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2013 DIGILAW 1270 (BOM)

Simon Fernandes v. State of Goa

2013-07-09

R.C.CHAVAN

body2013
JUDGMENT :- Rule. Heard forthwith with the consent of the learned Counsel. Learned Additional Public Prosecutor waives service on behalf of the respondents. 2. This petition questioning the orders passed by the learned Additional Sessions Judge, South Goa, Margao and learned JMFC, Canacona can be disposed of at this stage itself. 3. I have heard the learned Counsel appearing for the petitioner as well as the learned Additional Public Prosecutor for the State. 4. The petitioner had tiled an application before the learned Magistrate praying for direction to the police to investigate into his complaint under Section 156 (3) of the Criminal Procedure Code, since the petitioner had made out all the ingredients of the cognizable and bailable offences having taken place. He had also prayed in the alternative that the Magistrate may take cognizance under Section 190 (1) (a) of the Criminal Procedure Code and proceed further in the matter. The learned Magistrate dismissed the application holding that the remedy available to the aggrieved person on account of inaction on the part of the police to register the FIR was to approach the Magistrate under Section 190 of the Code of Criminal Procedure. The Magistrate also held that the facts and circumstances alleged in the application were not sufficient, to pass any order directing an investigation by the police. The learned Magistrate noted that there was an alternative prayer for proceeding with the complaint under Section 190(1) (a) of the Criminal Procedure Code but held that this purpose would be served if the applicant is directed to file a separate complaint under Section 190(1)(a) of the Criminal Procedure Code. 5. The petitioner was aggrieved particularly by refusal by the learned Magistrate to order investigation and therefore approached the Court of Sessions by filing a revision. He also pointed out that it was wrong on the part of the Magistrate to refuse to proceed with the complaint under Section 190 of the Criminal Procedure Code. However, his submission did not appeal to the learned Additional Sessions Judge, who too dismissed the revision and this is why the petitioner is before this Court. 6. The facts which the petitioner has alleged did not disclose that any police investigation was necessary in order to book the persons against whom the petitioner has a grievance, though ordinarily police could or should have registered the offence and proceeded with the investigation. 6. The facts which the petitioner has alleged did not disclose that any police investigation was necessary in order to book the persons against whom the petitioner has a grievance, though ordinarily police could or should have registered the offence and proceeded with the investigation. Since no evidence was to be collected by the police, or that there was no evidence which the petitioner could have himself placed before the Court, the learned Magistrate may not be faulted for refusing to order investigation under Section 156(3) of the Criminal Procedure Code. He was however obviously wrong in refusing to entertain the complaint when there was specific prayer to this effect and instead giving liberty to the petitioner to again file a complaint under Section 190( I )(a) of the Criminal Procedure Code. To that extent, the impugned orders would have to be quashed and set aside. The petition is therefore partly allowed. The learned Magistrate shall treat the complaint before him as one under Section 190(1) (a) of the Criminal Procedure Code and proceed further with the complaint. 7. Rule is made absolute in the above terms. Petition stands disposed of. Petition partly allowed.