Dismissed

Rajesh Chandmal Varma v. the State of Maharashtra and Others

Bombay HC13 Nov 2013WP/471/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Sessions Court's quashing of an order directing police investigation. The Court held that while examination under Section 200 CrPC precludes Section 156(3) orders, the police retain independent statutory power to investigate cognizable offences without a Magistrate's direction.

What did the court decide?

Petition dismissed; rule discharged without prejudice to police power to investigate cognizable cases independently.

Rajesh Chandmal Varma Vs the State of… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 471 OF 2013

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RAJESH CHANDMAL VARMA

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age 38 years, Occ. Business, R/o Ishwar Colony, Jalgaon. Petitioner

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VERSUS

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THE STATE OF MAHARASHTRA Through Police Inspector, MIDC Police Station, Jalgaon, Dist. Jalgaon.

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Sow. Ranjana w/o Sham Varma, age 43 years, Occ. Household.

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Sham s/o Ramprasadji Varma, age 44 years, Occ. Business, Both r/o Plot No.1, Ishwar Colony, Vyaknateshpuram, Jalgaon. Respondents.

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... Mr. B.R. Warmaa Advocate for Petitioner Mr. P.N.Muley APP for Respondent no.1 Mr. V.P. Patil advocate For R/2 And 3 ...

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CORAM : ABHAY M. THIPSAY, J.

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Dated: November 13, 2013

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ORAL JUDGMENT :-

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Rule. By consent, rule made returnable forthwith. By

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consent, heard finally.

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The petitioner filed an application before the Chief

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Judicial Magistrate, Jalgaon alleging commission of various cognizable offences by the respondent nos.2 and 3 herein and praying that, the police be ordered to investigate into the matter as contemplated under section 156 (3) of the Code of Criminal Procedure. The learned Magistrate, on 25.9.2012, passed an order

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on the said application to the effect that, he needed some clarification from the mouth of the complaint on the point of the

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alleged offences. He, therefore, directed the complainant ‘to adduce his evidence at the pre-cognizance stage’. Pursuant to this

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order, the applicant was examined by the Magistrate on oath. Thereafter, the Magistrate passed an order purportedly under section 156 (3) of the Code of Criminal Procedure directing the police to investigate into the matter. The respondent nos.2 and 3

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challenged the said order by filing a Revision Application in the Court of Sessions. The learned Additional Sessions Judge who

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heard the revision application allowed the same and set aside the

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order passed by the Magistrate ordering investigation under

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section 156 (3) of the Code of Criminal Procedure.

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The only ground on which the learned Additional

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Sessions Judge set aside the order to investigate the matter as

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passed by the Magistrate was that after having examined the complainant on oath, the Magistrate could not have switched back to the stage as contemplated under section 156 (3) of the Code of Criminal Procedure and could not have ordered an investigation into the matter under the said provision.

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Being aggrieved by the order passed by the Court of Sessions in revision, the petitioner has approached this court by invoking its Constitutional jurisdiction under Articles 226 and 227 of the Constitution of India.

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I have heard the learned counsel for the parties. I have also heard the learned APP.

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The legal position that after examining the

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complainant on oath as contemplated under section 200 of the Code, the Magistrate cannot pass an order under section 156 (3) of

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the Code of Criminal Procedure, is well settled. That an order under section 156 (3) of the Code of Criminal Procedure can be passed only at the pre-cognizance stage and that examining the

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complainant on oath under the provisions of Section 200 of the Code amounts to taking cognizance of the offence/s in question.

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is also well settled. (See i]. Devarapalli L.Reddy V. Vs. Narayan Reddy reported in 1976 SC 1672 & ii] Jamuna Singh Vs. Bhadai Shah reported in 1964 SC 1541).

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There are, however, some other aspects of the matter which need a mention.

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The order dated 25.9.2012 passed by the Magistrate

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does not specifically state that the complainant was to be examined in accordance with the provisions of Section 200 of the Code. The order makes a curious reading and indicates that examination was sought for by the Magistrate for the purpose of satisfying whether an order u/s 156 (3) of the Code should be passed or not. This was, clearly, not permissible. Since the complainant was thereafter examined on oath on the basis of the complaint/application made before the Magistrate, such examination must be treated as having been done under the provisions of Section 200 of the Code. It therefore follows that,

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the order directing an investigation by the police under the

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provisions of section 156 (3) of the Code of Criminal Procedure

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passed thereafter by the Magistrate was not legally sound and therefore, no fault can be found with the order passed by the revisional court.

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The contention advanced advanced by Mr. Warmaa, the learned counsel for the petitioner is that, the petitioner never wanted to have the application made by him treated as a complaint and that, prayer made by the petitioner before the Magistrate was only for an order of investigation under section 156 (3) of the Code of Criminal Procedure. Mr. Warmma, submitted - rightly in my opinion - that the Magistrate ought to have decided this aspect viz :- whether or not to order the investigation and could not to have required the complainant to have himself examined on oath before a Magistrate would take a decision with regard to an order u/s 156 (3) of the Code. Any investigation, after having examined the complainant on oath could only be under Section 202 of the Code.

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I have carefully considered the matter. Though, in the

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circumstances the Magistrate was not justified in examining the

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petitioner on oath, the fact remains that the petitioner instead of protesting at that stage allowed his examination to be carried out by the Magistrate. When such was the situation, the order passed by the Additional Sessions Judge in revision which is challenged by the present petitioner cannot be interfered with.

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Mr. Warmma, then submitted that when the revisional court interfered with the order passed by the Magistrate, the police had already registered a crime by recording a FIR and had commenced the investigation. He submitted that the revisional court ought not to have interfered in the matter at that stage. It is not possible to agree with this submission.

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Considering all the relevant aspects of the matter and

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the undisputed fact that the petitioner had approached the Magistrate for an order u/s 156 (3) of the Code, though I am not inclined to interfere in the matter by exercising the Constitutional Jurisdiction of this Court, it needs to be clarified that should the

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police form an opinion independently, that commission of cognizable offence/offences is disclosed from what has been alleged by the petitioner, they shall not be prevented from

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investigating into the matter in accordance with the provisions of Chapter XII of the Code of Criminal Procedure. It needs to be

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made clear that the police have a statutory power to investigate into cognizable cases and such power does not depend on whether

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the Magistrate orders an investigation or not. Consequently, the

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dismissal of the petition, as is being done, shall not be construed as an order preventing investigation into the matter by the police in the event of police forming an opinion that Commission of

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cognizable offence is, anyway, disclosed.

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The petition is dismissed with the aforesaid

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observations. Rule is discharged.

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( ABHAY M. THIPSAY ) JUDGE.

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aaa/-

Rajesh Chandmal Varma v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Rajesh Chandmal Varma v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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