Guidelines for exercise of power under 156(3) CrPC: Bombay HC 2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4775 OF 2014
1. Mr. Pandharinath Narayan Patil
Age 57 years, Occ: Service,
Indian Inhabitant, res. at
Room No.302, Arshana Building,
Sector 15, Kalamboli,
Navi Mumbai.
2. Mr. Sunil Balbhim Darekar
Age 40 yrs, Occ: Service,
Indian Inhabitant, res. at
KHI/18/203, Vastuvihar,
Sector 16, Kharghar,
Navi Mumbai.
3. Mr. Sanjay Shankar Lokhande,
Age 47 years, Occ: Service,
Indian Inhabitant, res. at
B Wing, 4/29, Yogendra Apartment,
Kate Manwali Naka,
Kolsewadi, Kalyan (East) ..Petitioners
v/s.
1. The State of Maharashtra
through Commissiioner of Police,
and DCP Navi Mumbai,
to be served through
Public Prosecutor,
High Court, Bombay.
2. Mr. Vinod Dipchandra Gangwal,
Age 40 yrs, Occ: Reporter/Advocate
R/at. 1/102, Hawre Splendour,
Sector No.20, Kharghar,
Navi Mumbai. ..Respondents
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Mr. A.H.Ponda, i/b/ Chate & Co. for the Petitioner.
Mr.Vinod Gangwal Respondent no.2 in person.
Mrs. M.M.Deshmukh, APP for the Respondent/State.
CORAM : RANJIT MORE &
SMT. ANUJA PRABHUDESSAI,JJ.
RESERVED ON: FEBRUARY 04, 2015.
JUDGMENT DATED : MARCH 30, 2015.

JUDGMENT (PER ANUJA PRABHUESSAI, J.):
1. Rule. Rule is made returnable forthwith. Heard finally with the consent
of the learned counsel for the petitioners, respondent no.2 and learned
APP.
2. The petitioners herein have invoked the jurisdiction of this court under
Article 226 of the Constitution of India and Section 482 of Cr.P.C. to
quash the FIR No.22 of 2014 registered against them at Kharghar
Police Station under Section 367, 467, 468, 195, 406, 506, 420 and
383 of IPC.
3. The petitioner nos. 1, 2 and 3 are attached to Kharghar Police Station
as Senior Police Inspector, Police Inspector, and Assistant Police
Inspector respectively. Pursuant to the order dated 2.12.2014 passed
by the learned Magistrate, 2nd Court, Panvel, on an application filed by
the respondent no.2 purported to be under Section 156(3) of Cr.P.C.,
Crime No.22 of 2014 has been registered against the aforesaid
petitioners for offences as stated above. The petitioners have stated
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that the Magistrate has passed the impugned order on a copy of the
letter addressed to various authorities, without there being any
complaint filed before the court and without verifying the veracity or
the credibility of the allegations. The petitioners have further stated
that the application filed by the respondent no.2 contains vague
allegations and does not disclose any cognizable offence.
4. The respondent no.2 has filed affidavit-in-reply as well as additionalaffidavit-in-reply,
wherein he has reiterated the allegations made by
him in the application purported to be under Section 156 (3) OF Cr.P.C.
The respondent no.2 has denied that the petitioners are public officers
and has claimed that the petitioners have acted in contravention of the
provisions of law and guidelines laid down by the Apex Court and the
High Court and that they are involved in several crimes such a
cheating, forgery, criminal intimidation etc.
5. Heard Mr. Ponda, learned Counsel for the petitioners and the
respondent no.2 in person. Shri Ponda, learned Counsel for the
petitioners has urged that the respondent no.2 had not filed any
complaint or application under Section 156(3) before the Magistrate.
He had merely forwarded a copy of the complaint, addressed to the
President of India and other Authorities and had called upon the
Magistrate to treat the same as an application under Section 156(3) of
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Cr.P.C. Learned Counsel Mr.Ponda has further submitted that the
learned Magistrate has not verified the authenticity of the complaint
and has ordered registration of the FIR without verifying whether the
same discloses any cognizable offence. He has submitted that the
impugned order reflects total non-application of mind.
6. Relying upon the judgment of the Apex Court in the case of Rizwan
Ahmed Javed Shaikh vs. Jamal Patel (2001) 5 SCC 7, Learned
Counsel for the petitioners has submitted that the petitioners are
public servants and that the FIR registered against the petitioners
relates to the acts committed by the petitioners while acting in the
discharge of their official duties. Learned Counsel for the petitioners
has submitted that in the light of judgment of the Apex Court in Anil
Kumar vs. M.K.Aiyappa (2013) 10 SCC 705, the Magistrate could
not have passed an order under Section 156(3) of Cr.P.C. without a
valid sanction by the appropriate authority. He has also relied upon
the judgments of the Apex Court in Matajog Dubey vs.
H.C.Bhandari AIR 1956 SC 44, Nandram Agarwal vs. S.C.Bihari
AIR (SC)-1956-054, Omprakash & Ors. Vs. State of Jharkhand
(2012) 12 SCC 72, Sankaran Moitra vs. Sadha Das (2006) 4
SCC 584.
7. The respondent no.2, has urged that the petitioners are not public
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servants and hence the bar under Section 197 is not applicable. In
support of this contention, he has relied upon the decisions of the Apex
Court in Fakhruzamma vs. State of Jharkhand [2013 (15) Scale
159], and Nagraj vs. State of Mysore AIR 1964 SC 269. He has
further submitted that the petitioners had refused to record the
complaint lodged by the mother of a rape victim and had further
threatened her not to lodge a complaint. He has alleged that the
complainant/mother of the rape victim was being questioned by male
officers instead of a woman police officer as required under the proviso
to Section 154(1) of the Code.
8. The respondent no.2 has further submitted that the petitioners had
obtained the signature of Tarabai, the mother-in-law of the
complainant, on a blank paper and on the basis which they fabricated
a false complaint and implicated and arrested him in the said false
case. The respondent no.2 claims that Tarabai does not know the
contents of the said FIR and this is evident from her audio-recorded
statement. The respondent no.2 has submitted that the petitioners
have misused their powers, kidnapped and arrested him and his friend
Prakash Bohra and had further failed to inform his family or friends
about his arrest.
9. He has submitted that the petitioners had not submitted the FIR
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before the Magistrate within the stipulated time and had altered the
date of submission of FIR from 27.11.2014 to 24.11.2014. The
respondent no.2 has submitted that the petitioners are involved in
committing serious crimes. The acts committed by the petitioners
were not in discharge of their official duty and as such, the bar of
section 197 Cr.P.C. is not applicable. He has relied upon the following
decisions: (1) Shambhunath Mishra vs. State of U.P. (1997)2
SCR-19-1139; (2) Ramanlal vs. State of Rajasthan 2001 Cri.L.J.
800; (3) Choudhury Parveen Sultana vs. State of West Bengal
(2009) 3 SCC 398; (4) Pukhraj vs. State of Rajasthan AIR 1973
SC 2591; (5) Bhagwan Prasad Shrivastav vs. M.P.Mishra AIR
1970 SC 1661; (6) Prabhakar V Sinari vs. Shankar Anant
Verlekar AIR 1969 SC 686; (7) State of Tamil Nadu vs.
Thirukkural Perumal (1995) 2 SCC 449.
10. We have perused the records and considered the arguments
advanced by the learned Counsel for the petitioner and the respondent
no.2 in person.
11. At the outset, it is to be noted that Section 156(3) of the Code, which
operates at pre-cognizance stage confers powers on Magistrate, who is
empowered to take cognizance of offence under section 190, to order
investigation into any cognizable case. In the case of Panchabhai
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Popotbhai Bhutani & ors. vs State of Maharashtra [2010 ALL
MR (Cri.) 244] the full bench of this court has held that “ A Petition
under Section 156(3) cannot be strictly construed as a complaint
in terms of Section 2(d) of the Code and absence of a specific or
improperly worded prayer or lack of complete and definite details
would not prove fatal to a petition under Section 156(3), in so far
as it states facts constituting ingredients of a cognizable offence.
Such petition would be maintainable before the Magistrate.”
12. It is thus well settled that the law neither prescribes any particular
format for application under section 156 (3) Cr.P.C. nor contemplates
verbatim reproduction of the factual allegations or all the ingredients of
the alleged offence. Nevertheless, it is imperative that the application
under section 156 (3) Cr.P.C should contain facts disclosing cognizable
offence and further that the police has failed to exercise powers under
section 154 Cr.P.C despite intimation, whereupon the magistrate in
exercise of powers conferred under Section 156(3) Cr.P.C. can order
investigation of the crime.
13. In the case of Anil Kumar Yadav (supra) the Apex court while examining
whether the Magistrate exercising powers under Section 156(3)
Cr.P.C., could act in a mechanical or casual manner, has held thus:
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“The scope of the above mentioned provision came up for
consideration before this Court in several cases. This Court
in Maksud Saiyed case (supra) examined the requirement of
the application of mind by the Magistrate before exercising
jurisdiction under Section 156(3) and held that where a
jurisdiction is exercised on a complaint filed in terms of
Section 156(3) or Section 200 Cr.P.C., the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section
156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate should be
reflected in the order. The mere statement that he has gone
through the complaint, documents and heard the
complainant, as such, as reflected in the order, will not be
sufficient. After going through the complaint, documents and
hearing the complainant, what weighed with the Magistrate
to order investigation under Section 156(3) Cr.P.C., should
be reflected in the order, though a detailed expression of his
views is neither required nor warranted.”
14. In a more recent case of Priyanka Srivastava & anr vs. State of
U.P (CRIMINAL APPEAL NO.781 OF 2012) the Apex Court after
considering its previous pronouncements has held that :
“24. Regard being had to the aforesaid enunciation of law, it
needs to be reiterated that the learned Magistrate has to remain
vigilant with regard to the allegations made and the nature
of allegations and not to issue directions without proper
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application of mind. He has also to bear in mind that sending
the matter would be conducive to justice and then he may
pass the requisite order.
25 … … …
26. At this stage it is seemly to state that power under Section
156(3) warrants application of judicial mind. A court of
law is involved. It is not the police taking steps at the stage of
Section 154 of the code. A litigant at his own whim cannot invoke
the authority of the Magistrate. A principled and really
grieved citizen with clean hands must have free access to invoke
the said power. It protects the citizens but when pervert
litigations takes this route to harass their fellows citizens, efforts
are to be made to scuttle and curb the same. In our considered
opinion, a stage has come in this country where Section
156(3) Cr.P.C. applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation
of the jurisdiction of the Magistrate. That apart, in an appropriate
case, the learned Magistrate would be well advised to
verify the truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible.
We are compelled to say so as such kind of applications are
being filed in a routine manner without taking any responsibility
whatsoever only to harass certain persons. That apart, it
becomes more disturbing and alarming when one tries to pick
up people who are passing orders under a statutory provision
which can be challenged under the framework of said Act or
under Article 226 of the Constitution of India. But it cannot be
done to take undue advantage in a criminal court as if somepps
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body is determined to settle the scores. We have already indicated
that there has to be prior applications under Section
154(1) and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the application
and necessary documents to that effect shall be
filed. The warrant for giving a direction that an the application
under Section 156(3) be supported by an affidavit so that the
person making the application should be conscious and also
endeavour to see that no false affidavit is made. It is because
once an affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the veracity
of the same can also be verified by the learned Magistrate,
regard being had to the nature of allegations of the case. We
are compelled to say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases and
the cases where there is abnormal delay/laches in initiating
criminal prosecution, as are illustrated in Lalita Kumari are
being filed. That apart, the learned Magistrate would also be
aware of the delay in lodging of the FIR.”
15. It is thus well settled that the powers under section 156(3) of the
Code cannot be exercised mechanically but are required to be
exercised judiciously. The magistrate is not required to embark upon
an in-depth roving enquiry as to the reliability or genuineness of the
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allegations, nonetheless, he has to arrive at a conclusion that the
application discloses necessary ingredients of the offence for which
investigation is intended to be ordered. Furthermore, the reasons for
arriving at such conclusion should be clearly reflected in the order.
16. Reverting to the facts of the present case, it is not in dispute that
the respondent no.2, who is an advocate, had not filed any complaint
or an application under section 156 (3) Cr.P.C. He had addressed a
complaint to the various authorities, viz. the President of India, Chief
Justice of Supreme Court of India, Chief Justice of the Bombay High
Court, the Human Right Commission, Mumbai, Chief Secretary,
Maharashtra Government, Home Secretary, Maharashtra Government,
Director General of Police, District Magistrate, Alibag and Chief Judicial
Magistrate Panvel Court and Commissioner of Police, Navi Mumbai,
attributing certain acts, alleged to be offences, to the petitioners. The
respondent no.2 had forwarded a copy of the said complaint, which
was on his letterhead, to the magistrate, with a hand written note as –
“Treat this application under Section 156(3) and give direction to
register FIR against accused in the below sections, 367, 467, 468, 195,
504, 506, 420, 383. Since influential police persons are involved FIR
may be registered at Crime Branch, Mumbai or Navi Mumbai, or as
Hon’ble Court deems fit”. Below the said note, names of the alleged
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accused persons were given as “P.P.Patil, Darekar, Mr. Lokhande and 11
Ors.”
17. A bare look at the copy of the application reveals that the
respondent no.2, who is an advocate and is well versed with the legal
provisions and procedure, has invoked the judicial process in a most
casual manner. He had not filed any application before the Magistrate
but had forwarded a copy of a complaint on his letterhead, addressed
to several authorities and called upon the magistrate to act upon it. He
had not produced prior application made by him under section 154 (1)
and 154 (3) of Cr.P.C. Though the respondent no. 2 had alleged that
the petitioners had fabricated a false complaint against him and
tampered with the date of submission of the FIR, he had not produced
the copy of the said FIR or the documents which were allegedly
tampered with. Suffice it to say that the mere fact that the application
under section 156 (3) Cr.P.C does not require any specific format
certainly does not justify such casual approach.
18. The next question that arises is whether the application purported
to be under section 156 (3) Cr.P.C discloses any cognizable offence
warranting registration of the First Information Report against the
present petitioners, who are the police officers of the Kharghar Police
station.
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19. The grievance of the petitioner as voiced in the said application
was that on 23.11.2014, on receipt of information of rape of a three
years old child, he had visited Kharghar Police Station. He claims that
the mother of the rape victim who was at the police station with the
victim was being threatened by the petitioner no.3 not to lodge a complaint.
He had informed the petitioner no.3 that it was the primary
duty of the police to register the FIR and send the victim for medical
examination. He claims that in total violation of the guideline of the
Supreme Court and the High Court, the mother of the victim was being
questioned by a male officer instead of only a lady officer and that he
has recorded such questioning on his mobile phone. He subsequently
made calls to his journalist friends to inform them about the incident
and asked the officer to register a complaint against the petitioners
herein. Since no action was taken, he mailed a complaint to the
Commissioner of Police, but got no response.
20. The respondent no.2 has further alleged that thereafter the
petitioner no.2 came rushing towards him and stated that such
evidence would put all the officers in trouble and told him that he had
been arrested. He has stated that in total misuse of power, the
petitioners arrested and kidnapped him and his friend. He has alleged
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that the petitioners had not informed him of his legal rights and had
not informed his family or friends about his arrest.
21. The respondent no.2 has further stated that the petitioners had
obtained the signature of Tarabai, the mother-in-law of the
complainant on a blank paper, which was subsequently used by the
police to fabricate a false complaint. Based on the said false and
fabricated complaint crime No.346 of 2014 was registered against him
and his friend. He claims that initially the crime was registered for
offences under Section 353, 354, r/w. 34 of IPC however, at the time
of remand sections 504 and 506 IPC were added. The respondent no.2
alleged that the mother-in-law of the complainant does not know the
contents of the complaint and that he has audio as well as video proof
of the same.
22. He has further stated that it was mandatory to forward the FIR to the
court within 24 hours. Having failed to comply with this mandatory
requirement, the police altered the date of submission of FIR from 27th
to 24th November 2014. He has alleged that he was kidnapped,
arrested, and remanded to three days police custody. While he was in
custody, he was kept in lock up along with criminals, murderers, and
robbers. He was threatened to sign a statement accepting the charge
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however, he had refused to sign the same and that this fact can be
ascertained from the video recording of lockup room.
23. The respondent no.2 has stated that his phone was confiscated
and he was beaten and threatened that he would be trapped and
implicated in cases under the prevention of Atrocities Act. The
respondent no.2 has expressed apprehension that the police may
tamper with CCTV footage. He claimed that the petitioners are
involved in committing forgery, kidnapping, threatening, tampering
with evidence etc. Hence, by this letter the respondent had requested
the concerned authorities to order an independent enquiry or a judicial
enquiry as regards the incident that took place on 23.11.2014.
24. Based on the said allegations, the learned Magistrate has passed
the order dated 2.12.2014, which reads as follows: “Perused the
complaint. Heard the complainant in person. The complainant has
alleged about the cognizable offence against the accused who are the
Senior PI of Kharghar Police Station, PI Crime Branch etc. Hence, the
copy of the complaint be sent to concerned police station through the
concerned DCP for treating the same as FIR and the PSO of the
concerned police station is directed to investigate the matter under
156 (3) of Criminal Procedure Code. However in the present matter,
the complainant has alleged about the cognizable offences against the
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concerned Senior P.I. of Kharghar Police Station, therefore the
concerned D.C.P. is directed to investigate the matter either himself or
through by deputing separate investigation officer or P.S.O. as per rule
and submit the report accordingly. The Complainant is directed to
produce copies of complainants’ application dt. 2.12.2014 and
documents on record within two days to send the same to the
concerned police station through the concerned DCP.”
25. Pursuant to the order passed under section 156 (3) Cr.P.C., FIR
no. 22 of 2014 has been registered against the petitioners herein at
Kharghar Police Station for offences under section 367, 467, 468, 195,
504, 506, 420 and 383 IPC.
26. A perusal of the order dated 2.12.2014 clearly reveals that the
learned Magistrate has not made any endeavor to ascertain whether
the application purported to be under section 156 (3) Cr.P.C. disclosed
any cognizable offence. On the contrary, the order reveals that the
learned Magistrate has ordered investigation only because “the
complainant has alleged about the cognizable offence against the
concerned PI of Kharghar Police Station.” Suffice it to state that in
exercising powers conferred under section 156 (3) Cr.P.C., the court
cannot act as a post office and transmit every application for
investigation. The legal mandate requires judicial application of mind
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to ascertain whether the facts alleged disclose cognizable offence. In
the instant case the order is bereft of any reasons and reflects total
non-application of mind.
27. Be that as it may, the respondent no 2 had sought registration of
FIR against the petitioners, on the allegations, which can be broadly
stated as follows:
a. The Petitioner no.3 had refused to record the complaint lodged
by the mother of the rape victim and had threatened her against
lodging such complaint.
b. The complainant/ mother of the rape victim was being
questioned by a male officer.
c. The petitioners had obtained signature of the mother-in-law of
the complainant on a blank paper and fabricated a false case
against him.
d. The petitioners had kidnapped and arrested him in a false case.
e. The petitioners had altered the date of submission of the FIR in
the court.
f. That he was beaten and threatened while in police custody.
28. The factual matrix of the present case would reveal that, the
petitioners are the police officers who were on duty at Kharghar police
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station on 23.11.2014. The grievance of the respondent no.2, as
voiced in the said application, pertains to the acts performed by the
petitioners in discharge of their official duties. At this stage, it would be
apt to note that Section 197(1) Cr.P.C. affords protection to Judges,
Magistrates and Public servants not removable from office save by or
with sanction of the Government. This section bars the court from
taking cognizance of an offence alleged to have been committed by
public servants in discharge of official duty or purported to be in
discharge of official duty, except with the previous sanction of the
appropriate government.
Explanation to Sub-Section (1) of Section 197, which has been
inserted by 2013 amendment, removes the bar, when the public
servant is accused of any offence under Section 166A, Section 166B,
Section 354, Section 354A, Section 354B, Section 354C, Section
354D, Section 370, Section 375, Section 376, Section 376A – Section
376C – Section 376D and Section 509 of IPC.
Sub-section 2 of Section 197 bars cognizance of any offence alleged to
have been committed by any member of the Armed Forces of the
Union while acting or purporting to act in the discharge of his official
duty, except with the previous sanction of the Central Government.
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Whereas Sub-section 3 of section 197 provides that the State Government
may by notification direct that the provisions of sub-section 2
shall apply to such class or category of the members of the Forces
charged with the maintenance of the public order as may be specified
therein and upon such notification being issued, the provisions of Subsection
(2) will apply as if for the expression ‘Central Government’
occurring therein, the expression ‘State Government’ were substituted.
Undisputedly, the Government of Maharashtra has issued notification
dated 2.6.1979, which reads as: “Notification Home Department
Mantralaya, Bombay – 400 032 No. CR.P.O./78/9845/POL-3. In exercise
of the power conferred by sub-section (3) of section 197 of the Code of
Criminal Procedure, 1973 (II of 1974), the Government of Maharashtra
hereby directs that the provisions of sub- section (2) of that Section
shall apply to the following categories of the members of the force in
the State charged with the maintenance of public order wherever they
may be serving, namely:-
(1) All police officers as defined in the Bombay Police Act, 1951 (Bom.
XXII of 1951), other than the Special or Additional Police Officers appointed
under section 21 or 22 of that Act;
(2) All Reserve Police Officers as defined in Bombay State Reserve Police
Force Act, 1951 (Bom. XXXVIII of 1951).”
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29. The question whether the bar under Section 197(3) Cr.P.C. is
applicable to the members of Bombay Police Force was considered by
the Apex Court in the case of Rizawan Ahmed v. Jamal Patel (supra).
The Apex Court after considering the said notification has held that the
said notification applies to the members of Bombay Police Force. It is
further held that once it is held that the members of Bombay Police
Force are the persons to whom the notification under Section 197(3)
of the Code applies, and if the act which is alleged to be an offence
was done in discharge or purported discharge of the duty of the
accused persons, they will be entitled to the protection extended by
sub-section 2 of Section 197 of the Code.
30. In the instant case, the petitioners are undisputedly the
members of Bombay Police Force. Hence, even though they do not fall
in the category of public servants specified in sub section (1) of 197
Cr.P.C, by virtue of notification dated 2.6.1979 the petitioners are
entitled for the benefit under sub section (3) of 197 Cr.P.C. Under the
circumstances, the decision of the Apex Court in the case of
Fakhruzamma vs. State of Jharkhand (supra) is distinguishable and is
not applicable to the facts of the present case.
31. At this juncture, it may be mentioned that the crime registered
against the petitioners does not include sections referred to in the
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Explanation to Sub section (1) of 197 of the Code. The grievance
voiced by the respondent no.2 in the application and the offences
registered against the petitioners relate to the acts performed by the
petitioners in the discharge of their official duty and are reasonably
connected with their official duties and would therefore attract the bar
of section 197 of the Code. The decisions relied upon by the
respondent are therefore distinguishable and are not applicable to the
facts of the case.
32. In the case of Anil Kumar, the Apex Court after considering the
principles laid down by the Constitution Bench in the case of State of
U.P. vs. Parasnath Singh (2009) 6 SCC 372 and in
Subramanium Swami vs. Manmohan Singh (2012) 3 SCC 64, has
held that the word “cognizance” has a wider connotation and is not
merely confined to the stage of taking cognizance of the offence. The
Apex Court has held that the Special Judge/Magistrate cannot refer the
matter under section 156 (3) against a public servant without a valid
sanction order. In the instant case undisputedly, there is no such
sanction order hence, the learned Magistrate was not justified in
issuing order under Section 156(3) of the Code.
33. Be that as it may, the respondent no. 2 had sought investigation
against the petitioners mainly on the ground that they had implicated
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and arrested him in a false and fabricated case. If the respondent no. 2
was in fact aggrieved by such action, his remedy was to challenge such
proceedings/FIR by filing appropriate proceedings. Instead of resorting
to the remedy available under the law, the respondent no. 2 has
sought to register FIR against the petitioners for registering a FIR
against him. The FIR registered against the respondent no.2 is still
under investigation. Subjecting the police officers to unwarranted
criminal prosecution for having registered a crime will certainly peril
the fair investigation of the said crime. Moreover, allowing the
aggrieved or disgruntled persons to hold the police machinery at
ransom by unjustifiable vexatious persecution will affect the morale
and effective functioning of the police machinery which in turn will
have serious and far-reaching adverse impact on the interest of the
society. A situation like this therefore demands more cautious and
serious judicial scrutiny of all relevant materials and meticulous
application of mind to the entire facts and circumstances of the case to
ascertain whether facts disclosed constitute cognizable offence.
34. At this juncture it would be advantageous to refer to the decision
in the case of Lalita Kumari vs. Govt. of U.P. (2014)2 SCC 1
wherein the Apex Court has emphasized the need to hold preliminary
inquiry in certain cases, not to verify the veracity or otherwise of the
information received but only to ascertain whether the information
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reveals any cognizable offence. The Apex Court has given the following
category of cases in which preliminary inquiry may be made:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months’ delay
in reporting the matter without satisfactorily explaining
the reasons for delay.
35. The Apex Court has held that the aforesaid categories are only
illustrative and not exhaustive of all conditions which may warrant
preliminary inquiry. The judgment of the Apex Court therefore makes
it crystal clear that in appropriate cases the magistrate can order
preliminary inquiry to ascertain whether the information reveals any
cognizable offence. Thus, the endeavor of the magistrate should be to
weed out frivolous and vexatious complaints and send only the
deserving cases for investigation.
36.In the instant case, the magistrate has passed the order mechanically
without referring the case for preliminary inquiry, without examining
the facts of the case and the nature of the allegations and without
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ascertaining whether the information revealed any cognizable offence.
Nevertheless, in our considered view, the allegations made in the
application, even if taken at face value and accepted in its entirety; do
not disclose ingredients of offences under sections 367, 467, 468, 195,
406, 506, 420 and 383 of IPC. Under the circumstances and in view of
the discussion supra, the order dated 2.12.2014 and the consequent
FIR No.22 of 2014 registered against the petitioners at Kharghar Police
Station under Section 367, 467, 468, 195, 406, 506, 420 and 383 of
IPC deserves to be quashed. This however will not preclude the
Respondent no.2 from making a representation, if he so desires, before
the Superintendent of Police, in respect of the grievances raised by him
in the application. If such representation is received, the
Superintendent of Police shall consider the same and take appropriate
decision thereon strictly on its own merits and in accordance with law.
This shall be done as expeditiously as possible.
37. In the result, Rule is made absolute in terms of prayer clauses (a) and
(b).
(ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)
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