We hold that the Judicial Magistrate First Class had discretion
in the facts of the case either to resort to the procedure
enunciated under section 156(3) or
to the procedure
prescribed under section 200 of the Code. The powers of the
Magistrate are not curtailed by the prayers made in the
complaint while exercising judicial discretion. We do not find
any fault or error in the Magistrate resorting to the procedure
prescribed under Section 200 of the Code.
CRIMINAL APPELLATE JURISDICTION
Shri Shyamsunder Radheshyam Agarwal
versus
State of Maharashtra
4036 OF 2012
CRIMINAL WRIT PETITION NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
2.
CORAM : NARESH H. PATIL &
A. R. JOSHI, JJ.
Date of Pronouncing the Judgment : 08.02.2013
JUDGMENT : (Per : NARESH H. PATIL, J.)
1.
Rule, returnable forthwith
Heard finally by consent of the parties.
2.
The petitioner challenges the judgment and order
dated
16.10.2012 in Criminal Revision No. 142 of 2012 passed by the
3.
Ad-hoc District Judge – 3 and Addl. Sessions Judge, Thane.
It is the contention of the petitioner that he entered into an
agreement with the respondent no. 2 Mr. Bhupendra Ghisulal
Borana on 27.10.2009 in respect of plot of land bearing Old
Survey No. 118, New Survey No. 113, Hissa No. 1, admeasuring
about 2601 sq. yards of Village Bhayander, Taluka and District
Rupees
Two
ig
Thane. Under the agreement total consideration was fixed at
Crores.
According
to
the
petitioner,
the
respondent no. 2 Mr. Bhupendra Ghisulal Borana paid certain
amount to the petitioner from 26.10.2009 to 28.10.2009, details
of which are mentioned in paragraph 2 of the petition. The
petitioner placed on record a copy of agreement executed
between the parties on 27.10.2009 at Exhibit 'A'.
4.
The petitioner contends that in the year 2012 the respondent
no.2 Mr. Bhupendra Borana filed an application Exhibit '269'
in Special Civil Suit no. 436 of 2012 earlier bearing R.C.S. No.
69 of 2007 interalia contending that the
petitioner had
executed one agreement in his favour dated 30.12.2009. The
said agreement is titled as agreement for development cum
sale. The petitioner placed on record copy of the said
agreement at Exhibit 'B'. According to the petitioner the said
agreement executed on 30.12.2009 clearly shows that it is per
se forged agreement. According to the petitioner the signature
of the petitioner is forged by respondent no.2 on the said
agreement. The receipt clause of the said document is forged
one. The said document appears to be executed before notary
but the notarised register number which is mandatory is not
mentioned in the said document. According to the petitioner the
stamps of notary are also forged. The receipt clause does not
ig
bear signature of any witness and the signature of the
5.
petitioner on the receipt clause is undoubtedly forged.
The contention of the petitioner that as soon as the petitioner
came to know, the petitioner filed complaint to Bhayander
Police Station on 9.7.2012,
on 7.9.2012, to the Sr. P
.I.
Bhayander Police Station, on 10.9.2012 to the Superintendent
of Police, Thane. The petitioner had preferred a writ petition in
the High Court bearing writ petition no. 3343 of 2012 praying
for certain directions for registering a FIR against the accused
therein.
Prior to filing of the present writ petition, the
petitioner had approached the Superintendent of Police Thane
Rural. The Superintendent of Police, Thane had directed the
Economic Offences Wing, Thane to investigate into the matter.
The Economic Offences Wing directed registration of FIR
against the present respondent no. 2. The first information
6.
of sections 420, 465, 467, 471, 34 of Indian Penal Code.
report was registered against the accused under the provisions
The petitioner contends that the respondent no.2 had filed one
complaint before the Judicial Magistrate, First Class, Thane,
bearing No. OMA 546/2012. In the said complaint it was
contended by the respondent no. 2 that he had purchased the
from the present petitioner vide an
property in question
agreement dated 30.12.2009. It was further
contended that
inspite of the order of status quo granted by the Civil Court on
5.10.2009 the present petitioner had induced the respondent
no.2 into parting with Rupees Fifty lakhs and entered into the
agreement dated 30.12.2009.
7.
The petitioner intervened in the proceedings of the complaint
and pointed out several documents to the Judicial Magistrate
First Class and prayed that no order be passed as prayed for in
the said complaint. The Judicial Magistrate
First Class on
8.8.2012 passed an order thereby rejecting the prayer
for
direction under section 156(3) of the Criminal Procedure Code
(“Code”), however
the Judicial Magistrate
First Class had
directed the complaint to be put up for verification under
section 200 of Code. The petitioner has annexed copy of the
complaint along with copy of the order at Exhibits 'E' and 'F'.
revision application
The respondent no.2 challenged the said order in a criminal
bearing No.142 of 2012 in the Court of
8.
Sessions Judge, Thane. The petitioner was not joined as a party
respondent to the said criminal revision application.
9.
By an order dated 16.10.2012 the Additional Sessions Judge,
Thane, allowed the revision application and held that the trial
court erred in refusing to issue directions under section 156(3)
of the Code. The order passed by the Judicial Magistrate First
Class on 8.8.2012 below Exhibit '1' in OMA No. 546/2010 was
set aside and the concerned police station was directed to
investigate in the matter under section 156(3) of the Code.
10.
The learned counsel for the petitioner Shri Kumbhakoni
submitted that the present petitioner was a necessary party to
the proceedings of the revision application. The moment the
order was passed on 8.8.2012 by the Judicial Magistrate First
Class refusing to issue orders under section 156(3) of the Code
the petitioner accrued a right to be heard in the criminal
revision application filed by the respondent no. 2. The petitioner
had
suffered
prejudice
as
in
absence
of
petitioner's
participation the learned Additional Sessions Judge allowed the
criminal revision application filed by the respondent no. 2 and
directed investigation by taking recourse to the provisions
under section 156(3) of the Code. In the submissions of the
learned counsel even though only prayer made in the complaint
filed by the respondent no.2 before the Judicial Magistrate
First Class was for grant of
relief in respect of
directions
under section 156(3) of the Code, the Judicial Magistrate First
Class had power and discretion to decline to pass an order
under section 156 and to resort to proceedings envisaged under
section 200 of the Code. The powers of the Magistrate cannot
11.
be curtailed by the nature of prayers made in the complaint.
The learned counsel for the petitioner placed reliance on the
judgments of the Apex Court in the cases of (I) Mona Panwar
vs. High Court of Judicature of Allahabad through its
Registrar and Ors. [(2011) 3 Supreme Court Cases 496,
(II)
Raghu Raj Singh Rousha vs. Shivam Sundaram
Promoters Private
Limited & Anr. [(2009)2 Supreme
Court Cases 363] and (III) Manharibhai Muljibhai Kakadia
& Anr. vs. Shaileshbhai Mohanbhai Patel & Ors. [2012(9)
Scale 671]
12.
The learned counsel
Kantawala
for the respondent no. 2 Shri Vivek
submitted that the Magistrate's
discretion and
jurisdiction shall relate to the prayers made in the complaint.
The Judicial Magistrate First Class could not have over stepped
the jurisdiction and post the complaint for verification of
complainant under section 200 of the Code on the next date.
The respondent no. 2 – original complainant before the Judicial
Magistrate First Class had prayed for the only relief in respect
of
directions
to
Bhayander
police
station
or
any
other
concerned police station under section 156(3) of the Code to
investigate the above crime. The Magistrate had not taken any
cognizance of the complaint and therefore there is no question
of the present petitioner being made party respondent to the
revision application before the Sessions Court.
In the
submissions of the counsel, the petitioner was not at all a
necessary party to the proceedings of the revision application.
It was further submitted that it is for the complainant to decide
as to whether he should pray for relief under section 156(3) of
the Code or
his application is to be treated as a regular
complaint. Section 200 of the Code does not provide a
particular format of the application of the petitioner to be filed
before the Magistrate under Section 156(3) of the Code. It is a
settled principle that the court could normally grant relief to
the party as per his prayer. The learned counsel referred to
Judgment of the Full Bench of Bombay High Court in the case of
Panchabhai
Popatbhai
Butani
&
Ors.
vs.
State
of
Maharashtra & Ors. [2010(1) Bom. C.R. (Cri.)1)]
Judicial Magistrate
We have perused the copy of complaint, the order passed by the
First Class on 8.8.2012, the impugned
13.
order dated 16.10.2012 passed by the Additional Sessions
Judge, Thane and other relevant documents. We have perused
the judgments cited supra.
Class
The handwritten order passed by the Judicial Magistrate First
is reflected on the first page of the complaint. The
14.
Magistrate under the order observed that the complainant's
documents filed on record were perused. The advocate for
complainant was heard. The Magistrate did not find it
necessary to invoke powers under section 156(3) of the Code,
hence the Magistrate directed putting up the matter for
verification of the complainant under section 200 of the Code
on the next date.
15.
The order clearly mentions that the Magistrate had declined to
grant relief to the respondent no. 2- complainant directing
investigation under section 156(3) of the Code. At the same
time, Judicial Magistrate First Class had posted the matter on
the next date for verification of the complainant. Considering
the scheme of provisions of section 156 and 200 of the Code
and the facts of the case, we are of the view that the powers on
the Magistrate while passing orders on a complaint cannot be
restricted to the prayer made in the complaint. The Magistrate
is entitled to exercise judicial discretion in consonance with the
contentions raised in the complaint and scheme of the Code and
the relevant provisions of law. Submissions that the Magistrate
in the present set of facts was not entitled to pass an order for
verification of the complainant under section 200 of the Code
16.
are not sustainable.
The core issue raised by the petitioner is in respect of non
joinder of the necessary party to the proceedings of criminal
revision application. It is settled principle that the cognizance
takes place at a point when a Magistrate first takes judicial
notice of offence. “Taking cognizance of “ means “cognizance of
an offence and not of the offender.” At the time when the
complaint was presented before the Magistrate, two options
were available (i) to pass order under section 156(3) of the
Code and (ii) to take recourse to procedure enunciated under
the provisions of Section 200 of the Code i.e. examination of
the complainant on oath and the witnesses present and proceed
further in accordance with the procedure prescribed under
section 200 of the Code. In the present case the Magistrate
after perusal of the record placed and applying mind reached
conclusion not to order for investigation under section 156(3) of
the Code but to resort to procedure prescribed under section
The Magistrate therefore has taken
200 of the Code.
cognizance while resorting to the procedure under section 200
of the Code. In the facts of the present case the present
petitioner – original respondent to the complaint was entitled to
be heard before the Sessions Court.
The learned counsel for the petitioner has referred to the
17.
judgment of the Apex Court in the case of Mona Panwar (cited
supra). The Supreme court has observed in paragraphs 18, 22
and 23 as under :
“18. When the complaint was presented before the
appellant, the appellant had mainly two options
available to her. One was to pass an order
as
contemplated by Section 156(3) of the Code and the
second
one
was
to
direct
examination
of
the
complainant upon oath and the witnesses present, if
any, as mentioned in Section 200 and proceed further
with the matter as provided by Section 202 of the
Code. An order made under sub-section (3) of Section
156 of the Code is in the nature of
a peremptory
reminder or intimation to the police to exercise its
plenary power of investigation under Section 156(1).
Such an investigation embraces the entire continuous
process which begins with the collection of evidence
under Section 156 and ends with the final report
either under Section 169 or submission of charge-
sheet under Section 173 of the Code. 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
warrant
for
production,
before
taking
issue
cognizance. If after cognizance has been taken and
the Magistrate wants any investigation, it will be
under Section 202 of the Code.
The
appellant
judicial
was
discretion
in
consonance
exercised
with
22.
by
the
the
scheme
postulated by the Code. There is no material on the
to
exercised
indicate
that
the
ig
record
judicial
discretion
by the appellant was either arbitrary or
perverse. There was no occasion for the learned
Single Judge
of the High Court to substitute the
judicial direction exercised by the appellant merely
because another view is possible. The appellant was
the responsible judicial officer on the spot and after
assessing the material
exercised
the
placed before her she had
judicial
discretion.
In
such
circumstances this Court is of the opinion that the
High Court had no occasion to interfere with
discretion exercised judiciously in terms of the
provisions of the Code.
23.
Normally, an order under Section 200 of the
Code for examination of
the complainant and his
witnesses would not be passed because it consumes
the valuable time of the Magistrate being vested in
inquiring into the matter which primarily is the duty
of the police to investigate. However, the practice
which
has
developed
over
the
years
is
that
examination of the complainant and his witnesses
under Section 200 of the Code would be directed by
only when a case is found to be a
the Magistrate
serious one and not as a matter of routine course. If
on a reading of a complaint the Magistrate finds that
the allegations therein disclose a cognizable offence
and forwarding of the complaint to the police for
investigation under Section 156(3) of the Code will
not be conducive to justice, he will be justified in
adopting the course suggested in Section 200 of the
The learned counsel for the petitioner has referred to the
18.
Code.”
judgment of the Apex Court in the case of Raghu Raj Singh
Rousha (cited supra). The Supreme Court has observed in
paragraphs 9 and 11 as under :
“9.
A person intending to set the criminal law in
motion inter alia may file
an application under
Section 156(3) of the Code. When a first information
report is lodged, a police officer has the requisite
jurisdiction
to
investigate
into
the
cognizable
offence in terms of Section 156(1) of the Code.
Where, however a Magistrate is entitled to take
cognizance of the offence under Section 190 of the
Code, he may also direct that such investigation be
carried out in terms thereof.
11.
One
of
consideration
the
is
questions
as
to
which
whether
arises
the
for
learned
Magistrate has taken cognizance of the offence.
Indisputably, if he had taken cognizance of the
offence and merely issuance of summons upon the
accused persons had been postponed, in a criminal
revision filed on behalf of the complainant, the
accused was entitled to be heard before the High
Court.”
19.
The learned counsel for the petitioner has referred to the
judgment of the Apex Court in the case of
Manharibai
Muljibhai Kakadia (cited supra). The Supreme Court has
observed in paragraphs 56, 57 and 58 as under :
“56 In Raghu Raj Singh Rousha, a two-Judge Bench
of this Court was faced with a question whether, in
the facts and circumstances of the case, the High
Court in exercise of its jurisdiction under Sections
397 and 401 of the Code was justified in passing an
order in the absence of the accused persons. That
was a case where a complaint was filed under
Section 200 of the Code in respect of offences
punishable under Sections 323, 382, 420, 465, 468,
471, 120-B, 506 and 34 of IPC. Along with the
complaint, an application under Section 156(3) was
also made. The Metropolitan Magistrate passed an
order refusing to direct investigation under Section
156(3) and the complainant was asked to lead pre-
summoning evidence. The complainant aggrieved by
the order of the Metropolitan Magistrate filed a
revision petition before the High Court. The High
Court with the consent of the APP appearing for the
State set aside the order of the Metropolitan
Magistrate with a direction to him to examine the
matter afresh after calling for a report from the
police authorities. It is from this order that the
matter reached this Court at the instance of the
suspect / accused. The Court observed that if the
Metropolitan Magistrate had taken cognizance of the
offence and issuance of summons upon the accused
persons had been merely postponed, in a criminal
revision filed on behalf of complainant, the accused
was entitled to be heard before the High Court.
Sections 397, 399 and 401 were noticed by this
Court and so also few earlier decisions including
Chandra Deo Singh, Vadilal Panchal, P. Sundarrajan
and then in paragraphs 22 and 23 (Pg. 369) of the
Report, the Court held as under:
Here,
22.
however,
the
learned
Magistrate had taken cognizance. He had
applied his mind. He refused to exercise
his jurisdiction under Section 156(3) of the
Code. He arrived at a conclusion that the
dispute is a private dispute in relation to
an immovable property and, thus,
police
investigation is not necessary. It was only
with that intent in view, he directed
examination of the
complainant and his
witnesses so as to initiate and complete the
procedure laid down under Chapter XV of
the Code.
23. We, therefore, are of the opinion that
the impugned
judgment
cannot
be
High Court shall implead the appellant as a
party in the criminal revision application,
the
matter
afresh
appropriate order.
57.
and
pass
an
hear
sustained and is set aside accordingly. The
In a comparatively recent order in A. N.
Santhanam, a two-Judge Bench of this Court was
concerned with a question, whether the High Court
committed an error in disposing of the criminal
revision petition filed by the complainant without any
suspect,
it
notice to the accused. On behalf of the accused /
was
argued
that
the
High
Court
committed the error in disposing of the criminal
revision without any notice to him. On the other
hand, on behalf of the complainant it was argued that
no notice as such was required to be issued to the
accused as it was at the stage of taking cognizance.
The Court considered Section 401, particularly, sub
section (2) thereof and held as under:
“A plain reading of Clause (2) of the said
provision makes it abundantly clear that the
High Court in exercise of its revisional power
cannot pass any order which may cause
prejudice to the accused or other persons
unless he has an opportunity of being heard
either personally or by pleader in his own
defence.
In the instant case it cannot be said that the
rights of the appellant have not been affected by the
order
of
revision.
The
complaint
filed
by
the
which
reasons has been
was
rejected
resurrected
for
whatsoever
with a direction to
respondent
the Magistrate to proceed with the complaint.
Undoubtedly, whether the appellant herein was an
accused or not but his right has been affected and
the impugned order has resulted in causing prejudice
to him.
In the circumstances, we are of the view that
the decision cited by the learned counsel for the
respondent has no application whatsoever to the
facts situation. In fact the decision of this Court was
in a case where the complaint was taken cognizance
and not a case where the complaint was rejected. In
the circumstances, we hold that the High Court
committed an error in allowing the revision filed by
the respondent herein without any notice to the
appellant.
For the aforesaid reasons, the impugned order
is set aside and the Criminal Revision Case No. 1045
of 2003 shall stand restored to its file for hearing and
disposal on merits after notice to the appellant
herein.
58.
We are in complete agreement with the view
expressed by this Court in P Sundarrajan, Raghu Raj
.
Singh Rousha and A. N. Santhanam. We hold, as it
must be, that in a revision petition preferred by
complainant before the High Court or the Sessions
Judge
challenging
an
order
of
the
Magistrate
dismissing the complaint under Section 203 of the
Code
at the stage under Section 200 or after
following the process contemplated under Section
202 of the Code, the accused or a person who is
suspected to have committed crime is entitled to
hearing by the revisional court. In other words,
where
complaint
has
been
dismissed
by
the
Magistrate under Section 203 of the Code, upon
challenge to the legality of the said order being laid
by the complainant in a revision petition before the
High Court or the Sessions Judge, the persons who
are arraigned as accused in the complaint have a
right to be heard in such revision petition. This is a
plain requirement of Section 401(2) of the Code. If
Magistrate
the revisional court overturns the order of the
dismissing
the
complaint
and
the
complaint is restored to the file of the Magistrate
and it is sent back for fresh consideration, the
persons who are alleged in the complaint to have
committed
crime
have,
however,
no
right
to
participate in the proceedings nor they are entitled
Magistrate until the consideration of the matter by
the Magistrate for issuance of process. We answer
the question accordingly. The judgments of the High
Courts to the contrary are overruled.”
to any hearing of any sort, whatsoever by the
20.
The learned counsel for the respondent no. 2 referred to the
Full Bench decision of the Bombay High Court in the case of
Panchabhai Popatbhai Butani (cited supra). The Court has
observed in paragraphs 35, 53, and 54 as under:
“35. From this discussion, it is clear the the order
is passed at a pre-cognizance
under section 156(3)
stage of a proceeding before the Court and is limited
to
the
extent
of
directing
an
investigation
in
accordance with law. Earlier, the settled principle of
law in Indian Courts was that the Magistrate while
exercising powers under
section 156(3) could only
direct investigation of a case and not registration of
F.I.R.
However,
with
the
development
an
and
ig
expansion of principles of criminal jurisprudence, this
has undergone a definite change. Now, for quite some
time the Supreme Court has taken a consistent view
that the Magistrate exercising his power under
section 156(3) can direct registration of an F.I.R and
his jurisdiction is not only limited to a direction to
investigate the offence.
53.
We have already noticed that the reference to
the provisions of section 190 in the provisions of
section 156(3) is merely to determine jurisdiction of
Magistrate to whom an application has to be made by
the aggrieved person or a complainant. It no way
controls the power of the Court to direct registration
and/or
investigation
as
contemplated
in
section
156(3). The proceedings under section 156(3) are pre-
cognizance.
Once
cognizance
is
taken
by
the
Magistrate under section 190 of the Code, he could
proceed in his discretion treating under section 200
of the Code of Criminal Procedure.
It is not the
legislative intent that in the complaint or application /
petition
under
section
156(3)
detailed
factual
allegations containing in detail the happening of
events from beginning to end should be made. It is
sufficient for the person to make averment of facts
disclosing cognizable offence further stating that the
police has failed to take action despite intimation
under section 154 of the Code of Criminal Procedure.
Unnecessary emphasis on the prayer cannot be laid.
However, it is a settled principle that the Court would
However, keeping
in view the principles of
54.
normally grant relief to a party as per its prayer.
criminal jurisprudence again no stringent format can
be provided or is necessary in relation to a prayer
clause. It is for the complainant or the aggrieved
person to decide whether he wishes to refer the
matter to investigation under section 156(3) of the
Code or whether his application is to be treated as a
regular complaint under section 200 of the Code. We
have no hesitation in holding that no particular format
of the application or petition to Magistrate under
section 156(3) is provided or is required to be made.
Suffice it for the complainant or aggrieved person to
bring it to the notice of the Court under section
156(3) that despite intimation to the police it has
failed to act and investigate a cognizable offence in
accordance with law or that in the fact situation of the
case it was necessary to directly approach the Court.
Once such a petition is presented, the learned
Magistrate is free to exercise appropriate jurisdiction
in accordance with law and at the request of
complainant but a petition cannot be rejected by the
proper
prayer
clause
insofar
as
it
discloses
Considering the
commission of a cognizance offence.”
21.
Court merely on the ground that it does not contain a
principles laid down aforesaid by the Apex
Court, we are of the opinion that the learned Sessions Judge
ought to have heard the petitioner – original respondent to the
complaint before passing the impugned order. The petitioner
ought to have been made a party to the proceedings of the
criminal revision application. Non joinder of the petitioner in
the revision application has resulted in causing prejudice to the
interest of the petitioner. It has deprived the petitioner from
right to be heard in a case where adverse order was passed
against the petitioner by the learned Sessions Judge.
22.
We hold that the Judicial Magistrate First Class had discretion
in the facts of the case either to resort to the procedure
enunciated under section 156(3) or
to the procedure
prescribed under section 200 of the Code. The powers of the
Magistrate are not curtailed by the prayers made in the
complaint while exercising judicial discretion. We do not find
any fault or error in the Magistrate resorting to the procedure
prescribed under Section 200 of the Code.
23.
The impugned judgment and order passed in Criminal Revision
No. 142 of 2012 on 16.10.2012 by the Ad-hoc District Judge –
3 and Addl. Sessions Judge, Thane, is quashed and set aside.
The case is remanded back to the Court of Sessions Judge,
Thane. The petitioner shall be added as party respondent to the
criminal revision no. 142 of 2012. We direct the Additional
Sessions Judge, Thane to decide criminal revision application
no. 142 of 2012 on its own merits after hearing the parties
ig
including the present petitioner Shyamsunder Radheshyam
Agarwal. It is clarified that we have not expressed any opinion
on the merits of the complaint.
Rule made absolute.
24.
(NARESH H. PATIL, J.)
(A. R. JOSHI, J.)
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