INTRODUCTION :
Name of the case : Shivaji S/O Vithalrao Bhikane v Chandrasen S/O Jagdevrao
Court : Bombay High Court
Bench : J. V Kingaonkar
Date of judgment : 11 March, 2008
Through this petition, the petitioner contests the decision made in Criminal Revision Petition No. 8 of 2006 by an Additional Sessions Judge, Udgir Camp in Ahmedpur, on June 22, 2006.
FACTS AND CONTENTIONS BY BOTH THE PARTIES :
The petitioner claimed that the original defendants Nos. 1 to 3 mentioned in the complaint case had broken his water pipeline for the residential hostel and Ashram Shala, which he claimed was an act of mischief. He serves as the head of the educational organization that manages the Ashram Shala, which houses 725 students. By disconnecting the water pipeline, the initial accused Nos. 1 to 3 allegedly caused an unauthorized loss of Rs. 3000. His complaint led to a police investigation, which was conducted.
The complainant petitioner claims that the two police officers (original accused Nos. 4 and 5) manipulated a false report to the Court of Judicial Magistrate, seeking “C” summary on the basis of a fabricated additional statement ostensibly made by him, when there was sufficient information available to file a chargesheet against the original accused Nos. 1 to 3. He claimed that he never stated further that the case had been resolved outside of court and that he did not want to prosecute the original defendants Nos. 1 to 3.
He claimed that his supposedly additional statement, dated July 18, 2005, was a fake document. Therefore, he filed a complaint with the top police officials. The case was consequently reopened at the direction of the superior police officer, Superintendent of Police, Latur, and a charge sheet was filed against the accused Nos. 1 to 3. He then filed a complaint (M.A. No. 9/2006) alleging that the two police officers (originally accused Nos. 4 and 5) and the original accused Nos. 1 to 3 had prepared a false record regarding the additional statement in an effort to deceive him.
Upon receiving the private complaint application (M.A. No. 9/2006), the learned Judicial Magistrate (First Class) of Ahmedpur directed an investigation under Section 156(3) of the Criminal Procedure Code. The original accused Nos. 4 and 5 (respondents Nos. 1 and 2 herein) challenged the learned Judicial Magistrate’s order before the learned Additional Sessions Judge, Udgir at Ahmedpur. By the impugned order, the learned Additional Sessions Judge quashed the directive to investigate the complaint case and overturned the judgment made by the learned Judicial Magistrate (First Class).
At the outset, it is significant to note that the police authorities’ investigation revealed that the applicant’s allegations regarding the absence of any additional police statement regarding settlement outside of Court and his unwillingness to move forward with the criminal complaint for offense of mischief against the original accused Nos. 1 to 3 had at least some element of truth.
Because a false police report was submitted claiming that the applicant was properly informed about the submission of the final report seeking “C” summary from the Court of Judicial Magistrate, the learned Judicial Magistrate (First Class) granted “C” summary without providing notice to the applicant/complainant.
Therefore, it appears that there was a false report that the applicant had been informed about filing the final report and requesting the Court’s “C” summary. Second, despite the fact that he had not provided any further testimony to support his decision to drop the charges against the original accusers Nos. 1 through 3, a fictitious statement was allegedly prepared and purportedly provided by him.
The applicant claimed that the police authorities, represented by respondents Nos. 1 and 2, worked closely with the original accused Nos. 1 to 3 and that all of them created false records in an effort to thwart the criminal mischief prosecution. The learned Judicial Magistrate ordered that an investigation report pursuant to Section 156(3) of the Criminal Procedure be submitted after due inquiry through the Superintendent of Police, Latur, as the complaint application (M.A. No. 9/2006) disclosed cognizable offenses.
It was requested that a competent person be appointed to conduct the investigation by the Superintendent of Police in Latur. The learned Additional Sessions Judge held that the order was passed by the learned Judicial Magistrate without taking any verified statements from the complainant while overturning the said order in the revisional jurisdiction.
The learned Additional Sessions Judge further concluded that because a mysterious order had been passed, interference was required. The arguments put forth for the criminal revision application’s decision suggest that the learned Additional Sessions Judge did not fully understand the scope of the revisional jurisdiction.
It is well established that any discretionary order may only be interfered with in the exercise of revisional jurisdiction when discretion has been exercised arbitrarily, perversely, or demonstrably incorrectly. The tenor of points No. 1 and 2 indicates that the learned Additional Sessions Judge misformulated the proper points.
ISSUES RAISED :
(i) Does the current revision petition have any merit?
(ii) Has the R.P. presented any grounds, much less reasonable grounds, to object to the aforementioned cryptic order?
(iii) Is the contested order appropriate, correct, and justified under law?
This is an illustration of how the Revisional Court went beyond the bounds of its legal authority as provided by Section 397 of the Criminal Procedure Code. The learned Additional Sessions Judge gave the learned Magistrate the order to conduct a “discreet preliminary inquiry” into “those allegations of the complainant in the complaint”.
He further instructed the learned Magistrate to “call upon the complainant to produce all material, oral, and documentary evidence”. He added that it would be up to the complainant to show that one of his two signatures is fake by showing the handwriting expert both the allegedly faked signatures and the admitted signatures.
These instructions, which are listed in paragraph 25 of the challenged judgement, demonstrate that the revisional Court does not understand and appreciate the provisions of Criminal Procedure Code Section 156(3).
JUDGMENT :
First off, even though the order was cryptic, the learned Magistrate was within his or her rights to exercise them in accordance with Section 156(3) of the Criminal Procedure Code, so the revisional Court’s criticism of the learned Magistrate’s brevity was unjustified.
Second, it is completely inappropriate and illegal for the learned Additional Sessions Judge to expect the learned Magistrate to have recorded the complainant’s verified statement. It is well established that the exercise of powers under Section 156(3) of the Criminal Procedure Code is unlawful once the learned Magistrate has read the complaint with the intention of applying his judicial mind and has begun to record the verified statement of the complainant.
Because investigating the claims in the complaint and taking the verified statement into consideration would be considered “taking of cognizance” on their own. It goes without saying that once the judicial mind is applied to the facts alleged in a complaint, cognizance is “taken” and no specific order is required for that purpose.
Evidently, the learned Judicial Magistrate was within his rights when he issued the cryptic order referring the case for investigation pursuant to Section 156(3) of the Criminal Procedure Code without obtaining the complainant’s verification. On the other hand, criminal law does not recognise the learned Additional Sessions Judge’s directive to conduct a “discreet preliminary inquiry.” It goes without saying that the challenged order of the learned Additional Sessions Judge is perverse and contrary to established legal principles and must be overturned.
Before concluding this discussion, it should be noted that superior Courts should generally take their time interfering with the discretionary decisions made by trial courts. There is no evidence to support the contention that the learned Magistrate’s contested order was a reasonable use of his discretion. The learned Additional Sessions Judge also concluded that there was absolutely no evidence to back up the contested order.
The learned Additional Sessions Judge’s instructions to send the complainant’s signatures to a handwriting expert and his remarks that the complainant would have to establish that his signature was forged were uncalled for. When there is material that seems to prima facie indicate that a cognizable offense has been committed, it is typically up to the investigating agency to decide whether to look into the allegations in a complaint case.
CONCLUSION :
The Criminal Procedure Code’s Section 156(3) orders merely direct that an alleged cognizable offense be looked into. Normally, the accused should not be permitted to argue that the allegation of a cognizable offense should not even be investigated before the revisional or the High Court.
Therefore, interference with a magistrate’s order by superior courts under Section 156(3) should ordinarily only occur in very exceptional circumstances. According to this interpretation of the situation, the contested order is likely to be annulled because it is invalid and outside the Court of Sessions’s scope of available revisional jurisdiction.
The writ petition is approved as a result. The contested decision made by the knowledgeable Additional Sessions Judge is overturned, and the knowledgeable Judicial Magistrate’s decision is reinstated. It is made clear, though, that the investigating agency may submit a final report without presenting a charge sheet or with other information gathered. No charges. Within two (2) weeks, the Registrar (Judicial) must distribute copies of this judgment to all Sessions Courts with revisional jurisdiction.
Written by – RIMI AGARWAL, COLLAGE NAME : MANIPAL UNIVERSITY JAIPUR , SEMESTER : 2ND
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