TMI Blog2013 (5) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal is directed against the final judgment and order dated 02.09.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Application No. 3112 of 2006 whereby the High Court dismissed the appeal filed by the Appellants herein while confirming the order dated 27.09.2005, passed by the Court of Judicial Magistrate, First Class, Ghatanji in Criminal Complaint Case No. 92 of 2005. 3. Brief facts: (a) The Government of Maharashtra has published a Government Resolution on 02.06.2004 wherein it was informed to the public at large that the percentage of educated un-employed amongst the Scheduled Caste and neo- Buddhist are on the higher side and those who are below poverty line are required to work unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs by getting executed a registered sale deed. At the time of execution of sale deed, on 07.05.2005, an affidavit was sworn by the Vendors that they were residents of Mouza Koli-Buzruq, Tahsil Ghatanji, District Yavatmal and were the owners of Gut No. 43 of the said property. (d) On 04.06.2005, A newspaper by name Tarun Bharat published an article in which it was alleged that the Petitioners have purchased agricultural land showing Ramesh as alive while he was dead. It was further alleged that one Ramesh Shikaji Rathod had signed the sale deed as Ramesh Shika Jadhav. (e) On coming to know about the said publication, Appellant No. 1 on 29.06.2005 made an enquiry and recorded the statements of the said eight Executants and on 02.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009, after hearing the parties, the High Court dismissed the Criminal Application preferred by the Appellants-herein by holding that the procedure adopted and the power exercised by the Magistrate ordering investigation under Section 156(3) of Code of Criminal Procedure is just and proper. (k) Being aggrieved, Appellants herein filed SLP No. 7293 of 2009. CRIMINAL APPEAL No. of 2013 (Arising out of S.L.P. (Crl.) No. 7324 of 2009) 4 . On 27.09.2006, one of the accused, namely, Akash Dattatraya Marawar (A-1), business man, also filed Criminal Application No. 3242 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005. The High Court, by order dated 02.09.2009, dismissed the application. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation under Section 156(3), heard the counsel for the complainant, perused the allegations made against the accused in the complaint and documents annexed therewith. It also shows that taking note of the fact that some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under Section 156(3) of the Code directed the P.S.O. Ghatanji to investigate the matter and submit a detailed report within one month. 1 0 . Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of Sub-section (1) subject to the provisions of the said Chapter, any Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having considered the complaint, the Court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.... It is clear that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. 13. When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 16. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code. 17. The above principles have been reiterated in Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. (1976) 3 SCC 252 and Tula Ram and Ors. v. Kishore Singh (1977) 4 SCC 459 18. Keeping the above principles, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
