Learned APP waives servicefor the respondent State in all these petitions whereas advocate Mr.N.B. Narwade waives service for the respondent complainant.On therequest of both the sides, the matters are heard finally at the stage ofadmission and are being disposed of by this common judgment.26.wp.1582.16.odtrespondent complainant went missing in the evening of 30.06.2001.He went to the Police Station concerned and attempted to lodged amissing report but he was kept waiting.His complaint was destroyed.On their own the police machinery registered a missing complaint onnext day.All the while he was suspecting about his son having beenmurdered.Heard the learned advocates of all the four petitioners.The petitioners are the accused nos. 10, 7, 4 and 9 from thecomplaint bearing Criminal Case No.572/2008 filed by the respondentcomplainant in the Court of Magistrate at Ahmednagar.In sum andsubstance the allegations are to the effect that the son of the 3/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::The dead body was found near a railway track in the nextmorning.In spite of existence of number of circumstances pointing tothe fact that it was a murder the police machinery had acted hand ingloves with the main culprits and at every moment made attempt toscreen the offenders and mala fide did not discharge their duties eitheras was expected of them or in utter disregard to the directions of thesuperior.Giving details he filed the complaint for various offencesagainst the petitioners and the other police officers, covered byChapter IX of the Indian Penal Code like 166, 167, 201, 218, 211 readwith Section 34 of the Indian Penal Code and Section 145 of theMumbai Police Act.The learned Magistrate directed an inquiry under Section202 of the Code of Criminal Procedure.After receipt of a positivereport, by the impugned order dated 06.01.2014 the learnedMagistrate directed the process to be issued against the petitioners andfew other accused but refused to issue process against some of theaccused.The petitioners preferred separate revisions challenging the 4/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::26.wp.1582.16.odtorder of issuance of process before the Sessions Court.By theimpugned separate orders, the learned Additional Sessions Judgedismissed the revisions.Hence these petitions.The learned advocates submitted that accepting theallegations in the complaint at their face value, all the necessaryingredients for constituting the offence cannot be made out.The learned advocates also submitted that the alleged actswhich according to the respondent complainant constitutes theoffences for which the process has been issued have been done by the 5/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::The learned Additional Sessions Judge has clearly erred inrefusing to consider it at the stage of inception.The learned APP and the learned advocate for therespondent complainant support both the orders.They submit that at 6/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::26.wp.1582.16.odtvery limited in ascertaining as to if there was sufficient material beforethe Magistrate, to form an opinion for proceeding.9/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::As far as accused no. 4 is concerned the report reads thathe had accompanied the co-accused who was an Assistant SubInspector who was asked to conduct inquiry in respect of theAccidental Death Case No.41/2001 and had accompanied him to thespot where the dead body was found.He specifically mentioned thatthe dead body was handed over to him for being taken to the CivilHospital.After postmortem examination he had handed over the deadbody and the articles found on it to the relatives of the deceased.Theclothes on the person of the deceased were kept by the sweeper outside the mortuary and since the relatives of the deceased had notdemanded the clothes he did not bring the clothes to the police station.One cannot comprehend as to why the clothes of the deceased werenot seized and also as to how merely because the relatives did notdemand clothes back, the clothes were allowed to go vanish.As far as accused no.7 is concerned during the inquiry hestated about being in charge of Kotwali Police Station as a SubInspector at the relevant time.He submitted that the report in respectof AD Case No.41/2001 submitted under Section 174 by the co-accused was received by him.In spite of having repeatedly called therespondent complainant and his relatives they did not turn up to himand that he had never threatened him.He further stated about havingcollected report from the Medical Officer who opined that the deceased 10/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::26.wp.1582.16.odthad died due to dash given by train.It is thus apparent that accused no.4 has not seized theclothes and the articles found on the person of the deceased andallowed such things to go vanish.Accused no.7 to whom the reportwas submitted also ignored this vital aspect.Though the dead bodywas found by the side of the railway track, no inquiry was made withany railway staff particularly the Gangman and the Train Drivers.Besides though according to petitioner accused no. 7 the respondentcomplainant and his relatives had not turned up for the inquiry, still hesubmitted a report about the deceased having committed suicidewithout their being any cogent material.So far as accused no.9 is concerned it was found in thereport under Section 202 that at the material time he was in charge asPolice Inspector of Kotwali Police Station within the limit of which theincident had occurred.On a grievance being made by the respondentcomplainant with the Superintendent of Police the latter had sent aletter dated 19.07.2001 to the petitioner-accused no.9 specificallydirecting him to inquire into and investigate on specific points detailedtherein (Ex. R-1).In spite of such specific and precise directions tocarry out the investigation objectively, this petitioner-accused no.9 hasnot carried out the investigation as was expected.He was specifically 11/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::26.wp.1582.16.odtasked to carry out the investigation and if necessary to examine thewitnesses still he never obeyed these directions and no attempt wasmade to recover the bicycle, chapals and clothes of the deceased.As far as the petitioner-accused no.10 is concerned it wasfound that at the material time he was Deputy Superintendent ofPolice and was expected to have supervision over the work ofPetitioner-accused no.9 who was expected to submit the report as perthe directions of the Superintendent of Police.By no stretch of imagination the order can be said to be perverse,arbitrary or capricious without which the learned Additional SessionsJudge could not have intervened under the powers of revision underSection 397 of the Code of Criminal Procedure.12/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::Thelearned Additional Sessions Judge was conscious enough to specificallyobserve that the issue needs to be kept open for a final decision at theend of the trial.The learned Additional Sessions Judge has notstraight away endorsed the conclusion of the learned Magistrate in theimpugned order that the offence was not committed in discharge of theofficial duty and sanction was not necessary.The observation and theconclusion of the learned Additional Sessions Judge in the impugned 13/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::26.wp.1582.16.odtjudgment keeping this issue open is quite reasonable and expects theMagistrate to adopt correct course of action.Nagawwa (supra) so that the order of issuance of process can beset aside and the complaint can be dismissed.There is no substance inany of the Writ Petitions.The Writ Petitions are dismissed.(MANGESH S. PATIL, J.)habeeb 14/14 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::::: Uploaded on - 04/10/2019 ::: Downloaded on - 05/10/2019 05:23:03 :::

Sections cited: Section 34 in The Indian Penal Code