Paraji And Ors vs State Of Maharashtra And Ors

T.V. Nalawade, J

Rule. Rule made returnable forthwith. By consent heard learned counsels for both the sides for final disposal.

First proceeding is filed for relief of quashing proceeding bearing Regular Criminal Case No. 91 of 2010, which is pending in the Court of Judicial

Magistrate, First Class, Ambad and which is filed for the offences punishable under Sections 420, 467, 468, 471 and 474 read with Section 34 of the

Indian Penal Code (IPC). The prayer is also made for quashing and setting aside orders dated 04-12-2011 and 12-12-2011 passed below Exhibit-1 in

the aforesaid proceeding by Judicial Magistrate, First Class, Ambad.

The proceeding is filed by respondent No. 2 as private complaint and he has made allegations against three persons that behind his back revenue

record of land Gut No. 194 situated at village Math Pimpalgaon, Tahsil Ambad, District Jalna was changed and attempt is made to deprive him of his

share in 99 R portion of the said land. It is contended that portion of 99 R land was purchased by him with accused No. 1 under joint sale deed dated

08-02-1990 and so accused No.1 and he have shares in 99 R portion of land. It is contended that on the basis of sale deed, mutation entry No. 334

was sanctioned on 19-05-1990 and entry was made in the revenue record of the sale deed. It is contended that under mutual agreement he and

accused No.1 started cultivating the separate portions and Southern portion was given to him of his share. It is contended that behind his back accused

No.1 changed the revenue record and he created bogus partition document showing that he had given Southern portion to his son, accused No.2 and

mutation entry No. 992 was made. It is contended that attempt was made to show that accused No.1 was owner of entire 99 R portion and out of that

portion one half portion was given to accused No. 2. Due to aforesaid allegations, the Magistrate first passed the order under Section 202 of the Code

of Criminal Procedure (Cr.P.C.) and directed the concerned Police Station to make investigation. Then, on 12-12-2011, the Magistrate made order of

investigation under Section 156(3) of Cr.P.C. and directed the Police to make investigation. Due to this order, Crime No. 8 of 2011 came to be

registered in Ambad Police Station, District Jalna for aforesaid offences.

The proceeding and the aforesaid orders are challenged on various grounds. Learned counsel for the applicants submitted that there was some

mutual understanding, though it was oral and entire portion of 99 R was given to accused No.1 and due to that subsequent steps were taken by

accused No.1. At this stage, this submission cannot be accepted. When propriety right is created in favour of complainant under registered sale deed,

in the way contended by applicant No.1, the right of complainant could not have been extinguished. Thus, admittedly, some revenue record is created

to show that the complainant is not owner of any portion, which was purchased under aforesaid sale deed.

Learned counsel for the applicants submitted that after passing of the order to make investigation under Section 202 of Cr.P.C. it is not open to the

Judicial Magistrate First Class to fall back and pass order under Section 156(3) of Cr.P.C.. In support of that contention learned counsel for the

applicants placed reliance on some cases like Suresh Chand Jain Versus State of Madhya Pradesh reported in 2001 DGLS (SC) 4, 1Mohammad

Atullah Versus Ram Sara Mahto reported in AIR 1981 Supreme Court 1155, Banwarlilal Purohit and another Vs. Ramdeo Baba Sahkari Griha

Nirman Samiti Limited, Nagpur and another reported in 2004(4) Mh.L.J., 341, Amrutbhai Shambhubhai Patel Versus Sumanbhai Kantibhai Patel and

others reported in 2017 DGLS (SC)57. On the other hand, learned counsel for the complainant placed reliance on some observations made by the

Apex Court in Criminal Appeal Nos. 478 - 479 of 2017 (Vinubhai Haribhai Malaviya and others Vs. The State of Gujrat and another) dated 16th

October, 2020.

In the case of Vinubhai (supra), on which reliance is placed by learned counsel for the complainant, the Apex Court has considered the position of

law, which is changed due to addition of provisions of Section 173(8) of Cr.P.C.. It is laid down by the Apex Court that even after taking cognizance

of the offence, now Judicial Magistrate, First Class can make order of nature, which is possible under Section 156(3) of Cr.P.C. There is no dispute

about this proposition. In all these cases, it is laid down that after taking cognizance of the matter, it is not open to the Magistrate to pass order of

investigation under Section 156(3) of Cr.P.C. and such order can be passed at pre-cognizance stage. It is specifically laid down by the Apex Court

that when order of investigation is made under Section 202 of Cr.P.C., such order is made after taking cognizance of the matter and after making

such order, the Magistrate cannot make order under Section 156(3) of Cr.P.C. It is made clear that order of investigation made under Section 202 of

Cr.P.C. is not of the nature of further investigation as contemplated under Section 173(8) of Cr.P.C. There is no dispute about propositions made by

the Apex Court and this Court in aforesaid cases.

The aforesaid position of law shows that it is not open to the Magistrate to pass the order of investigation under Section 156(3) of Cr.P.C. when

order of investigation was already made under Section 202 of Cr.P.C. and report of police was also received under Section 202 of Cr.P.C. In view of

the nature of allegations, which are quoted above, this Court holds that no prejudice will be caused to the complainant if the Magistrate proceeds

ahead with matter after considering the report given under Section 202 of Cr.P.C. by the Police. However, the order made under Section 156(3) of

Cr.P.C. cannot sustain in law, so, that order needs to be quashed and set aside. In the result, following order -

ORDER

The Application is allowed. The order made by the learned Judicial Magistrate F.C.,Ambad, in Regular Criminal Case No. 91 of 2010 dated 12-12-

2011, by which the learned Magistrate directed the Ambad Police Station to register the Crime and make investigation under Section 156(3) of the

Criminal Procedure Code, is hereby quashed and set aside and, to that extent only the application is allowed.

The proceeding, which is pending before the Judicial Magistrate F.C. bearing Regular Criminal Case No. 91 of 2010 stands restored to the previous

stage, the stage in which the order to make investigation under Section 202 of Cr.P.C. was made and the report of investigation is received. From that

stage, the Magistrate can proceed ahead in the matter.

In view of disposal of Criminal Application No. 547 of 2012, pending Criminal Application No. 5204 of 2017 stands disposed of.

Rule made absolute in those terms.