appln5742-10.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5742 OF 2010 1. Sunil Mukund Surve 2. Mrs. Jayshree Sunil Surve .. Applicants Versus 1. Mr. Shankar Nandlal Ahuja Near Ulhasnagar Railway Station, Ulhasnagar-4, Dist.Thane 2. The State of Maharashtra (Through Vitthalwadi Police Station, Ulhasnagar, Dist. Thane) .. Respondents Mr. I. S.Thakur, i/by Global Juris consults for the applicants Mr. D.R. More, APP for the State Mr. Vikram Chavan for Respondent No.2 CORAM : J.H. BHATIA, J. DATE : 3rd May, 2011. P.C.: 1. Rule. Rule made returnable forthwith. 2. Heard learned counsel for the parties. Perused record and proceedings. 3. Respondent No.1 filed a complaint before the learned Judicial Magistrate, First Class, Ulhasnagar against the present petitioners alleging that he had obtained necessary permission for watter connection, but the accused persons, who are husband and wife respectively, approached him on 5/5/2010 and made a demand of Rs.10,000/- if he waned watter 1 appln5742-10.sxw connection. They also threatened that they would not allow to lay the water pipes unless the amount was paid. Accordingly, he paid Rs.5000/- and the accused persons warned him to make payment of the balance amount within two days. On 7/5/2010, they again approached the complainant and made demand of Rs.5,000/-. As he failed to make payment, the accused persons forcibly removed the pipe lines. According to him, the accused persons had committed offence under sections 384,385,504, 506 read with section 34 of the Indian Penal Code. Having said so, he made a prayer that the complaint be sent for investigation under section 156(3) of the Code of Criminal Procedure, 1973 or in the alternative, the Court may enquire and issue process against the accused. 4. That complaint was lodged on 17/5/2010 and on the same day, the learned Magistrate directed the Police to register the F.I.R. and investigate the allegations. That order has been challenged by the accused persons by filing this application. According to them as the respondent-complainant had never lodged any such report with the Police before approaching the Court, direction under section 156(3) of the Cr.P.C. cannot be given. In Panchabhai Popatbhai Butani and others Vs. State of Maharashtra and others, 2010(1) Bom.C. R. (Cri.)1, the Full Bench of this Court observed thus in para 46: 2 appln5742-10.sxw "To us it appears to be essential that normally a person should invoke the provisions of Section 154 of the Code before he can take recourse to the powers of the Magistrate under Section 156(3). The provisions of Section 156(3) are consequential upon a default of a police officer failing to comply with the requirements of Section 154 to the prejudice of the aggrieved person or the complainant,as the case may be. Once the police officer fulfills his duty/obligation and completes investigation in accordance with law,leading to the filing of the report under Section 173, the provisions of Section 156(3) would stand exhausted and can hardly be taken recourse to. Despite this, we find it difficult to lay down any straitjacket formula in this regard. It may not be very advisable to state it as an absolute proposition of law without any exception. There can be cases where the time lag involved in the commission of the crime, intimation to the police and its inaction in terms of section 154, make it difficult for a complainant or an aggrieved person including a victim to first take recourse to the provisions of section 154(3) and then invoke the jurisdiction of the court under Section 156 (3). such cases could be the ones where there is likelihood of the evidence being destroyed and the delay in investigation may prove fatal to the case of the prosecution or the complainant. In such exceptional circumstances, it cannot be said that any person who has approached the police under section 154 for registration of information of commission of an cognizable offence and the police instantly fails to act, is debarred from approaching the court directly under section 156(3). As a normal proposition of law, invocation of the provisions of section 154 in its entirety should be treated as a condition precedent to invocation of the powers of the court under Section 156(3), but there can be exceptions where the facts and circumstances of the case justify directly approaching the court by the complainant. If a person is desirous of invoking the judicial process at the very first instance, he can always take recourse to section 200 as contained in Chapter XV of the Code, but if he wishes to invoke the powers of the court under Section 156(3), normally he may exhaust the remedy available to him as is provided by the Legislature in terms of section 154 of the Code." 5. From this, it is clear that normally the complainant should invoke the provisions of Section 154 before approaching 3 appln5742-10.sxw the Magistrate for taking action under Section 156(3) of the Cr.P.C. In the complaint lodged by the respondent-complainant, there was no word that he had approached the Police with such a report and that the police had refused to accept the report, to record the report or to take any action. Section 154(3) provides that any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub section (1) may send the substance of such information, in writing and by post to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or may direct an investigation of the offence. 6. In the present case, neither there is any allegation in the complaint that the complainant had approached the concerned police station to lodge report and the concerned police had refused to record the same or that having accepted the report, the police had refused to take any action nor there is allegation that after refusal by the police officer, he had submitted any report either to the same police station or the superiors. 7. Learned counsel for the complainant-respondent pointed out that even though in the complaint dated 17/5/2011 there is no specific mention that the complainant had 4 appln5742-10.sxw approached the police, he had orally told the Magistrate that the complainant had approached the police and the police had not registered the offence and, therefore, the Magistrate had issued order under under section 156(3) Cr.P.C. In the present case, the Magistrate had not recorded any statement of the complainant. Therefore, except the written complaint, there was no material before the Magistrate to show that the complainant had approached the Police before making that complaint. 8. Learned counsel for the complainant also pointed out that in the statement dated 22/6/2010, recorded by the police, he had stated that the complainant had approached the PSO Narwade and had told him about the incident but PSI Narwade had not recorded the report. However, it is material to note that on 12/5/2010 i.e. after the alleged offence of extortion and demand of money were already commmitted, the complainant had addressed a letter to the Police Inspector Vitthalwadi on the letterhead of "Ulhasnagar Shahar (Zilla) Congress Sevadal" alleging that the accused persons were causing obstructions for laying down the water pipe lines. In that letter, there was not a word about the demand of money or any payment by him. He also addressed a letter to the Municipal Commissioner and Executive Engineer, Watter Supply Department on 13/5/2010 alleging that the accused persons were obstructing 5 appln5742-10.sxw laying down of the water pipe lines. In that letter also, there was not a word about the demand of money or payment by him. 9. Admittedly, the accused No.2-Mrs. Jayshari Sunil Surve, wife of accused No.1 Sunil Surve is a sitting municipal corporator from that area and the record reveals that she had also addressed a letter to the Municipal Commissioner against giving of water connection to the complainant on the ground that the complainant did not require watter connection for residential purpose but for the business of Hotel. In the present application, it is contended that the applicant no.1 was a municipal corporator for that area from the year 1996 and applicant No.2 is a sitting municipal corporator since 2002. She was elected as municipal corporator from the same ward in the year 2007, defeating respondent no.2-complainant who was also a candidate from the same ward. This shows the political rivalry between the parties. 10. Taking into consideration the material on record,as noted above, it appears that the applicants-accused had objected to laying new water pipelines for the complainant- respondent no.1. But till 17.5.2010, when the complainant approached the Magistrate for direction under section 156(3) Cr.P.C., he had not lodged any any report nor had whispered 6 appln5742-10.sxw about the demand of Rs.10,0000/- by he accused or payment of Rs.5000/- by him to the accused persons. It is material to note that he did not lodge the complaint before the Court so that the Court should take cognizance of the matter and try the accused and punish them for the offence. As held by the Full Bench of this Court in Panchbhai Popatbhai Butani (Supra) the application made by the complainant under section 156(3) cannot be construed as complaint before the Court. Thus, neither the complainant had made a complaint before the magistrate to take action against the accused persons nor he had ever approached the police with the said allegations to take action under the criminal law. He directly approached the Magistrate to give direction to the Police to register the offence, under Section 156(3) of the Criminal Procedure Code. In the given facts and circumstances, this is not permissible and it appears that this was an attempt to misuse the process of the court because of the political rivalry. 11. For the aforesaid reasons, the impugned order passed by the Magistrate on 17/5/2011 is hereby quashed and any action taken on the basis of that order also stands quashed. 12. Rule made absolute accordingly. ( J.H. BHATIA, J. ) 7