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2014 DIGILAW 1544 (BOM)

Jagdish v. State of Maharashtra

2014-07-16

V.M.DESHPANDE

body2014
JUDGMENT : V.M. Deshpande, J. 1. The present petition is directed against the judgment and order, passed by the learned District Judge-3, Dhule, dated 3.11.2012 in Criminal Revision Application No. 171 of 2009, by which the learned Revisional Court allowed the revision filed on behalf of respondent Nos. 2 to 18, thereby set aside the order, passed by the learned Magistrate, dated 22.9.2009 in Regular Criminal Case No. 794 of 2006 about issuance of process against them for the offences punishable under Sections 420, 465, 467, 468, 469, 471 and 120B of the Indian Penal Code. I have heard Shri R.J. Godbole, learned counsel for the petitioner, Shri D.R. Korde, learned Additional Public Prosecutor for respondent No. 1/State and Shri N.B. Suryawanshi, learned counsel for respondent Nos. 2 to 18. 2. The present petitioner is the original complainant. He filed a complaint in the court of Chief Judicial Magistrate, Dhule against respondent Nos. 2 to 18 making various allegations in the same. The said complaint is registered as Regular Criminal Case No. 794 of 2006. It was presented in the court of the Judicial Magistrate, First Class, Court No. 2, Dhule on 4.11.2006. On very same day, learned Magistrate was pleased to call the report of police under Section 156(3) of the Code of Criminal Procedure. 3. Pursuant to the said direction, dated 4.11.2006, on 1.4.2007 the police station officer, Deopur police station, Dhule submitted a report with the Judicial Magistrate, First Class. In inquiry, it appears that the investigating officer has recorded statements of various persons. By the said report, the investigating officer reported that in the inquiry he found that the allegations made by the petitioner/complainant are not proved and in order to substantiate the allegations, the complainant has not pointed out any documentary evidence and also he could not bring any witness. 4. On 24.8.2009, the learned Magistrate passed an order to the effect that the report is opposed by the complainant on the ground that it is false, and therefore, the complainant was given liberty to produce his evidence, if any, till next date. On 22.9.2009, the learned Magistrate passed an order to the effect that considering the contentions of the complainant, verification and arguments advanced by the learned counsel for the complainant, the complainant has made out a prima facie case against the accused, and hence, process was issued against respondent Nos. On 22.9.2009, the learned Magistrate passed an order to the effect that considering the contentions of the complainant, verification and arguments advanced by the learned counsel for the complainant, the complainant has made out a prima facie case against the accused, and hence, process was issued against respondent Nos. 2 to 18 for the offences as stated in paragraph 1 of this judgment. 5. Feeling aggrieved thereby, Criminal Revision Application No. 171 of 2009 was placed before the Revisional Court. The learned Revisional Court allowed the Revision. 6. Perusal of the order, passed by the Revisional Court would reveal that mainly the Revisional Court was impressed by the report of the investigating officer and the statements of the witnesses, which he has recorded during his investigation, and therefore, the Revisional Court set aside the said order. 7. Merely because a particular report is filed in the court of the learned Magistrate in pursuance to the inquiry conducted by the police officer under Section 156(3) of the Code of Criminal Procedure, the Magistrate is not obliged to accept the said report, however, if the Magistrate wish to differ with the report filed by the investigating officer, purported to be under Section 156(3) of the Code of Criminal Procedure, then in that event, it is incumbent upon the learned Magistrate to record the reasons for the same. 8. In the present case, it is clear that the learned Magistrate has not recorded any reasons while rejecting the report filed by the investigating officer under Section 156(3) of the Code of Criminal Procedure. 9. Since the learned Revisional Court has mainly allowed the Revision in view of the report submitted by the investigating officer and the statements of the witnesses recorded during the course of said investigation, necessarily the Revisional Court ought to have remanded the matter back to the learned Magistrate. 10. Once the Magistrate has decided to disagree with the police report, the Magistrate ought to have recorded the reasons for his disagreement, because initially the Magistrate was of the view that no case for issuance of process is made out. 11. 10. Once the Magistrate has decided to disagree with the police report, the Magistrate ought to have recorded the reasons for his disagreement, because initially the Magistrate was of the view that no case for issuance of process is made out. 11. Since this court is of the opinion that the learned Revisional Court has only considered the report of the investigating officer and the statements of the witnesses recorded during the investigation for upsetting the order of issuance of process, the said order needs to be quashed and the matter requires to be remanded back to the learned Magistrate for fresh consideration. In the result, Regular Criminal Case No. 794 of 2006 deserves to be remanded back to the Judicial Magistrate, First Class, Court No. 2, Dhule with a direction that the learned Magistrate shall consider all the material placed on record by the complainant and shall also supplement the reasons for rejecting the report submitted by the investigating officer. The learned Magistrate, therefore, shall consider the complaint afresh and shall evaluate every material placed on record by the complainant in its true perspective and shall pass the necessary orders, in accordance with law, without being influenced by the observations made by the learned Revisional Court or by this court while considering the complaint afresh. Hence, I pass following order. ORDER "(i) The order passed by the Judicial Magistrate, First Class, Court No. 2, Dhule, dated 22.9.2009 together with the judgment and order, passed by the learned District Judge-3, Dhule, dated 3.11.2012 in Criminal Revision Application No. 171 of 2009 are hereby quashed and set aside. (ii) Regular Criminal Complaint No. 794 of 2006 is remanded back to the court of Judicial Magistrate, First Class, Court No. 2, Dhule for deciding afresh and to pass appropriate orders, in accordance with law. (iii) The complainant shall appear before the learned Magistrate on 30.7.2014. (iv) The learned Magistrate shall deal with the matter as expeditiously as possible, i.e. within one month from the date of communication of this order. (v) The learned Magistrate shall not be influenced by the observations made by the learned Revisional Court or by this court while considering the complaint afresh. (vi) Rule is made absolute in the above terms. (vii) Criminal Writ Petition is disposed of."