Bombay High Court
Sau. Rajeshree W/O Deepraj Khobragade ... vs Rajendra S/O Shamraoji Padole And ... on 15 January, 2016
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 688 of 2015
1. Sau. Rajeshree wife of Deepraj
Khobragade,
aged about 33 years,
occupation nil,
2. Deepraj son of Ambadas
Khobragade,
aged about 45 years,
occupation Asstt. Professor
[Marathi],
Dr. Babasheb Ambedkar
College, Deeksha Bhoomi,
Nagpur,
both residents of C/o Shri
Upgade, Gurukrupa Society,
Narendra Nagar,
P.S. Ajni,
Nagpur. ..... Applicants.
Versus
1. Rajendra son of Shamraoji
Padole,
aged about 41 years,
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occupation - business,
resident of 6, Ekta Flat Society,
behind Kachore Colony,
Chinchbhavan,
Nagpur.
2. State of Maharashtra,
through P.S.O., Ajni,
Nagpur. ..... Respondents.
ig*****
Mr. Shashibhushan Wahane, Adv., for the applicants.
Mr. R.R. Vyas, Adv., for respondent no.1.
Mr. Jawade, Addl. Public Prosecutor for respondent no.2.
*****
CORAM : A.B. CHAUDHARI, J.
Date : 15th January, 2016
ORAL JUDGMENT:
01. Rule. Rule is made returnable forthwith. Learned Adv. Mr. R.R. Vyas waives service for respondent no.1, and learned APP Mr. Jawade, for respondent no.2. Heard learned counsel for the rival parties for some time. By consent of rival parties, this Criminal Application is taken up for final hearing and disposed of by this Judgment and Order.
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02. I find that the issue involved in the present matter is squarely covered by the Supreme Court Judgment in the case of Priyanka Shrivastava Vs. State of U.P. [ (2015) 6 SCC 287], apart from the provisions of Criminal Procedure Code. Section 154, Criminal Procedure Code reads thus:-
"154.
Information in cognizable cases. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
Provided that if the information is given by the woman against whom an offence under Section 326-A, section 326-B, section 354, section 354-A, section 354-B, section 354-C, section 354-D, section 376, section 376-A, section 376-B, section 376-C, section 376-D, section 376- E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any woman officer:
Provided further that -
(a) in the event that the person against whom an offence under section 354, section 354-A, section 354-B, section 354-C, section 354-D, section 376, section 376-A, section 376-B, section 376-C, section 376-D, section 376-
E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the persons seeking to ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 01:09:53 ::: apl688.15 4 report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5-A) of Section 164 as soon as possible.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
From perusal of the above provision, it is clear that the first information is required to be given to the concerned Police Station Officer having jurisdiction over the area. Sub-section (3) of Section 154 provides that any person aggrieved by refusal on the part of a Police Officer to record information or police proceeding with the investigation, would be entitled to approach the Superintendent of Police concerned. Section 156 (3) is the next provision enabling the Court to issue directions.
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03. In the case of Priyanka Shrivastava Vs. State of U.P. [cited supra], the Supreme Court stated thus in para 31 which I quote hereunder:-
"31. We have already indicated that there has to be prior applications under Sections 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 application under Section 156 (3) be supported by an affidavit is 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."
It is clear from the above judgment that the above procedure is required to be followed before seeking a direction under Section 156 (3), CrPC.
04. In that instant case, FIR was lodged on 24th July, 2015 and on the same day application under Section 156 (3) was lodged in the ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 01:09:53 ::: apl688.15 6 Court, i.e., on 24th July, 2015 which was registered as Misc. Criminal Application No. 2802 of 2015.
05. This is nothing but the abuse of process of law. Such a course of action cannot be allowed to stand in the light of the above Supreme Court Judgment. Hence the following order:-
ig ORDER
[a] Rule is made absolute in terms of Prayer Clause
[I].
[b] Liberty is reserved in favour of respondents to
take such steps as are available in law.
[c] No order as to costs.
Judge
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