Bombay High Court
Dr. Sanjay Kisanrao Khopde vs The State Of Maharashtra And Anr on 23 March, 2018
Author: Vibha Kankanwadi
Bench: Prasanna B. Varale, Vibha Kankanwadi
1 Cri Writ Petition 296-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 296 OF 2018
Dr. Sanjay Kisanrao Khopde,
Age : 45 years, Occu : Medical Practitioner,
R/o Lokmanya Hospital, Chalisgaon Road,
Dhule, Dist. Dhule, ...Petitioner.
Versus
1] The State of Maharashtra,
through Police Inspector,
Azad Nagar Police Station,
Dhule, Dist. Dhule.
2] Dr. Shalini Sanjay Khonde,
Age : 42 years, Occu : Medical
Practitioner,
R/o. Khelikuniya, K-603,
Phase-1, Nagar Patta City,
Near Hadapsar, Pune. ...Respondents
----
Mr. M. S. Deshmukh, Advocate for petitioner.
Mr. S. W. Mundhe Addl. Public Prosecutor, for respondent No.1/
State.
----
CORAM : PRASANNA B. VARALE &
SMT.VIBHA KANKANWADI. JJ.
DATE : 23-03-2018.
JUDGMENT :[Per Smt. Vibha Kankanwadi, J] (1) Present petition has been filed by the original informant under Article 226 and 227 of the Constitution of India for issuance of Writ of Certiorari or order in the like nature thereby quash and set aside impugned order dtd. 2.2.2017 passed in connection with CR No. 40/2016 (Final report No. 3/2017) filed ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 2 Cri Writ Petition 296-2018 by respondent No. 1 whereby the learned Judicial Magistrate First Class (Court No. 2), Dhule granted summary. (2) The respondent No. 2 to 8 are the original accused persons against whom a complaint was filed by the present petitioner. The petitioner is Medical Practitioner who runs Lokmanya Hospital at Dhule. Respondent No. 2 is wife of the petitioner and respondent No. 3 to 8 are the relatives of respondent No. 2. Various litigations are pending between the petitioner and respondent No. 2. Petitioner had filed complaint before Judicial Magistrate First Class, Dhule against respondent No. 2 to 8 on 1.12.2015 contending that they have committed offence punishable U/s 395, 452, 323, 504, 506 R/w 34 of Indian Penal Code. Petitioner requested for investigation of the crime by Police authorities and therefore, prayed for sending the matter for investigation U/s 156(3) of Code of Criminal Procedure. After hearing, learned Judicial Magistrate First Class Dhule directed the investigation to be done by order dtd. 4.4.2016. On the basis of the said order First Information Report was registered vide CR No. 40/2016 on 13.4.2016. The respondent No. 1 had recorded the statement of certain witnesses and prepared Final Report No. 3/2017 on 11.1.2017 U/s 173 of Code of Criminal Procedure. It was reported that the charges U/s 504 and 506 R/w 34 of Indian Penal Code have been made out against the respondent No. 2 to 8. In the said letter ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 3 Cri Writ Petition 296-2018 dtd. 17.1.2017 submitted Final Report to Sub Divisional Police Officer, Dhule. Sub Divisional Police Officer, Dhule had requested the learned Chief Judicial Magistrate Dhule to grant non-cognizable final summary in connection with CR No. 40/2016. Judicial Magistrate First Class (Court No. 2), Dhule had not accorded any opportunity by issuing notice to the petitioner to putforth say on the said summary and unilaterally passed order on 2.2.2017 and thereby granted the summary as prayed. The impugned order is stereotype in as much as rubber stamp. Court has not given any reason for accepting the summary. The Sub-Divisional Police Officer had also not given any copy of the final report by intimation thereof to the petitioner. On the contrary the petitioner has obtained the copy under Right to Information Act. When the report categorically state that the offence U/s 504 and 506 R/w 34 of Indian Penal Code has been made out against the respondent No. 2 to 8, the learned Magistrate ought to have at least issued process to that extent. When opportunity was not given to the petitioner before accepting the summary, the said order is bad in law and therefore, the petitioner has prayed for setting it aside. (3) Heard the learned Advocate Shri M. S. Deshmukh for the petitioner and learned Addl. Public Prosecutor Shri S. W. Mundhe for respondent No. 1. The respondent No. 2 is the original accused who is not allowed to take part in the process of ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 4 Cri Writ Petition 296-2018 investigation. It was not necessary to issue any notice to hear him at this stage.
(4) It has been submitted on behalf of the petitioner that the impugned order dtd. 2.2.2017 passed by the learned Judicial Magistrate First Class (Court No. 2), Dhule is a mechanical order. It has been passed without application of mind. Perusal of the charge-sheet that was filed clearly shows that offence U/s 504 and 506 R/w 34 of Indian Penal Code was made out. When the impugned order is without application of mind, it deserves to be set aside.
(5) It was tried to be submitted on behalf of the State that the reasons have been assigned by the Police at the time of filing the charge-sheet as to which offence has been made out and which is not. It has been specifically mentioned that the collected evidence does not make a prima facie case so as to support the charge-sheet and offence is of non-cognizable offence and hence, the accused persons were not arrested. Therefore, for the reasons that have stated in the charge-sheet, the summary has been accepted and therefore, it can not be stated that there is no application of mind. (6) The chronology of events show that the private complaint was filed by the petitioner bearing Cri. M. A. No. 1270 of 2015 contending that the accused No. 1 to 8 mentioned therein have committed offence punishable U/s 395, 452, 323, 504, 506 R/w ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 5 Cri Writ Petition 296-2018 34 of Indian Penal Code of Indian Penal Code. It was subsequently prayed that the investigation be directed to be made by police in view of Sec. 156(3) of Code of Criminal Procedure and for that purpose it was prayed that the complaint be transmitted to the Police. Accordingly, the said permission was granted and the case was sent for the detailed investigation. On the basis of said private complaint, the First Information Report vide CR No. 40/2016 came to be registered and investigation has been carried out. When the investigation was completed, a letter was given by PSI, Azad Nagar, Police Station, submitted to Sub-Divisional Police Officer on 11.1.2017, for giving sanction for the summary, since offence U/s 504 and 506 R/w 34 of Indian Penal Code is transpired. Accordingly, the Sub-Divisional Officer who endorsed that he is giving consent to the final report made prayer to the Chief Judicial Magistrate to accord "NC" Final summary. It appears that the matter was then transferred to Judicial Magistrate First Class (Court No. 2), Dhule. The learned Judicial Magistrate First Class, Dhule has put a rubber stamp and stated that the summary is granted as prayed and Police papers be returned to concerned Police Station. It was stated in the form of charge-sheet that statements of witnesses were recorded. Before accepting the Final Report the learned Magistrate has not issued any notice to the informant / complainant and as rubber stamp has been ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 6 Cri Writ Petition 296-2018 used, it is very much clear that there is absolutely no application of mind by the Magistrate. No reasons have been assigned as to why cognizance is not even been taken for the offence punishable U/s 504 and 506 R/w 34 of Indian Penal Code. (7) We would like to rely on the legal position that has been settled in Abhinandan Jha and Ors. V/s Dinesh Mishra, reported in (AIR 1968 Supreme Court 117 (V 55 C 88) wherein it is held that :
15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the Police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a 'final report' ?
Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the Police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the Police, under S. 156(3), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 7 Cri Writ Petition 296-2018 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.
16. In this connection, the provisions of Section 169 of the Code, are relevant. They specifically provide that even though, on investigation, a Police Officer, or other Investigating Officer, is of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take a bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the Investigating Officer, and judicially takes a view different from the Police.
17. We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's Case AIR 1955 SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 8 Cri Writ Petition 296-2018 order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190(1)
(c) of the Code. That provision in our opinion, is obviously intended to secure that offneces may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or though bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstance will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 9 Cri Writ Petition 296-2018 to place the accused for trial, is that of the Officer in-charge of the police station and that opinion determines whether the report is to be under Section 170, being a 'chargesheet,' or under Section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either under Section 169, or under Section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.
18. We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 10 Cri Writ Petition 296-2018 the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.
19. The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit final report, under Section 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. Impinge ?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 :::
11 Cri Writ Petition 296-2018 (8) Thus, it is to be noted that the learned Judicial Magistrate First Class was supposed to apply mind on the material that was placed before him. In fact, the rubber stamp does not even make it clear as to whether A or B or C summary has been granted. As per para 24 of Chapter I of Criminal Manual, the directions those have been given in respect of summaries of final orders state that the criminal cases should be classified as follows :
Class 'A' Cases : The cases which are (i) 'TRUE' and
(ii) wherein an accused is tried and in the absence of conclusive evidence, is acquitted.
Class 'B' Cases : Wherein no offence has been committed at all either by the accused or by any one else, but wherein the complaint is found to be "false and maliciously false".
Class 'C' Cases : Wherein no offence has been committed at all either by the accused or by any one else, but wherein the case if found to be "neither true nor false" or "false but not maliciously false". (9) Thus, the learned Magistrate ought to have been passed reasoned order. In fact, when the matter was referred for investigation on the basis of a private complaint and certain material was collected by the investigating agency may be in respect of one or two offences. Whether to grant summary or go ahead with taking cognizance should have been the question before the learned Judicial Magistrate First Class. At that point ::: Uploaded on - 24/04/2018 ::: Downloaded on - 21/05/2018 12:16:57 ::: 12 Cri Writ Petition 296-2018 of time even the present petitioner i.e. Original informant had the right to file a protest petition and therefore, notice ought to have been given to make him aware about the report that has been filed. When such opportunity is not given and there is no proper application of mind by the learned Magistrate, we find the said order as illegal and therefore, deserves to be set aside. Hence, following order;
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order in connection with CR
No. 40/2016 (Final Report NO. 3/2017) dtd. 2.2.2017 passed by Judicial Magistrate First Class (Court No. 2) Dhule is hereby set aside.
(iii) Concerned Magistrate is directed to issue notice to the informant and call upon him whether he intends to file a protest petition and after hearing the informant, should pass a reasoned order on the said Final Report.
(SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
JUDGE JUDGE
ggd/-.
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