Allowed

Jagannath Prasad Shoke v. State Government of Maharashtra and Ors.

Bombay HC22 Aug 2013APPW/270/2012

Case brief

AI extract

What is this about?

This order addresses a writ petition challenging a lower judge's order to investigate a theft complaint under Section 156(3) Cr.P.C. by a DSP instead of following the initial directive. The court held the re-direction erroneous, noting it detracted from the deterrent impact of the SC/ST Act and potentially served the complainant's mala fides. The investigation order was quashed, and the writ petit

What did the court decide?

The order of the learned Judge directing investigation by the Deputy Superintendent of Police under Section 156(3) Cr.P.C. is quashed and set aside. Criminal Application No. 270 of 2012 is disposed of

Jagannath Prasad Shoke Vs State Government of Maharashtra… — Caste Atrocities | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1804 OF 2010

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WITH

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CRIMINAL APPLICATION NO. 270 OF 2012

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Ramakant M. Patekar and ors.

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.... Petitioners

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Jagannath Prasad Shoke and anr. .... Respondents

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Mr. Vinod Prajapati i/by Law Competere Consultus for the Petitioners. Mr. S.S. Ovalekar for respondent No.1-Legal Aid. Mr. A.R. Patil, APP for respondent No.2.

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CORAM: K. U. CHANDIWAL, J.

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DATE : August 22, 2013

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P.C.:

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Heard extensively.

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2 The respondent, who is working as Senior Sectional

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Engineer (Works) of Railways at Kolsewadi, Kalyan (East), has filed complaint before the learned Judicial Magistrate, First class, Railway

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Court, at Kalyan on 10 February 2009, wherein the learned Magistrate

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directed RPF Inspector, Kalyan to investigate in the matter and file

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report before 20 March 2009. As application was moved by the respondent/original complainant to apply provisions of infraction Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “SC and ST Act”) as he belongs to Scheduled Caste community and the Petitioner/accused are not members of Scheduled Caste community.

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3 The learned Magistrate, Railway Court, Kalyan recalled his order dated 10 February 2009 and directed the Deputy Superintendent of Police, GRP Kalyan to investigate into the matter and submit a report on or before 30 March 2009 under Section 156(3) of the Cr.P.C.

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4 The complaint petition by respondent No.1 was for infraction of several provisions under the Railway Protection Force Act, 1957, Indian Railway Act 1889 and under Sections 109, 111, 120-B, 153-A, 166, 167, 182, 193, 204, 217, 218, 504, 505, 506 of IPC. The paramount aspect of complaint is theft of Railway property. However, in paragraph 3 of the complaint petition, complainant records that after that all workers started returning of the balance material and Mr. Patekar, accused No.1has accounted the same.

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5 The learned Judge did not advert to a basic fact that when

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he has directed investigation on 10 February 2009, there was no occasion and legal reason for him to re-call his order and substitute it by directing the Deputy Superintendent of Police to investigate under Section 156 (3) Cr. P.C. He should have carefully ventured whether based on prima facie material, at least there could be infraction of provisions of SC and ST Act. The impact of application of provisions of SC and ST Act was deterrent which required investigation by a statutory officer and also thereafter trial by a special Judge.

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6 The complaint petition proceeds on allegations of theft of Railway property and the complainant asserts to be an officer. If this is so there should not be application of provisions of SC and ST Act.

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7 The learned counsel for the complainant, during the course of submission, states that after the complaint petition, there was exchange of abuses by the accused/applicant owing to incident of filing complaint and hence it was required to incorporate these facts by way of amendment. These aspects are illusory in its character as they do not find place in the said application. Several unwanted

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aspects are quoted in the said application by original complainant. An impression is generated he has other ruse and grievance against the applicants and desired to encash it by filing prosecution, then adding spices of provisions of SC and ST Act.

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8 The learned Judge basically erred in directing

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investigation by the Deputy Superintendent of Police. Secondly, he should have browsed the provisions of Penal Code or Railway Act and the material in the complaint petition, to form any opinion to call report.

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9 The learned counsel for the complainant points out that as on this date no cognizance is taken by the learned Judge. I quite see the matter is at a preliminary stage. However, the impact created by such directions under Section 156(3) of Cr. P.C is reprehensible it has a long drawn consequences including to the prospects of the services of the applicants.

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10 The present application is under Section 482 of Cr. P.C. The applicants have primarily indicated and established that the complaint petition moved by the respondent was manifestly activated

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with mala fide, as he desired to satisfy his other causes. The order of the learned Judge recalling his order dated 10 February 2013 and directing investigation by the Deputy Superintendent of Police dated 20 March 2009 is quashed and set aside. Writ Petition is allowed. All points at other forum between the parties are kept open.

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11 Criminal Application No. 270 OF 2012 stands disposed of accordingly.

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(K. U. CHANDIWAL, J.)

Jagannath Prasad Shoke v. State Government of Maharashtra and Ors.

Case brief

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What did the court decide?

Jagannath Prasad Shoke v. State Government of Maharashtra and Ors.

Case brief

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