We have noticed that in number of complaints filed under
Section 190 read with Section 200 of the Code of Criminal Procedure or
petitions under Section 156(3) of the Code of Criminal Procedure, the
Magistrates have been passing orders under Section 156(3) without
even finding out whether the petition purporting to be under Section
156(3) Cr.P.C. discloses cognizable offence/s. The Magistrate before
passing an order under Section 156(3) Cr.P.C. ought to satisfy himself/
herself that the averments made in the complaint or petition filed under
Section 156(3) disclose commission of cognizable offence and whether
the prosecution would lie. Only in such an eventuality, it is permissible
for the Magistrate to direct investigation under Section 156(3) Cr.P.C., if
he or she deems fit considering the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 470/2011 (APL)
Yogiraj Vasantrao Surve,
VERSUS
State of Maharashtra,
CORAM: A.P.LAVANDE & A.B.CHAUDHARI,JJ
DATE OF PRONOUNCEMENT OF JUDGMENT: 28.2.2013
Citation: 2013(5)ABR465, 2013ALLMR(Cri)2059, 2013(3)BomCR(Cri)146
Heard Mr. Anil Mardikar, the learned counsel for the
applicant, Mr. T.A.Mirza, learned APP for nonapplicant no.1 and Mr.
Paunikar, learned counsel (appointed) for non applicant no.2.
2. Rule. Rule is made returnable forthwith and heard finally with
the consent of the learned counsel for the parties and learned APP.
3. By this application, filed under Section 482 of the Code of
Criminal Procedure, the applicant seeks the following reliefs.
i) Quash the Regular Criminal Case No. 1105/2011 at
Annexure P1 and the First Information Report vide
Crime No. M2/11 registered by nonapplicant no.1
Police Station, Ambazari, Nagpur at Annexure P3 being
an abuse of process of law, in the interest of justice.
ii) Quash and set aside the order passed by the learned
Chief Judicial Magistrate, Nagpur dated 18.6.11 at
Annexure P2 in Criminal Complaint Case No.
1105/2011.
iii) Stay the investigation in Crime No. M2/2011, as also
stay all further proceedings in Regular Criminal Case
No. 1105/2011 and stay the arrest of the applicant in
Crime No. M2/2011 and R.C.C. No. 1105/2011,
pending disposal of the present application, in the
interest of justice.
4. Briefly, the case of the applicant is as under:
The applicant is presently working as District Deputy
Registrar at Akola. From 2006 to 2009, the applicant was working as
Deputy Registrar Cooperative Society, City2,Nagpur. On 6.1.2009
Nagpur Friends Urban Sahakari Sanstha Maryadit, Nagpur (hereinafter
referred to as “the Society”) registered under the Maharashtra
Cooperative Societies Act, 1960 (hereinafter referred to “the Act”),
initiated proceedings under Section 101 of the Act. The said Society
was not a Multi State Cooperative Society. The nonapplicant no.2 had
taken a loan of Rs. 50,000/ for business purpose in the year 2003 and
he had not paid the entire loan amount and there was a subsisting
liability of Rs. 32,842/. Due notice was given to the nonapplicant no.2.
On 17.4.2009, the nonapplicant no.2 filed an application opposing
recovery certificate under Section 101 of the Act and asserted that the
claim was time barred. On 28.5.2009, the applicant issued recovery
certificate, copy of which has been placed on record. The nonapplicant
no.2 did not challenge the said certificate under the Act. On 27.3.2011
the nonapplicant no.2 lodged report with nonapplicant no.1 alleging
that the applicant had committed offences under Sections 109, 166,
219, 418, 422 and 406 of the Indian Penal Code. The nonapplicant
no.1 refused to register the First Information Report against the
applicant for the said offences. On 18.4.2011, the nonapplicant no.2
filed petition purporting to be under Section 156 (3) of the Code of
Criminal Procedure which was registered as Regular Criminal Case No.
1105/2011 before the Chief Judicial Magistrate, Nagpur. On 18.6.2011
the learned Chief Judicial Magistrate, Nagpur passed an order directing
investigation under Section 156(3) of the Code of Criminal Procedure.
On the basis of the said order nonapplicant no.1 registered offence vide
Crime No. M2/11 under Sections 109, 166, 219, 406 and 422 of the
Indian Penal Code. The applicant has challenged the order dated
18.6.2011 and consequential First Information Report registered by the
nonapplicant no.1.
5. On behalf of the nonapplicant no.1 reply has been filed
opposing the petition primarily on the ground that the application is
premature and at this stage the applicant has no cause of action and it
is only if the process is issued against the applicant, the applicant is
entitled to resort to remedies available under the Code of Criminal
Procedure.
6. Reply has also been filed on behalf of nonapplicant no.2
stating that no case has been made out for interference in exercise of
inherent powers under Section 482 of the Code of Criminal Procedure
inasmuch as the applicant is entitled to file appropriate application only
after issuance of the process. It has been further stated that power
under Section 482 of the Code of Criminal Procedure must be exercised
sparingly and cautiously.
7. Mr. Mardikar, learned counsel for the applicant submitted that
filing of petition under Section 156(3) of the Code of Criminal Procedure
is nothing but an abuse of process of the court as none of the offences
alleged in the petition is made out against the applicant. He further
submitted that actually no offence is made out against the applicant who
was discharging quasi judicial function while considering the grant of
recovery certificate under Section 101 of the Act. According to the
learned counsel, probably in order to avoid deposit of half of the amount
under the Award, the nonapplicant no.2 filed the petition under Section
156 (3) instead of challenging the recovery certificate under Section 154
of the Act. According to the learned counsel, primarily two grounds
were raised in the petition viz. i) the recovery proceeding under Section
101 of the Act was time barred and ii) the Society being a Multi State
Society the applicant had no jurisdiction to issue certificate in terms of
the Judgment of this Court in the case of Adarsh Ginning and Pressing
Factory vs. State of Maharashtra, reported in 2008(1) Mh. L.J., 300.
The learned counsel further submitted that the Society not being Multi
State Society, the applicant was entitled to issue the certificate.
According to the applicant, the claim was not time barred claim and in
any case, if aggrieved by the grant of the certificate, the nonapplicant
no.2 had effective remedy of challenging the same by filing Revision
under Section 154 of the Act. According to the learned counsel, the
learned Chief Judicial Magistrate did not even bother to see whether
petition made out cognizable offence/s which were required to be
investigated by the police. The learned counsel, therefore, submitted
that the petition has been filed mala fide with a view to wreak
vengeance against the applicant since the applicant had issued
recovery certificate under Section 101 of the Act.
Mr. Mardikar, learned counsel for the applicant placed
reliance on the following Judgments.
I) State of Haryana and others vs. Ch. Bhajan Lal &
others.
AIR 1992 Supreme Court, 604.
II) Mr. Panchabhai Popotbhai Butani & others vs. State of
Maharashtra and others.
2010 ALL MR (Cri.) 244.
8. Mr. Mirza, the learned APP submitted that the order under
Section 156(3) of the Code of Criminal Procedure has been passed by
the learned Magistrate before taking cognizance and as such merely
because the First Information Report is registered against the applicant,
the applicant is not entitled to challenge the said First Information
Report. Mr. Mirza, further submitted that it is only in the event of
process being issued against the applicant after filing of the charge
sheet, the applicant is entitled to challenge the proceedings against him.
Mr. Mirza,placed reliance upon the following Judgments:
I) R.R.Chari vs. The State of Uttar Pradesh.
AIR (38) 1951 Supreme Court, 207.
II) Gopal Das Sindhi and others vs. State of Assam and
another.
AIR 1961 Supreme Court, 986.
III) Mohd. Yousuf vs. Afaq Jahan (Smt.) and another.
(2006) 1 Supreme Court Cases, 627
9. Mr. Paunikar, learned counsel appointed for nonapplicant
no.2 adopted the submissions made by Mr. Mirza and submitted that
unless the charge sheet is filed and process is issued against the
applicant pursuant to the First Information Report registered against the
applicant, the applicant is not entitled to challenge either the order
passed under Section 156 (3) of Cr.P.C. or consequential registration of
First Information Report by nonapplicant no.1.
10. The first question which arises for consideration is whether
the petition purporting to be under Section 156(3) of the Code of
Criminal Procedure discloses cognizable offence/s against the
applicant warranting registration of First Information Report by the
Officer Incharge of the concerned Police Station. The second question
which arises for consideration is, whether the applicant is entitled to
challenge the order passed under Section 156 (3) and First Information
Report registered pursuant to the order passed under Section 156(3) of
the Code of Criminal Procedure by the learned Magistrate.
11. In the case of R.R.Chari (supra), the three Judge Bench of
the Apex Court held that if the Magistrate applies his mind not for the
purpose of proceeding under subsequent sections but orders
investigation under Section 156(3) of the Code of Criminal Procedure,
he cannot be said to have taken cognizance of the offence. The Apex
Court further held that in the case of a cognizable offence, the
Magistrate takes cognizance when the police have completed their
investigation and come to the Magistrate for issuance of process.
Another three Judge Bench of the Apex Court in the case of Goapl Das
Sindhi (supra) has taken similar view.
12. In the case of Mohd. Yousuf (supra), the Apex Court held
that if the Magistrate passes order under Section 156(3) of the Code of
Criminal Procedure, it is only for the purpose of enabling the police to
start investigation and once the order under Section 156(3) is passed by
the learned Magistrate, the Officer Incharge of the Police Station is duty
bound to register First Information Report, regarding cognizable offence
disclosed by the complaint inasmuch as the Police Officer could take
further steps contemplated in Chapter XII of the Code Criminal
Procedure only thereafter. The Full Bench of this Court in the case of
Panchbhai Popatbhai Butani (supra) has referred to the Judgment of the
Apex Court in the case of Mohd. Yousuf.
13. 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 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 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. Indisputably, the
applicant was exercising quasi judicial function while considering the
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12 cri.appln.no.470.11
grant of recovery certificate under Section 101 of the Act. Admittedly,
the nonapplicant no.2 was heard before issuance of the certificate. In
this factual background, the only remedy available to the nonapplicant
no.2 was to challenge the said order under the Act. However, instead of
resorting to any remedy under the Act, initially the nonapplicant no.2
chose to file report before the nonapplicant no.1 which was rightly not
registered by the nonapplicant no.1. The learned Magistrate ought to
have found out whether the petition discloses commission of cognizable
offence/s by the applicant before passing the order under Section 156
(3). From a bare reading of the petition purporting to be under Section
156(3) of Cr.P.C., it is evident that the nonapplicant no.2 was
challenging the said certificate primarily on two grounds namely
jurisdiction and limitation.
14. Insofar as to the point of limitation is concerned, in our view
the only remedy available to the nonapplicant no.2 was to challenge the
order before the authorities under the Act, if aggrieved. Similar is the
case in respect of jurisdiction. If the nonapplicant no.2 was aggrieved
by the recovery certificate issued by the applicant on any ground, he
ought to have resorted to appropriate proceedings to challenge the
certificate. Instead of resorting to the remedy available under the Act,
the nonapplicant no.2 chose to file report before the nonapplicant no.1
and having failed to get the First Information Report registered against
the applicant, approached the Magistrate under Section 156(3) of the
Code of Criminal Procedure. Moreover, since the applicant was
exercising the quasi judicial function while issuing certificate under
Section 101 of the Act, the criminal action initiated against the applicant
on the grounds stated in the petition, is unsustainable in law. Such a
course, if permitted, would shake the confidence of the authorities
exercising judicial and quasi judicial function and expose the judicial and
quasi judicial authorities to unwarranted criminal actions. If a party is
aggrieved by the order passed by a judicial or quasi judicial authority,
appropriate remedy for such a aggrieved person is to resort remedy
available under a particular statute or to approach this Court depending
upon the facts and circumstances of the case. If criminal action is
permitted against persons exercising judicial or quasi judicial function
they would be exposed to vexatious criminal proceedings at the
instance of disgruntled persons who are aggrieved by the orders passed
or actions taken against them by such authorities. Such a course can
never be countenanced. Moreover, under Section 162 of the Act, no
suit, prosecution or other legal proceeding is maintainable against the
Registrar or any person subordinate to him or acting on his authority in
respect of anything in good faith done, or purported to be done by him
under the Act. Therefore, the applicant is not liable to be prosecuted for
issuing recovery certificate under the Act in good faith.
15. In the case of State of Haryana vs. Bhaja Lal (supra), the
Apex Court in para no.108 has referred to seven types of cases in
which the High Court can exercise powers under Article 226 of the
Constitution of India or inherent power under Section 482 of the Code of
Criminal Procedure to quash the First Information Report or complaint.
The Apex Court has further clarified that they are only illustrative and
not exhaustive. They are as follows:
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.
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 under Section 156(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 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 person can ever reach a just
conclusion that there is sufficient ground for proceedings
against the accused.
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16 cri.appln.no.470.11
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
vengenance on the accused and with a view to spite him
due to private and personal grudge.
16. In the present case, in our considered view, the guidelines 1
and 7 mentioned above are clearly attracted and, therefore, the
impugned order passed under Section 156(3) of the Code of Criminal
Procedure and consequent registration of First Information Report
deserves to be quashed. At the cost of repetition, we state that if the
nonapplicant no.2 was aggrieved by the certificate issued by the
applicant on the ground that it was in respect of time barred claim or that
the applicant had no jurisdiction to issue the certificate, the applicant
ought to have resorted to remedy available under the Act.
17. In the case of Panchabhai Popotbhai Butani (supra), the Full
Bench answered the following two questions:
I) Whether in the absence of a complaint to the police, a
complaint can be made before a Magistrate?
II) 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?
The Full Bench answered question no.2 as follows:
“A Petition under Section 156(3) cannot be strictly
construed as a complaint in terms of Section 2(d) of
the Code and absence of a specific or improperly
worded prayer or lack of complete and definite details
would not prove fatal to a petition under Section
156(3), in so far as it states facts constituting
ingredients of a cognizable offence. Such petition
would be maintainable before the Magistrate.”
18. The Full Bench held that a petition under Section 156(3)
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18 cri.appln.no.470.11
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 offence. Thus, sine qua non
for filing a petition under Section 156(3) of Cr.P.C. is commission of
cognizable oiffence. 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) 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 office and in
such eventuality the person against whom First Information Report is
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19 cri.appln.no.470.11
lodged, may not be entitled to challenge the order 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.
19. In reply filed by nonapplicant no.2, reliance has been placed
upon the Judgment of the learned Single Judge of this Court in the case
of Pavankumar Bhurmalji Ostwal and others vs. State of Maharashtra
and another reported in 2008(6) Mh.L.J., 691. In the said case, the
learned Single Judge has held that if an order is passed under Section
156(3) of the Code of Criminal Procedure in criminal complaint,
persons, against whom First Information Report is registered, are not
entitled to challenge the order because they are not accused and their
liberty is not affected. In the said case, learned Single Judge held that
the application filed by the applicant under Section 482 Code of Criminal
Procedure was not maintainable. In the cases of of B.S.Khatri vs.
State of Maharashtra reported in 2004(1) Mh.L.J., 474 and Narayandas
Hiralalji Sarda and others vs. State of Maharashtra and another
reported in 2009(2)Mh.L.J. 426, two different Division Benches have
held that against an order passed under Section 156 (3), revision is
maintainable. As such, a person against whom investigation has been
ordered under Section 156(3), is entitled to challenge the said order by
filing revision. In any case, the aforesaid Judgment of learned Single
Judge would not advance the case of nonapplicant no.2 inasmuch as
we have already held that the petition filed under Section 156(3) does
not disclose commission of any cognizable offence by the applicant. It
is difficult to accept the contention of the learned APP and learned
counsel for nonapplicant no.2 that even if the petition does not disclose
commission of cognizable offence under Section 156(3) of the Code of
Criminal Procedure and if an order is passed by the learned Magistrate
directing investigation, the person against whom First Information
Report is registered, is not entitled to challenge the order passed under
Section 156(3) of the Code of Criminal Procedure and consequential
registration of First Information Report. Needless to mention that the
registration of First Information Report against a person, affects his
liberty inasmuch as under Section 41 of Cr.P.C., if the Officer Incharge
of the Police Station or the Investigating Officer is entitled to arrest such
person even without an order from the Magistrate. Therefore, in our
considered view, the Judgment in the case of Pavankumar Ostwal
(supra) does not advance the case of the nonapplicant no.2.
20. In view of the above, we are of the considered view that
initiation of the proceeding against the applicant by nonapplicant no.2
by filing petition under Section 156(3) of the Code of Criminal Procedure
is patently mala fide and with an ulterior motive for wreaking vengeance
since the applicant had issued certificate under Section 101 of the Act.
As stated above, the applicant cannot be prosecuted for his act done in
good faith while discharging quasi judicial function in terms of Section
162 of the Act. Therefore, in our opinion, the order passed under
Section 156(3) of the Code of Criminal Procedure and consequential
registration of First Information Report against applicant deserve to be
quashed and set aside.
21. In the result, Rule is made absolute in terms of prayer
clauses (i) and (ii) with costs quantified at Rs. 5000/ (Rupees five
thousand only) to be paid by the nonapplicant no.2 to the applicant.
22. We have noticed that in number of complaints filed under
Section 190 read with Section 200 of the Code of Criminal Procedure or
petitions under Section 156(3) of the Code of Criminal Procedure, the
Magistrates have been passing orders under Section 156(3) without
even finding out whether the petition purporting to be under Section
156(3) Cr.P.C. discloses cognizable offence/s. The Magistrate before
passing an order under Section 156(3) Cr.P.C. ought to satisfy himself/
herself that the averments made in the complaint or petition filed under
Section 156(3) disclose commission of cognizable offence and whether
the prosecution would lie. Only in such an eventuality, it is permissible
for the Magistrate to direct investigation under Section 156(3) Cr.P.C., if
he or she deems fit considering the facts and circumstances of the case.
We, therefore, deem it appropriate to direct the Registrar (J) to circulate
a copy of this Judgment to all the Principal District and Sessions Judges
within the jurisdiction of Nagpur Bench, who shall, in turn, circulate the
Judgment to all the Magistrates within their jurisdiction.
With the above directions, the application stands disposed of.
JUDGE JUDGE
patle
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