1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2490 OF 2010 Bhaskar S/o Madhavrao Deshmukh and others ..APPLICANTS -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. A.N. Nagargoje, advocate for applicants. Mr. V.D. Godbharale, A.P.P. for respondent/State. Mr. S.S. Pauale holding for Mr. A.P. Piratwad, advocate for respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 20 th October, 2010. PER COURT : 1. By consent, this application is being disposed of, at the stage of admission, in as much as, the legal question involved is rather short one. 2. Heard learned Advocate for the parties and the learned A.P.P. 3. The respondent no.2 filed the private complaint case against the applicants vide Criminal Misc. Application No. 734/2009 seeking reference of the matter under Section 156(3) of the Criminal Procedure Code for investigation. The applicants are 2 alleged members of the Managing Committee of Rajmata Jijau Sahakari Gruh Nirman Sanstha, Garkheda, Aurangabad. The respondent no.2 alleged that she was given allotment letter of a plot in respect of the land of which there was no layout plan sanctioned. She was not given necessary documents though demanded. She has deposited an amount of Rs. 3,15,000/- as price of the plot consisting of 3000 Sq. Ft. She alleged that she was duped by the applicants, and therefore, sought investigation in to the crime allegedly committed by the applicants. The learned Judicial Magistrate came to the conclusion that it was not necessary to send the complaint for investigation under Section 156(3) of the Criminal Procedure Code. He directed an enquiry under Section 200 of the Criminal Procedure Code and adjourned the matter for recording the statement of the respondent no.2 (complainant). The said order was challenged by the respondent no.2 by filing Criminal Revision No. 17 of 2010. The learned Sessions Judge allowed the Revision Application and directed the learned Magistrate to pass appropriate orders. 4. The question is whether the revisional Court exercised the revisional jurisdiction within the parameters of Section 397 of the Criminal Procedure Code. The Revisional Court can not interfere with the discretionary order of the trial Court unless such 3 order is found to be arbitrary or perverse or capricious. The question is whether to take cognizance of the offence or forward the complaint under Section 156(3) of the Criminal Procedure Code is within the domain of the discretion of the learned Magistrate. The learned Magistrate is not under obligation to immediately refer the complaint for investigation, if he comes to the conclusion that the investigation is required in the matter. It is probable that in a particular circumstances, the need for investigation may not be found. For example, where the offence is committed by latter or is allegedly constituted by the documents, there may not be need to carry out thorough investigation. The investigation by the police agency is necessary when recovery is to be made or the complexities of the facts are to be properly clarified through the process of investigation. The Magistrate may or may not send the complaint for investigation. The learned Sessions Judge seems to have overlooked the impact of Section 190 of the Criminal Procedure Code. The learned Magistrate may take cognizance of offence on basis of material made available to him. There is reason as to why the respondent no.2 does insist on thorough investigation of the application through the Police Agency. The intention of the respondent no.2 may be to harass the applicants through the Police Agency. 4 5. In "Rameshbhai Pandurao Hedau V/s State of Gujarat" { 2010 AIR SCW 2353}, the Apex Court held that the Magistrate may invoke powers under Section 202 of the Criminal Procedure Code after taking cognizance and before the issuance of process. It is further held that the Magistrate can invoke power under Section 156(3) of the Criminal Procedure Code at pre- cognizance stage. It is pertinent to notice that the learned Magistrate clearly stated in the order that he had perused the complaint and had heard the learned Advocate. He also made it clear that considering the facts and circumstances of the case, it was not necessary to send the complaint to the concerned Police Station to register the crime and investigate the matter. It is well settled that the expression `Taking of Cognizance' does imply taking into account the nature of allegations and of taking further action in to the complaints. Therefore, perusal of the complaint by the learned Magistrate and his giving anxious thought to the recitals thereof is itself an act of taking cognizance of the complaint. Therefore, the pre-cognizance stage was over and, as such, the application could not be referred under Section 156(3) to the concerned P.S.O. This aspect appears to have been lost sight of by the learned Additional Sessions Judge. It is not obligatory on the part of the learned Magistrate to refer each and every case under Section 156(3) of the Criminal Procedure Code. One can not 5 be oblivious of the fact that a fate of complaints is being filed seeking reference under Section 156(3) of the Criminal Procedure Code with certain oblique intention to invoke the police investigation in order to pressurise the opponents. That is not purport of Section 156(3) of the Criminal Procedure Code. Considering these aspects, the impugned judgment and order rendered by the Sessions Judge is improper, illegal and arbitrary. 6. In the result, the application is allowed. The impugned judgment and order rendered by the Sessions Court is quashed and the F.I.R., if any, registered by the Police Station in pursuance of such order also be deemed as quashed. (V.R.KINGAONKAR) JUDGE gas/cri2490.10