CASE ANALYSIS OF MOHD. RAFIQUE VS STATE OF MAHARASHTRA AND ORS
| Case Name: | Mohd. Rafique and Ors vs State of Maharashtra |
| Equivalent Citation: | 2013 Bom CR (Cri) 251 : 2012 SCC OnLine Bom 1558 |
| Date of Judgement: | October 17, 2012 |
| Court: | High Court of Bombay |
| Case No. : | Criminal Writ Petition No. 231/2012 |
| Case Type: | Writ Petition (Criminal) |
| Petitioners: | Mohd. Rafique and Ors. |
| Respondent: | State of Maharashtra |
| Bench: | Single Judge Bench (Hon’ble Justice M.L. Tahaliyani) |
| Laws applied: | The Code of Criminal Procedure, 1973- Sections 156(3), 169 and 173 |
Facts of the case
The petitioners were accused of committing offences under the Unlawful Activities Prevention Act of 1967. During the investigation, they were arrested by the police. Later on, when the IO found no sufficient evidence against them, he submitted an application under Section 169 of the CrPC for the release of the petitioners. However, the magistrate rejected the application, and by exercising powers under Section 156(3), the CRPC directed IO to carry out further investigation. IO accordingly carried out further investigation. When he found nothing new, he again submitted an application under Section 169. This application was also rejected, and orders were passed by the magistrate directing the investigating officer to get sanction from the Central Government for taking cognizance against accused for offences under Sections 10 and 13 of the UAPA. The petitioners moved to the Additional Sessions Judge against this order. The session judge rejected the application and took the view that the magistrate was empowered to reject applications under Section 169 and can direct investigations of offences he can take cognizance of. Aggrieved by the order of the Additional Session Judge, the petitioners preferred to move this petition before the High Court.
Issues raised
Whether the magistrate has the power to reject an application submitted by the investigating authority under Section 169 of the CRPC?
Contention of the Petitioners
The main argument of the petitioners was that the magistrate did not have power to reject applications submitted by the police under Section 169 CRPC. Since there was no sufficient evidence, the police were not under obligation to file an application before a magistrate. The counsel further contended that even an intimation to the magistrate was not necessary. They further ascertained that the police were under the wrong impression that applications under Section 169 were supposed to be submitted before the magistrate. Lastly, they contended that the magistrate had overstepped his jurisdiction by rejecting the application.
Contention of the Respondents
The counsel for the respondent simply submitted that the respondent stands by the report submitted under Section 169 of the CRPC. They too believed that if IO felt that there was no sufficient evidence, he was at liberty to release the petitioner.
Judgement
The writ petition was allowed. Orders were passed by the bench setting aside the decisions passed by the learned judicial magistrate and the learned additional sessions judge dated February 15, 2010 and January 7, 2011, respectively.
Rationale
The judge observed that the learned judicial magistrate and learned additional session judge were under the impression that magistrates can exercise power under Section 169. However, the courts failed to understand that a report under Section 169 is different from a report under Section 173.
The court held that there was no necessity to submit a report to the magistrate under Section 169.
The court relied on the case titled Abdul Razak Abdul Gani versus State of Maharashtra (2007)[1]. In this case, the Supreme Court observed that if the investigating officer finds no evidence against the accused, he has to simply release the accused under Section 169. The investigating officer is not supposed to apply to a magistrate under Section 169 for discharge. In the present case, the application of the police to the magistrate under Section 169 was misconceived. The code noted that magistrates do not come into play when police exercise power under Section 169.
Conclusion
It has been made clear by the court that if an IO doesn’t find any sufficient evidence against an accused, he has complete authority to file a report under section 169 and release the accused. Furthermore, its not obligatory on the part of the IO to intimate the magistrate about such decision. The magistrate can not reject a report under section 169 because the report under section 169 is different from report under section 173 and the role of the magistrate actually comes when it’s a report under section 173.
[1] Abdul Razak Abdul Gani Dunge v. State of Maharashtra, 2007 SCC OnLine Bom 1149
written by Charis Yadav intern under legal vidhiya
