Shivaji Vithalrao Bhikane v. Chandrasen Jagdevrao, AIR 2008

Shivaji S/O Vithalrao Bhikane vs Chandrasen S/O Jagdevrao … on 11 March, 2008

Bench: V Kingaonkar

FACTS

 The petitioner claimed that the original defendants Nos. 1 to 3 stated in the complaint case had broken his water pipeline for the residential hostel and Ashram Shala, which he said was an act of mischief. He serves as the head of the educational organisation that manages the Ashram Shala, which houses 725 students. By disconnecting the water pipeline, the initial accused Nos. 1 to 3 allegedly created an unauthorised loss of Rs. 3000. The police conducted an investigation as a result of his allegation. 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 said that he never stated further that the case had been resolved outside of court and that he did not want to prosecute the initial defendants Nos. 1 to 3. He said that his supposedly further 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 chargesheet was filed against the accused Nos. 1 to 3. He then filed a complaint (M.A. No. 9/2006) stating that the two police officers (original accused Nos. 4 and 5) and the original accused Nos. 1 to 3 had made a fraudulent record about the extra 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. In the contested order, the learned Additional Sessions Judge nullified the learned Judicial Magistrate (First Class)’s decision and overturned the directive to look into the complaint matter.

It is significant to note that at the threshold, a police investigation found that the applicant’s allegations regarding the lack of a second police statement regarding a settlement outside of court and his unwillingness to move forward had some element of truth.

The applicant claimed that the original accused Nos. 1 to 3 and the police authorities, i.e., respondents Nos. 1 and 2, worked together to fabricate records in order to thwart the criminal mischief prosecution. The learned Judicial Magistrate ordered that an investigative report pursuant to Section 156(3) of the Criminal Procedure be produced after proper inquiry through the Superintendent of Police, Latur, as the complaint application (M.A. No. 9/2006) indicated cognizable offences. It was requested that a competent individual be appointed to conduct the inquiry by the Superintendent of Police in Latur. The stated order was reversed by the learned Additional Sessions Judge, who claimed that the learned Judicial Magistrate had made the decision without receiving any confirmed testimony from the complainant.The learned Additional Sessions Judge further concluded that because a cryptic order had been given, interference was required. The arguments put out for the criminal revision application’s result suggest that the learned Additional Sessions Judge did not fully understand the scope of the revisional authority. 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

(i)Whether there is any merit in the present revision petition ?

(ii) Whether the R.P., have brought any ground much less reasonable ground, to interfere into the Said cryptic order ?

(iii) Whether the impugned order is legal apt, correct and justified ?

JUDGEMENT

The limits of the jurisdiction granted by Section 397 of the Criminal Procedure Code were violated by the revisional Court. The learned Additional Sessions Judge gave the learned Magistrate instructions to conduct a “discreet preliminary inquiry” into “those allegations of the complainant in the complaint.” The learned Magistrate was further instructed 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 ruling, demonstrate that the revisional Court does not understand and appreciate the provisions of Section 156(3) of the CrPC.

The  learned Magistrate is not bound to pass any elaborate order while exercising the powers under Section 156(3) of the Criminal Procedure Code and,therefore, the criticism of the revisional Court regarding the brevity of the order of the learned Magistrate is unwarranted. Secondly, the expectation of the learned Additional Sessions Judge that the learned Magistrate ought to have recorded verified statement of the complainant is quite improper and illegal. It is well settled that once the learned Magistrate would peruse the complaint with a view to apply his judicial mind and would proceed to record the verified statement of the complainant, the exercise of powers under Section 156(3) of the Criminal Procedure Code is impermissible. For, looking into the allegations in the complaint and consideration of the verified statement by itself would amount to “taking of congnizance”. It is needless to say that once judicial mind is applied to the facts alleged in a complaint, the cognizance is “taken” and for that purpose, no specific order is necessary. Obviously, it was proper on part of the learned Judicial Magistrate to pass the cryptic order of making reference for investigation under Section 156(3) of the Criminal Procedure Code without recording verification of the complainant. Conversely, direction of the learned Additional Sessions Judge to hold “discreet preliminary inquiry” is unknown to Criminal Jurisprudence. Needless to say, the impugned order of the learned Additional Sessions Judge is perverse and against the settled principles of law and, hence, requires to be quashed.

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 ruling. 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 faked were uncalled for. The decision to look into the claims in a complaint case when there is prima facie evidence of the occurrence of a cognizable offence is typically left up to the investigating agency.

CONCLUSION

The claim that the learned Magistrate used his discretion reasonably in issuing the disputed order is unsupported by any evidence. The knowledgeable Additional Sessions Judge also came to the conclusion that there was zero evidence to support the disputed decision. It was inappropriate for the learned Additional Sessions Judge to direct the complainant to transmit his autographs to a handwriting expert and to state that he would have to prove that his signature was forged. When there is prima facie evidence of the commission of a cognizable criminal, it is normally up to the investigating body to decide whether to inquire into the allegations in a complaint case.

This article is written by Areeba Ahad of Vitasta School Of Law, an intern under Legal Vidhiya

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