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
expected
have been made out or not.
of
the
learned
The least that is
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
hardships,
criminal
element
humiliation,
causes
great
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.”
Further more, the grievance as sought to be
6)
made in the complaints filed by the non-applicant no.2
before the learned Magistrate is a matter, which falls
within the purview of the provisions of the Maharashtra
Cooperative Societies Act, 1960.
It need not be said
that the Maharashtra Cooperative Societies Act, 1960
is a complete Code in itself and the remedies are
available to the non-applicant no.2 under the said Act
to agitate his grievance, if any.
The filing of the
criminal complaints is nothing but an abuse of process
of law and, therefore, they have to be quashed. The
impugned orders passed by the learned Magistrate are
not only without application of mind, but also illegal
and unsustainable in law.
Consequential registration
of first information reports is also unsustainable in law
and they also have to be quashed.
NAGPUR BENCH : NAGPUR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(I) CRIMINAL APPLICATION NO.80 OF 2013
Yashapal Nathuram Janwani,
- Versus -
1) State of Maharashtra,
CORAM : B.R. GAVAI AND
Z.A. HAQ, JJ.
DATED : SEPTEMBER 3, 2013
Heard Shri Mohta, learned Counsel for the
applicants,
Shri
Nayak,
learned
Additional
Public
Prosecutor for non-applicant no.1 and Shri Amale,
learned Counsel for non-applicant no.2.
Rule.
The
rule is made returnable forthwith.
2)
This is a bunch of applications filed under
Section 482 of the Code of Criminal Procedure praying
for quashing and setting aside the orders dated
8/1/2013 passed by the Judicial Magistrate, First Class,
Nandura
directing
non-applicant
no.1
to
conduct
investigation under Section 156(3) of the Code of
Criminal Procedure and to file charge-sheet or final
ig
report after investigation. The applicants have also
which
prayed for quashing first information reports,
are registered consequent to the impugned orders
passed by the learned Magistrate.
The applicants are Directors of the Nandura
Sindhu Urban
3)
Cooperative
Credit
Society
Ltd.,
Nandura (hereinafter referred to as “the Society”),
which
is registered
under the provisions
of the
Maharashtra Cooperative Societies Act, 1960.
The
non-applicant no.2, who is a borrower of the Society
and
in
whose
favour
loan
of
Rs.5,00,000/-
was
sanctioned and an amount of Rs.13,07,000/- is due
against him,
filed criminal complaints before the
learned Magistrate and applied under Section 156(3) of
Code of Criminal Procedure praying for issuance of
directions for registering first information reports for
the offences punishable under Sections 406, 409, 415,
417, 418, 420, 425, 427, 463, 464, 468, 471, 499, 500
and 511 and 120-B read with Section 34 of Indian
Penal Code. On receiving the complaints, the learned
Magistrate by orders dated 8/1/2013 relying on the
judgment of the Apex Court
others
vs.
and
M/s.
in Srinivas Gundluri
SPECO
Electric
Power
Construction Corporation and others (2010 Cri.L.J.
4457) concluded that as per observations in the above
judgment,
if
the
complaint
discloses
referred
cognizable offence, it would be conducive to forward
the complaint to Police under Section 156 (3) of the
Code of Criminal Procedure for enquiring into the
matter. The learned Magistrate has observed that the
complaint on its face value discloses cognizable
offences punishable under Sections 468 and 471 read
with Section 34 of Indian Penal Code besides other
cognizable offences and the offences alleged are of
such nature that they require investigation by Police.
With the above observations, the learned Magistrate
forwarded
the
complaints
to
the
Police
Station,
Nandura for investigation under Section 156(3) of the
Code of Criminal Procedure and directed that charge-
4)
sheet or final report be filed after investigation.
On perusal of the complaints filed by the non-
no.2/complainant,
it
is
clear
that
the
applicant
non-applicant no.2 is alleging the illegalities committed
by the applicants in conduct of the business of the
Society. There is no averment in the complaints, which
contains the ingredients constituting offences alleged
to have been committed by the applicants.
5)
The Division Bench of this Court while dealing
with the issue regarding powers and duties of the
learned
Magistrate
while
giving
directions
under
Section 156(3) of the Code of Criminal Procedure, in
the judgment dated 2/7/2013 delivered in Criminal
Application No.258/2013 (State of Maharashtra
vs. Shashikant s/o Eknath Shinde) has laid down as
follows:
“46.
It may not be out of place to mention
that day in and day out we come across various
cases wherein the provisions of the Atrocities
are
misused.
We
ig
Act
find
that
complaints are filed immediately
various
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
and
without
verifying
as
156(3) of Cr.P.C. without recording any reasons
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
expected
have been made out or not.
of
the
learned
The least that is
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
hardships,
criminal
element
humiliation,
causes
great
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.”
Further more, the grievance as sought to be
6)
made in the complaints filed by the non-applicant no.2
before the learned Magistrate is a matter, which falls
within the purview of the provisions of the Maharashtra
Cooperative Societies Act, 1960.
It need not be said
that the Maharashtra Cooperative Societies Act, 1960
is a complete Code in itself and the remedies are
available to the non-applicant no.2 under the said Act
to agitate his grievance, if any.
The filing of the
criminal complaints is nothing but an abuse of process
of law and, therefore, they have to be quashed. The
impugned orders passed by the learned Magistrate are
not only without application of mind, but also illegal
and unsustainable in law.
Consequential registration
of first information reports is also unsustainable in law
and they also have to be quashed.
7)
In view of the above, the impugned orders
passed by the learned Magistrate are set aside and
consequential first information reports are quashed.
(A)
and
(1-A)
of
Criminal
Application
clauses
Accordingly, rule is made absolute in terms of prayer
Nos.80/2013, 81/2013, 82/2013, 83/2013 and 84/2013
and in terms of prayer clauses (A) and (B) of Criminal
Application No. 115/2013.
own costs.
The parties to bear their
JUDGE
JUDGE
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