Bombay High Court

Devidas S/O Waman Shinkar And Others vs The State Of Maharashtra And Anr on 8 September, 2017

Author:
S.S.Shinde

Bench:
S.S.Shinde

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 379 OF 2017

1. Devidas S/o Waman Shinkar,
Age : 70 years, Occ : Business,

2. Uday S/o Devidas Shinkar,
Age : 48 years, Occ : Business,

3. Dr. Abhay S/o Devidas Shinkar,
Age : 44 years, Occ : Doctor,

4. Sau. Vimalbai W/o Devidas Shinkar,
Age : 68 years, Occ : Household,

Petitioner Nos. 1 to 4 are
R/o : Plot No.1411,
Shinkar Matrusadan, Lane No.4,
Dhule, Tq. & Dist. Dhule.

5. Arun S/o Soniram Shinkar,
Age : 68 years, Occ : Household,

6. Sau. Savita Arun Shinkar,
Age : 48 years, Occ : Household,

7. Shri. Shashikant S/o Soniram Shinkar,
Age : 48 years, Occ : Household,

Petitioner Nos. 5 to 7 are
R/o : 704, Silver Bel,
Yogi Park, Baner, Pune.

8. Sau. Pramila Shashikant Shinkar,
Age : 48 years, Occ : Household,
R/o : Deopur, Dist. Dhule.

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9. Shri. Ajay S/o Prabhulal Kasodekar,
Age : 50 years, Occ : Business,
R/o : Garud Colony, Nakane Road,
Deopur, Dist. Dhule.

10. Shri. Kapurchand Laxman Baviskar,
Age : 55 years, Occ : Service,
R/o : 24, Govardhan Nagar,
Near Chavra School, Devpur,
Dhule, Dist. Dhule.

11. Anil S/o Gangadhar Songire,
Age : 50 years, Occ : Business,
R/o : Lane No.6, near Bhayanghy
Maruti Gym, Dhule, Dist. Dhule.

12. Sanjay S/o Vitthal Amrutkar,
Age : 51 years, Occ : Service,
working as a Manager of Dadasaheb
Waman Vishnu Shinkar
Nagari Sahakari Pathpedi Ltd.,
Dhule.
PETITIONERS
-VERSUS-

1. The State of Maharashtra,
Through its Police Inspector,
Deopur Police Station, Dhule,
Tq. & Dist. Dhule.

2. Ashok S/o Shravan Patkar,
Age : 61 years, Occ : Agricultural,
R/o : 17, Patkar Nagar, Devpur,
Dhule, Dist. Dhule.
RESPONDENTS
...
Mr. P.M. Shah, Senior Counsel i/b Mr. D.S.
Bagul, advocate for petitioners.
Mr. V.M. Kagne, APP for Respondent No. 1 -
State.
Mr. C.R. Deshpande, advocate for Respondent
No.2.

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CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.

Reserved on : 18.07.2017
Pronounced on : 08.09.2017

JUDGMENT:
(Per S.S.Shinde, J.):

Rule. Rule made returnable forthwith

and heard finally with the consent of learned

counsel appearing for the parties.

2. This Petition is filed with the

following prayers :-

"C. By way of appropriate order or
direction in the like nature, the
impugned proceeding bearing No.
22/2017 filed by present respondent
no.2 in the Court of learned District
Sessions Court, Dhule under
sections
,
,
,
,
,
,
,
,
120-B
and
of the Indian Penal
Code and under sections 3 and 4 of the
M.P.I.D. Act, may kindly be quashed
and set aside.

D. By way of appropriate order or

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direction in the like nature, the
impugned order dated 28.02.2017 passed
by the learned District and Sessions
Judge, Dhule in proceeding bearing
No.22/2017 filed by present respondent
no.2 in the Court of learned
Additional Sessions Court, Dhule under

sections 406
,
,
,
,
,
,
,
,
120-B
and
of the Indian
Penal Code and under sections 3 and 4
of the M.P.I.D. Act, may kindly be
quashed and set aside.

E. By way of appropriate order or
direction in the like nature, the
F.I.R. bearing Crime No. 14/2017
registered with Deopur Police Station
in pursuance to the order dated
28.02.2017 passed by the learned
District and Sessions Court, Dhule for
the offence punishable under
sections
,
,
,
,
,
,
,
,
120-B
and
of the Indian Penal
Code and under sections 3 and 4 of the
M.P.I.D. Act, may kindly be quashed
and set aside."

3. Learned Senior counsel appearing for

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the petitioners submits that, initially, on

10th April, 2016, present respondent no.2

approached the Police Officer under
section

154(1)
of Code of Criminal Procedure (for

short
Cr.P.C
.) with a single allegation that,

the accused while repaying the loan has

availed concession/rebate on the rate of

interest of loan. Thereafter, he filed the

complaint under the provisions of
Indian

Penal Code
bearing Criminal Misc. Application

No.875/2016 in the Court of Judicial

Magistrate, First Class at Dhule. Thereafter,

the Judicial Magistrate, First Class vide its

order dated 12th August, 2016 passed the order

that, "I do not think it necessary to send

the case for investigation under
section

156(3)
of Cr.P.C.. Hence put up for

verification". He submits that, thereafter

the Judicial Magistrate, First Class, vide

its order dated 17th August, 2016 directed the

complainant to lead evidence vide Section

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202(1) of
Cr.P.C
. Lastly, the Judicial

Magistrate, First Class vide order dated 6th

September, 2016 fixed the matter for

argument. He submits that, on 21st December,

2016, the complainant has withdrawn the

Criminal Complaint on the pretext that, he

got more documentary evidence after inquiry

under the
Right to Information Act
. As such,

there is sufficient evidence against the

accused for commission of an alleged

offences, therefore, he had withdrawn the

said complaint with permission to file a

fresh complaint.

4. Learned Senior counsel submits that,

after withdrawal of the said complaint, the

complainant was duty bound to first approach

under
section 154
of Cr.P.C. to an officer

Incharge of Police Station, and to produce

the additional material, which he has

received under
Right to Information Act
.

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However, without availing of the remedy under

section 154
of Cr.P.C., an immediately within

a period of two months from withdrawing an

earlier complaint and without producing any

additional material/allegations, present

respondent no.2 has filed Criminal Misc.

Application No.22/2017, before the District

and Sessions Court, Dhule, by merely adding

sections 3
and
of the Maharashtra

Protection of Interest of Depositors (In

Financial Establishment) Act, 1999 (for short

M.P.I.D. Act, 1999). He submits that, the

District and Sessions Judge, Dhule, while

passing the impugned order dated 28th

February, 2017, has not applied his mind, and

further directed registration of an offence

taking recourse to
section 156(3)
of Cr.P.C.,

without assigning single reason and in

contravention of the order passed by the

Supreme Court of India in the case

of Priyanka Srivastava and another V/s

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State of Uttar Pradesh and others 1. He

submits that, it appears from the record

of the District Court and perusal of Criminal

Misc. Application No. 22/2017 filed by

present respondent no. 2 (complainant) that,

the same was filed without there being any

affidavit in support of averments in said

application filed under
section 156 (3)
of

the Cr.P.C. It is observed by the Supreme

Court in the case of Priyanka Srivastava

(supra) that, an affidavit duly sworn by the

complainant makes him more responsible, it is

because, once the affidavit is found false,

he would be liable for prosecution in

accordance with law. The Magistrate is duty

bond to verify veracity of the same and

the nature of the allegations of the case.

In the present case, the trial Court has

failed to follow the law laid down by the

Hon'ble Supreme Court in the case of

1 2015(6) S.C.C. 287

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Priyanka Srivastava (supra).

5. Learned Senior Counsel further

submits that, respondent no.2 in the present

case should have filed the affidavit in terms

of dictum of the Hon'ble Supreme Court of

India, which should have been consist of

(i) previous complaint, if any, the orders

passed by the Court on that complaint, if

any, subsequent events and the information

received after filing of the said complaint,

(ii) Delay in lodging complaint, (iii) The

application filed under section 154(1)

contains same allegation as impugned

proceeding and (iv) The orders passed by any

competent court in any proceeding touching

the same subject of impugned proceeding. He

submits that, even though petitioner nos.1,

2, 9, 10 and 11 are the Directors of

Dadasaheb Waman Vishnu Shinkar Nagari

Sahakari Pathpedi Ltd., Dhule (hereinafter

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referred to as "the Pathpedi"), and

therefore, the provisions of sections 3 and 4

of M.P.I.D. Act are not applicable to the Co-

operative Society, there is no whisper in the

impugned order dated 28th February, 2017 as to

how the provisions of sections 3 and 4 of the

M.P.I.D. Act, would attract, or to whom the

deposits are not returned.

6. Learned senior counsel further

submits that, the complainant and his wife

availed the loan facility from the said

Pathpedi and since they failed to repay the

said loan amount, the Pathpedi obtained the

Recovery Certificate under
Section 101
of the

Maharashtra Co-operative Societies Act, 1960

(M.C.S. Act, 1960
). He submits that, in order

to repay the said loan amount, the

complainant and his wife issued two different

cheques; the said cheques were dishonored. As

such the Pathpedi filed two different

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proceedings bearing S.T.C. No. 4246/2003

(Dadasaheb Waman Vishnu Shinkar Nagari

Patpedhi Ltd., V/s Ashok Shravan Patkar) and

S.T.C. No.4247/2003 (Dadasaheb Waman Vishnu

Shinkar Nagari Pathpedi V/s Ashok Shravan

Patkar) under
section 138
of the Negotiable

Instruments Act (for short
N.I. Act
). Learned

senior counsel submits that, the Judicial

Magistrate, First Class on 30th June, 2005

after recording the evidence, convicted

present respondent no.2 in S.T.C.

No.4247/2003 (Dadasaheb Waman Vishnu Shinkar

Nagari Pathpedi V/s Ashok Shravan Patkar).

The Magistrate on 5th July, 2005 after

recording evidence convicted the wife of

present respondent no.2 in S.T.C.

No.4246/2003 (Dadasaheb Waman Vishnu Shinkar

Nagari Pathpedi V/s Ashok Shravan Patkar).

7. It is further submitted that, the

Joint Charity Commissioner appointed present

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respondent no.2 as a fit person under section

41(D), on the trust namely "Ladshakiya Wani

Samaj Sanstha" registered by present

petitioner no.1 and his family members. The

family members of petitioners approached

High Court by filing Writ Petition

No.7256/2010 (Shri Nandlal Taniram Sonje and

others V/s The State of Maharashtra and

others) and the High Court by considering the

past record of respondent no.2 quashed the

appointment of present respondent no.2 as a

fit person. He submits that, the Advocate

General of Maharashtra State has prosecuted

the present respondent no.2 under the

provisions of the
Maharashtra Vexatious

Litigation (Prevention) Act, 1971
. Learned

Senior counsel submits that, in order to take

revenge, respondent no.2 has filed the

present proceeding against the family members

of Shinkar family. The present proceeding is

not initiated against all the Directors of

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Pathpedi, however, the same is initiated by

adopting the method of pick and choose

policy, that too members of Shinkar family

only. One of the allegation in

complaint/proceeding is that, petitioner nos.

1, 2, 3, 4, 8, 9 and 10 have taken

concession/rebate on the rate of interest of

loan. However, the proceeding shows that,

present respondent no.2 has not filed

affidavit duly sworn by him indicating

that, how many persons have taken

concession/rebate on the rate of interest of

loan, and which provisions of law have been

flouted while sanctioning concession/rebate

on the rate of interest. Learned counsel

submits that, it is a matter of record that,

present respondent no.2 and his wife has also

availed the facility of concession/rebate on

the rate of interest of loan. Though present

respondent no.2 has filed interventions in

Writ Petition no.3330/2014 (Shri Devidas

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Waman Shinkar and others V/s The State of

Maharashtra and others) and Writ Petition

No.7883/2015 (Shri Devidas Waman Shinkar and

others V/s The State of Maharashtra and

others), present respondent no.2 deliberately

with an ulterior motive for wreaking

vengeance, withheld the said orders from the

District and Sessions Court. Therefore,

learned senior counsel submits that, the

complaint/proceeding instituted by respondent

no.2, is manifestly attended with malafide

and/or the proceeding is maliciously

instituted with an ulterior motive for

wreaking vengeance. In support of aforesaid

contentions, the reliance is also placed on

the exposition of law by the Hon'ble Apex

Court in the case of State of Haryana V/s

Bhajan Lal2.

8. Learned senior counsel submits that,

2 1992 AIR (SC) 604

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the allegations in the first information

report or the complaint, even if taken at its

face value and read in its entirety, the same

does not constitute any offence or make out a

case against the petitioners. He submits

that, the allegations made in the first

information report or the complaint are so

absurd and inherently improbable on the basis

of which no prudent person can ever reach to

a conclusion for proceeding against the

accused. The allegations clearly depicts that

the present proceeding manifestly attended

with malafide and/or the same is instituted

with an ulterior motive to take revenge

against Shinkar family only. Learned Senior

counsel submits that, the complainant has

neither made all the Directors as a party

accused nor made any allegations against the

said Directors. Therefore, this is nothing

but a pick and choose policy adopted by

respondent no.2 just to settle his personal

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grudge.

9. It is further submitted that, Bombay

High Court at Principal Seat in the case of

Sayed Anwar Ahmed and ors V/s The State of

Maharashtra and ors3 has reiterated the view

taken by the Supreme Court in the case of

Priyanka Srivastava (supra).

10. So far as, an allegation in first

information report against petitioner no.1

Shri Devidas S/o Waman Shinkar that the order

under
Sections 88
and
of the Maharashtra

Co-operative Societies Act, 1960 is passed in

the year 2012, and the liability of

Rs.1,03,29,152/- is fixed upon him is

concerned; it is submitted that, both the

orders dated 31.03.2012 and recovery

certificate dated 30.08.2012 issued under

section 98
are challenged before the High

3 MANU/MH/0680/2017

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Court by filing Writ Petition No. 3330 of

2014 (Shri. Devidas Waman Shinkar and others

V/s The State of Maharashtra and others), and

High Court vide order dated 8th August, 2014

has granted stay to the enforcement of both

the orders. It is further submitted that,

after the orders were passed, the Pathpedi

has recovered Rs.1.43 Crores by taking an

action under
section 101
of the M.C.S. Act

and under
section 138
of the Negotiable

Instruments Act. It is submitted that, the

orders are of the year 2012. In view of the

proposition laid down by the Supreme Court in

the case of Priyanka Srivastava (supra), more

particularly, in para 31, present respondent

no.2 should have filed affidavit giving

explanation of delay and the Magistrate

should have applied its mind on the aspect of

delay.

11. So far as, allegation in first

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information report against petitioner no.1

that, he has withdrawn excess amount from the

cash credit account is concerned, it is

submitted that, the cash credit account was

closed long back in the year 2004 by paying

interest @ 16% to 18% per annum. Petitioner

no.1 has paid an amount of Rs.74,13,557/-

towards interest only.

12. It is submitted that, already C.R.

No.97/2013 is registered for purchase of

Mangal Karyalaya by the Department and

charge-sheet bearing No.660 of 2014 is filed

and therefore, in view of provisions of

Article 20(2)
of the Constitution of India,

no person shall be prosecuted and punished

for the same offence more than once. In

respect of allegations of purchase of Mangal

Karyalaya by Pathpedi are concerned, it is

submitted that, already the F.I.R. is

registered and the charge-sheet is filed,

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therefore, in view of law laid down by the

Supreme Court in the case of T.T. Antony V/s

State of Kerala and others4, in particular,

paras 26 and 27 thereof, the second F.I.R.

crime No. 14/2017 registered on the basis of

the impugned order is not maintainable. It is

submitted that, so far registration of R.C.C.

No. 566 of 2007 is concerned, it is submitted

that, the High Court in Criminal Writ

Petition No. 496/2007 (Dadasaheb Waman Vishnu

Shinkar Nagari Sahakari Pat Sanstha Ltd., V/s

The State of Maharashtra and others) has

quashed the proceedings in R.C.C. No.

566/2007.

Another allegation against

petitioner no.1 that, he has availed the

concession/rebate on interest of loan account

is concerned, it is submitted that, on this

charge, proceeding under
section 88
of the

4 (2001) 6 SCC 181

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M.C.S. Act
, was initiated, however, no charge

is fixed. It is also submitted that, this

Court in Writ Petition No.7883/2015 (Shri

Devidas S/o Waman Shinkar and others V/s The

State of Maharashtra and ors) vide order

dated 3rd August, 2015 granted stay to the

said proceeding initiated under
section 88
.

It is also submitted that, the Commissioner

for Co-operation issued circulars dated 30th

October, 1998, 1st April, 2004 and 27th

April, 2006 and further reduced the rate of

interest of loan of Credit Societies. It is

also submitted that, by passing the

Resolution in the Annual General Body

meeting, the Pathpedi has unanimously

resolved and accepted the said circulars and

further given rebate on interest to all the

loan accounts. It is also submitted that, the

Pathpedi has given rebate on interest amount

to near about 452 loan account holders.

Respondent no.2 and his wife have also

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availed the said benefit of rebate on an

interest amount. It is submitted that, as per

bye-law no.1.11 of the Pathpedi, the rate of

interest is 16%. The petitioner no.1 has paid

interest on the loan amount at the rate of

16% to 18%. The rebate is given in the year

2004 and account is made Nil in the year

2004, as such there is delay in lodging the

complaint and present respondent no.2 has not

offered any explanation of 13 years or delay

in making such grievance.

13. So far as an allegation against

petitioner no.2 - Uday S/o Devidas Shinkar

that, he has availed of the concession/rebate

on interest of loan account is concerned, it

is submitted that, already his loan account

is made Nil in the year 2005, and therefore,

the said allegation cannot survive, and there

is no question of further investigation of

the said allegation.

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14. So far as an allegation against

petitioner no.3 - Dr. Abhay S/o Devidas

Shinkar that, he has availed of

concession/rebate on interest of loan account

is concerned, it is submitted that, he is not

the Director or employee of the said Pathpedi

and his account is already made Nil in the

year 2005 itself.

15. So far as an allegation in respect

of petitioner no.4 Sau. Vimal Devidas Shinkar

that the order under
sections 88
and
of

the M.C.S. Act is passed in the year 2002 is

concerned, it is submitted that the said

order is challenged before the High Court in

the aforementioned Writ Petition

No. 3330/2014 (Shri Devidas Waman Shinkar and

others V/s The State of Maharashtra and

others). Even the allegation in respect of

availing of concession/rebate on interest of

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loan account is concerned, the case of

petitioner no.4 is like petitioner no.1. It

is submitted that, F.I.R. bearing C.R. No.698

of 2012 is registered wherein petitioner no.4

is an accused, and therefore, on the same set

of allegations, petitioner no.4 cannot be

prosecuted or punished in view of the

provisions of
Article 20(2)
of the

Constitution of India. The registration of

second F.I.R. on the same set of allegations

like made in C.R. No. 698/2012 is not

permissible in view of the law laid down by

the Supreme Court in the case of T.T. Antony

(supra).

16. It is submitted that, there is

allegation against petitioner no.5 - Shri

Arun Shinkar that, on 31st March, 2006 he has

availed loan facilities and the same was not

repaid. It is submitted that, in respect of

the said allegation already C.R. No.92/2016

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is registered with Deopur Police Station

under sections 420, 465, 466, 467, 471, 406

read with 34 of I.P. Code and under sections

3 and 4 of the M.P.I.D. Act at the instance

of Shri Bhupesh Devidas Patil Auditor, and

therefore, the second F.I.R. is not

maintainable on the same set of allegation.

So far as petitioner no.6 - Sau.

Savita Arun Shinkar is concerned, he is wife

of accused no.5 and she has not availed of

any loan. She is neither director nor

employee of the said Pathpedi.

17. It is submitted that, so far an

allegation of order passed under
sections 88

and
of the M.C.S. Act, 1960 in the year

2012 as against petitioner no.7 is concerned,

it is submitted that, the same is subject

matter of Writ Petition No. 3330/2014 (Shri

Devidas Waman Shinkar and others V/s The

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State of Maharashtra and others) and the same

arguments, which are already advanced qua

petitioner no.1, are also adopted in the case

of petitioner no.7. Already C.R. No. 97/2013,

making allegations in respect of purchase of

Mangalkaryalaya is already registered against

petitioner no.7, and therefore, on the same

set of allegations the second F.I.R. i.e.

Crime No. 14/2017, is not maintainable.

18. It is further submitted that, so far

as petitioner no.8 - Sau.Pramila Shashikant

Shinkar is concerned, she is already made

accused in C.R. No. 97/2013, and therefore,

on the same set of allegations, there cannot

be second FIR in respect of purchase of

Mangalkaryalaya. So far availing of any

concession/rebate on the rate of interest on

the borrowed amount of petitioner no.8 is

concerned, it is submitted that, the loan

transaction is of 2006. She was neither

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Director nor the employee.

19. So far as allegations against

petitioner no.9 - Shri Ajay S/o Prabhulal

Kasodekar in respect of recovery certificate

issued against the father of petitioner is

concerned, the same is the subject matter of

Writ Petition No. 3330 of 2014 (Shri Devidas

Waman Shinkar and others V/s The State of

Maharashtra and others) and along with

petitioner no.1, he is also one of the

petitioner in the said Writ Petition. It is

submitted that, the recovery certificate was

not issued in respect of the petitioner. The

said certificate was issued against the

father of petitioner no.9. It is submitted

that, so far as concession/rebate on the rate

of interest is concerned, it is submitted

that, the loan transaction is of 2004 to 2006

and the said account is made Nil in the year

2006, and the explanation offered by

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petitioner no.1 in respect of allegation of

availing of concession/rebate on the rate of

interest is also applicable in the case of

petitioner no.9.

20. So far as allegations against

petitioner no.10 Shri Kapporchand Baviskar is

concerned, it is submitted that, he has

became the Director in the year 2015 and the

allegations made in the first information

report that, he is the close relative of

Shinkar family and the present Managing

Committee members, are not maintainable

against him. The allegations which relates to

the period, prior to year 2006 cannot be made

applicable in the case of petitioner no.10.

21. So far as allegation against

petitioner no.12 - Shri Sanjay Amrutkar in

respect of the concession/rebate on rate of

interest is concerned, it is submitted that,

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since he has not taken loan, the question of

availing of concession/rebate of rate of

interest does not arise. Therefore, learned

senior counsel relying upon the pleading in

the Petition, grounds taken therein and

annexures thereto, submits that the Petition

may be allowed.

22. Learned counsel appearing for

respondent no.2 submits that, since already

the first information report is registered

pursuant to the directions issued by the

Additional Sessions Judge, Dhule, it is not

desirable to quash the first information

report. It is submitted that, it is observed

by the Sessions Court that, without carrying

out proper investigation, it is not desirable

to issue process against accused by the Court

at initial stage. Thus the Additional

Sessions Judge has not taken the cognizance

and referred the matter to the police. It is

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submitted that, in view of the above,

position, the order passed by the Sessions

Court on 28th February, 2017 cannot be

challenged by way of filing Writ Petition or

application under
section 482
of the Cr.P.C.

The only remedy available is to file the

criminal revision application before the

appropriate Court. In support of the

aforesaid contentions, the reliance is placed

on the judgment of the Division Bench of the

Bombay High Court Bench at Aurangabad in Writ

Petition No.159/2014 (Avinash S/o Trimbakrao

Dhondage V/s The State of Maharashtra and

another decided on 21st October, 2015) and

connected matters thereto. It is submitted

that, the said judgment has been confirmed by

the Supreme Court.

23. The Supreme Court in the case of

HDFC Securities Limited and others V/s State

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of Maharashtra and another5 has laid down the

law that the order passed under
section

156(3)
directing registration of the first

information report and submission of report

after investigation, if challenged by way of

filing Writ Petition or under
section 482
of

Cr.P.C., the same is premature challenge. It

is submitted that, therefore, the Supreme

Court in the said case held that the stage of

taking the cognizance arises only after the

investigation report is filed before the

Magistrate concerned. Therefore, the

challenge to an order under
section 156(3)
of

Cr.P.C. is premature, as the stage of

cognizance comes after the report is filed by

the police after completing the

investigation. It is submitted that, after

making compliance of the provisions of

sections 154(1)
and
154(3)
by the

complainant, there are averments made in the

5 (2017) 1 SCC 640

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complaint. Learned counsel invites our

attention to para 15 of the complaint filed

before the Sessions Court and submits that

the complaint was filed in Deopur Police

Station by respondent no.2. Thereafter, as

the cognizance was not taken, on 18th April,

2016, the complaint was filed before the

Superintendent of Police, Dhule. The said

complaint is filed after full-fledged

compliance of provisions of
sections 154(1)

and
154(3)
of the Cr.P.C. On the basis of the

complaint filed by respondent no.2 i.e.,

original complainant, the Superintendent of

Police, Dhule had issued letter to the Police

Inspector of Deopur Police Station, Dhule to

register the crime if the offence is made

out. It is submitted that, in the case of

Priyanka Shrivastav (supra), the Supreme

Court was pleased to direct that, the

application under
section 156(3)
of Cr.P.C.

should be supported by the affidavit. The

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said directions have been issued only with a

view that, if the averments in the

application are found false, the appropriate

legal action can be taken against the

complainant/applicant. Non-filing of the

affidavit in support of the application is an

irregularity covered under
section 460
of

Cr.P.C., which does not vitiate the

proceedings. Even otherwise, the complainant

cannot be directed to file the affidavit in

support of his complaint application.

24. It is submitted that, while deciding

the Writ Petition No. 3713 of 2015 in case of

Enercon GMBH a Company V/s The State of

Maharashtra, the judgment is relied upon by

the petitioners in Criminal Writ Petition

No.379/2017 and the point decided relates to

compliance of the provisions of
sections

154(1)
and
154(3)
of Cr.P.C. and point of

requirement of affidavit along with the

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application under
section 156(3)
of Cr.P.C.

had not been adjudicated in the said case. It

is submitted that, it is true that,

respondent no.2 had filed Criminal Misc.

Application No.817/2016 before the Chief

Judicial Magistrate, however, the same was

withdrawn and to that effect respondent no.2

has disclosed the said fact in the complaint.

It is submitted that, there are avernments in

the complaint, which would attract the

offences under the provisions of M.P.I.D.

Act. The complainant/applicant has enclosed

the important evidence from which the

offences under sections 406, 409, 417, 418,

467, 468, 471,
120(B)
read with 34 of the

Indian Penal Code
and offence under the

M.P.I.D. Act are prima facie evident. It is

submitted that, it is true that, the

complainant and his wife were convicted for

the offence punishable under
section 138
of

the Negotiable Instruments Act, 1881 and the

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sentence till rising of the Court was

ordered. Infact the complainant and his wife

have deposited the amount in that case, but

still the financial institute continued the

proceeding. The said fact cannot be a reason

to say that, the complaint is malafide. It is

submitted that, the allegations in respect of

cancellation of appointment of the

complainant in connection with "Ladshakhiya

Wani Samaj Sanstha" have no concern with the

present complaint. It is further submitted

that, the other factors stated by the

petitioners against the complainant are the

statements disclosing the entire story or

happening, so also the circumstances. The

said factors are being brought before this

Court only to cause prejudice against the

complainant and the said facts have no

concern with the prayers in the Petition and

the impugned order.

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25. It is submitted that, the various

submissions made by the petitioners about

their non-involvement in the offence or

involvement of others into the crime in

question are their probable defence, however,

the same cannot be taken into consideration

at this preliminary stage, where the order

passed under
section 156(3)
is under

challenge in Criminal Writ Petition. It is

submitted that, the complaint application was

filed by the complainant on 10th April, 2016

in Deopur Police Station, Dhule and on 18th

April, 2016, he had filed the application

before Superintendent of Police, Dhule. So

also there is report of Deopur Police Station

dated 2nd June, 2016, wherein it is stated in

column no.16 that "izHkkjh vf/kdkjh ;kaph f'kQkjl

Lor% pkSd'kh dsyh vkgs-" and from this it is

evident that, the concerned Police Officer

had made the inquiry and recommended for

registration of the crime. In other words, it

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is the satisfaction of the Police Officer,

that, the cognizable offence has been prima

facie made out. In these circumstances, it

was the bounden duty of the police to

register the crime and to investigate the

same. In support of abovesaid contentions,

the learned counsel placed reliance on the

exposition of law by the Supreme Court in the

case of Ramesh Karmari V/s State (N.C.T. of

Delhi) and ors6. It is submitted that, on the

basis of the order dated 28th February, 2017,

the crime no. 14 of 2017 has been registered

in Deopur Police Station, Dhule. The

investigation has been commenced and

thereafter some of the accused have been

arrested by the Police. The statements of

some of the witnesses must have been

recorded. What is done by the police would be

nullified if the first information report is

quashed at this stage, when the investigation

6 AIR 2006 S.C. 1322

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has been substantially proceeded. If the

police found that, the first information

report is false, the police would take

appropriate action against the complainant.

If the first information report is quashed

the serious crime would remain uninvestigated

even after the registration of crime.

Therefore, learned counsel appearing for

respondent no.2 submits that, the Petition

may be rejected.

26. Learned A.P.P. appearing for the

respondent/State submits that, pursuant to

the directions issued by Additional Sessions

Judge, Dhule vide order dated 28th February,

2017, the F.I.R. bearing C.R. No. 14 of 2017

is registered and pursuant to registration of

said F.I.R., the investigation has been

carried out. He further submits that,

Mr.Bhupesh Devidas Patil, the Auditor has

also registered the F.I.R. bearing C.R.

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No.92/2016 for the offences punishable under

Sections 420, 465, 466, 467, 471, 408 read

with 34 of the I.P. Code and under Sections 3

and 4 of the M.P.I.D. Act. The said F.I.R.

is registered on the basis of the enquiry

made by the Auditor and also the audit report

and in pursuance to the directions issued by

the Divisional Joint Registrar. He further

submits that, crime no.97/2013 is registered

alleging illegalities committed by the

Pathpedi while purchasing the Mangal

Karyalaya.

27. We have heard the learned senior

counsel appearing for the petitioners,

learned A.P.P. appearing for the

respondent/State and the learned Advocate

appearing for respondent no.2 at length. With

their able assistance, we have carefully

perused the pleadings in the Petition,

grounds taken therein, reply filed by

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respondent no.2 and affidavit in rejoinder

and also the written notes of arguments

submitted by the learned counsel appearing

for the petitioners, learned counsel

appearing for respondent no.2, and also

investigation papers made available for

perusal by the learned A.P.P. appearing for

respondent/State.

28. An important point raised by the

learned senior counsel appearing for the

petitioners that, respondent no.2 in the

present case did not file the affidavit duly

sworn by him in support of Criminal Misc.

application filed by him before the Sessions

Court at Dhule in terms of dictum of Hon'ble

Supreme Court of India in the case of

Priyanka Srivasta (supra) goes to the root

of the matter. Admittedly, the Criminal M.A.

No. 22/2017 filed by respondent no.2 was not

supported by the affidavit sworn by him.

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The Supreme Court in the case of Priyanka

Srivasta (supra) held thus :-

"27. Regard being had to the aforesaid
enunciation of law, it needs to be
reiterated that the learned Magistrate
has to remain vigilant with regard to
the allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He
has also to bear in mind that sending
the matter would be conducive to justice
and then he may pass the requisite
order. The present is a case where the
accused persons are serving in high
positions in the Bank. We are absolutely
conscious that the position does not
matter, for nobody is above the law.
But, the learned Magistrate should take
note of the allegations in entirety, the
date of incident and whether any
cognizable case is remotely made out. It
is also to be noted that when a borrower
of the financial institution covered
under the SARFAESI Act, invokes the
jurisdiction under Section 156(3)
Cr.P.C. and also there is a separate
procedure under the Recovery of Debts
Due to Banks and Financial Institutions

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Act, 1993, an attitude of more care,
caution and circumspection has to be
adhered to.

28. Issuing a direction stating "as per
the application" to lodge an FIR creates
a very unhealthy situation in society
and also reflects the erroneous approach
of the learned Magistrate. It also
encourages unscrupulous and unprincipled
litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous
steps with courts to bring the financial
institutions on their knees. As the
factual exposition would reveal,
Respondent 3 had prosecuted the earlier
authorities and after the matter is
dealt with by the High Court in a writ
petition recording a settlement, he does
not withdraw the criminal case and waits
for some kind of situation where he can
take vengeance as if he is the emperor
of all he surveys. It is interesting to
note that during the tenure of
Appellant 1, who is presently occupying
the position of Vice-President, neither
was the loan taken, nor was the default
made, nor was any action under the

SARFAESI Act
taken. However, the action
under the
SARFAESI Act
was taken on the

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second time at the instance of the
present Appellant 1. We are only stating
about the devilish design of Respondent
3 to harass the appellants with the sole
intent to avoid the payment of loan.
When a citizen avails a loan from a
financial institution, it is his
obligation to pay back and not play
truant or for that matter play possum.
As we have noticed, he has been able to
do such adventurous acts as he has the
embedded conviction that he will not be
taken to task because an application
under
Section 156(3)
Cr.P.C. is a simple
application to the court for issue of a
direction to the investigating agency.
We have been apprised that a carbon copy
of a document is filed to show the
compliance with
Section 154(3)
,
indicating it has been sent to the
Superintendent of Police concerned.

29. At this stage it is seemly to state
that power under
Section 156(3)
warrants
application of judicial mind. A court of
law is involved. It is not the police
taking steps at the stage of
Section 154

of the Code. A litigant at his own whim
cannot invoke the authority of the
Magistrate. A principled and really

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grieved citizen with clean hands must
have free access to invoke the said
power. It protects the citizens but when
pervert litigations takes this route to
harass their fellow citizens, efforts
are to be made to scuttle and curb the
same.

30. In our considered opinion, a stage
has come in this country where
Section
156(3)
Cr.P.C. applications are to be
supported by an affidavit duly sworn by
the applicant who seeks the invocation
of the jurisdiction of the Magistrate.
That apart, in an appropriate case, the
learned Magistrate would be well advised
to verify the truth and also can verify
the veracity of the allegations. This
affidavit can make the applicant more
responsible. We are compelled to say so
as such kind of applications are being
filed in a routine manner without taking
any responsibility whatsoever only to
harass certain persons. That apart, it
becomes more disturbing and alarming
when one tries to pick up people who are
passing orders under a statutory
provision which can be challenged under
the framework of the said Act or under

Article 226
of the Constitution of

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India. But it cannot be done to take
undue advantage in a criminal court as
if somebody is determined to settle the
scores.

31. We have already indicated that there
has to be prior applications under

Sections 154(1)
and
154(3)
while filing
a petition under
Section 156(3)
. Both
the aspects should be clearly spelt out
in the application and necessary
documents to that effect shall be filed.
The warrant for giving a direction that
an application under
Section 156(3)
be
supported by an affidavit is so that the
person making the application should be
conscious and also endeavour to see that
no false affidavit is made. It is
because once an affidavit is found to be
false, he will be liable for prosecution
in accordance with law. This will deter
him to casually invoke the authority of
the Magistrate under
Section 156(3)
.
That apart, we have already stated that
the veracity of the same can also be
verified by the learned Magistrate,
regard being had to the nature of
allegations of the case. We are
compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial

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dispute/family disputes, commercial
offences, medical negligence cases,
corruption cases and the cases where
there is abnormal delay/laches in
initiating criminal prosecution, as are
illustrated in Lalita Kumari7 are being
filed. That apart, the learned
Magistrate would also be aware of the
delay in lodging of the FIR."

(Underlines added)

Therefore, it follows from the

authoritative pronouncement of the Hon'ble

Supreme Court in the case of Priyanka

Srivasta (supra) that, the application under

section 156 (3)
of Cr.P.C. should be

supported by affidavit duly sworn by the

applicant, who seeks invocation of

jurisdiction of the Magistrate. In an

appropriate case, the learned Magistrate

would be well advised to verify the truth and

also can verify the veracity of the

allegations. This affidavit can make the

7 (2014) 2 SCC 1

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applicant more responsible. It is observed in

the said judgment that, the Court is

compelled to say so as such kind of

applications are being filed in a routine

manner without taking any responsibility

whatsoever only to harass certain persons.

That apart, it becomes more disturbing and

alarming when one tries to pick up people who

are passing orders under a statutory

provision which can be challenged under the

framework of the said Act or under
Article
of the Constitution of India. But it

cannot be done to take undue advantage in a

criminal court as if somebody is determined

to settle the scores.

29. As already observed, in the present

case, respondent no.2 did not support the

application by affidavit duly sworn by

him. The law laid down by the Hon'ble Supreme

Court in the case of Priyanka Srivasta

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(supra) is binding on all subordinate Courts

exercising jurisdiction within their local

limits and situate within the territory of

India, as has been provided under
Article 142

of the Constitution of India. The judgment in

the case of Priyanka Srivasta (supra) was

circulated to all the Magistrates, Sessions

Judges and High Courts. Therefore, the

Additional Sessions Judge, who passed the

impugned order, was bound by the dictum of

the Hon'ble Supreme Court in the case of

Priyanka Srivasta (supra). It is unfortunate

that, the learned Judge did not follow the

dictum of Hon'ble Supreme Court and proceeded

to pass the impugned order on the basis of

the application which was not supported by

the affidavit sworn by respondent no.2.

30. The Bombay High Court at Principal

Seat at Mumbai, in the case of Syed Anwar

Ahmed (supra) had occasion to consider the

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fact situation of filing the application

under
section 156(3)
of Cr.P.C. not supported

by the affidavit sworn by the complainant.

The Division Bench has in extenso made

reference to the judgment of the Supreme

Court in the case of Priyanka Srivasta in

para 19 and also to other judgments of the

Hon'ble Apex Court in para nos. 17, 18, 20,

21, and in paras 22 to 25 held thus :-

"17. As far as power under Sub-section (3)
of
Section 156
of the Cr.P.C. is
concerned, there are various decisions of
the Apex Court and this Court. In the case
of Anil Kumar and Others. v. M.K. Aiyappa
and Another MANU/SC/1002/2013 : (2013) 10
SCC, the Apex Court considered the scope
of powers under Sub-section (3) of Section

156. What is material is paragraph 11 of
the said decision which reads thus:-

"11. The scope of
Section 156(3)
Cr.P.C.
came up for consideration before this
Court in several cases. This Court in
Maksud Saiyed Case examined the
requirement of the application of mind

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by the Magistrate before exercising
jurisdiction under
Section 156(3)
and
held that where jurisdiction is
exercised on a complaint filed in terms
of
Section 156(3)
or
Section 200

Cr.P.C., the Magistrate is required to
apply his mind, in such a case, the
Special Judge/Magistrate cannot refer
the matter under
Section 156(3)
against
a public servant without a valid
sanction order. The application of mind
by the Magistrate should be reflected in
the order. The mere statement that he
has gone through the complaint,
documents and heard the complainant, as
such, as reflected in the order, will
not be sufficient. After going through
the complaint, documents and hearing the
complainant, what weighed with the
Magistrate to order investigation under

Section 156(3)
Cr.P.C., should be
reflected in the order, though a
detailed expression of his views is
neither required nor warranted. We have
already extracted the order passed by
the learned Special Judge which, in our
view, has stated no reasons for ordering
investigation."

(emphasis added)

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18. Thus, the Apex Court held that when
the learned Magistrate orders
investigation under Sub-section (3) of

Section 156
what weighed with the learned
Magistrate to order investigation should
be reflected from his order, though a
detailed expression of his views is not
warranted. While passing an order under
Sub-section (3) of
Section 156
of Cr.P.C,
surely some reasons are required to be
recorded after going through the Complaint
as well as the documents produced with the
complaint and after hearing the
complainant. The reasons should be
sufficient to indicate that the learned
Magistrate had applied his mind.

20. The relevant decisions of the Apex
Court including the decision in the case
of Lalita Kumari, were considered by
another Division Bench to which one of us
(Anuja Prabhudessai, J.) is a member.
In
paragraph No. 15 of the decision dated
30th March, 2015 in Writ Petition No. 4775
of 2014 (
Mr. Pandharinath Narayan Patil &
Ors. v. The State of Maharashtra and Anr.
)
the Division Bench held thus:-

"15. It is thus well settled that the
powers under
section 156(3)
of the Code

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cannot be exercised mechanically but are
required to be exercised judiciously.
The magistrate is not required to embark
upon an in-depth roving enquiry as to
the reliability or genuineness of the
allegations, nonetheless, he has to
arrive at a conclusion that the
application discloses necessary
ingredients of the offence for which
investigation is intended to be ordered.
Furthermore, the reasons for arriving at
such conclusion should be clearly
reflected in the order."

(emphasis added)

21. After considering the decision of the
Apex Court in the case of
Lalita Kumari v.
State of U.P.
, the Apex Court in the case
of Priyanka, reminded the learned
Magistrates that the Court of Law is
involved when power under Sub-section (3)
of
Section 156
is invoked and it is not
the case of the Police taking steps as per

Section 154
of the said Code. The Apex
Court has reminded the learned Magistrates
that there is a difference between the
Court of Law exercising the power under
Sub-section (3) of
Section 156
and the
Police acting under
Section 154
.
Therefore, only on the ground that the

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allegations made in the Complaint
constitute a cognizable offence, an order
under Sub-section (3) of
Section 156

cannot be mechanically passed. The Apex
Court observed that the power under

Section 156(3)
warrants application of
judicial mind. The mandate of law
laid
down in
the case of Lalita Kumari is only
against the Police in the context of
mandatory provisions of Sub-section (1) of

Section 154
of Cr.P.C. From paragraph 29
of the decision in the case of Priyanka,
it is apparent that even in a case where
the Complaint is seeking an action under

Section 156(1)
discloses commission of a
cognizable offence, it is not necessary
that in every such case the learned
Magistrate should pass an order under Sub-
section (3) of
Section 156
. It is
ultimately the discretion of the learned
Magistrate which is to be exercised after
considering several factors. What we
emphasis even at the risk of repetition is
that only because the Complaint filed
seeking an action under Sub-section (3) of

Section 156
discloses commission of a
cognizable offence, the learned Magistrate
should not mechanically the exercise power
without application of judicial mind.

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22. The Apex court has laid emphasis on
the complainant supporting his case under
Sub-section (3) of
Section 156
of the Code
by filing an affidavit. As observed in
paragraph No. 31 of the decision, mere
filing of affidavit is not sufficient. In
a given case, the learned Magistrate will
be well advised to verify the truth and
veracity of the allegation. Advantages of
filing of such affidavit are also
mentioned in
the said decision
of the Apex
Court.

23. Filing of an affidavit is also not
empty formality. The manner in which
affidavit is to be filed is prescribed in
Chapter VII of the Criminal Manual
published by this Court in paragraph Nos.
1 to 5, 7 and 8:-

"1. (1) The heading of every affidavit
to be used in a Court of Justice shall
be "in the Court of....at..... ".

naming such Court.

(2) If there be a case pending in
Court, the affidavit in support of, or
opposition to, an application
respecting it, must also begin with the
heading "In the matter of the case
of..... " in the case.

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(3) If there be no case pending in
Court heading shall be: In the matter
of the application of.

2. Every affidavit shall be drawn up
clearly and legibly and, as far as
possible, in a language which the
person making it understands. It shall
be drawn up in the first person and
divided into paragraphs numbered
consecutively, and each paragraph, as
far as may be, shall be confined to a
distinct subject or portion thereof.

3. (1) Every person making an affidavit
shall state his full name, father's
name, surname, age, profession or trade
and place of residence and shall give
such other particulars as will make it
possible to identify him clearly.

(2) The affidavit shall be signed by
him in his own hand or he shall make
his finger impression thereon.

4. Unless it is otherwise provided, an
affidavit may be made by any person
having knowledge of the facts deposed
to.

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5. (1) Every affidavit should clearly
specify what portion of the statement
is made on the declarant's knowledge
and what portion of the statement is
made on his information or belief.

2) When a particular portion is not
within the declarant's own knowledge
but it is stated from information
obtained from others, the declarant
must use the expression "I am informed"

and if it is made on belief should add
"I verily believe it to be true." He
must also state the source or ground of
the information or belief, and give the
name and address of, and sufficiently
described for the purpose of
identification, the person or persons
from whom he had received such
information.

(3) When the statement rests on facts
disclosed in documents or copies of
documents procured from any Court or
other person, the declarant shall state
the source from which they were
procured and his information, or
belief, as to the truth of the facts
disclosed in such documents.

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7. All erasures, errors,
interlineations, etc, in the affidavit
shall be legibly initialed and dated by
the declarant.

8. (1) The Officer authorised in this
behalf, shall, before administering the
oath ask the declarant if he has read
the affidavit and understood the
contents thereof, and if the latter
states that he has not read it, or
appears not to understand fully, the
contents thereof, or appears to be
blind, illiterate or ignorant of the
language in which it is written, the
Officer administering the oath shall
read and explain or cause some other
competent person to read and explain in
his presence the affidavit to the
declarant in the language which both
the declarant and the Officer
administering the oath understood.

(2) When an affidavit is read,
translated or explained as herein
provided the Officer administering the
oath shall certify in writing at the
foot of the affidavit that it has been
so read, translated or explained in his

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presence and that the declarant
understood the same at the time of
making the affidavit and made his
signature or finger impression in the
presence of the Officer."

24. Thus, the requirement of law is that
every affidavit should clearly specify
what portion of the statement is made on
declarant's personal knowledge and what
portion of the statement is made on his
information or belief. When a particular
statement is made on the basis of
information and belief, the affidavit must
state that the declarant believes the said
statement to be true. Particulars of the
source or ground of information or belief
as provided in clause (2) of paragraph No.
5 of the Chapter VII of the Criminal
Manual are required to be disclosed. The
manner in which an affidavit should be
executed is also
laid down in
paragraph
No. 8 of Chapter VII. An affidavit filed
without substantially complying with the
requirements of Chapter VII cannot be said
to be an affidavit filed in compliance
with the directions issued by the Apex
Court in the case of Priyanka Srivastava.
As stated in
the said decision
, the object
of filing an affidavit is to ensure that

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the complainant must face consequences, if
his statements made therein are found to
be false. To achieve the object of filing
an affidavit, it must substantially comply
with the requirements specified in Chapter
VII of the Criminal Manual.

25. To summarise,

"(a) While dealing with a Complaint
seeking an action under Sub-section (3) of

Section 156
of Cr.P.C, the learned
Magistrate cannot act mechanically. He is
required to apply his mind to the contents
of the Complaint and the documents
produced along with the Complaint;

(b) An Order passed on the said Complaint
must record reasons in brief which should
indicate application of mind by the
Magistrate. However, it not necessary to
record detailed reasons;

(c) The power under Sub-section (3) of

Section 156
is discretionary. Only because
on plain reading of the Complaint, a case
of commission of cognizable offence is
made out, an Order of investigation should
not be mechanically passed. In a given
case, the learned Magistrate can go in to

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the issue of the veracity of the
allegations made in the Complaint. The
learned Magistrate must also consider the
other relevant aspects such as the
inordinate delay on the part of the
Complainant. The nature of the transaction
and pendency of civil proceedings on the
subject are also relevant considerations;

(d) When a Complaint seeking an action
under Sub-section (3) of
Section 156
is
brought before the learned Metropolitan
Magistrate or the learned Judicial
Magistrate, it must be accompanied by an
affidavit in support as contemplated by
the decision of the Apex Court in Priyanka
Srivastava. The affidavit must
substantially comply with the requirements
set out in Chapter VII of the Criminal
Manual and especially paragraphs 5 and 8
which are quoted above; and

(e) Necessary averments recording
compliance with Sub-sections (1) and (3)
of
Section 154
of the Cr.P.C. should be
incorporated with material particulars.
Moreover, the documents in support of the
said averments must filed on record."

In the light of discussion

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hereinbefore, the Criminal Misc. Application

filed by respondent no.2 without supporting

the affidavit sworn by him ought to have been

held not maintainable. The contention of the

learned counsel appearing for respondent no.2

that already the directions were given by the

Superintendent of Police to the concerned

Police Officer to register the first

information report would by any stretch of

imagination cannot be said to be the

compliance of filing affidavit in support of

averments in the application, in the light of

discussion in foregoing paragraphs.

31. We have carefully perused the ground

no.1 taken in Criminal Misc. Application by

respondent no.2. The contention of the

learned counsel appearing for respondent no.2

that, not filing affidavit in support of

averments in the application/complaint is

mere irregularity cannot be accepted in view

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of the exposition of law by the Hon'ble Apex

Court in the case of Priyanka Srivasta

(supra) and the judgment of the Division

Bench in the case of Syed Anwar Ahmed (supra)

32. The view taken by the Division Bench

in the case of Syed Anwar Ahmed (supra) is

reiterated in the case of Nirmal Bang

Securities Private Limited (Formerly M/s.

Nirmal Bang) and others V/s State of

Maharashtra8, and in para no.9 it is held

thus :-

"9. We have given careful consideration
to the submissions. As far as the
provision of Sub-Section (3) of
Section
is concerned, the law is summarised
by this Bench in the case of
Sayed Anwar
Ahmed Vs. State of Maharashtra
in
Criminal Writ Petition No. 924 of 2016
decided on 27th and 28th February, 2017.

This Court has extensively considered the
decision of the Apex Court in the case of
Priyanka Srivastava as well as
Lalita
Kumari v. State of Uttar Pradesh
. The law

8 2017 SCC Online Bom 699

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has been summarised in paragraph 25 of

the said decision
which reads thus:--

"25. To summarise,

(a) While dealing with a Complaint
seeking an action under Sub-Section (3)
of
Section 156
of Cr.P.C, the learned
Magistrate cannot act mechanically. He is
required to apply his mind to the
contents of the Complaint and the
documents produced along with the
Complaint;

(b) An Order passed on the said Complaint
must record reasons in brief which should
indicate application of mind by the
Magistrate. However, it not necessary to
record detailed reasons;

(c) The power under Sub-Section (3) of

Section 156
is discretionary. Only
because on plain reading of the
Complaint, a case of commission of
cognizable offence is made out, an Order
of investigation should not be
mechanically passed. In a given case, the
learned Magistrate can go in to the issue
of the veracity of the allegations made
in the Complaint. The learned Magistrate
must also consider the other relevant
aspects such as the inordinate delay on
the part of the Complainant. The nature

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of the transaction and pendency of civil
proceedings on the subject are also
relevant considerations;

(d) When a Complaint seeking an action
under Sub-Section (3) of
Section 156
is
brought before the learned Metropolitan
Magistrate or the learned Judicial
Magistrate, it must be accompanied by an
affidavit in support as contemplated by
the decision of the Apex Court in
Priyanka Srivastava. The affidavit must
substantially comply with the
requirements set out in Chapter VII of
the Criminal Manual and especially
paragraphs 5 and 8 which are quoted
above; and

(e) Necessary averments recording
compliance with Sub-Sections (1) and (3)
of
Section 154
of the CrPC should be
incorporated with material particulars.

Moreover, the documents in support of the
said averments must filed on record."

In
the said judgment
, the Division Bench

considered the judgment in the case of HDFC

Securities Ltd., (supra) and in particular

para 16 held thus :-

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"16.Now, we turn to the decision of the
Apex Court in the case of HDFC Securities
Limited. In the said case there was an
order passed under Sub-Section (3) of

Section 156
of Cr.PC on the basis of which
FIR was registered. Writ Petitions were
filed by the appellants before the Apex
Court for quashing FIR. The Writ Petitions
were dismissed by the High Court by
holding the same as premature. The order
passed by the learned Magistrate under
Sub-section (3) of Section 156 of Cr.P.C.

is quoted in paragraph 12 which records
reasons in brief. The order shows that the
learned Magistrate had applied his mind to
the contents of the complaint and came to
the conclusion that the complaint
disclosed commission of cognizable
offence. The order was not made only on
this ground. The learned Magistrate
recorded a satisfaction that considering
the nature of the offence, it needs to be
sent to the police for investigation under
Sub-Section (3) of
Section 156
. The order
records that he has even perused the
documents filed along with the complaint.
Therefore, this was not a case where a
single line order was passed ordering
investigation. This was a case where the
order under Sub-Section (3) of
Section 156

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disclosed that the learned Magistrate had
applied his mind to the complaint. It is
in the facts of the case before the Apex
Court that the observations were made in
paragraph 27 that the Petitions filed
before the High Court were filed at
premature stage. We are of the view, if
the order made under Sub-Section (3) of

Section 156
is illegal, the FIR registered
on the basis of the order can be quashed
to avoid abuse of process of law."

33. It is contended by the petitioners

that, respondent no.2 is habitual litigant,

various proceedings are pending against

respondent no.2. He is rival of Shinkar

family. In the year 2001, he and his wife

availed the loan facility from the Pathpedi

borrowed the loan. Said amount, which was

borrowed as loan, was not paid, which

resulted into filing the proceedings under

section 101
of the Maharashtra Co-operative

Societies Act, 1960 (for short
M.C.S. Act,
) by the said Pathpedi. The Pathpedi

obtained Recovery Certificate under Section

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101 of the
M.C.S. Act, 1960
against

respondent no.2 and his wife.

34. In reply to the aforesaid contention

of the petitioners, it is admitted by

respondent no.2 that the aforesaid

proceedings were initiated against respondent

no.2 and his wife, and they were convicted

and the sentence awarded was till rising of

the Court. There is no denial to the fact

that, the Advocate General of Maharashtra

State has prosecuted the present respondent

no.2 under the provisions of the
Maharashtra

Vexatious Litigation (Prevention) Act, 1971
.

Therefore, we find considerable force in the

arguments of the learned senior counsel

appearing for the petitioners that,

respondent no.2 has grudge in his mind

against the petitioners, and therefore, the

criminal proceedings i.e. filing of present

complaint by the complainant, is manifestly

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attended with malafide and maliciously

instituted with malafide intention to wreak

vengeance. The Supreme Court in the case of

"State of Haryana V/s Bhajan Lal9" in para

108 of the judgment held thus :-

"108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the extra-
ordinary power under
Article 226
or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give

9 AIR 1992 SC 604

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an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

1. Where the allegations made in the First
Information Report or the complaint,
even if they are taken at their face
value and accepted in their entirety do
not prima facie constitute any offence
or make out a case against the accused.

2. Where the allegations in the First
Information Report and other materials,
if any, accompanying the F.I.R. do not
disclose a cognizable offence,
justifying an investigation by police
officers under
Section 156(1)
of the
Code except under an order of a
Magistrate within the purview of

Section 155(2)
of the Code.

3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against
the accused.

4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order of
a Magistrate as contemplated under

Section 155(2)
of the Code.

5. Where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of

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which no prudent person can ever reach
a just conclusion that there is
sufficient ground for proceeding
against the accused.

6. Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

7. Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge."

(Underlines supplied)

35. In the light of the aforesaid

discussion, the contention of the petitioners

that, the criminal proceedings are manifestly

attended with malafide and maliciously with

ulterior motive for wreaking vengeance on the

accused deserves acceptance keeping in view

the category no.7 i.e. where a criminal

proceeding is manifestly attended with mala

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fide and/or where the proceeding is

maliciously instituted with an ulterior

motive for wreaking vengeance on the accused

and with a view to spite him due to private

and personal grudge.

36. Respondent no.2 in his application

made allegation in respect of purchase of

Mangal Karyalaya. However, in that respect

already crime No. 97 of 2013 came to be

registered. Therefore, in view of the

judgment of the Supreme Court in the case of

T.T. Antony (supra), on the same set of

allegation, crime no. 14/2017 is not

maintainable.

37. Pursuant to the directions issued by

the Divisional Joint Registrar, Co-operative

Societies to the District Social Auditor

Class-I, the Auditor has lodged the complaint

with Deopur Police Station, Dhule and on the

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basis of the said complaint, on 29th

September, 2016 the crime No.92/2016 for the

offences punishable under Sections 420, 465,

466, 467, 471 and 342 of the IP Code as well

as sections 3 and 4 of the M.P.I.D. Act has

been registered. The said complaint submitted

by the Auditor is in respect of very same

Pathpedi. In the said crime, one of

petitioners is already made accused. Since

the allegations in the said first information

report relates to the affairs of Dadasaheb

Waman Vishnu Shinkar Nagari Sahakari Pathpedi

and also about the illegalities and

irregularities committed while conducting the

affairs of the society and at the time of

disbursement of loan etc., and therefore, it

was not necessary to register the separate

offence. In the crime No.92/2016 registered

with Deopur Police Station, Dhule for the

offences punishable under Sections 420, 465,

466, 467, 471 and 342 of the IP Code as well

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as sections 3 and 4 of the M.P.I.D. Act, the

Investigating Officer is at liberty to

investigate about the allegations made even

against the present petitioners so as to find

out their role. An investigation is an

exclusive domain of the Investigating Officer

and the Investigating officer would be at

liberty to investigate even about the

involvement of present petitioners, and there

cannot be any impediment for such

investigation. Even the statement of present

respondent no.2 can also be recorded in the

said crime by the Investigating officer. It

appears that, since the Special Auditor did

not take any steps to file the complaint with

Police Station inspite of the directions by

the Superior Officer about the alleged

illegalities and irregularities committed by

the Directors, employees and borrowers etc.,

including the petitioners to register the

first information report on the basis of such

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complaint, respondent no.2 presented the

complaint before the Magistrate and the

complaint was subsequently withdrawn and

thereafter the Criminal Misc. Application No.

22/2017, was presented before the Court of

Additional Sessions Judge at Dhule. Since as

already observed the crime No. 92/2016 is

already registered on the basis of the

complaint filed by the Special Auditor on

20th August, 2016, the allegations as against

the petitioners made in the present F.I.R.

i.e. Crime No.14/2017 can also be gone into

in the said first information report. There

is no need of further investigation of said

F.I.R., which is registered pursuant to

directions issued by the Additional Sessions

Judge, Dhule.

38. There is also another reason to

cause interference in the impugned order

directing registration of the first

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information report. In the impugned order,

the cryptic reasons are assigned by the

concerned Court without assigning any single

reason how the provisions of sections 3 and 4

of the M.P.I.D. Act are attracted. While

passing the impugned order, learned Judge did

not even consider the fact that, Mohammad

Abdul Arif was working as Divisional Joint

Registrar, Co-operative Societies as public

servant and therefore, to prosecute him,

valid sanction is necessary. However, after

registration of F.I.R. pursuant to the

directions issued by the Additional Sessions

Judge, Dhule, very same learned Judge while

entertaining an application and granting

anticipatory bail to Mohammad Abdul Arif, who

was working as Divisional Joint Registrar

made observation that, there was no valid

sanction to prosecute him. Therefore, there

was no proper application of mind by the

learned Judge and as a result, by cryptic

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reasons, the impugned order is passed and on

the basis of the said order, the first

information report no.14/2017 with Deopur

Police Station for the offence punishable

under sections 406, 409, 417, 418, 420, 467,

468, 471, 120-B and
of I.P. Code and under

sections 3 and 4 of the M.P.I.D. Act is

registered.

39. Though the learned counsel appearing

for respondent no.2 has placed reliance on

the judgment in the case of HDFC Securities

Limited, in the facts of that case, the issue

of filing the affidavit in support of

application by the applicant/complainant

therein was not involved.
In the present

case, as already observed, in the light of

mandate of the Supreme Court in the case of

Priyanka Srivasta (supra) and the judgment of

the Bombay High Court at Principal Seat in

the case of
Syed Anwar Ahmed
(supra), it was

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incumbent upon the learned Judge, who passed

the impugned order, to seek compliance from

respondent no.2 to file the affidavit in

support of Criminal Misc. Application. In the

facts of the present case, as already

observed the order passed by Additional

Sessions Judge is cryptic and without

assigning any valid reasons for invoking

provisions of sections 3 and 4 of the

M.P.I.D. Act. Therefore, the
ratio
laid down

in
the case of HDFC Securities Limited cannot

be made applicable in the facts of the

present case, when there is no affidavit

sworn by respondent no.2 in support of

averments in the Misc. Application and order

suffers from non-application of mind.

However, we make it clear that, the

allegations made against the petitioners

cannot go unattended and the Investigating

Officer making investigation in Crime

No.92/2016 will be at liberty to cause the

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investigation even in respect of the present

petitioners also, since the said first

information report is lodged on the basis of

the complaint filed by the Special Auditor

with Deopur Police Station, Dhule. We further

make it clear that, there is no impediment to

the Investigating Officer to cause the

investigation keeping in view the allegations

in the first information report registered on

the basis of complaint lodged by the Special

Auditor even against the petitioners, even

though there are certain directions by the

Minister and in turn the Special Auditor

mentioned in that respect that, no offence

should be registered against Devidas Waman

Shinkar. As already observed, the

investigation is an exclusive domain of the

Investigating Officer and the Investigating

Officer is at liberty to add any

person/persons as an accused in ongoing

investigation keeping in view the allegations

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in the first information report, and can also

cause the further investigation. In

substance, the allegations made in the First

Information Report no. 14/2017 can be taken

care of in ongoing investigation in crime

no.92/2016 for the offence punishable under

Sections 420, 465, 466, 467, 471, 406 read

with
section 34
of I.P. Code and under

Sections 3 and 4 of the M.P.I.D. Act, and the

Investigating Officer can record the

statement of respondent no.2.

40. The contention of the learned

counsel appearing for respondent no.2 that,

the revision as against the impugned order

passed by the Additional Sessions Judge is

maintainable, and therefore, the present

Petition under
Article 226
of the

Constitution of India read with
section 482

of the Cr.P.C. may not be entertained, cannot

be accepted. It needs to be emphasized that

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the scope of exercise of jurisdiction of

section 482
of Cr.P.C. is explained in

greater details by the Supreme Court in the

case of State of Haryana V/s Bhajan Lal and

various pronouncement of the Supreme Court in

recent past. The Supreme Court in the case of

Prabhu Chawla Vs. State of Rajasthan and Anr.

in Criminal Appeal No. 842 of 2016 with

Criminal Appeal No. 844 of 2016, decided on

5th September, 2016, in para 3 held thus :

3. While considering all these
matters at the SLP stage, on
05.07.2013, a Division Bench
found the impugned order of the
High Court to be against the law
stated in
Dhariwal Tobacco
Products Ltd. v. State of
Maharashtra10
.
In that case the
Division Bench concurred with the
proposition of law that
availability of alternative
remedy of criminal revision under
Section 397 Cr.P.C. by itself

10 [2009] 2 SCC 370

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cannot be a good ground to
dismiss an application under
Section 482 of Cr.P.C. But it
noticed that a later Division
Bench judgment of this Court in
the case of Mohit alias Sonu v.

State of Uttar Pradesh11
apparently held to the contrary
that when an order under assail
is not interlocutory in nature
and is amenable to the revisional
jurisdiction of the High Court
then there should be a bar in
invoking the inherent
jurisdiction of the High Court.

In view of such conflict, these
cases were directed to be placed
before the Hon'ble Chief Justice
for reference to a larger Bench
and that is how the matters are
before this Bench for resolving
the conflict.

41. The Supreme Court after detailed

discussion in paras 4 and 5; in para 6 of
the

said judgment
held thus:

11 [2013] 7 SCC 789

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6. In our considered view any
attempt to explain the law
further as regards the issue
relating to inherent power of
High Court under
Section 482

Cr.P.C. is unwarranted. We would
simply reiterate that Section
482 begins with a non-obstante
clause to state: "Nothing in
this Code shall be deemed to
limit or affect the inherent
powers of the High Court to make
such orders as may be necessary
to give effect to any order
under this Code, or to prevent
abuse of the process of any
Court or otherwise to secure the
ends of justice." A fortiori,
there can be no total ban on the
exercise of such wholesome
jurisdiction where, in the words
of Krishna Iyer, J. "abuse of
the process of the Court or
other extraordinary situation
excites the court's
jurisdiction. The limitation is
self-restraint, nothing more."

We venture to add a further

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reason in support. Since
Section
Cr.P.C. is attracted against
all orders other than
interlocutory, a contrary view
would limit the availability of
inherent powers under
Section
Cr.P.C. only to petty
interlocutory orders! A
situation wholly unwarranted and
undesirable.

42. It clearly emerges that, the Supreme

Court approved the law
laid down in
the case

of Dhariwal Tobacco Products Ltd. and ors.

Vs. State of Maharashtra and another12 and

ultimately held that, the availability of

alternative remedy of criminal revision under

Section 397
of the Code of Criminal Procedure

by itself cannot be a good ground to dismiss

an application under
Section 482
of the Code

of Criminal Procedure.
The judgment in the

case of
Dhariwal Tobacco Products Ltd.

[supra] is holding the field, since the date

12 [2009] 2 SCC 370

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of its pronouncement of
the said judgment
in

the year 2009.

43. It is further not necessary to

elaborate the reasons. Suffice it to say

that, in the light of discussion in the

foregoing paragraphs, we are of the

considered view that, the impugned order

passed by the Additional Sessions Judge,

Dhule, deserves to be quashed and

consequently the F.I.R. bearing C.R. No. 14

of 2017 registered on the basis of the same

also deserves to be quashed.

44. Accordingly, the impugned order

dated 28th February, 2017 passed by the

Additional Sessions Judge, Dhule in Criminal

Misc. Application No. 22/2017 is quashed and

set aside. Consequently, the first

information report i.e. Crime No. 14/2017

registered with Deopur Police Station for the

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offence punishable under sections 406, 409,

417, 418, 420, 467, 468, 471, 120-B and
of

the I.P. Code and under sections 3 and 4 of

the M.P.I.D. Act on the basis of the said

order is also quashed. Rule made absolute on

above terms.

An observations made hereinbefore on

the merits of the allegations in the first

information report No. 14/2017 are prima

facie in nature and cannot be construed as an

impediment to the Investigating Officer, who

is investigating into the F.I.R. no.92/2016

registered with Deopur Police Station, Dhule

to proceed with the investigation in

accordance with law. The Investigating

Officer is free to cause the investigation

even in respect of the petitioners in said

crime, however, in accordance with law.

45. The Registrar (Judicial), High Court

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of Judicature of Bombay, Bench at Aurangabad

shall ensure that the copy of this judgment

and order is circulated by e-mail or any

other fastest mode of communication to all

the learned Judges working in District and

Sessions Courts and also trial Courts dealing

with the criminal matters and also all

Judicial Magistrates functioning within the

territorial jurisdiction of the Bombay High

Court.

[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
SAG

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