In the light of discussion in foregoing
paragraphs inevitable conclusion is that, the Revision
before the Sessions Court,Osmanabad was not
maintainable against interlocutory order passed by the
Judicial Magistrate First Class, Tuljapur, and therefore, the
order passed by the Judge of the Sessions Court at
Osmanabad is without jurisdiction, hence same is quashed
and set aside,
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4660 OF 2014
Yogesh s/o. Vilas Dalavi
VERSUS
The State of Maharashtra
[Copy to be served on the Ld.P.P.
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
PRONOUNCED ON: 13th January, 2015
Citation; 2015ALLMR(CRI) 1097
This Criminal Application is filed under Section
482 of Criminal Procedure Code, praying therein for
quashing and setting aside the First Information Report [FIR
No.160/2014] dated 02.08.2014 registered at Police Station
Tuljapur and the order dated 11.07.2014 passed by the
learned Judge of the Sessions Court, Osmanabad in Criminal
Revision No.39/2013.
4]
It is the case of the applicants that, the
respondent No.2 [Original Complainant] filed Criminal
Complaint on 25.03.2013 under Section 120 (B), 147, 148,
149, 307, 324, 452, 504, 506 and 34 of Indian Penal Code in
the Court of Judicial Magistrate First Class, Tuljapur. The
Judicial Magistrate First Class, Tuljapur directed to register
the complaint as Miscellaneous Criminal Complaint and also
on 12.04.2013.
directed the complainant to remain present for verification
Being aggrieved by the order of Judicial
Magistrate First Class, Tuljapur, dated 25.03.2014, the
complainant filed Criminal Revision before the Sessions
Court at Osmanabad on 05.04.2013. The applicants filed
their say and resisted the said Revision Application.
The
Sessions Court at Osmanabad allowed the Criminal Revision
on 11.07.2014 and directed the Judicial Magistrate First
Class, Tuljapur to send the complaint to Tuljapur Police
Station for investigation under Section 156 (3) of Criminal
Procedure Code. Accordingly, on 02.08.2014, the FIR came
to be registered.
5]
The
learned
counsel
appearing
for
the
applicants submits that, Criminal Revision Application which
was filed by the respondent No.2, was not maintainable
inasmuch as said Revision was filed taking exception to the
Class.
interlocutory order passed by the Judicial Magistrate First
It is submitted that, even if the allegations in the
complaint are taken in its entirety, no offence is disclosed
against the applicants. The learned counsel appearing for
the applicants invited our attention to the grounds taken in
the application and submits that, application deserves to be
In support of contention that, Revision is not
allowed.
maintainable
against the
interlocutory
order,
learned
counsel pressed into service exposition of the Supreme
Court in the case of Smt.Mona Panwar Vs. Hon’ble High
of
Judicature
Court
at
Allahabad
through
its
Registrar & ors.1.
6]
On
the
other
hand,
the
learned
Counsel
appearing for the respondent No.2 submits that, the
Sessions Court had jurisdiction to entertain the Revision
since order passed by the Judicial Magistrate First Class,
Tuljapur was not legally sustainable.
7]
We have given careful consideration to the
submissions of the learned counsel appearing for the
applicants, learned Additional Public Prosecutor for the
1. 2011 Cri.L.J. 1619
Respondent - State and the learned counsel appearing for
respondent No.2, and also perused the grounds taken in the
application and annexure thereto. The present Application
raises following question of law for consideration and
determination of this Court:
Whether the learned Judge of the Sessions Court,
empowered
Osmanabad was
to
entertain the
Revision filed by the respondent No.2, challenging
the order passed by the Judicial Magistrate First
Class, Tuljapur, exercising discretion and directing
the complainant to remain present before the Court
for verification?
The provisions of Section 397 (2) of Code of
Criminal Procedure, 1973, reads thus:
397.
Calling for records to exercise
powers of revision. -
(1) .....
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to
any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.
It is not in dispute that, order passed by the
Judicial Magistrate First Class was in the nature of
interlocutory order for ascertaining whether there is prima
facie case. The Judicial Magistrate First Class, Tuljapur
entertained the complaint filed by the respondent No.2
herein and ordered to register said complaint in Misc.
Criminal Register and directed the respondent No.2 to
appear before the Court for verification on 12th April, 2013.
The provisions of Section 156 of Code of
Criminal Procedure Code, reads thus:
156. Police officer's power to investigate
cognizable case. -
(1) Any officer in charge of a police station may,
without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction
over the local area within the limits of such station
would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer
was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as above-
mentioned.
Upon careful perusal of the provisions of
Section 156 (3) of Criminal Procedure Code, it is abundantly
clear that, said provisions of the Code provides that, the
Magistrate empowered under Section 190 of the Code may
order such an investigation as mentioned in sub-section (1)
of said section or 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. In the present case,
register
the
the Magistrate has exercised his discretion and ordered to
Misc.
Criminal
Case
and
directed
the
respondent No.2 to remain present before the Court for
verification.
Passing of such order and exercise of
discretion by the Judicial Magistrate First Class, Tuljapur
was within his jurisdiction under the relevant provisions of
Criminal Procedure Code.
The order passed by the Judicial Magistrate First
Class was interlocutory in nature, and therefore, in view of
the provisions of Section 397 (2) of Criminal Procedure
Code,
Revision
against
interlocutory
order
was
not
maintainable before the Sessions Judge, Osmanabad. The
learned counsel appearing for the applicants is right in
placing reliance in the case of Smt.Mona Panwar [supra].
The
Hon’ble
Supreme
Court
while
interpreting
and
explaining the scope of the provisions of Section 156
vis-a-vis Section 190 and 200 of Criminal Procedure Code,
in para Nos. 9 and 10 of said Judgment, held thus :
9.
Section 156(1) of the Code authorizes the
police to investigate into a cognizable offence
without requiring any sanction from a judicial
of
the
authority. However, sub-section (3) of Section 156
Code
provides
that
any
Magistrate
empowered under Section 190 of the Code may
order such an investigation as mentioned in sub-
section (1) of the said Section. Section 190 of the
deals
Code
with
Magistrates and
cognizance
of
offences
by
inter alia provides that any
Magistrate of the First Class may take cognizance
of an offence (a) upon receiving a complaint of
facts which constitute such offence, (b) upon a
police report of such facts and (c) upon information
received from any person other than a police officer
or upon his own knowledge that such offence has
been committed. Neither Section 154 nor Section
156 of the Code contemplates any application to be
made to the police under Section 156(3) of the
Code. What is provided in Section 156(1) of the
Code is that any officer in charge of a police station
may, without the order of a Magistrate, investigate
any
cognizable
case
which
a
Court
having
jurisdiction over the local area within the limits of
such station would have power to inquire into or try
under the provisions of Chapter XIII. However, this
Court finds that in the present case it was alleged
by the Respondent No. 3 that she had filed
complaint before police but according to her, the
police officer in charge of the police station had
she
had
made
refused to register her complaint and, therefore,
application
to
the
Senior
Superintendent of Police as required by Section
154(3) of the Code, but of no avail. Therefore, the
Respondent No. 3 had approached the appellant,
who
was
then
discharging
duties
as
Judicial
Magistrate II, Court No. 14, Saharanpur. 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 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 issue warrant for production,
before taking cognizance. If after cognizance has
been
taken
and
the
Magistrate
wants
any
investigation, it will be under Section 202 of the
Code. The phrase "taking cognizance of" means
cognizance of offence and not of the offender.
Taking cognizance does not involve any formal
action or indeed action of any kind but occurs as
soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance,
therefore, takes place at a point when a Magistrate
first takes judicial notice of an offence. This is the
position whether the Magistrate takes cognizance
of an offence on a complaint or on a police report or
upon information of a person other than a police
officer. Before the Magistrate can be said to have
taken cognizance of an offence under Section
190(1)(b) of the Code, he must have not only
applied his mind to the contents of the complaint
presented before him, but must have done so for
the purpose of proceeding under Section 200 and
the provisions following that Section. However,
when the Magistrate had applied his mind only for
ordering an investigation under Section 156(3) of
the Code or issued a warrant for the purposes of
investigation, he cannot be said to have taken
cognizance of an offence. Taking cognizance is a
different thing from initiation of the proceedings.
One of the objects of examination of complainant
and his witnesses as mentioned in Section 200 of
the Code is to ascertain whether there is prima
facie case against the person accused of the
offence in the complaint and to prevent the issue of
process on a complaint which is either false or
vexatious or intended only to harass such person.
Such examination is provided, therefore, to find out
whether there is or not sufficient ground for
proceeding further.
10.
From the order dated August 1, 2009, passed
by the appellant, it is evident that the appellant had
called for report from the concerned police station
and considered the said report wherein it was inter
alia mentioned that no case was registered on the
basis of the application made by the Respondent
No. 3. The respondent No. 3 at the time of filing
complaint before the Appellant had filed her own
affidavit, carbon copy of the application sent by her
to the Senior Superintendent of Police, Saharanpur
with its postal registration and photocopy of the
medical certificate. Under the circumstances the
appellant had exercised judicial discretion available
to a Magistrate and directed that the application,
which was submitted by the respondent No. 3
under Section 156(3) of the Code, be registered as
complaint and directed the Registry to present the
said complaint before her on August 28, 2009 for
recording the statement of the respondent No. 3
under Section 200 of the Code. The judicial
discretion exercised by the appellant was in
consonance with the scheme postulated by the
Code. There is no material on the record to indicate
that
the
judicial
discretion
exercised
by
the
Appellant was either arbitrary or perverse. There
was no occasion for the learned Single Judge of
High Court to substitute the judicial discretion
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 placed before him he had exercised the
judicial discretion. In such circumstances this Court
is of the opinion that the High Court had no
occasion to interfere with the discretion exercised
judiciously in terms of the provisions of Code.
Normally, an order under Section 200 of the Code
for
examination
witnesses
would
of
the
not
complainant
be
passed
and
because
his
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 the Magistrate only when a case is
found to be 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 Code. Here, in this
case the respondent No. 3 had averred in the
application submitted before the appellant that the
Officer-in-charge of the Nakur Police Station had
refused to register her complaint against her father-
in-law regarding alleged rape committed on her and
that
no
action
was
taken
by
the
Senior
Superintendent of Police though necessary facts
were
brought
to
his
notice.
Under
the
circumstances, the judicial discretion exercised by
the appellant, to proceed under Section 200 of the
Code in the light of principles of law laid down by
the Allahabad High Court in various reported
decisions could not have been faulted with nor the
Appellant could have been subjected to severe
criticism as was done by the learned Single Judge.
There was no occasion for the learned Single Judge
to observe that the Appellant, a Judicial Magistrate,
had done the gravest injustice to the victim or that
though the Appellant is a lady Magistrate, yet she
did not think about the outcome of ravishing the
chastity of daughter-in-law by her father-in-law or
the seriousness of the crime committed by the
accused and the reason assigned by the learned
Magistrate in not directing the police to register the
FIR indicated total non-application of mind by the
Appellant and that the order dated August 1, 2009,
passed by the Appellant, was a blemish on the
justice system. The learned Single Judge was not
justified in concluding that the Appellant as Judicial
Magistrate had passed the order dated August 1,
2009 ignoring all judicial disciplines or that the
Appellant had not at all applied her judicial mind
and had only referred to some of the judgments of
the Allahabad High Court, which were contrary to
the opinion of the Apex Court rendered in many
decisions. There was no reason for the learned
Single Judge of the High Court to record his serious
displeasure against the order of the appellant which
was challenged before him as an illegal order nor
the learned Single Judge was justified in severely
criticizing the conduct of the Appellant as Judicial
Magistrate because the application submitted by
the respondent N. 3 was ordered to be registered
as a complaint and was not dismissed.
[Underlines are supplied]
In
the
light
of
discussion
in
foregoing
8]
15
paragraphs inevitable conclusion is that, the Revision
before
the
Sessions
Court,
Osmanabad
was
not
maintainable against interlocutory order passed by the
Judicial Magistrate First Class, Tuljapur, and therefore, the
order passed by the Judge of the Sessions Court at
Osmanabad is without jurisdiction, hence same is quashed
and set aside, consequently First Information Report No.
160 of 2014 dated 02.08.2014 registered at Police Station,
Tuljapur stands quashed.
9]
Rule made absolute in terms of prayer clauses
‘C’ and ‘D’.
The Criminal Application stands disposed of
accordingly.
Sd/-
[A.M.BADAR, J.]
Sd/-
[S.S.SHINDE, J.]
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