Remanded

Sharad Daulat Tamhane and Ors. v. the State of Maharashtra and Anrf

Bombay HC21 Mar 2024WP/4019/2018

Case brief

AI extract

What is this about?

The High Court of Bombay Criminal Appellate Jurisdiction allowed a writ petition challenging the Magistrate's order issuing process in a criminal case alleging forgery in a sale deed. The Court held that the Magistrate must explicitly state reasons for disagreeing with a police report indicating no case and remanded the matter.

What did the court decide?

The impugned orders of issuance of process and the revision order were set aside. The matter was remanded to the Magistrate to pass fresh orders.

Sharad Daulat Tamhane and Ors. Vs the State of… — Civil Procedure and Limitation | Bombay HC (2024)

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Digitally signed by CHITRA CHITRA SANJAY SANJAY SONAWANE SONAWANE Date: Chitra Sonawane. 2024.03.26 WP-4019-2018.doc 19:30:27 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Cri.Writ Petition No.4019 of 2018

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1. Mr Sharad Daulat Tamhane age : 49 years, Occ.: Agriculture,

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2. Anita Shaarad Tamane age:42 years, Occ.: Agriculture, both are residing at Tamhanwadi, Taluka:Daund, Dist.Pune.

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3. Mrs. Leelavati Gangaram Shivarkar age: 56 years, Occ. Agriculture

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4. Mr Gangaram Rambhau Shivarkar age :62 years, Occ.: Business both are residing at Urulikanchan, behind Police Outpost, Taluka :Haveli, Dist. Pune.

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5. Mr Santosh Machindra Kudale age: 39 years, Occ.: Agriculture residing at Darekarwadi, Boriendi, Taluka :Daund, Dist. Pune.

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6. Mr Suresh Muktaji Mhetre age : 49 years, Occ. Agriculture residing at Sahajpur, Taluka : Daund, Dist. Pune.

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7. Mr Rupesh Raghunath Baravkar age : 44 years, Occ. Agriculture residing at Kedgaon, Taluka : Daund,

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 Page No. 1 of 7

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21 March 2024

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Chitra Sonawane. WP-4019-2018.doc

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Dist. Pune.

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8. Mr Sadanand Chandrakant Prabhune age : 49 years, Occ.:Business residing at Urulikanchan, near Shrikrishna Mandir, Taluka : Haveli, Dist.Pune. ... Petitioners. (Original Accused)

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Vs.

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1. State of Maharashtra through Public Prosecutor, Cri. Appellate Side High Court, Bombay.

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2. Mr Prashant Laxman Shinde age : 44 years, Occ. Service residing at Sr. No.206 B/21, Gali No.5, Tukai Darshan, Phursungi, Hadapsar, Pune – 411 028. ... Respondents.

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Mr Aabad Ponda, Senior Advocate, i/by Karan L. Jain for
petitioners.
Mr Arfan Sait, APP for State-respondent No.1.
Mr Narendra V. Sharma a/w Rachit Khamparia for respondent
No.2.

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 Coram : R. N. Laddha, J.
 Date : 21 March 2024.

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P.C. :

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Heard Mr Aabad Ponda, the learned Senior Counsel for
the petitioners, Mr Arfan Sait, the learned Additional Public

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 Page No. 2 of 7
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Chitra Sonawane. WP-4019-2018.doc

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Prosecutor for the State, and Mr Narendra Sharma for the
second respondent.

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2.This petition is directed against an order of learned Ad-
hoc Additional Sessions Judge, Baramati, in Criminal Revision
No.13 of 2017 whereby the learned Judge upheld the order
of issuance of process passed by the learned Judicial
Magistrate, First Class, Daund, Pune, in RCC No.210 of 2013
below Exhibit 1.

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3. The complainant alleges that he and his mother hold
shares in various properties. Despite their share in the
property mentioned in the complaint, the accused/petitioners
executed a Sale Deed in favour of accused No.2, Anita, on
25.06.2012, for Rs.5,25,000/-. It is alleged that Kisan
Tukaram Tamhane, who was suffering from a mental disorder,
had his wife Sundarabai kidnapped by the accused and
brought before the Sub-Registrar’s office, where the Sale Deed
was executed. Interestingly, the complainant’s grandfather,
Kisan Tamhane, used to sign documents, but in this case, his
thumb impression was obtained on the Sale Deed.
Subsequently, the complainant filed a report with Yawat Police
Station on 13.04.2013, but the police took no cognizance.

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Consequently, he filed a complaint. Following the verification
process, the trial Court found a prima facie case against the
accused under Sections 420 r/w 34 of the Indian Penal Code
and issued a process against them. Aggrieved thereby, the
petitioners challenged it by filing a revision application,
bearing No.13 of 2017, before the Ad-hoc Additional Sessions
Judge at Baramati. However, after hearing both parties, the
revision application was rejected. Further aggrieved by the
order of the Sessions Court, the petitioners now prefer the
present petition.

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4.Mr Aabad Ponda, the learned Senior Counsel, submits
that the Magistrate’s order to issue process was made as if the
report under Section 156(3) CrPC did not exist. The report
itself concludes that no offence has occurred. The learned
Senior Counsel further contends that the Magistrate did not
deal with the statements previously recorded by the police,
instead opting to re-record the statements of the witnesses.
According to the learned Senior Counsel, the Magistrate
failed to adhere to the procedural requirements outlined in
Sections 200 and 202 CrPC. Additionally, the learned Senior
Counsel raises a grievance that the Magistrate did not specify
the basis upon which cognizance was taken, and process was

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issued.

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5.Mr Narendra Sharma, the learned Counsel appearing for
respondent No.2, submits that upon receiving a police report
under Section 173(2), a Magistrate has the authority to
acknowledge an offence under Section 190(1)(b) of the Code,
even if the police report indicates that no case is made out
against the accused. According to the learned Counsel, the
Magistrate may consider the statements of witnesses examined
by the police during the investigation and take cognizance of
the offence without being strictly bound by the procedures
outlined in Sections 200 and 202 CrPC.

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6.From the material available on record, it reveals that the
learned Magistrate initially directed an investigation under
Section 156(3) of the CrPC. However, upon receiving a
report from the police indicating that no offence had been
committed, the Magistrate disagreed with the findings.
Subsequently, the Magistrate took cognizance of the offence
under Section 190(1)(b) CrPC and issued a process against the
accused.

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7.It is undisputed that the conclusions reached by the

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police do not bind the Magistrate. When receiving a police
report under Section 173(2), the Magistrate has the authority
to take cognizance of an offence under Section 190(1)(b) of
the Code, even if the police report indicates that no case has
been made out against the accused. The Magistrate can
consider the statements of witnesses examined during the
police investigation and independently assess the facts
emerging from the investigation before ordering the issuance
of process.

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8.It is the petitioners’ grievance that neither the order of
issuance of process nor the revisional court’s order makes any
reference to the police report. It is a settled position in the
law that when a Magistrate disagrees with the police report,
they must explicitly state the reasons for their disagreement
and the supporting material. In the present matter, the
Magistrate instructed the police to conduct an enquiry under
Section 156(3) CrPC, indicating his lack of prima facie
satisfaction with the allegations in the complaint. While the
Magistrate need not enumerate all the evidence in detail at
this stage, his duty remains to specify the basis for disagreeing
with the police conclusions and proceed to issue process
against the accused. All these aspects are also highlighted in

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the case of Suhas Balkrishna Desai & Ors. Vs. Chandrakant
Ramchandra Parab & Ors.1

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9. Given this, the impugned orders are set aside. The matter is remanded back to the Magistrate for passing fresh orders in the light of the observations made above.

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1 2001(1)Mh.L.J.328.

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21 March 2024

Sharad Daulat Tamhane and Ors. v. the State of Maharashtra and Anrf

Case brief

What is this about?

What did the court decide?

Sharad Daulat Tamhane and Ors. v. the State of Maharashtra and Anrf

Case brief

What is this about?

What did the court decide?

What the court decided

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