Sarjerao S/O Bhagwan Jagtap And Another vs The State Of Maharashtra And Another 2024 Latest Caselaw 79 Bom

Bombay High Court Sarjerao S/O Bhagwan Jagtap And Another vs The State Of Maharashtra And Another on 3 January, 2024 Author: R.G. Avachat Bench: R.G. Avachat 2024:BHC-AUG:504-DB Cri.W.P. No.865/2023 :: 1 :: IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.865 OF 2023 1. Sarjerao s/o Bhagwan Jagtap Age 42 years, Occu. Service, Assistant Sub-Inspector, M.I.D.C. Police Station, Latur, Dist. Latur R/o 509, Shivaji Nagar, A/P Yedshi, Osmanabad PIN - 413 405 Having Aadhaar No. 6098 5412 9383 Mobile No. 9823621240 E-mail id : [email protected] 2. Sanjeevan s/o Vitthalrao Mirkale Age 55 years, Occu. Service, Police Inspector, In-charge Police Station, Shivajinagar since 04.02.2023 Shivaji Nagar Police Station, Latu, R/o Prayag Niwas, Ambajogai Road, Near Shivaji Nagar Police, Latur, Tal. & Dist. Latur PIN - 413 512 (Maharashtra) Having Aadhaar No. 7653 3770 4648 Mobile No. 8888824108 E-mail id : [email protected] ... PETITIONERS VERSUS 1. The State of Maharashtra through the Additional Chief Secretary, (Home Department), Age major, Occ. Govt. Service (Public Servant), Home Department, Government of Maharashtra Mantralaya, Mumbai - 02 Maharashtra 2. The Police Inspector, MIDC Police Station, Latur, Dist. Latur, Age major, Occ. Govt. Service (Public Servant) MIDC Police Station, Latur, Tal. & Dist. Latur 3. Balraj s/o Vishwanath Reddy, Age 38 years, Occu. Profession, Cri.W.P. No.865/2023 :: 2 :: R/o Raje Shivaji Nagar, Barshi Road, Pakharsangvi, Latur, Tal. &. Dist. Latur, Maharashtra (Copy of Respondent No.1 and 2 to be served on the Office of Government Pleader & Public Prosecutor, Aurangabad Bench of Bombay High Court) ... RESPONDENTS ....... Mr. A.D. Ostwal, Advocate for petitioners Mr. A.R. Kale, A.P.P. for respondents No.1 and 2 Mr. T.M. Venjane, Advocate for respondent No.3 ....... WITH CRIMINAL APPLICATION NO2606 OF 2023 Balraj s/o Vishwanath Reddy, Age 39 years, Occu. Advocate, R/o Raje Shivaji Nagar, Pakharsangavi, Tq. & Dist. Latur. ... APPLICANT VERSUS 1. Sarjerao s/o Bhagwan Jagtap, Age 42 years, Occu. Service, R/o 509, Shivaji Nagar, At Post Yedshi, Tq. & Dist. Latur. 2. Sanjivan s/o Vitthalrao Mirkale, Age 55 years, Occu. Service, R/o Prayag Niwas, Ambajogai Road, Near Shivaji Nagar Police Station, Latur, Tq. & Dist. Latur ... RESPONDENTS ....... Mr. T.M. Venjane, Advocate for applicant Mr. A.D. Ostwal, Advocate for respondents ....... Cri.W.P. No.865/2023 :: 3 :: CORAM : R.G. AVACHAT AND SANJAY A. DESHMUKH, JJ. Date of reserving judgment : 11th December, 2023 Date of pronouncing judgment : 3rd January, 2024. JUDGMENT (PER R.G. AVACHAT, J.) : Both the Criminal Writ Petition and Criminal Application are decided by this common judgment since they are interconnected. Criminal Writ Petition under Article 226 of the Constitution of India has been filed for quashing of the order dated 2/6/2023, passed by the Court of learned Judicial Magistrate, First Class, Latur directing registration of F.I.R. and investigation thereof. the said order has been passed in Criminal Misc. Application No.207/2023, preferred by respondent No.3 herein. Being aggrieved by the said order, the petitioners herein preferred revision application, being Criminal Revision Application No.46/2023 to the Court of Sessions, Latur. The learned Additional Sessions Judge, vide his judgment and order dated 14/6/2023, dismissed the same. The petitioners are, therefore, before us. FACTS :- 2. The petitioner No.1 was serving as Assistant Sub- Inspector of Police (Constabulary) with M.I.D.C. Police Station, Cri.W.P. No.865/2023 :: 4 :: during relevant period. The petitioner No.2 was the Police Inspector of the very police station during the same time. It is the case of the petitioners that, a crime, being C.R. No.509/2022 was registered with M.I.D.C. Police Station against the respondent no.3 and his father and one Amol Tupensundar for offences punishable under Sections 447, 427, 504, 506 read with Section 34 of the Indian Penal Code. The petitioner No.1 was initially entrusted with the investigation of the said crime. Later, on 4/9/2022, Section 3(1) (f) and Section 3(1)(g) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 came to be additionally invoked in the said crime. Investigation was, therefore, entrusted with the officer in the rank of Deputy Superintendent of Police (S.P.). According to the petitioners, only with a view to create hurdle in the investigation and pressurize them, the respondent No.3 filed the application, wherein the learned Magistrate was pleased to direct registration of F.I.R. against the petitioners for offence punishable under Section 166-A(b) of the Indian Penal Code. It is their further case that, it was obligatory on the part of the learned Magistrate to consider the averments in the said application to find as to whether really prima facie offence is made out. No sooner the order was passed directing registration of the F.I.R., the petitioners preferred revision application. The order passed by the Magistrate was immediately stayed. The respondent No.3 suo moto appeared in the said proceedings. He even tried to Cri.W.P. No.865/2023 :: 5 :: pressurize the learned Additional Sessions Judge since he filed a pursis, alleging therein, learned Judge to have been hand in gloves with the petitioners herein. It is further the case of the petitioners that, not less than 4 applications have been preferred by the respondent No.3 seeking orders under Section 156(3) of the Code of Criminal Procedure. He did not stop at that. In the present Writ Petition as well, he has preferred application, being Criminal Application No.2606/2023 for initiating action against the petitioners, alleging them to have made false statements on affidavit and, therefore, seeking action in terms of Section 340 of the Code of Criminal Procedure. 3. Learned counsel for the petitioners relied on the following judgments of the Apex Court :- (1) Lalita Kumari Vs. Government of Uttar Pradesh & ors. (2014) 2 SCC 1 (2) Priyanka Srivastava & anr. Vs. State of Uttar Pradesh & ors. (2015) 6 SCC 287 (3) Anil Kumar & ors. Vs. M.K. Aiyappa & anr. (2013) 10 SCC 705 4. According to learned counsel, the present petitioners have received very many awards for their exemplary services. The respondent no.3 is a practicing lawyer of 13 years of standing. Cri.W.P. No.865/2023 :: 6 :: Since both the petitioners were involved in the investigation of the crime registered against him (respondent No.3), he preferred a false complaint to the S.P., alleging the petitioner No.1 to have had summoned him and threatened with dire consequences if he did not settle the matter with the informant in C.R. No.509/2022. According to the learned counsel, the S.P. forwarded the said application to the M.I.D.C. Police Station to make enquiry into the same and inform respondent No.3 result thereof. He would further submit that, based on the very averments in the said complaint, the respondent No.3 had moved an application under Section 156(3) of the Code of Criminal Procedure for registration of a crime against the petitioners. 5. The learned Magistrate rejected the said application. The order passed therein attained finality. The same suggests that the application preferred to the S.P. did not disclose any cognizable offence. Pursuant to the order of the S.P., no crime was registered. Direction was for making enquiry. There was, therefore, no question of registration of a crime and the petitioners entering into investigation thereof. Section 166-A(b) of the Indian Penal Code, therefore, did not get attracted. It was also brought to our notice that, result of the said enquiry was communicated to a person connected with respondent No.3, on an application preferred by Cri.W.P. No.865/2023 :: 7 :: that person under the Right to Information Act. The same would indicate the petitioner had not intentionally omitted to inform the respondent No.3 as to what action was taken on his application pursuant to the directions given by the S.P. Learned counsel ultimately urged for allowing the Writ Petition. 6. The respondent No.3 filed his detailed affidavit-in-reply. According to him, if a cognizable offence is made out, F.I.R. (Crime) has to be registered. Police officers failing in their duty to register a crime are liable for departmental action besides face the prosecution for offence under Section 166-A of the Indian Penal Code. Reliance was placed on the judgment of the Apex Court in Lalita Kumari's case (supra). It is also his case that, the revision application was preferred by a Public Prosecutor when the crime was directed to be registered against the petitioners. Public Prosecutor ought not to have preferred such application. He, therefore, raised an objection as to maintainability of the said application. he never intended to make any allegations against the judicial officer. Relying on the judgment in case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. The State of Maharashtra (AIR 2021 SC 1918), it was submitted that, Courts would not thwart any investigation into the cognizable offences, police has a statutory right and duty under the relevant provisions of the Code of Criminal Procedure to investigate into a cognizable offence. Relying on the Cri.W.P. No.865/2023 :: 8 :: judgment in case of Calcutta High Court in Re : Abdul Khaleque (Calcutta) (DB) 2019 (3) CriLR 217 , it was submitted that, failure on the part of police officers to register a crime pursuant to a direction under section 156(3) of the Code of Criminal Procedure, the concerned police officer is to be prosecuted for offence under Section 166-A of the Indian Penal Code. 7. Objection as to the maintainability of the Revision petition has also been raised. The petitioners had preferred Criminal Revision Application against the order passed by the learned J.M.F.C. The said order was interlocutory and, therefore, not revisable, as was held by the Full Bench of the Allahabad High Court in case of Father Thomas Vs. State of U.P. & anr. (Criminal Revision No.1640/2001, decided on 22/12/2010). According to learned counsel for respondent No.3, it was obligatory on the part of the petitioners to register F.I.R. and make investigation of the crime. He would further submit, if the petitioners closed the matter without intimating the respondent No.3 about the same, they are liable to face prosecution for offence under Section 166-A(b). A strong reliance has been placed on the judgment of the Apex Court in case of Lalita Kumari (supra). Our attention has also been adverted to Section 157 of the Cr.P.C. in that regard with an ultimate prayer for dismissal of the Writ Petition. Cri.W.P. No.865/2023 :: 9 :: 8. So far as regards Criminal Application No.2606/2023 is concerned, it was submitted by the learned counsel for respondent No.3 that, false and misleading statements on oath have been made in paragraphs No.10 and 14 of the Writ Petition and, therefore, the petitioners are liable to be prosecuted for offence punishable under Section 193 of the Indian Penal Code and even action under Contempt of Courts Act. To be precise, Section 340 of the Cr.P.C. read with 195 (1)(a)(i) was adverted to. Reliance on the following judgments has also been made to ultimately urge for allowing the Criminal Application No.2606/2023. (1) Sciemed Overseas Inc. Vs. BOC India Limited & ors. (2016) 3 SCC 70 (2) ABCD Vs. Union of India [ 2020 ALL MR (Cri) 1781 (S.C.) ] (3) In Re : Perry Kansagra (Suo Motu Contempt Petition (Civil) No.3 of 2021 [ 2022 ALL SCR 1525 ] (4) The State of Punjab Vs. Jasbir Singh 2022 LiveLaw (SC) 776 9. We propose to take the Writ Petition first. Considered the submissions advanced. Perused the documents relied on. The matter has a background. The petitioner No.1 is a member of a Constabulary. He was serving as Assistant Sub-Inspector with M.I.D.C. Police Station Cri.W.P. No.865/2023 :: 10 :: during the relevant time. The petitioner No.2 was Police Inspector, Incharge of the said Police Station. The respondent No.3 herein is a practicing Advocate of 13 years standing. A crime vide C.R. No.509/2022 was registered against him (respondent No.3), his father and one another person for offences punishable under Sections 447, 427, 504, 506 read with Section 34 of the Indian Penal Code. The petitioner No.1 was initially entrusted with the investigation of the said crime. Section 3 of the S.C. & S.T. Act came to be invoked later on in the said crime. The investigation of the crime, therefore, came to be entrusted with the officer in the rank of the Deputy S.P. The record indicates, the respondent No.3 was initially served with a notice under Section 41-A of the Cr.P.C. He was summoned to the Police Station in connection with the investigation of the said crime. His statement came to be recorded. 10. Let us now turn to the issue at hand. The respondent No.3 submitted to the S.P. a written application (complaint) on 18/8/2022. For better appreciation, the averments in the said application are reproduced below :- "ममझझ ववयककक कमळकतत बमबत पकरण नयमयमलयमत पललकबत अससन तयमचम पकरण नल. RCS No.562/2022 असम आहझ. सदरतल कमळकतत बमबत ममझयम कमळकत भमगमततल बतट अलमलदमर ASI जगतमप समहझब हझ तयमलचयम पदमचम गवर वमपर करन ममझयम पकरणमततल पकतवमदत यमलचयमशत हमतकमळवणत करन मलम सदरतल पकरण कमढस न घझणयमसमठत यम.आय.डत.सत. पपलतस ठमणझ यझथझ बपलमवसन सतत दबमव टमकत Cri.W.P. No.865/2023 :: 11 :: आहझ. तयमननसमर मत तयमलनम सदरतल पकरण नयमयपकवष असलयमबमबत कवनलतत कझलत असतम, मलम खपटझ जबमब ननदउन खपटझ गननहझ दमखल करणयमबमबत धमकक दझत आहझत. सदरतल शत जगतमप समहझब यमलचयम अशयम बझकमयदझशतर ककतयममनळझ मलम ममझझ कमम करणझ अशकय हपत आहझ. तरत मम. समहझबमलनत ममझयम तकमरत अजमरचम गमलभतयमरनझ दखल घझऊन यपगय तत कमयर वमहत करन मलम नयमय कमळवसन दमवम हझ नम कवनलतत." 11. The S.P., in turn, forwarded the said application to the head of the M.I.D.C. Police Station, directing him to make enquiry into the matter. He was also directed to record statement of respondent No.3. A further direction was given to intimate the respondent No.3 about the action taken on his application. For better appreciation, the directions given by the S.P. are reproduced below in verbatim: ";kr vki.k Lor% pkSd'kh d#u vtZnkj ;kapk tokc uksanowu ;ksX; rh dk;Zokgh djkoh] o vtZnkj ;kl ijLij mRrj nsowu eqG vtZ o laca/khrkps tkc&tokc Ok pkSd'khrhy brj dkxni= vgoky o vtZnkjkl fnysys let i= ;k lokZaph ,d izr vkiY;k vfHkys[kkoj Bsokoh Hkfo";kr lnj dkxni=kaps vfHkys[k oxhZdj.k d#u R;k ckcrps jsdkWMZ O;ofLFkr Bsokos- ;kr vki.k Lor% pkSd'kh d#u vtZnkj ;kapk tokc uksanowu ;ksX; rh dk;Zokgh djkoh] o vtZnkj ;kl ijLij mRrj nsowu dsysY;k dk;Zokghpk vgoky] eqG vtZ] tkc] tokc o vtZnkjkl fnysY;k let i=kph ,d izfrlg ¼7½ fnolkar ;k dk;kZy;kr lknj djkos-" 12. The grievance of respondent No.3 is that, the present Cri.W.P. No.865/2023 :: 12 :: petitioners did not register F.I.R. based on directions given by the S.P. on his application nor did they inform him about closure of the matter. The petitioners have, therefore, committed an offence under Section 166-A(b) of the Indian Penal Code. The respondent No.3 appears to have had approached the concerned Police Station with his grievance. Since his grievance was not redressed, he filed application, being Criminal Application No.207/2023. The learned Magistrate allowed the said application with a direction to register F.I.R. The learned Magistrate allowed the said application with the following reasons : "8. The complainant has brought to the notice of this Court that despite intimation to the police Section 154(1) and 154(3) to P.S.O., M.I.D.C. Police Station, M.I.D.C. Police Station and Superintendent of Police, Latur, have failed to act and investigate a cognizable offence in accordance with law. Both the aspects have been clearly spelt out in the application and necessary documents to that effect are filed on record. 9. Upon reading of the complaint, I find that the allegations in the complaint/ application disclose cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice. Thus, there is justification to direct the police to register crime under Section 156(3) Cr.P.C. More so when the documentary evidence placed on record clearly establishes the credibility and genuineness of the complainant's allegations against the accused persons." Cri.W.P. No.865/2023 :: 13 :: 13. The petitioners immediately preferred a Revision, being No.46/2023 against the said order. The respondent No.3 suo motu appeared in the said proceedings. It appears, that, the learned Additional Sessions Judge passed interim order in favour of the petitioners, granting stay of the order of the Magistrate. The revision application was drafted by learned Additional Police Prosecutor, Latur. He represented the petitioners therein. It was the objection of respondent No.3 that, State has to be a party respondent in such proceedings, the office of the Police Prosecutor ought not to have filed such application. The respondent No.3, therefore, filed a pursis before the Court of learned Additional Sessions Judge seized of the said Criminal Revision Application. The revisional Court dismissed the Revision Application within 4 days of filing of the pursis (by respondent No.3). The averments made in the said pursis would be referred to later on. 14. A short question that arises for consideration in this Writ Petition is as to whether the learned Magistrate was justified in passing order under Section 156(3) of the Cr.P.C. The petitioner being prospective accused, would only be allowed to urge that from the averments made in the application soliciting order under Section 156(3) of the Cr.P.C. no cognizable offence was made out. Cri.W.P. No.865/2023 :: 14 :: 15 The gist of the averments in the application is as under :- 2- gs fd] rdzkjnkj ;kauh fnukad 18-08-2022 jksth iksyhl vf/k{kd] ykrwj ;kaP;k dk;kZy;kr rdzkjh vtZ nk[ky dsyk gksrk- lnjhy vtkZoj lacaf/kr iksyhl vf/kdkjh ;kaP;k ekQZr dk; dk;Zokgh dj.;kr vkyh ;k ckcr dks.krhgh lwpuk rdzkjnkjkl feGkyh ukgh- lnjhy rdzkjh vtkZoj dk; dk;Zokgh dj.;kr vkyh ;k ckcr ekfgrh ?ks.;klkBh rdzkjnkj ;kauh ekfgrh vf/kdkj vf/kfu;e varxZr vtZ fnyk gksrk- R;kuqlkj rdzkjnkj ;kauk fn- 27-01-2023 jksth ekfgrh izkIr >kyh- 3- gs dh] ekfgrh vf/kdkj varxZr izkIr ekfgrh uqlkj rdzkjnkj ;kauk vls letys dh] lnjpk rdzkjh vtZ iksyhl vf/k{kd ;kauh R;kaps nqÓ;e vf/kdkjh iksyhl fujh{kd ¼vkjksih dzekad 2½ ,e-vk;-Mh-lh iksyhl Bk.ks] ykrwj ;kaph izfrfu;qDrh d#u iq