Criminal Writ Petition No. 418 of 2006

11th March, 2008

Petitioner Counsel: Mr. N. P. PATIL (Jamalpurkar)
Respondent Counsel: Mr. D. R. ADHAV

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith and heard finally by consent of parties.

2. By this petition, petitioner challenges order dated June 22nd, 2006, rendered by learned Additional Sessions Judge, Udgir Camp at Ahmedpur, in Criminal Revision Petition No.8 of 2006.

3. A brief resume of some facts would amplify understanding of the controversial issues involved in the petition. The petitioner alleged that original accused Nos.1 to 3 mentioned in the complaint case had committed mischief by causing destruction to his water pipeline of residential hostel and Ashram Shala. He is the President of the Educational Institution which runs the Ashram Shala having 725 students in the hostel. He asserted that the original accused Nos.1 to 3 caused unlawful loss of Rs.3,000/- by their act of disconnecting the water pipeline. On basis of his complaint, certain investigation was carried out by the police. According to the complainant - petitioner, when there was sufficient material available to file charge-sheet against the original accused Nos.1 to 3, all of a sudden, the two police officers (original accused Nos.4 and 5) manipulated a false report to the Court of Judicial Magistrate, seeking "C" summary on basis of a fabricated additional statement purportedly given by him. He alleged that he never gave any additional statement saying that the matter was settled outside the Court and that he did not wish to prosecute the original accused Nos.1 to 3. He alleged that his so called additional statement dated 18th July, 2005 was a fabricated and false document. He, therefore, made a complaint to the higher police authorities. Consequently, at the behest of the higher police officer i.e. Superintendent of Police, Latur, again the case was re-opened and charge-sheet was filed against the accused Nos.1 to 3. He thereafter filed complaint (M.A. No.9/2006) against the original accused Nos.1 to 3 and the two police officers (original accused Nos.4 and 5) alleging that they prepared false record as regards the additional statement in order to dupe him.

4. The learned Judicial Magistrate (First Class), Ahmedpur directed investigation under section 156(3) of the Criminal Procedure Code on receiving the private complaint application (M.A. No.9/2006). The order of the learned Judicial Magistrate was challenged by the original accused Nos.4 and 5 (respondents No.1 and 2 herein) before the learned Additional Sessions Judge, Udgir at Ahmedpur. By the impugned order, the learned Additional Sessions Judge reversed the order rendered by the learned Judicial Magistrate (First Class) and quashed the direction to investigate into the complaint case.

5. Heard learned counsel, for respective parties.

6. At the threshold, it is significant to note that inquiry conducted by the police authorities revealed that there was prima facie truth in the allegation made by the applicant as regards absence of any additional police statement in respect of settlement outside the Court and his unwillingness to proceed with the criminal complaint for offence of mischief against the original accused Nos.1 to 3. The learned Judicial Magistrate (First Class) granted "C" summary without giving notice to the applicant/complainant, because a false police report was submitted that the applicant was duly informed about submission of the final report seeking "C" summary from the Court of Judicial Magistrate. Thus, prima facie, there was a false report to the effect that the applicant was informed as regards filing of the final report seeking "C" summary from the Court. Secondly, though he had not given any additional statement to withdraw the accusations against the original accused Nos.1 to 3, yet, a false additional statement was allegedly prepared, purported to have been given by him. Therefore, the applicant asserted that the police authorities i.e. respondents No.1 and 2 were hand-in-gloves with the original accused Nos.1 to 3 and all of them manipulated false record with a view to scuttle the prosecution for offence of criminal mischief. Since complaint application (M.A. No.9/2006) disclosed cognizable offences, the learned Judicial Magistrate directed that investigation report under section 156(3) of the Criminal Procedure be submitted after due inquiry through the Superintendent of Police, Latur. The Superintendent of Police at Latur was called upon to appoint a competent person for investigation. While reversing the said order in revisional jurisdiction, the learned Additional Sessions Judge held that the order was passed by the learned Judicial Magistrate without taking any verified statement of the complainant. The learned Additional Sessions Judge further came to conclusion that cryptic order was passed and, hence, interference was necessary. The points formulated for decision of the criminal revision application would indicate that the scope of revisional jurisdiction was not properly appreciated by the learned Additional Sessions Judge. It is well settled that in the exercise of revisional jurisdiction, any discretionary order may be interfered with only when discretion is exercised in arbitrary, perverse or patently erroneous manner. The learned Additional Sessions Judge failed to formulate the proper points as it would be seen from the tenor of the points No.1 and 2. He framed the following points for determination.

(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 ?

7. This is an example of how the revisional Court transgressed limits of the jurisdiction available under section 397 of the Criminal Procedure Code. The learned Additional Sessions Judge directed the learned Magistrate to hold "discreet preliminary inquiry" in "those allegations of the complainant in the complaint". He further directed the learned Magistrate to "call upon the complainant to produce all material, oral and documentary evidence". He further observed that it would be incumbent on the part of the complainant to prove that his those two signatures are forged one, by referring the alleged forged signatures, along with admitted signatures to the handwriting expert. These directions enumerated in para 25 of the impugned judgment go to show that provision contained in Section 156(3) of the Criminal Procedure Code are not appreciated and understood by the revisional Court.

8. First, though the order was cryptic, yet, 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.

9. Before parting with this matter, it may be mentioned that generally, the superior Courts should be slow in interfering with the discretionary orders rendered by the Trial Courts. The impugned order of the learned Magistrate is no-where demonstrated to be colourable exercise of his discretion. Nor the learned Additional Sessions Judge found that there was no material at all to support the impugned order. The directions of the learned Additional Sessions Judge to send the signatures of the complainant to the handwriting expert and the observations that it would be incumbent on the part of the complainant to prove that his signatures were forged one, were uncalled for. Generally, it is left to the discretion of the investigating agency to investigate into the allegations in a complaint case when, prima facie, there is material to indicate commission of a cognizable offence.

10. Orders under Section 156(3) of Criminal Procedure Code merely mean that an alleged cognizable offence should be investigated. It should not normally be open to the accused to say before the revisional or the High Court that the allegation about a cognizable offence should not even be investigated. Thus interference by superior Courts with an order of a Magistrate u/S.156(3) should normally be confined to cases in which there are some very exceptional circumstances. In this view of the matter, the impugned order is liable to be set aside as the same is unsustainable and outside the pale of revisional jurisdiction available to the Court of Sessions.

11. In the result, the writ petition is allowed. The impugned order rendered by the learned Additional Sessions Judge is set aside and that of the learned Judicial Magistrate is restored. It is clarified, however, that the investigating agency may file final report either declining to present charge-sheet or otherwise as per material gathered. No costs. The Registrar (Judicial) to circulate copy of this Judgment to all the Sessions Courts having revisional jurisdiction, within two (2) weeks.

Petition allowed.