AI Structured Summary
Not yet generated for this judgment
Judgment
P.N. Deshmukh, J.—This is an application under Section 482 of the Code of Criminal Procedure for quashing of Misc. Criminal Case No. 103 of 2008 pending on the file of Judicial Magistrate (First Class), Kamptee.
The applicant at the material time was serving as a Police Inspector attached to Kamptee Police Station when on 17th of December, 2005 non-applicant No. 2 visited said Police Station and lodged complainant against one Anant Vishnupanth Kulkarni. Though the applicant was satisfied that no cognizable offence is disclosed, he got the complaint investigated through his subordinate P.S.I. Shri Lokhande. In the meantime, non-applicant No. 2 submitted an application to the superior authority of applicant for conducting investigation into his complaint. It is also noted that non-applicant No. 2 also approached this Court by filing Criminal Writ Petition No. 232 of 2006 praying for issuance of Writ of Mandamus for registration of crime on the basis of his complaint dated 17th of December, 2005 and for other prayers, which writ petition appears to have been dismissed by this Court observing that no offence is made out on plain reading of the complaint attached to the petition and as such did not find any merit in the petition.
From the documents we find that the complainant/non-applicant No. 2 thereafter agitated his claim against said Anant Kulkarni with the Maharashtra State Scheduled Caste and Scheduled Tribes Commission, Mumbai which authority has also issued notice to the present applicant and his superior officer and on hearing directed to submit detailed report which was accordingly submitted stating therein that no offence was made out and the complaint lodged by non-applicant No. 2 was found to be false after investigation.
We have also perused said report dated 19th of June, 2007. We find that thereafter on the prayer made by non-applicant No. 2, Maharashtra State Scheduled Caste and Scheduled Tribes Commission, Mumbai orally directed for taking action under the Scheduled Caste and Scheduled Tribes Act against Anant Vishnupant Kulkarni upon which FIR came to be lodged and offence came to be registered in which said Anant Kulkarni came to be discharged vide order dated 12th of November, 2010 passed by the Special Court, Nagpur. It is in between these proceedings which were initiated by non-applicant No. 2 he made an application which is registered as Misc. Criminal Case No. 103 of 2008 before the learned Judicial Magistrate (F.C.), Kamptee under Section 156(3) of the Code of Criminal Procedure upon which learned Judicial Magistrate (F.C.), Kamptee on 12th of January, 2011 passed an order for registration of F.I.R. and vide Exh.8 non-applicant No. 2 filed application for issuance of process against the applicant.
On considering the documents we find that above application came to be filed for direction to investigate the offence under Section 3(ix) and Section 4 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the present applicant on the ground that he has willfully neglected his duty which is required to be performed under said Act, by giving false and frivolous information, which case is sought to be quashed.
On considering series of events as aforesaid and on going through the complaint, copy of which is placed on record, we find that the learned Trial Court has mechanically issued order under Section 156(3) of the Code of Criminal Procedure without considering the fact that non-applicant No. 2 came to be terminated from his services on holding departmental enquiry in which said Kulkarni was Presenting Officer, thus, the proceedings filed before the learned Judicial Magistrate (F.C.), Kamptee by non-applicant No. 2, on the face of it, was necessarily to be dismissed observing that it was a false and frivolous.
In the circumstances, we observe that the learned Judicial Magistrate (F.C.), Kamptee while considering application filed under Section 156(3) of Code of Criminal Procedure by non-applicant No. 2 had thought that learned Magistrate has no other option but to direct investigation under Section 156(3) of Code of Criminal Procedure and that the police Authorities are bound to register F.I.R. on the basis of said application.
In view of the facts involved in the present application, we find it necessary to usefully refer to the case of Maksud Saiyed Vs. State of Gujarat and Others, (2008) CLT 715 : (2008) 1 CTC 259 : (2007) 11 JT 276 : (2007) 11 SCALE 318 : (2008) 5 SCC 668 : (2007) 9 SCR 1113 . In the said case, criminal complaint came to be filed before the Court of Chief Judicial Magistrate, Vadodara. The allegation in the said complaint was that in prospectus published for the purpose of public issue, some false and misleading information had been given with regard to sanction limits, the dues and export bills of the Company. It was alleged that one Shri G.C. Garg fabricated and fraudulent dishonestly and purposefully misused the documents with mala fide intention. An order came to be passed under Sub-section 3 of Section 156 of the Code of Criminal Procedure relying on or on the basis of the allegations made in the complaint. The said order was challenged before the High Court under the provisions of Section 482 of Cr.P.C. The said petition was allowed. Being aggrieved thereby, the complainant approached the Apex Court. The Apex Court observed thus:
"Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The leaned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputable must contain provision fixing such vicarious liability. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."
(emphasis supplied)
It can, thus, be seen that the Apex Court in unequivocal terms has held that where a jurisdiction is exercised on a complaint petition filed under Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind.
The Apex Court in the said case has referred to its earlier observations made in the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, AIR 1998 SC 128 : (1998) CriLJ 1 : (1997) 8 JT 705 : (1997) 6 SCALE 610 : (1998) 5 SCC 749 : (1997) 5 SCR 13 Supp , which reads thus :
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
In view of the aforesaid judgments of the Apex Court, it can, thus, clearly be seen that when the Magistrate passes order directing investigation under Section 156(3) of Cr.P.C., it is necessary that, prior to doing so, he should apply his mind to the case before him. Least that is expected of the Magistrate, is to verify from the averments of the complaint as to whether the ingredients to constitute the offence/s complained of have been made out or not. As such the order under Section 156(3) of Cr.P.C., should depict the application of mind. No doubt the Magistrate is not expected to give elaborate judgment at that stage. However, the least expected is that the order should depict application of mind and as to how the complaint discloses the ingredients to constitute the offence complained of.
In the application in hand we find that the learned Court of Judicial Magistrate (F.C.), Kamptee without application of his mind mechanically passed order on the application filed by non-applicant No. 2 under Section 156(3) of Code of Criminal Code. Hence, we pass the following order.
ORDER
The Criminal Application (APL) No. 465 of 2012 is allowed.
The proceedings in Misc. Criminal Case No. 103 of 2008 pending on the file of Judicial Magistrate (F.C.), Kamptee are quashed.