Case Note & Summary
The petitioner, Syed Muzaffaruddin Khan, filed a criminal writ petition under Articles 226 and 227 of the Constitution of India challenging the judgment and order dated 07.05.2011 passed by the Additional Sessions Judge-7, Aurangabad in Criminal Revision No.227/2010. The revisional court had set aside the order dated 05.03.2009 passed by the Chief Judicial Magistrate (CJM), Aurangabad in RCC No.2264/2008, whereby the CJM had directed the Kranti Chowk police station to investigate the complaint under Section 156(3) of the Criminal Procedure Code (CrPC). The petitioner was the original complainant who had lodged a report in October 2008 at CIDCO police station, Aurangabad, alleging cheating by respondents No.1 to 4 during proceedings in MARJI No.663/2002 pending before the CJJD, Aurangabad. The police took no action, and the petitioner then approached the CJM, who passed the order for investigation. Pursuant to that order, Crime No.10/2009 was registered. The respondents challenged the CJM's order before the Additional Sessions Judge, who set it aside on the ground that the dispute was civil in nature and that the Magistrate had not applied his mind. The High Court, after hearing the parties, held that the revisional court's order was erroneous as the Magistrate had the power under Section 156(3) CrPC to order investigation even if the dispute had civil aspects, and that the revisional court could not set aside the order without hearing the complainant. The High Court allowed the writ petition, set aside the revisional order, and restored the CJM's order dated 05.03.2009.
Headnote
A) Criminal Procedure Code - Section 156(3) - Power of Magistrate to order investigation - The Magistrate has the power under Section 156(3) CrPC to direct police investigation even if the dispute has civil overtones, as long as a cognizable offence is disclosed. The revisional court erred in setting aside such order on the ground that the dispute was civil and that the Magistrate had not applied his mind, without hearing the complainant. (Paras 1-3)
B) Criminal Procedure Code - Section 397 - Revisional jurisdiction - The revisional court cannot set aside an order passed under Section 156(3) CrPC without affording an opportunity of hearing to the complainant, as the order affects his right to have the matter investigated. (Para 2)
C) Constitution of India - Articles 226 and 227 - Maintainability of writ petition - A writ petition under Articles 226 and 227 is maintainable against an order passed by the revisional court under Section 397 CrPC, especially when the order is passed without jurisdiction or in violation of principles of natural justice. (Para 2)
Issue of Consideration
Whether the Additional Sessions Judge was justified in setting aside the Magistrate's order directing police investigation under Section 156(3) CrPC on the ground that the dispute was civil in nature and that the Magistrate had not applied his mind.
Final Decision
The High Court allowed the criminal writ petition, set aside the judgment and order dated 07.05.2011 passed by the Additional Sessions Judge-7, Aurangabad in Criminal Revision No.227/2010, and restored the order dated 05.03.2009 passed by the CJM, Aurangabad in RCC No.2264/2008.
Law Points
- Magistrate's power under Section 156(3) CrPC to order police investigation is not barred by pendency of civil proceedings
- Revisional court cannot set aside such order without hearing the complainant
- Writ petition under Articles 226 and 227 is maintainable against revisional order
Case Details
2011 LawText (BOM) (10) 12
Criminal Writ Petition No.473 of 2011
Mr. S.V. Natu for petitioner, Mr. S.G. Nandedkar APP for respondent State, Mr. Jyodeep Chatterji for respondents No.2 to 4
Syed Muzaffaruddin Khan Mohd. Abdul Qayyum
Mohd. Abdul Qadir Mohd. Abdul Mabood (deceased), Kauser Begum Mohammed Rafiq, Mohd. Abdul Aziz, Mohd. Abdul Rauf, State of Maharashtra
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Nature of Litigation
Criminal writ petition under Articles 226 and 227 of the Constitution of India challenging the order of the Additional Sessions Judge setting aside the Magistrate's direction for police investigation under Section 156(3) CrPC.
Remedy Sought
The petitioner sought to quash the revisional order dated 07.05.2011 and restore the Magistrate's order dated 05.03.2009 directing police investigation.
Filing Reason
The petitioner alleged that the revisional court erred in setting aside the Magistrate's order on the ground that the dispute was civil and that the Magistrate had not applied his mind.
Previous Decisions
The CJM, Aurangabad passed an order on 05.03.2009 directing police investigation under Section 156(3) CrPC. The Additional Sessions Judge set aside that order on 07.05.2011 in Criminal Revision No.227/2010.
Issues
Whether the Additional Sessions Judge was justified in setting aside the Magistrate's order directing police investigation under Section 156(3) CrPC on the ground that the dispute was civil in nature and that the Magistrate had not applied his mind.
Whether the revisional court could set aside the order without hearing the complainant.
Submissions/Arguments
The petitioner argued that the Magistrate had the power under Section 156(3) CrPC to order investigation even if the dispute had civil aspects, and the revisional court erred in setting aside the order without hearing him.
The respondents argued that the dispute was civil and the Magistrate had not applied his mind.
Ratio Decidendi
The Magistrate has the power under Section 156(3) CrPC to order police investigation even if the dispute has civil overtones, as long as a cognizable offence is disclosed. The revisional court cannot set aside such an order without hearing the complainant, as it affects his right to have the matter investigated.
Judgment Excerpts
This criminal writ petition, under Articles 226 and 227 of the Constitution of India, is directed against the judgment and order dated 07.05.2011 passed by Additional Sessions Judge-7, Aurangabad in Criminal Revision No.227/2010 thereby setting aside the order dated 05.03.2009 passed by CJM, Aurangabad in RCC No.2264/2008.
The petitioner is the original complainant, who had lodged a report in the month of October 2008 in CIDCO police station, Aurangabad in respect of the incidents of cheating by respondents No.1 to 4 during the proceedings pending on the file of CJJD, Aurangabad i.e. MARJI (Miscellaneous Application Requiring Judicial Inquiry) No.663/2002.
Procedural History
The petitioner lodged a complaint in October 2008 at CIDCO police station, but no action was taken. On 17.11.2008, the petitioner sent communications to the CJJD and the Registrar of this Court. The Deputy Registrar replied on 10.12.2008 directing the petitioner to file a complaint before the competent criminal court. The petitioner then filed a complaint before the CJM, Aurangabad, which was registered as RCC No.2264/2008. On 05.03.2009, the CJM passed an order under Section 156(3) CrPC directing Kranti Chowk police station to investigate. Pursuant to that, Crime No.10/2009 was registered. The respondents challenged the order in Criminal Revision No.227/2010 before the Additional Sessions Judge, who set it aside on 07.05.2011. The petitioner then filed the present criminal writ petition.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 156(3), 397
- Constitution of India: 226, 227
