* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1138 OF 2008 Shri.Sudhakar Suradkar 801-Bullet, Gazetted Police Officers CHS, Lakhamshi Nappu Road, Hindu Colony, Dadar (East), Mumbai-400 014 ....Applicant V/s. 1. State of Maharashtra 2. Shri. Ramrao Pawar (Deputy Commissioner of Police Zone-II) J.J.Road, Opp.Humes High School, Nagpada, Mumbai-400 008. ....Respondents Mr.Sudhakar Suradkar,applicant in person. Mr.Kuldeep Patil, adv.for respondent no.2. Mrs.A.A.Mane, APP for State. W I T H CRIMINAL APPLICATION NO. 1721 OF 2008 Shri.Sudhakar Suradkar 801-Bullet, Gazetted Police Officers CHS, Lakhamshi Nappu Road, Hindu Colony, Dadar (East), Mumbai-400 014 ....Applicant V/s. 1. State of Maharashtra 2. Shri. C.Prabhakar Hajiali Government Quarters Mumbai. ...Respondents * 2 * Mr.Sudhakar Suradkar,applicant in person. Mr.Ganesh Sovani, adv.for respondent no.2. Mrs.A.A.Mane, APP for State. W I T H CRIMINAL REVISION APPLICATION NO. 472 OF 2008 The State of Maharashtra ...Applicant (Orig.Opponent/ Comnplainant) V/s. Shri. C.Prabhakar ...Respondent (Orig.Accused no.3) ===== Mrs.A.A.Mane, APP for State. Mr.Ganesh Sovani, adv.for respondent. Coram: Smt.R.P.SondurBaldota, J. Dated: 25th March, 2009. P.C. : 1. This order is common to all the above three proceedings since they arise out of the same crime report and the questions to be considered thereunder are similar. By the order dated 25th April, 2008 the Sessions court decided Criminal Revision * 3 * Application No.3 of 2008 filed by original accused no.2 discharging him from C.R.No.82 of 1993. That order is challenged by the State by the above Criminal Revision Application No.472 of 2008 and by the original complainant by Criminal Application No.1721 of 2008. By its another order dated 6th July, 2006 the Sessions court allowed Criminal Revision Application NO.126 of 2006 preferred by original accused no.4 to challenge the order of issuance of process in the same C.R. The original complainant has challenged the order by above Criminal Application NO.1138 of 2008. 2. Considering the complex nature of the case, its facts are required to be set out in some detail. On 29th September, 1993 Mr.Suradkar the then Deputy Inspector General of Police filed C.R.No.82 of 1993 under Sections 463, 465, 469, 471, 209 read with Section 120B I.P.C. against Shri.U.D.Joshi- the then Deputy Inspector General of Police, Mr.C.Prabhakar- Superintendent of Police, Shri.R.E.Pawar-Superintendent of Police, Shri.D.K.Kotkar-Police Inspector and one Riyaz Sikander Dhange, with Kashimira Police Station, Thane Rural. It is alleged in the complaint that while he was working as Deputy Inspector General Railways, Mumbai. Shri. Suradkar had received complaints against P.I.-Mr.Borankar and Mr.Kotkar, * 4 * Superintendent of Police-Mr.Prabhakar and Mr.R.E.Pawar that they had filed false cases under TADA against some innocent persons. He had learnt that the then Deputy Inspector General, Thane- Mr. U.D.Joshi was supporting the said police officers in such activities. At the relevant time, Mr.Joshi, Mr.Prabhakar and Mr.Kotkar were also facing enquiry by Anti-Corruption Bureau. Apprehending an enquiry into the complaints received by Shri.Suradkar, in order to pressurize him, the three officers filed Writ Petitions in this court alleging that the State and Shri.Suradkar were persecuting them because they had taken effective action against Bhai Thakur gang. Shri.Suradkar was joined as party respondent to the petitions. Mr.Joshi, in his petition had referred to the application dated 1st February, 1993 purported to have been made by one Naaz Patel addressed to the Inspector General of Police, copies of which had been forwarded to the Ministers and Prime Minister. As per the application, Mrs.Naaz Patel praises the above four police officers for their work in controlling crime. At the same time, she alleges that Shri. Suradkar and other railway police officers were visiting her residence enquiring if she had a complaint against the four officers. Mrs.Patel, as per the application, felt that the good officers were unnecessarily * 5 * being harassed by Shri.Suradkar. 3. Since, the remarks in the application of Mrs.Naaz Patel were defamatory and showed Shri.Suradkar in poor light, on receiving copy of the application he made enquiries into the same. In the enquiry, Mrs.Naaz Patel denied on affidavit that she had made such an application or signed the same. While expressing total ignorance of the application she hinted that the application was probably prepared by her relative one Riyaz Dhange. It was revealed that the application was got prepared by Mr.Joshi, Mr.Prabhakar and Mr.Kotkar through Riyaz Dhange, a local political leader. It was further found that though copies of the application of Mrs.Naaz Patel were not forwarded to the Deputy Inspector General of Police, Konkan region or Superintendent of Police, Thane Rural, a false impression was so created and without following regular procedure, enquiry was caused to be made through Mr.R.Pawar whether such an application was made by Mrs.Patel. In order to cover up the illegal activity, Mr.Pawar induced Mrs.Naaz Patel to sign a statement that the application was genuine by promising that her husband would be relieved of the charges under TADA Act in the complaint vide C.R.No.43 of 1991 pending with Kashimira Police Station against her husband and other persons. In * 6 * his complaint, Mr.Suradkar further alleged that these officers were angry with him because he had forwarded a report to Director General of police about irregularities and illegalities committed by them in investigation in Railway Police Station C.R.No.90 of 1989 filed under Section 302 IPC and Section 3 TADA Act. 4. The above complaint lodged by Mr.Suradkar was investigated into by Mr.MaheshGauri Deputy Inspector General of Police. He recorded statements of 14 persons including of Mrs.Naaz Patel. Her statement is consistent with the contents of the affidavit made by her during the inquiry undertaken by Mr.Suradkar before filing the complaint. She reiterated that the complaint dated 13th February, 1993 was not made by her and the signature thereon was not her signature. She also reiterated that the application was made by Riyaz Dhange, her sister's husband and he had forged her signature on it. She also stated that Mr.Pawar had obtained her signature on the statement recorded by him by promising that he would get her husband relieved of the charges under TADA Act. The statements of other 13 persons indicated the roles played by the four police officers. 5. On completion of Investigation, however the charge- * 7 * sheet came to be filed against only one person i.e. Riyaz Dhange, The police officers against whom the complaint was made were omitted from the charge-sheet. The charge-sheet also listed only 7 persons as witnesses, conveniently omitting remaining 7 persons who would have thrown light on the conduct of four police officers. Mr.Suradkar brought this selective omission to the notice of Shri. Krishna the then Director General of Police. Mr.Krishna then directed Additional Director General of Police,State, CID Branch to submit a report under Section 197 Cr.P.C. for prosecution of the officers. It was however subsequently decided that the said police officers would be dealt with departmentally and not by taking recourse to the criminal proceedings against them. 6. Being dissatisfied with the course of action adopted by his superiors in dealing with the errant police officers, Mr.Suradkar filed the application at Exhibit ‘8’ in the proceedings before the learned Metropolitan Magistrate for arraying the police officers as the accused in the complaint filed by him and for issuing process against them. This application was allowed by the court by it’s order dated 18 th March, 2006. Mr.R.E.Pawar, original accused no.4 challenged the order by filing Criminal Revision Application No.126 of * 8 * 2006 in the Sessions Court, Bombay. By the order dated 6th July, 2006 the Revision Application was allowed and the order of the learned Magistrate issuing process was set aside. 7. Mr.C.Prabhakar, original accused no.3 filed an application for discharge under Section 239 Cr.P.C. (Exhibit-40). By the order dated 10th December, 2007 the learned Metropolitan Magistrate rejected the application. Mr.Prabhakar then filed Criminal Revision Application No.3 of 2008 in the Sessions Court, which came to be allowed by the order dated 25th April, 2008. 8. The other two officers Mr.U.D.Joshi and Mr.Kotkar neither challenged the order of issuance of process nor filed an application for discharge. The above orders of the Sessions Court are now under consideration of this court. 9. In his application Exhibit ‘8’, Mr.Suradkar the original complainant contended that there was sufficient evidence revealed during probe to prima-facie establish involvement of police officers in commission of the offences alleged in the complaint. He submitted that before accepting the final report filed by police and dropping the proceedings against police officers, the learned Magistrate ought to have issued notice to him and afforded him an opportunity of being * 9 * heard. In support of his claim of hearing, he relied upon the following two decisions of the Supreme Court. (i) Union Public Service Commission vs. Papaeah and others reported in 1997 Supreme Court Cases (Cri) page 1112 and (ii) Bhagwant Singh vs. Commissioner of Police reported in A.I.R. 1985 Supreme Court, 1285. . In the two decisions, the Apex Court has held that when the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration, one of the two different situations may rise. The report may conclude with an offence appeared to have been committed by a particular person or persons and in such case the Magistrate may do one of the three things, (i) he may accept the report and take cognizance of the offence and issue process or (ii) he may disagree with the report and drop the proceedings or (ii) he may direct further investigation under sub-section 3 of Section 156 Cr.P.C.and require the police to make a further report. On the other hand, the report made by the State may be that in the opinion of the police, no offence appears to have been committed. Where such a report has been made, the Magistrate again has an option to adopt one of three courses : (i) he may accept the report and * 10 * drop the proceedings, (ii) he may disagree with the report and taking a view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (iii) he may direct further investigation to be made by the police under Section 156(3) Cr.P.C. In either of the two situations, if the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. 10. In view of the law laid down in the above two decisions of the Apex Court, the learned Metropolitan Magistrate considered the application of Mr.Suradkar on merits. After hearing both the sides and considering the probe record, he observed as follows : “. Consequently, the probe record and material is sufficient to hold prima-facie that the police official named in the complaint and referred in Column no.2 of charge-sheet had made conspiracy to commit the alleged offences with the help of present accused Riyaz Dhange. Since commission of these offences are not part of act of discharge of their official duty, sanction to prosecute them required under Section 197 CrPC is not necessary. Therefore, the conclusion of the Investigating Officer that, there is no evidence to connect the police officials with alleged offences is not acceptable. On the contrary, there is sufficient material to hold prima-facie that these police officers have made conspiracy to commit the alleged offences * 11 * with the help of present accused Riyaz Dhange. Therefore, police officers are also bound to face present trial.” 11. The learned Sessions Judge set aside the above order on three grounds. He held that the two decisions of the Apex Court in Union Public Service Commission case and Balwant Singh case (supra) are not applicable to the facts and circumstances of the present case. He sought to distinguish Union Public Service Commission's case (supra), by commenting that the Apex Court had observed that in such cases the Magistrate shall order further investigation under Section 173(8) CrPC and collect further evidence keeping in view the points raised by the complainant before proceeding further in the matter. As regards Bhagwant Singh's case (supra) also, the learned Sessions Judge observes that if the learned Magistrate disagrees with the report filed, he may only direct investigation under Section 156(3) CrPC. He then relied upon the decision of the Apex Court in the case of Kishori Singh and others vs. State of Bihar and another, reported in A.I.R. 2000 Supreme Court, page 3725 and observed that if some of the accused persons are charge-sheeted and others are deleted though their names appeared in the F.I.R., neither the Magistrate' * 12 * nor the Sessions Court had jurisdiction to array them as accused persons at a stage prior to Section 319 CrPC. The learned Sessions Judge referred to the provisions of Section 319 Cr.P.C. to point out that the power to proceed against such persons can be only after trial in the matter has started and not prior to that. It has thirdly been held by him that while recording the statement of Mrs.Naaz Patel, accused no.4 Mr.Pawar was infact discharging his official duty and therefore sanction under Section 197 CrPC was essential. 12. Mr.Suradkar appearing in person submits that the learned Sessions Judge erred in taking into consideration only one out of three options available to the Magistrate mentioned in the decisions of the Apex Court in Union Public Service Commission case and Bhagwant Singh case (supra). He submits that reference to Section 319 CrPC made by the learned Sessions Judge is wholly misplaced as the stage of taking cognizance under Section 190 CrPC, the stage of refusal or acceptance of the police report under Section 173 and summoning an accused under Section 319 are distinct stages. He relies upon two more decisions of the Apex Court in this connection. The first decision is in * 13 * Kishun Singh and Others V/s.State of Bihar reported in 1993 Supreme Court Cases (Cri.) page 470. The Apex Court after discussing the purport and scope of Section 319 Cr.P.C. held thus. “13. The question then is whether de-hors Section 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code ? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence, he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a court of Session. As pointed out earlier, cognizance is taken of the offence and not of the offender. This Court in Raghubans Dubey V/s.State of Bihar stated that once cognizance of an offence is taken it becomes the Court’s duty to find out who the offenders really are’ and if the court finds ‘that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those persons’ by summoning them because ‘the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of an offence’. Even after the present Code came into force, the legal position has not * 14 * undergone a change; on the contrary the ratio of Dubey case was affirmed in Hareram Satpathy V/s.Tikaram Agarwal. Thus far there is no difficulty.” . It further held that this power is available even to the Sessions Court on committal of a case to it, as the bar of Section 193 is lifted thereby investing the Court of Sessions complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima-facie be gathered from the material available on record. 13. The second decision cited by Mr.Suradkar is in SWIL Ltd V/s.State of Delhi and Another reported in (2001) 6 Supreme Court Cases page 670, where in the set of facts similar to the present case, the Apex Court held : “6. In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 Cr.P.C. would be applicable. Section 190 inter-alia provides that “ the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence”. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under Section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to * 15 * decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with the charge-sheet. Further, upon receipt of the police report under Section 173(2) Cr.P.C., the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319 Cr.P.C. Similar contention was negatived by this court in Raghubans Dubey V/s. State of Bihar by holding thus : (AIR p.1169, para 9) “In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 7. Further, in the present case, there is no question of referring to the provisions of Section 319 CrPC. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case,neither the Magistrate was holding enquiry as contemplated under Section 2(g) CrPC nor had the trial started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190 CrPC that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there * 16 * is some material on record, but his name is not included as accused in the charge-sheet.” 14. Applying the ratio of the above two decisions, it becomes quite clear that reference to and reliance upon Section 319 of CrPC by the learned Sessions Judge was misplaced and incorrect. The learned Magistrate had rightly taken note of the position in law that while accepting the report filed by the Police, if the Court is of the opinion that there is no need to proceed against some of the persons charge sheeted, it was necessary to give a hearing to the complainant. In the instant case, while accepting the report of the Police that though the complaint was filed against five persons, four of them came to be proceeded against departmentally and the criminal complaint was filed only against one of them, no notice was issued to the complainant Mr. Suradkar and hearing given to him. The learned Magistrate therefore considered the application of Mr.Suradkar, heard him and the prosecutor and exercised one of the three options available in law to him. He was of the opinion that there was sufficient material on record in order to proceed against four Police officers and hence * 17 * issued process against them. 15. I have perused the entire record. Apart from the statement of Mrs.Naaz Patel supported by the statement of her mother-in-law, Smt.Shamsunnisa, there are other statements to be considered. The Police have recorded statement of one Mohammed Nayeem owner of the xerox centre and typing institute, where the Riyaz Dhange had got an application dated 1st November 1992 typed from one Bharati Kadam. In his statement, Police Constable, Mane stated on 5th February 1993, the application dated 1st February 1993 was handed over to him by Mr. Kotkar asking him to enter the same in the Inward register of the office of Police Station, Thane Rural. Another witness working in the office of Superintendent of Police, Thane Rural stated that on 4th February 1993, the application of Mrs.Naaz Patel was shown to have been entered in the Inward Register with a remark that it was received by the office by hand. Witness Parab was working as a writer with Shri Kotkar. He stated that he was handed over confidential report along with the application of Mrs. Naaz Patel for the purpose of obtaining xerox copies and forwarding the same to the office of Deputy Inspector General of Police, Thane. The witness * 18 * Police Inspector Patil stated that the application dated 1st February 1993 was shown to have been received by the Police Station, Thane Rural on 5th February 1993 on which there were signatures by Shri Kotkar and API Gosavi. However, it was not assigned to anybody for further action. The next statement is of Police Constable, Chavan who was working as Assistant in the office of Deputy Superintendent of Police, Vasai. He stated that he had recorded the application of Mrs.Naaz Patel in the Outward Register of the Office of Deputy Superintendent of Police and then kept the application in a file. Police constable, Rathod stated that Deputy Superintendent of Police, Mr. Pawar and API Gadhve had visited the residence of Mrs. Naaz Patel. Police Constable, Rathod had taken down the statement of Mrs. Naaz Patel which was dictated by Mr.Pawar. The Clerk in the office of Deputy Inspector General of Police, Konkan Region stated that on 4th February 1993, Mr.Joshi had handed over copy of the application of Mrs.Naaz Patel and there was some discussions between Mr. Joshi and Mr.Prabhakar about the application over the telephone. 16. The statements of all the above witnesses recorded by the Police during the course of the investigation into * 19 * the complaint filed by Mr. Suradkar clearly establish connection of the Police Officers into the offence alleged in the complaint. 17. During the course of investigation, the Police had forwarded the application to the hand writing expert and a report was received, that the signature appearing on the application dated 1st February 1993 is not of Mrs. Naaz Patel. 18. Mr. Maheshgauri, Deputy Inspector General Police in his report, states that the application dated 1st February 1993 was a forged and fabricated document signed