Case Note & Summary
The petitioners, Gopal Mahadeoji Khandelwal and Vishnu Pannalal Soni, filed a criminal application under Section 482 Cr.P.C. challenging an order dated 17/03/2017 passed by the Additional Sessions Judge, Washim in Criminal Revision No.58/2015. The impugned order remanded the matter back to the Judicial Magistrate First Class with a direction to decide only whether the complainant (non-applicant No.2) was entitled to an order of investigation under Section 156(3) Cr.P.C. The background is that the complainant had filed an application before the Magistrate seeking police investigation under Section 156(3) Cr.P.C., alleging that the petitioners and others had cheated the government and misappropriated funds under a crop loan scheme, committing offences under Sections 420, 468, 471, 408, 409 read with 120-B IPC. The Magistrate had earlier passed an order, which was challenged before the High Court in Criminal Application [APL] No.735/2014. By order dated 29/06/2015, the High Court disposed of that application with a direction that the Magistrate shall consider the application under Section 156(3) Cr.P.C. afresh and pass appropriate orders in accordance with law. The Magistrate thereafter passed an order, which was challenged by the complainant in Criminal Revision No.58/2015. The Additional Sessions Judge, by the impugned order, held that as per the High Court's order dated 29/06/2015, the Magistrate was required only to consider whether an order under Section 156(3) could be issued or not, and had no freedom to pass any other order. The High Court in the present petition examined the scope of the earlier order and the powers of the Magistrate under Section 156(3) Cr.P.C. The Court observed that the earlier order dated 29/06/2015 did not restrict the Magistrate's discretion; it merely directed the Magistrate to consider the application afresh and pass appropriate orders. The Court noted that the Magistrate, while dealing with an application under Section 156(3), has the discretion to either order investigation or treat the application as a complaint and proceed under Chapter XV of the Cr.P.C. The Sessions Judge's interpretation that the Magistrate had no other option was erroneous. Consequently, the High Court allowed the petition, quashed the impugned order, and restored the matter to the file of the Additional Sessions Judge for fresh decision in accordance with law, without being influenced by the observations made in the impugned order.
Headnote
A) Criminal Procedure - Investigation under Section 156(3) Cr.P.C. - Magistrate's Discretion - The Magistrate, while dealing with an application under Section 156(3) of the Code of Criminal Procedure, 1973, is not bound to only grant or refuse investigation; he may also treat the application as a complaint and proceed under Chapter XV of the Cr.P.C. - The earlier order of the High Court dated 29/06/2015 in Criminal Application [APL] No.735/2014 did not curtail this discretion - Held that the Sessions Judge erred in remanding the matter with a direction to decide only whether to issue an order under Section 156(3) or not (Paras 03-06).
Issue of Consideration
Whether the Additional Sessions Judge was correct in holding that the Magistrate had no discretion to pass any order other than granting or refusing investigation under Section 156(3) Cr.P.C., and whether the impugned remand order was legally sustainable.
Final Decision
The High Court allowed the petition, quashed the impugned order dated 17/03/2017 passed by the Additional Sessions Judge, Washim in Criminal Revision No.58/2015, and restored the matter to the file of the Additional Sessions Judge for fresh decision in accordance with law, without being influenced by the observations made in the impugned order.
Law Points
- Magistrate's discretion under Section 156(3) Cr.P.C. is not limited to only granting or refusing investigation
- Magistrate may also treat application as complaint and proceed under Chapter XV
- Earlier High Court order did not restrict Magistrate's powers
- Remand order by Sessions Judge was erroneous
Case Details
2018 LawText (BOM) (09) 115
Criminal Application [APL] No.389 of 2017
Shri Anil Mardikar, Senior Advocate for the Applicants; Ms. Ritu Kialia, A.P.P. for Non-Applicant No.1; Shri Rajnish Vyas, Advocate for Non-Applicant No.2
Shri Gopal Mahadeoji Khandelwal and Shri Vishnu Pannalal Soni
State of Maharashtra and Shri Amol Haribhau Khanzode
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Nature of Litigation
Criminal application under Section 482 Cr.P.C. challenging the legality of an order passed by the Additional Sessions Judge in a criminal revision.
Remedy Sought
The applicants sought quashing of the order dated 17/03/2017 passed by the Additional Sessions Judge, Washim in Criminal Revision No.58/2015.
Filing Reason
The applicants challenged the remand order which directed the Magistrate to decide only whether to issue an order under Section 156(3) Cr.P.C., contending that the Sessions Judge misinterpreted the earlier High Court order and curtailed the Magistrate's discretion.
Previous Decisions
The High Court had earlier passed an order dated 29/06/2015 in Criminal Application [APL] No.735/2014 directing the Magistrate to consider the application under Section 156(3) Cr.P.C. afresh and pass appropriate orders. The Magistrate thereafter passed an order, which was challenged in Criminal Revision No.58/2015, leading to the impugned remand order.
Issues
Whether the Additional Sessions Judge was correct in holding that the Magistrate had no discretion to pass any order other than granting or refusing investigation under Section 156(3) Cr.P.C.
Whether the impugned remand order was legally sustainable.
Submissions/Arguments
The applicants argued that the Sessions Judge erred in interpreting the earlier High Court order as restricting the Magistrate's discretion to only granting or refusing investigation under Section 156(3) Cr.P.C.
The non-applicants supported the impugned order.
Ratio Decidendi
The Magistrate, while dealing with an application under Section 156(3) Cr.P.C., has the discretion to either order investigation or treat the application as a complaint and proceed under Chapter XV of the Cr.P.C. The earlier High Court order dated 29/06/2015 did not restrict this discretion; it merely directed the Magistrate to consider the application afresh and pass appropriate orders. The Sessions Judge's interpretation that the Magistrate had no other option was erroneous.
Judgment Excerpts
This petition challenges the legality and correctness of the order, dated 17/03/2017 passed by the Additional Sessions Judge, Washim in Criminal Revision No.58/2015 thereby remanding the matter back to the Court of Judicial Magistrate First Class with a direction to decide as to whether or not the complainant ... is entitled to get an order of the investigation under Section 156(3) of the Code of Criminal Procedure.
The above order or the impugned order came to be passed by the learned Additional Sessions Judge, Washim on the premise that as per the order passed by this Court on 29/06/2015 in Criminal Application [APL] No.735/2014, the Magistrate was required to only consider whether an order directing investigation under Section 156(3) could be issued or not issued and that he did not enjoy any freedom to pass any other order.
Procedural History
The complainant filed an application under Section 156(3) Cr.P.C. before the Judicial Magistrate First Class, Washim. The Magistrate passed an order, which was challenged by the complainant in Criminal Application [APL] No.735/2014 before the High Court. By order dated 29/06/2015, the High Court disposed of the application directing the Magistrate to consider the application afresh and pass appropriate orders. The Magistrate thereafter passed a fresh order. The complainant challenged that order in Criminal Revision No.58/2015 before the Additional Sessions Judge, Washim. The Additional Sessions Judge, by order dated 17/03/2017, remanded the matter back to the Magistrate with a direction to decide only whether to issue an order under Section 156(3) Cr.P.C. The petitioners then filed the present application under Section 482 Cr.P.C. challenging the remand order.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 156(3)
- Indian Penal Code, 1860 (IPC): 420, 468, 471, 408, 409, 120-B
