Allowed

Chiman Asaram Zope v. Bipin Dinkar Zope and Ors.

Bombay HC23 Oct 2013APPLN/1297/2012

Case brief

AI extract

What is this about?

This High Court quashed an impugned order where a Magistrate directed a u/s 202 inquiry instead of deciding on a specific prayer for investigation u/s 156(3) CrPC. The Court held the Magistrate erred in not examining the complainant and failing to expressly reject the prayer for investigation.

What did the court decide?

Application allowed; impugned order quashed; Magistrate directed to decide specifically on the prayer for investigation u/s 156(3) CrPC.

Chiman Asaram Zope Vs Bipin Dinkar Zope and Ors. — Civil Procedure and Limitation | Bombay HC (2013)

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CRI APPLN 1297.12.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 1297 OF 2012

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CHIMAN ASARAM ZOPE

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VERSUS

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BIPIN DINKAR ZOPE AND ORS

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Advocate for Applicant : Mr. R.P.Bhoomkar h/f Mr.B.R. Waramaa APP for Respondents: Mr. V.P. Kadam. Mr. A I Deshmukh advocate For R/1 Mr. V.T. Chaudhary advocate For R/2

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CORAM : ABHAY M. THIPSAY, J. Dated: October 23, 2013

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ORAL ORDER :-

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Heard the learned counsel for the applicant. Heard

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the learned APP for the respondent No.1- state and heard the

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learned respective counsel for respondent nos.1 and 2.

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By consent, admitted and taken up for hearing forthwith. By consent, heard finally.

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The applicant had filed an application before the

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learned Magistrate alleging commission of offences punishable u/s 420 of the IPC, 468 of the IPC r/w section 34 of the IPC by

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the respondent nos. 1 and 2 herein. The applicant made a

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CRI APPLN 1297.12.odt

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specific prayer to the Magistrate that, investigation as contemplated u/s 156 (3) of the Code of Criminal Procedure be ordered in the matter. He did not make any other prayer. On this

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application, the learned Magistrate passed the following order :-

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“Heard Adv. Shri R.N.Patil. Perused the documents. It is alleged that the accused No.1 by filing forged document of disability got employment in school and Khandesh College Education Society where accused No.2 is the Headmaster to decide as to whether there is reasonable ground to proceed against the accused, report u/s 202 is necessary so put up for verification on 29.11.2011.”

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The applicant was not satisfied with this order as

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apparently, he wanted only an order as contemplated u/s 156 (3) of the Code. He, therefore, made an application before the Magistrate that it was not necessary to record the verification statement. On this, the Magistrate passed an order stating that

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he had already come to the conclusion of ‘calling the report u/s

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202 of the Code of Criminal Procedure’ after considering the allegations in the complaint. He observed that, therefore, he

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could not pass an order u/s 156 (3) of the Code. He also observed

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CRI APPLN 1297.12.odt

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that the allegations levelled in the complaint could be verified by ‘calling the report u/s 202 of the Code.’

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The order passed by the Magistrate is patently illegal.

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The contention of the applicant is that, the applicant

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had asked only for an order of investigation u/s 156 (3) of the Code of Criminal Procedure. The learned counsel for respondents submitted before me that, the Magistrate cannot be compelled to

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pass an order u/s 156 (3) of the Code and that, he had a discretion in the matter and this contention is undoubtedly correct. However, the fact remains that, where a complainant has

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asked for a specific relief of ordering investigation u/s 156 (3) of the Code, the Magistrate must decide whether or not to pass such an order and must expressly turn down such a prayer, in case he is not inclined to order such investigation. The same has not been done by the learned Magistrate in this case and an order to the

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effect that the report u/s 202 was necessary, was passed.

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In the scheme of the provisions of the code, it is clear

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that the question of ordering an investigation by the Police u/s 202 of the Code would arise after the complainant has been

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CRI APPLN 1297.12.odt

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examined under the provisions of Section 200 of the Code. It is when after examining the complainant on oath in accordance with the provisions of section 200 of the Code, the Magistrate is unable to make up his mind as to whether or not there are sufficient grounds for proceeding, then he can order an inquiry or investigation as contemplated u/s 202 of the Code. The Magistrate, in the instant case, without examining the complainant on oath, has decided to ‘call for a report u/s 202 of

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the Code.’ In fact, ‘calling for a report u/s 202 of the Code’ is not

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a proper order and the proper order would be directing the police to carry out investigation as contemplated u/s 156 (3) of the Code. The terminology ‘Call for a Report u/s 202 of the Code’ gives an impression that such a report is already in existence. Use of such terminology ought to have been avoided. Moreover, Section 202 does not speak of any report at all. For this reason also, the expression ‘Call for report u/s 202’ cannot be appreciated.

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The application before the Magistrate was specific. It was for the Magistrate to decide whether or not to grant it.

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Instead of deciding this, he simply directed a ‘report of u/s 202 of

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CRI APPLN 1297.12.odt

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the Code, to be called’ which as aforesaid he could not have done

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without examining the complainant on oath. Since the complainant was not willing for being examined on oath and all that he wanted was that the Magistrate should pass an order under section 156 (3) of the Code ordering investigation by the

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police, the Magistrate should have considered his prayer in accordance with the law and passed appropriate orders in the

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matter.

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The impugned order, therefore, needs to be interfered

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with.

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The application is allowed in terms of prayer clause

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‘ B’.

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It is made clear that no opinion has been expressed by this Court on whether or not a case for ordering investigation u/s 156 (3) of the Code has been made out; and the Magistrate is expected to arrive at a proper decision in that regard in accordance with the law.

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Application is disposed of in the aforesaid terms.

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( ABHAY M. THIPSAY, J. )

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aaa/-

Chiman Asaram Zope v. Bipin Dinkar Zope and Ors.

Case brief

What is this about?

What did the court decide?

Chiman Asaram Zope v. Bipin Dinkar Zope and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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