
no.2 does not disclose any cognizable offence
having been committed by the applicant. It is
axiomatic that once the order under Section 156(3)
ig
is passed, the Incharge in Police Station is bound
to register the First Information Report and carry
out further investigation in terms of Chapter XII of
the Code of Criminal Procedure. Therefore, in
case a petition purporting to be under Section
156(3) of Cr.P.C. is filed which does not
disclose commission of cognizable offence, it
is difficult to accept the submission that the
person against whom First Information Report
is registered, is not entitled to challenge the
order passed under Section 156(3) and
consequential registration of First Information
Report. It would be a different matter, if the
petition filed under Section 156(3) discloses
cognizable offence and in such eventuality the
person against whom First Information Report is
lodged may not be entitled to challenge the order
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30 Criminal Application No.258.13 (APL)
passed under Section 156(3) and consequential
registration of First Information Report inasmuch as
since the commission of cognizable offence is
disclosed it is within the jurisdiction of the
Magistrate to direct investigation in terms of
Section 156(3) of the Code of Criminal Procedure.”
It is, thus, clear that the Division Bench of this Court has
23.
ig
(emphasis supplied).
taken a view that if the petition purported to be under Section 156(3) of
the Code of Criminal Procedure does not disclose commission of
cognizable offence, it is difficult to accept the contention that the person
against whom First Information Report is registered, is not entitled to
challenge the same.
24.
The Division Bench of the Karnataka High Court in the case
of Guruduth Prabhu (supra) had an occasion to consider the similar
issue. The Division Bench after considering the scope of Section 156 of
the Code of Criminal Procedure observed thus:
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31 Criminal Application No.258.13 (APL)
“When the allegation made in the complaint
does not disclose cognizable offence, the
Magistrate has no jurisdiction to order police
investigation under subsection (3). In the
present case, the learned Magistrate without
applying his mind had directed an investigation
by the police. Such an order which is passed
ig
without application of mind is clearly an order
without jurisdiction. Therefore, the order passed
directing the police to investigate under sub
section (3) of Section 156, Cr.P.C., passed without
jurisdiction is liable to be quashed by this Court
either under Section 482, Cr.P.C., or under Article
226 of the Constitution of India.”
25.
(emphasis supplied)
Between the larger Bench of Allahabad High Court and
Division Bench of this Court, we would be bound by the view taken by
this Court. In any case, we find that the view taken by Division Bench
of this Court and by the Division Bench of Karnataka High Court is a
correct view in law. In any case, the Allahabad High Court in the case
of Father Thomas (supra) itself held that, the registration of First
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32 Criminal Application No.258.13 (APL)
Information Report, if does not disclose an offence, can be challenged
by way of application under Section 482 of the Code of Criminal
Procedure. In that view, we find that the contention in that regard is
The next submission of the learned counsel for the
ig
26.
without substance.
respondent complainant is that upon receipt of the complaint under
section 156(3) of Cr.P.C., the Magistrate has no other option than to
direct investigation under Section 156(3) of Cr.P.C., and that the Police
Authorities are bound to register the First Information Report.
27.
For considering this submission of the learned counsel for
the respondent, it will be necessary to refer to the Judgment of the
Apex Court in the case of Maksud Saiyed (supra). In the said case
criminal complaint came to be filed before the Court of Chief Judicial
Magistrate, Vadodara. The allegation in the said complaint was that in
prospectus published for the purpose of public issue, some false and
misleading information had been given with regard to sanction limits, the
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33 Criminal Application No.258.13 (APL)
dues and export bills of the Company. It was alleged that one Shri
G.C.Garg with fabricated and fraudulent dishonestly and purposefully
misused the documents with mala fide intention. An order came to be
passed under Subsection 3 of Section 156 of the Code of Criminal
Procedure relying on or on the basis of the allegations made in the
ig
complaint. The said order was challenged before the High Court under
the provisions of Section 482 of Cr.P.C.. The said petition was allowed.
Being aggrieved thereby, the complainant approached the Apex Court.
The Apex Court observed thus:
“Where a jurisdiction is exercised on a
complaint petition filed in terms of Section
156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply
his mind. Indian Penal Code does not contain any
provision for attaching vicarious liability on the part
of the Managing Director or the Directors of the
Company when the accused is the Company. The
learned Magistrate failed to pose unto himself the
correct question viz. As to whether the complaint
petition, even if given face value and taken to be
correct in its entirety, would lead to the conclusion
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34 Criminal Application No.258.13 (APL)
that the respondents herein were personally liable
for any offence. The Bank is a body corporate.
Vicarious liability of the Managing Director and
Director would arise provided any provision exists
in that behalf in the statute. Statutes indisputable
must contain provision fixing such vicarious
liabilities. Even for the said purpose, it is
ig
obligatory on the part of the complainant to make
requisite allegations which would attract the
(emphasis supplied)
provisions constituting vicarious liability.”
28.
It can, thus, be seen that the Apex Court in unequivocal
terms has held that where a jurisdiction is exercised on a complaint
petition filed under Section 156(3) or Section 200 of the Code of
Criminal Procedure, the Magistrate is required to apply his mind.
29.
The Apex Court in the said case has referred to its earlier
observations made in the case of Pepsi Foods Ltd. And another vs.
Special Judicial Magistrate and others, reported in (1998) 5 SCC 749),
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35 Criminal Application No.258.13 (APL)
which reads thus:
“Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
ig
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would that be
sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The magistrate has to
carefully scrutinize the evidence brought on record
and may even himself put questions to the
complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima
facie committed by all or any of the accused.”
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36 Criminal Application No.258.13 (APL)
In view of the aforesaid Judgments of the Apex Court, it can,
30.
thus, clearly be seen that when the Magistrate passes order directing
investigation under Section 156 (3) of Cr.P.C., it is necessary that, prior
to doing so, he should apply his mind to the case before him. Least that
is expected of the Magistrate, is to verify from the averments of the
ig
complaint as to whether the ingredients to constitute the offence/s
complained of have been made out or not. As such the order under
Section 156(3) of Cr.P.C., should depict the application of mind. No
doubt the Magistrate is not expected to give elaborate Judgment at that
stage. However, the least expected is that the order should depict
application of mind and as to how the complaint discloses the
ingredients to constitute the offence complained of.
31.
It would also be appropriate to refer to the observations of
the Division Bench of this Court in the case of Yogiraj Surve (supra) in
para no.13, which reads thus:
“No doubt, in view of the clear ratio laid down by
the Apex Court in the aforesaid cases, at the stage
of passing an order under Section 156(3) of the
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37 Criminal Application No.258.13 (APL)
Code of Criminal Procedure, the learned Magistrate
does not take cognizance. However, it is axiomatic
that before ordering investigation under Section
156(3), the petition filed simplicitor under Section
156(3) or the complaint filed under Section 190
read with Section 200 of the Code of Criminal
Procedure must disclose cognizable offence/s. If
ig
the petition or complaint does not disclose
commission of cognizable offence/s, it is
difficult to hold that the learned Magistrate can
still pass the order under Section 156(3) of the
Code of Criminal Procedure inasmuch as such
an order can be passed only if at least one
cognizable offence is made out either in the
petition or complaint. In other words, the
disclosure of commission of cognizable
offence/s is a sine qua non for issuing the order
under Section 156(3). In the present case, a bare
reading of the petition (styled as complaint) filed
under Section 156(3) of Cr.P.C. discloses that no
offence even prima facie has been made out
against the applicant.”
(emphasis supplied)
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38 Criminal Application No.258.13 (APL)
It can, thus, be seen that the Division Bench of this Court has
32.
clearly held that if the petition or complaint does not disclose
commission of cognizable offence, the learned Magistrate cannot pass
the order under Section 156(3) of Cr.P.C.. It is also held that disclosure
33.
ig
Section 156 (3) of Cr.P.C..
of commission of the offence is sine quo non for issuing the order under
Insofar as the reliance of the learned counsel for the
respondent complainant on the Full Bench Judgment of this Court in the
Case of Panchabhai Butani (supra) is concerned, the questions that
arose for consideration before the Full Bench were as under:
1. Whether in absence of a complaint to the police, a complaint can
be made directly before a Magistrate ?
2. Whether without filing a complaint within the meaning of Section
2(d) and praying only for an action under Section 156(3), a
complaint before a Magistrate was maintainable?
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39 Criminal Application No.258.13 (APL)
It can, thus, be clearly seen that the questions that fell for
34.
consideration before the Full Bench were; as to whether in the absence
of a complaint to the police, a complaint can be made directly before the
Magistrate and as to whether without filing of the complaint within the
meaning of Section 2(d) and praying only for an action under Section
ig
156(3), a complaint before a Magistrate was maintainable. It can,
therefore, be seen that the question whether the learned Magistrate is
required to apply his mind before passing an order under section 156(3)
and required to give reasons did not fall for consideration. In any case,
when the Apex Court in the case of Maksud Saiyed has held that while
exercising jurisdiction under Section 156(3) of Cr.P.C., the Magistrate is
required to apply his mind, it will have to be held that when the order is
passed by the Magistrate without considering the material and without
finding out as to whether the complaint discloses ingredients of the
offence or not, the order is without jurisdiction. In this respect, we may
gainfully refer to the observations of Division Bench of Karnataka High
Court in the case of Guruduth Prabhu (supra), which reads thus:
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40 Criminal Application No.258.13 (APL)
“If every complaint filed, under Section 200, Cr.P.C.
is referred to the police under section 156(3) without
application of mind about the disclosure of an
offence, there is every likelihood of unscrupulous
complaints in order to harass the alleged accused
named by them in their complaints making bald
allegations just to see that the alleged accused are
ig
harassed by the police who have no other go except
to investigate as ordered by the Magistrate.
Therefore, it is mandatory for the Magistrate to
apply his mind to the allegations made in the
complaint and in only cases which disclose an
offence, the Magistrate gets jurisdiction to order
an investigation by the police if he does not take
cognizance of the offence. In the present case, the
learned Magistrate without applying his mind has
blindly ordered the investigation under Section
156(3) and the said order is, therefore, without
jurisdiction.
(emphasis supplied)
We are in respectful agreement with the view taken
by the Karnataka High Court.
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41 Criminal Application No.258.13 (APL)
It will, thus, have to be held that it is mandatory for the
35.
Magistrate to apply his mind to the allegations made in the complaint
and only when the allegations made in the complaint make out the
ingredients to constitute an offence, the learned Magistrate can pass an
order of investigation under Section 156(3) of Cr.P.C.., Equally, when
ig
the ingredients to constitute the offence are not made out in the
complaint, the learned Magistrate cannot direct investigation under
Section 156(3) of Cr.P.C.. Such an order is without jurisdiction. If the
contention of the learned counsel for respondent complainant that once
the complaint is filed under Section 156(3) of Cr.P.C., the learned
Magistrate has no option but to pass an order under Section 156(3) of
Cr.P.C., is accepted, it would amount to reducing the learned
Magistrate to nothing else but the postman. As such, we have no other
option but to rejected the said contention.
36.
In the present case we have spelled out in detail, allegations
made by the complainant in his complaint. At the risk of repetition, we
need to state that even taking the allegations to be true in their entirety,
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42 Criminal Application No.258.13 (APL)
the ingredients to constitute offence under the Atrocities Act, are not
made out. Therefore, in our considered view, the learned Magistrate
was not justified in passing the order impugned.
Insofar as the reliance placed by the learned counsel for the
37.
ig
respondent complainant on the Judgment of the Full Bench in the case
of Sandeep Shukla (supra) is concerned, it will be appropriate to refer
to the following observations of the Full Bench:
“The essence appears to be that the information
should disclose commission of a cognizable offence
which alone would vest power and jurisdiction in the
officerincharge to put into motion the investigation
machinery.”
38.
It is, thus, clear that the Full Bench has held that only when
the information discloses commission of a cognizable offence would
vest power and jurisdiction in the Officerincharge to put into motion the
investigating machinery. It is to be noted that the question before the
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43 Criminal Application No.258.13 (APL)
Full Bench in the said case was as to whether preliminary inquiry could
be made by Police Officer Incharge of Police Station prior to the
registration of First Information Report. The Full Bench has held that
the preliminary inquiry is necessary prior to registration of First
Information Report, to avoid undue harassment to any person at the
ig
behest of unscrupulous complainants. The Full Bench, even in the case
of registration of the First Information Report, has held that only when
the information discloses commission of cognizable offence, the
jurisdiction would vest in the Officerincharge to put into motion the
investigating machinery. As such the learned Magistrate, who performs
judicial function, must satisfy himself that the complaint petition
discloses commission of cognizable offence/s before he directs
investigation under the provisions of Section 156(3) of Cr.P.C.. In that
view of the matter, we do not find that said Judgment would be of any
assistance to the contentions made by the learned counsel for the
respondent complainant.
39.
Now, the only question that would be required to be
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44 Criminal Application No.258.13 (APL)
considered is as to whether the facts of the present case justify
warranting invoking the jurisdiction under Section 482 of Cr.P.C. or not.
We may gainfully refer to the observations of the Apex Court in the case
of State of Haryana and others vs. Ch. Bhajan Lal, reported in AIR
1992 SC, 604 which reads thus:
ig
“108. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a serious of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of
the code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any Court or otherwise to secure the ends of
justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
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45 Criminal Application No.258.13 (APL)
1. Where the allegations made in the First
Information Report or the complaint, even if,
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
ig
2. Where the allegations in the First Information
Report and other materials, if any,
accompanying the F.I.R. Do not disclose a
cognizable offence, justifying an investigation
by police officers underSection 151(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
3. Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence and
make out a case against the accused.
4. Where, the allegations in the F.I.R. do not
constitute a cognizable offence but constitute
only a noncognizable offence, no
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46 Criminal Application No.258.13 (APL)
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
5. Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
ig
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or
the concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.
7. Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due
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40.
to private and personal grudge.
47 Criminal Application No.258.13 (APL)
We have already held hereinabove that in the present case
even if the allegations taken at its face value are accepted to be true
and correct, they do not prima facie constitute commission of offence.
ig
We, therefore, find that the present case would fall under clause 1 of
As already discussed hereinabove, the complainant has
41.
the guidelines laid down by the Apex Court.
chosen only one person as accused when the Screening Committee
was consisting of three persons. We find that the present complaint has
been filed with an ulterior motive for wreaking the vengeance on
account of the grievance of the respondent complainant that he was not
given promotion when, according to him, he was entitled to. We,
therefore, find that the present case would also fall under clause 7 of
the aforesaid Guidelines.
42.
The Apex Court in the case of Zandu Pharmaceutical Works
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48 Criminal Application No.258.13 (APL)
Ld. And others vs. Mohd. Sharaful Haque and another, reported in
(2005) 1 Supreme Court Cases, 122 had an occasion to consider
similar issue arising out of service matter. The Apex Court observes
thus:
“Exercise of power under Section 482 of the Code in
a case of this nature is the exception and not the
ig
rule. The section does not confer any new powers
on the High Court. It only saves the inherent power
which the Court possessed before the enactment of
the Code. It envisages three circumstances under
which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of court
and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of
inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that
may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which
are necessary for proper discharge of functions and
duties imposed upon them by law. That is the
doctrine which finds expression in the section which
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49 Criminal Application No.258.13 (APL)
merely recognises and preserves inherent powers
of the high Courts. All courts, whether civil or
criminal, possess, in the absence of any express
provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo
a wrong in course of administration of justice on the
principle “ quando lex aliquid alicui concedit,
ig
concedere videtur et id sine quo res ipsae esse non
potest” (when the law gives a person anything, it
gives him that without which it cannot exist). While
exercising powers under the section, the court does
not function as a court of appeal or revision.
Inherent jurisdiction under the section though wide
has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by
the tests specifically laid down in the section itself. It
is to be exercised ex debito justitiae to do real and
substantial justice for the administration of which
alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made
to abuse that authority so as to produce injustice,
the court has power to prevent abuse. It would be
an abuse of process of the court to allow any action
which would result in injustice and prevent
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50 Criminal Application No.258.13 (APL)
promotion of justice. In exercise of the powers,
court would be justified to quash any proceeding if it
finds that initiation/ continuance of it amounts to
abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the
complaint, the court may examine the question of
ig
fact. When a complaint is sought to be quashed, it
is permissible to look into the materials to assess
what the complainant has alleged and whether any
offence is made out even if the allegations are
accepted in toto.
43.
It can, thus, be clearly seen that the Apex Court has held that
inherent powers are all such powers that are necessary to do the right
and to undo a wrong in the course of administration of justice. The Apex
Court further held that inherent powers are to be exercised
ex debito justitiae to do real and substantial justice for the
administration of which alone courts exist. It has been further held that
the authority of the court exists for advancement of justice and if any
attempt is made to abuse that authority so as to produce injustice, the
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51 Criminal Application No.258.13 (APL)
court has power to prevent abuse. It has been further held that to allow
any action which would result in injustice and prevent promotion of
justice could be abuse of process of the court. It has been further held
that in exercise of the powers, court would be justified to quash any
proceedings if it finds that initiation/ continuance of it amounts to abuse
ig
of the process of court. It has been held that when a complaint is
sought to be quashed, it is permissible to look into the materials to
assess what the complainant has alleged and whether any offence is
made out even if the allegations are accepted in toto.
It will also be appropriate to refer to the observations of the
Apex Court in the case of R.Kalyani vs. Janak C. Mehta and others
(2009) 1 SCC 516, which reads thus:
44.
“ 15, Propositions of law which emerge from the said
decisions are:
(1) The High Court ordinarily would not exercise
its inherent jurusdiction toquash a criminal
proceedings and, in particular, a first
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52 Criminal Application No.258.13 (APL)
information report unless the allegations
contained therein, even if given face value and
taken to be correct in their entirely, disclosed
no cognizable office.
(2) For the said purpose the Court, save and
except in very exceptional circumstances,
ig
the defence.
would not look to any document relied upon by
(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR
disclose commission ofan offence, the Court
shall not go beyond the same and pass an
order in favour of the accused to hold absence
of any means rea or actus reus.
(4) If the allegation discloses a civil dispute, the
same by itself may not be ground to hold that
the criminal proceedings should not be allowed
to continue.
16.
It is furthermore well known that no hard
andfast rule can be laid down. Each case has to be
considered on its own merits. The Court, while
exercising its inherent jurisdiction, although would
not interfere with a genuine complaint keeping in
view the purport and object for which the provisions
of Section 482 and 483 of the Code of Criminal
Procedure had been introduced by Parliament but
would not hesitate to exercise its jurisdiction in
appropriate cases. One of the paramount duties of
the superior courts is to see that a person who is
apparently innocent is not subjected to persecution
and humiliation on the basis of a false and wholly
45.
untenable complaint.”
As already discussed hereinabove, the present case is
nothing else but a glaring example of harassment and humiliation to the
Officers of the State Government, at the instance of another employee
of the State Government, so as to settle the score with them on account
of his grievances of denial of promotion. As already discussed
hereinabove, though the Screening Committee consisted of three
senior officers viz. Chief Secretary, Additional Chief Secretary and the
Director General of Police, the complainant has chosen only one of
them. As we have already pointed out hereinabove that one of the
members i.e. Shri Ratnakar Gaikwad who at the relevant time was Chief
Secretary belongs to Scheduled Caste. The complainant, for the best
reasons known to him, has not made any allegations against other two
officers. If the Chief Secretary would also have been made accused by
the complainant, may be the complaint under the Atrocities Act itself
would not have been tenable. It, therefore, speaks volumes of the
It may not be out of place to mention that day in and day out
46.
ig
complainant’s intentions.
we come across various cases wherein the provisions of the Atrocities
Act are misused. We find that various complaints are filed immediately
after the Gram Panchayat Elections, alleging offences under the
Atrocities Act. We have no hesitation in saying that in many of the
instances, it was found that the complaints were filed only to settle
score with their opponents, after defeat in the Gram Panchayat
elections. We have also come across various cases wherein private
civil disputes arising out of property, monetary matters, disputes
between the members and office bearers of cooperative societies;
disputes between the trustees of the Charitable Trusts are given penal
and complaints are being filed either under Section 190 read with
Section 200 or under Section 156(3) of Cr.P.C.. In many of such cases,
we have come across that the learned Magistrates are passing
mechanical orders directing investigation under Section 156(3) of
Cr.P.C., without recording any reasons and without verifying as to
whether the complaint discloses the ingredients to constitute the offence
ig
or not. It is needless to say that least that is expected of the learned
Magistrate before passing the order under Section 156(3) of Cr.P.C., is
to satisfy himself, that taking the allegations to be true in entirety, as to
whether the ingredients to constitute the offence alleged have been
made out or not. The least that is expected of the learned Magistrate
while passing an order, directing investigation is to at least give some
reasons, as to why he finds substance in the complaint and as to how
the complaint discloses ingredients to constitute the offence alleged.
The learned Magistrates ought to take into consideration, that passing
such mechanical orders in complaints which do not have any criminal
element causes great hardships, humiliation, inconvenience and
harassment to the citizens. For no reasons, the reputation of the
citizens is put to stake as immediately after said orders are passed,
47.
innocent citizens are termed as accused.
In the present matter, as has already been held by us that
the complaint does not disclose the ingredients to constitute the offence
under the provisions of the Atrocities Act. We have no hesitation to say
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that the complaint and the order passed by the learned Magistrate
under Section 156(3) of Cr.P.C., are nothing else but an abuse of
process of the court. We have no hesitation to hold that continuance of
the proceedings would amount to humiliation, harassment and
persecution of the officers of the State against whom allegations have
been made in the complaint and would perpetuate injustice. May be the
respondent complainant has a case, insofar as his grievance of denial of
promotion is concerned, but the forum, he has chosen, is not one
wherein he can seek redressal. We have no hesitation in observing that
the respondent complainant if has genuine grievance, he could have
very well approached the Central Administrative Tribunal. If his
contention that he was denied promotion when he was entitled was
found to be justified by the learned Tribunal, the learned Tribunal is
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57 Criminal Application No.258.13 (APL)
always empowered to grant him all the reliefs including deemed date of
promotion. However, the course that has been chosen by the
respondent complainant is not the one, which is permissible in law.
Having come to the considered conclusion that the complaint so also
the order passed under Section 156(3) of Cr.P.C., and subsequent
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registration of First Information Report by police is nothing, but an abuse
of process of law, the application deserves to be allowed.
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In that view of the matter, the order dated 30 March, 2013
48.
passed by the learned Judicial Magistrate First Class in Miscellaneous
F.I.R. by the Police Station, Dhantoli Nagpur are hereby quashed and
set aside.
Rule made absolute in aforesaid terms. No order as to costs.
Criminal Application No. 683/2013 and the subsequent registration of
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