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2020 DIGILAW 1420 (BOM)

Rekha v. Ajay Ghanshyamdas Karwa

2020-12-08

SWAPNA JOSHI

body2020
JUDGMENT : 1. By this Application, Applicant has challenged the order dated 22/10/2012 passed by the Judicial Magistrate First Class, Hinganghat in OMC No.119 of 2012, whereby the learned Magistrate rejected the prayer of the Applicant for issuance of order for investigation under Section 156(3) of the Code of Criminal Procedure (for short, ‘the Code’ for the sake of brevity) and ordered that the Applicant/complainant to produce all the witnesses and examine them on oath as per the provisions under Section 202(2) of the Code. The matter was then fixed for evidence of the Applicant/complainant. 2. The brief facts of the case are that an accident had taken place on National High Way No. 7 in the vicinity of village Rimdoh between two vehicles i.e. Honda City bearing registration No. MH- 31-PC-8806 driven by Abhijit Shambharkar (deceased) and a truck bearing registration No. MH-04-P-7108 driven by Wahid Khan Pathan – Respondent No.5. Due to the said accident, husband of the Applicant namely, Abhijit Shambharkar and a lady traveling with him died. Therefore, on 28/3/2012 First Information Report bearing No. 74 of 2012 was registered at Police Station, Hinganghat for the offence punishable under Sections 279 and 304-A of Indian Penal Code and Sections 184, 120 and 177 of Motor Vehicles Act against the driver of the truck i.e. Respondent No.5 – Wahid Khan Pathan. 3. On 8/4/2012 and 13/4/2012 the Applicant filed complaints before the Superintendent of Police, Wardha alleging that there was a conspiracy to kill her husband and she demanded CID enquiry in respect of the death of her husband Abhijit Shambharkar. It appears that since the request of the Applicant was not considered, on 14/9/2012 the Applicant preferred an application before the learned Judicial Magistrate First Class, Hinganghat under Section 156(3) of the Code bearing O.M.C. No. 119 of 2012 requesting for registration of FIR against the Respondents on the basis of her complaint. Since the learned Magistrate, Hinganghat rejected the prayer of the Applicant for issuance of order for investigation under Section 156(3) of the Code of Criminal Procedure, the Applicant has approached this Court and preferred the present Application under Section 482 of the Code of Criminal Procedure. 4. Ms. Since the learned Magistrate, Hinganghat rejected the prayer of the Applicant for issuance of order for investigation under Section 156(3) of the Code of Criminal Procedure, the Applicant has approached this Court and preferred the present Application under Section 482 of the Code of Criminal Procedure. 4. Ms. Divya Joshi, the learned Counsel appearing for the Applicant vehemently argued that the Judicial Magistrate First Class, Hinganghat has failed to consider the request of the wife of the deceased i.e. Applicant herein that she was aware of the unfair activities of the Respondent Nos.1 to 3, and therefore, she suspected that they are responsible for causing the death of her husband Abhijit Shambharkar. It is contended that the deceased Abhijit wanted to leave the office of Respondent No.1, however, the Respondent No.1 threatened him and asked to attend the work. Therefore, he drove the vehicle and the said incident had taken place. It is submitted that the Applicant/complainant suspects that the said incident was not a simple accident, but it was a planned murder of her husband caused by the Respondents. It is submitted that the order passed by the learned Magistrate is an erroneous order, in as much as the learned Magistrate Hinganghat has observed that as the allegations against the Respondents are in respect of the offence punishable under Section 302 of Indian Penal Code and it is triable by the Court of Sessions, therefore, the request for issuance of order for investigation under Section 156(3) of the Code was rejected. 5. The learned Counsel submitted that the learned Magistrate has issued process under Section 202(2) of the Code and he has wrongly observed that Section 202 of the Code acts as a bar against Section 156(3) of the Code. The learned Counsel has relied upon various decisions of the Hon’ble Apex Court in support of her contention. 6. Per contra, Ms. Haider, the learned APP supported the order passed by the learned Magistrate and contended that no illegality and perversity is found in the said order. 7. Mr. Deshpande, the learned Counsel for Respondent Nos.1 to 3 contended that the learned Magistrate has taken proper steps as per the clear provisions under Section 202 of the Code. 6. Per contra, Ms. Haider, the learned APP supported the order passed by the learned Magistrate and contended that no illegality and perversity is found in the said order. 7. Mr. Deshpande, the learned Counsel for Respondent Nos.1 to 3 contended that the learned Magistrate has taken proper steps as per the clear provisions under Section 202 of the Code. As the allegations were serious and the case under Section 302 of Indian Penal Code was to be tried by the Court of Sessions, the learned Magistrate has exercised the power under Section 202 of the Code. It is submitted that there is nothing wrong in the order passed by the learned Magistrate. 8. The learned Counsel contended that so far as the complaint filed by the wife of the deceased is concerned, it is still pending before the learned Magistrate and the cognizance has been taken by the learned Magistrate in that matter. The Applicant herein can adduce her evidence and can produce her evidence in support of her contention, and therefore, no prejudice has been caused to her. 9. The learned Counsel further contended that the statements have been recorded in respect of FIR No. 174 of 2012 and the final report form has been submitted against the Respondent No.5 – Wahid Khan Pathan for the offence punishable under Sections 279 and 304-A of Indian Penal Code and Sections 184, 120 and 177 of Motor Vehicles Act. Subsequently, the case was committed to the Court of Sessions and Sessions Case No. 49 of 2017 is pending before the Sessions Court. 10. It is thus clear that now chargesheet has been filed in respect of FIR No. 174 of 2012 and the trial against the Respondent No.5 is pending before the Sessions Court, Hinganghat. 11. A bare perusal of the order passed by the learned Magistrate dated 22/10/2012 shows that considering the fact that the Applicant/complainant had made serious allegations of murder against the Respondents herein, instead of directing the police to carry further investigation on the complaint lodged by the Applicant/complainant at Hinganghat Police Station, as per the provisions under Section 156(3) of the Code, he himself has taken the cognizance of the matter under Section 202 of the Code. Considering the fact that offence under Section 304-A of Indian Penal Code is triable by the Sessions Court, the learned Magistrate has rightly called upon the complainant to produce her witnesses and to examine them on oath. The only observation which the learned Magistrate has not properly made is that “Section 202 of the Code acts as a bar against Section 156(3) of the Code”, the learned Magistrate should have considered that the powers to direct an investigation to the police authorities is available to the Magistrate both under Sections 156(3) of the Code as well as under Section 202 of the Code. Only difference is the stage at which the said powers may be invoked. 12. In my considered opinion, the learned Magistrate has rightly taken the steps and has proceeded by following the provisions under Section 202 of the Code, as the offences were triable by the Court of Sessions. 13. The provisions under Section 202 of the Code reads as under : “202. Postponement of issue of process – (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police office or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Provided that no such direction for investigation shall be made – (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” The aforesaid provision makes clear that the Magistrate may on receipt of a complaint of an offence of which he is authorised to take cognizance, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be conducted by the police officer for deciding whether or not there is sufficient ground for proceeding. Thus, as per the aforesaid provision, the Magistrate has an option either to direct the police officer to investigate the case based on the complaint lodged by the complainant or the Magistrate can himself proceed with the case by recording the evidence of the witnesses on oath. 14. Chapter XII of the Code deals with the information to police and their powers to investigate are dealt with in Sections 154 to 156. Section 156 (1) casts an onerous duty on any officer-in-charge of a police station to investigate any cognizable case without the order of a Magistrate; whereas under Section 156(3), any Magistrate empowered under Section 190 may order such an investigation as mentioned in Section 156(1) of the Code. Section 156 reads thus : “156. Police officer’s power to investigate cognizable cases – (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of the Chapter XIII. (2) ------- (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.” The provisions stipulated under Section 157 onwards deal with the powers and procedure for investigation. (2) ------- (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.” The provisions stipulated under Section 157 onwards deal with the powers and procedure for investigation. Section 169 prescribes that if upon an investigation it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, to appear as and when required before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. Whereas, Section 170 prescribes that if upon investigation it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. If the offence is bailable, the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Section 173(1) requires a police officer to complete the investigation without unnecessary delay. Section 173(2) prescribes that as soon as the investigation is completed, the officer-in-charge of a police station shall forward to a Magistrate empowered to take cognizance of the offence on a report of the police in the form prescribed by the State Government stating the various particulars mentioned in that sub-section. Chapter XIV deals with the conditions requisite for initiation of a proceeding. For the sake of brevity and better understanding, Section 190(1) is extracted herein below:- “190. Chapter XIV deals with the conditions requisite for initiation of a proceeding. For the sake of brevity and better understanding, Section 190(1) is extracted herein below:- “190. Cognizance of offences by Magistrates – (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.” Sections 200 to 203 appearing in Chapter XV of the Cr.P.C. speaks about “Complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by S. 200 to examine upon oath the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint made. If he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Provided that no such direction for investigation shall be made – (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. Section 203 empowers a Magistrate to dismiss a complaint, if after considering the statements on oath. Section 203 empowers a Magistrate to dismiss a complaint, if after considering the statements on oath. If any, of the complainant and of the witnesses, and the result of inquiry or investigation, if any, under S. 202 the Magistrate is of the opinion that there is no sufficient ground for proceeding. Chapter XVI of the Cr.P.C. deals with commencement of proceedings before Magistrate and S. 204 enables a Magistrate to issue summons or a warrant, as the case may be, to secure the attendance of the accused, if in the opinion of the Magistrate taking cognizance of the offence, there is sufficient ground for proceeding. The provisions of the Cr.P.C. which are referred to in the preceding paragraphs would clearly reveal that on receipt of a complaint, a Magistrate has several courses open to him. (1) He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under S. 200 and thereafter if in his opinion there is no sufficient ground for proceeding, he may dismiss the complaint under S. 203. If in his opinion there is sufficient ground for proceeding, he may issue process under S. 204, but then if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person, as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process, if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. (2) On the other hand, in the first instance, on receipt of a complaint, a Magistrate may instead of taking cognizance of the offence, order an investigation under S. 156(3). The police will then investigate and submit a report under S.173(2). On receiving the police report, the Magistrate may take cognizance of the offence under S. 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by police in their report as to whether an offence has been made out or not. The police report under S.173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. This he may do irrespective of the view expressed by police in their report as to whether an offence has been made out or not. The police report under S.173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by police and he may decide to issue process even if the police recommends that there is no sufficient ground for proceeding further. In a given case, a Magistrate after receiving the police report may, without issuing process or dropping the proceeding, decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements on oath of the complainant and the witnesses present under S. 200 Cr. P. C. and thereafter decide whether to dismiss the complaint or issue process. A cumulative reading of the provisions of the Cr.P.C. makes it clear that a Magistrate, who on receipt of a complaint orders an investigation under S. 156(3) and receives a police report under S. 173(1) may thereafter do one of the three things, viz – (1) He may decide that there is no sufficient ground for proceeding further and drop the case; (2) He may take cognizance of an offence under S. 190(1)(b) on the basis of the police report and issue process. This he may do without being bound in any manner by the conclusion arrived at by the police in their report; or (3) He may take cognizance of an offence under S. 190(1)(b) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative, he may hold or direct an inquiry under S. 202, if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be. 15. In the instant case, Magistrate has chosen to record the evidence of the witnesses in order to find out whether there is any substance in the complaint or not as the offence complained of is triable exclusively by Court of Sessions. According to the learned Counsel matter is now fixed for order. 16. 15. In the instant case, Magistrate has chosen to record the evidence of the witnesses in order to find out whether there is any substance in the complaint or not as the offence complained of is triable exclusively by Court of Sessions. According to the learned Counsel matter is now fixed for order. 16. The learned Counsel for Applicant placed reliance on the Judgment of the Hon’ble Apex Court in the matter of Devarapalli Lakshminarayana Reddy and others V/s V. Narayana Reddy and others, reported in (1976) 3 Supreme Court Cases 252. The Hon’ble Apex Court in para no.17 has observed as under : “17. Section 156(3) occurs in Chapter XII, under the caption “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading : “Of complaints to Magistrate”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the magistrate in completing proceedings already instituted upon a complaint before him.” 17. In my considered opinion, the learned Magistrate has rightly taken steps as per the provisions under Section 202 of the Code. 18. In the Judgment relied upon by Mr. Deshpande, the learned Counsel for Respondents in the matter of Rameshbhai Pandurao Hedau V/s State of Gujarat, reported in 2010 ALL SCR 1191, the Hon’ble Apex Court in paragraph nos.17 and 18 has observed that : “17. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the post-cognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant’s prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him. 18. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3), Cr.P.C. and under Section 202, Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated herein before, the power under Section 156(3), Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions.” The aforesaid cases (cited supra) cover the case of the Applicant herein. Since the offence under Section 304-A of Indian Penal Code is exclusively triable by the Court of Sessions, the learned Magistrate has rightly proceeded as per the provisions contemplated in Section 202 of the Code and called witnesses of the complainant for recording their evidence in accordance with law. 19. In view of the facts and circumstances, I do not find any illegality or perversity in the order passed by the learned Magistrate. No interference is therefore called for. Hence, the Application needs to be dismissed. 20. Criminal Application is hereby dismissed. 21. The learned Magistrate, Hinganghat is hereby directed to proceed with the complaint filed by the Applicant herein, in accordance with law.