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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 684 OF 2013
(Arising out of S.L.P. (Crl.) No. 7293 of 2009)
Madhao & Anr. .... Appellant(s)
Versus
State of Maharashtra & Anr. .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 685 OF 2013
(Arising out of S.L.P. (Crl.) No. 7324 of 2009)
CRIMINAL APPEAL NO. 686 OF 2013
(Arising out of S.L.P. (Crl.) No. 7332 of 2009)
CRIMINAL APPEAL NO. 687 OF 2013
(Arising out of S.L.P. (Crl.) No. 7693 of 2009)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted in all the special leave petitions.
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CRIMINAL APPEAL NO. OF 2013
(Arising out of S.L.P. (Crl.) No. 7293 of 2009)
2) This appeal is directed against the final judgment and
order dated 02.09.2009 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur in Criminal
Application No. 3112 of 2006 whereby the High Court
dismissed the appeal filed by the appellants herein while
confirming the order dated 27.09.2005, passed by the Court
of Judicial Magistrate, First Class, Ghatanji in Criminal
Complaint Case No. 92 of 2005.
3) Brief facts:
(a) The Government of Maharashtra has published a
Government Resolution on 02.06.2004 wherein it was
informed to the public at large that the percentage of
educated un-employed amongst the Scheduled Caste and
neo-Buddhist are on the higher side and those who are below
poverty line are required to work under different schemes
and their standard of living is consequently adversely
affected. For the said reason, it was resolved that land
should be made available to such people to create a source
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of income for them. For the said purpose, a scheme was
framed by name Karamveer Dadasaheb Gaikwad
Sabalikaran and Swabhiman Yojana Samiti. As per the
Scheme, a Committee was constituted in each district and
the Collector of the district was to act as Head of the
Committee. The said Scheme was made applicable with
effect from 01.04.2004. As per the Scheme, land was to be
purchased by the Government and was to be made available
to the persons belonging to the Scheduled Caste and neoBuddhist who were below poverty line.
(b) Madhao Rukhmaji Vaidya-Appellant No.1 herein while
working as Special District Welfare Officer and Member
Secretary of the Samiti under the Scheme, did several
transactions under the supervision of District Collector,
Yavatmal. Sau. Sadhana Mahukar Yavalkar-appellant No.2, a
Warden at Government Hostel, Ghatanji, District Yavatmal
was working as Assistant of appellant No.1 in the said
Scheme. She was authorized by appellant No.1 to get the
Sale deeds executed in favour of the Government of
Maharashtra under the Scheme.
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(c) On 04.04.2005, the State Government purchased
agricultural land situated at village Koli-Bujruq. The said land
was jointly owned by eight persons. The appellants, after
perusing the revenue records of the said land purchased it
from the Vendors by getting executed a registered sale
deed. At the time of execution of sale deed, on 07.05.2005,
an affidavit was sworn by the Vendors that they were
residents of Mouza Koli-Buzruq, Tahsil Ghatanji, District
Yavatmal and were the owners of Gut No. 43 of the said
property.
(d) On 04.06.2005, A newspaper by name “Tarun Bharat”
published an article in which it was alleged that the
petitioners have purchased agricultural land showing
Ramesh as alive while he was dead. It was further alleged
that one Ramesh Shikaji Rathod had signed the sale deed as
Ramesh Shika Jadhav.
(e) On coming to know about the said publication, appellant
No. 1 on 29.06.2005 made an enquiry and recorded the
statements of the said eight Executants and on 02.07.2005
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lodged a report in Ghatanji P.S. against them for an offence
of impersonation and cheating.
(f) On 07.07.2005, the officials of Ghatanji P.S. registered
offences punishable under Sections 420, 419, 468 and 34 of
the Indian Penal Code, 1860 (for short ‘IPC’) for the acts of
fraud, criminal breach of trust and impersonation against the
said accused persons vide Crime No. 88 of 2005.
(g) On 09.09.2005, one Rajnikant Deluram Borele, claiming
himself to be a Social Worker, filed a Criminal Complaint in
the court of the Judicial Magistrate, First Class, Ghatanji,
which was registered as Case No. 92 of 2005 against the
appellants-herein, Sub-Registrar and few more persons. In
the complaint it was alleged that the accused had purchased
the land from a dead person, namely, Ramesh Shikaji Jadhav,
while the appellants were acting in their official capacity
under the said Scheme.
(h) Learned Magistrate, by order dated 27.09.2005,
directed the Police to investigate the matter under Section
156(3) of the Code of Criminal Procedure Code, 1973 (in
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short the “Code”) and to submit a detailed report within one
month.
(i) On 15.09.2006, the appellants (Madhao Rukhmaji
Vaidya and Sau. Saudhana Mahukar Yavalkar) filed an
application under Section 482 of Cr.P.C. being Criminal
Application No. 3112 of 2006 before the Bombay High Court
seeking quashing of the prosecution of the applicants
(appellants herein) in Crime No. 92 of 2005.
(j) On 02.09.2009, after hearing the parties, the High Court
dismissed the Criminal Application preferred by the
appellants-herein by holding that the procedure adopted and
the power exercised by the Magistrate ordering investigation
under Section 156(3) of Cr.P.C. is just and proper.
(k) Being aggrieved, appellants herein filed SLP No. 7293 of
2009.
CRIMINAL APPEAL NO. OF 2013
(Arising out of S.L.P. (Crl.) No. 7324 of 2009)
4) On 27.09.2006, one of the accused, namely, Akash
Dattatraya Marawar (A-1), business man, also filed Criminal
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Application No. 3242 of 2006 before the High Court seeking
quashing of the prosecution in Crime No. 92 of 2005. The
High Court, by order dated 02.09.2009, dismissed the
application. Being aggrieved, he filed special leave petition
No. 7324 of 2009.
CRIMINAL APPEAL NO. OF 2013
(Arising out of S.L.P. (Crl.) No. 7332 of 2009)
5) On 24.10.2006, another accused, namely, Omprakash
Hiralal Jaiswal, Sub-Registrar, also filed Criminal Application
No. 3526 of 2006 before the High Court seeking quashing of
the prosecution in Crime No. 92 of 2005. The High Court, by
order dated 02.09.2009, dismissed the application. Being
aggrieved, he filed special leave petition No. 7332 of 2009.
CRIMINAL APPEAL NO. OF 2013
(Arising out of S.L.P. (Crl.) No. 7693 of 2009)
6) On 29.10.2006, one of the accused, namely, Aslam
Shakil Julphikar Khan, employee of Akash Dattatraya
Marawar (A-1), business man, also filed Criminal Application
No. 3240 of 2006 before the High Court seeking quashing of
the prosecution in Crime No. 92 of 2005. The High Court, by
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order dated 02.09.2009, dismissed the application. Being
aggrieved, he filed special leave petition No 7693 of 2009.
7) Heard Mr. Uday U. Lalit, learned senior counsel for the
appellant and Mr. Shankar Chillarge, learned Additional
Advocate General for the respondent-State of Maharashtra.
8) The only point for consideration in all these appeals is
whether the learned Magistrate is justified in directing the
Police to investigate and submit a detailed report within one
month under Section 156(3) of the Code.
9) The order of the learned Magistrate shows that before
passing the direction for investigation under Section 156(3),
heard the counsel for the complainant, perused the
allegations made against the accused in the complaint and
documents annexed therewith. It also shows that taking
note of the fact that some of the accused are public officers
and after observing that it needs proper investigation prior to
the issue of process against the accused under Section
156(3) of the Code directed the P.S.O. Ghatanji to investigate
the matter and submit a detailed report within one month.
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10) Chapter XIV of the Code speaks about conditions
requisite for initiation of proceedings. Section 190 deals with
cognizance of offences by Magistrates. In terms of subsection (1) subject to the provisions of the said Chapter, any
Magistrate of 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.
11) Sub-section (3) of Section 156 of the Code enables any
Magistrate empowered under Section 190 may order such an
investigation in terms of sub-section (1) of that section.
12) In CREF Finance Ltd. vs. Shree Shanthi Homes (P)
Ltd. and Another, (2005) 7 SCC 467, while considering the
power of a Magistrate taking cognizance of the offence, this
Court held:
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“10. …. Cognizance is taken at the initial stage when the
Magistrate peruses the complaint with a view to ascertain
whether the commission of any offence is disclosed. The
issuance of process is at a later stage when after
considering the material placed before it, the court
decides to proceed against the offenders against whom a
prima facie case is made out. It is possible that a
complaint may be filed against several persons, but the
Magistrate may choose to issue process only against some
of the accused. It may also be that after taking cognizance
and examining the complainant on oath, the court may
come to the conclusion that no case is made out for
issuance of process and it may reject the complaint. It may
also be that having considered the complaint, the court
may consider it appropriate to send the complaint to the
police for investigation under Section 156(3) of the Code
of Criminal Procedure….”
It is clear that any judicial magistrate before taking
cognizance of the offence can order investigation under
Section 156(3) of the Code. If he does so, he is not to
examine the complainant on oath because he was not taking
cognizance of any offence therein.
13) When a magistrate receives a complaint he is not bound
to take cognizance if the facts alleged in the complaint
disclose the commission of an offence.
The magistrate has
discretion in the matter.
If on a reading of the complaint, he
finds that the allegations therein disclose a cognizable
offence and the forwarding of the complaint to the police for
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investigation under Section 156(3) will be conducive to
justice and save the valuable time of the magistrate from
being wasted in enquiring into a matter which was primarily
the duty of the police to investigate, he will be justified in
adopting that course as an alternative to taking cognizance
of the offence itself.
As said earlier, in the case of a
complaint regarding the commission of 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).
However, if he once takes such
cognizance and embarks upon the procedure embodied in
Chapter XV, he is not competent to revert back to the pre cognizance stage
and avail of Section 156(3).
14) Where a Magistrate chooses to take cognizance he can
adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that
there are sufficient grounds for proceeding he can
straightaway issue process to the accused but before he
does so he must comply with the requirements of
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Section 200 and record the evidence of the complainant
or his witnesses.
(b) The Magistrate can postpone the issue of process
and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process
and direct an enquiry by any other person or an
investigation by the police.
15) In case the Magistrate after considering the statement
of the complainant and the witnesses or as a result of the
investigation and the enquiry ordered is not satisfied that
there are sufficient grounds for proceeding he can dismiss
the complaint.
16) Where a Magistrate orders investigation by the police
before taking cognizance under Section 156(3) of the Code
and receives the report thereupon he can act on the report
and discharge the accused or straightaway issue process
against the accused or apply his mind to the complaint filed
before him and take action under Section 190 of the Code.
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17) The above principles have been reiterated in
Devarapalli Lakshminarayana Reddy and Others vs. V.
Narayana Reddy and Others, (1976) 3 SCC 252 and Tula
Ram and Others vs. Kishore Singh, (1977) 4 SCC 459
18) Keeping the above principles,
if we test the same with
the direction issued by the magistrate for investigation under
Section 156(3) of the Code and facts of these cases, we are
satisfied that the magistrate has not exceeded his power nor
violated any of the provisions contained in the Code.
As
observed earlier, the magistrate need not order any
investigation if he pre-supposes to take cognizance of the
offence and once he takes cognizance of the offence, he has
to follow the procedure provided in Chapter XV of the Code.
It is also settled position that any judicial magistrate before
taking cognizance of the offence can order investigation
under Section 156(3) of the Code.
19) As rightly observed by the High Court, the magistrate
before taking cognizance of the offence can order
investigation under Section 156(3) of the Code,
we are of the
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view that the procedure adopted and the power exercised by
the magistrate in this case is acceptable and in accordance
with the scheme of the Code.
We are also satisfied that the
High Court rightly refused to exercise its power under Section
482 of the Code.
20) In the light of the above discussion and conclusion, we
find no merit in all these appeals, consequently, the same
are dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MAY 03, 2013.
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