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High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR, THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MRS. JUSTICE R.S. DALVI
Panchabhai Popotbhai Butani & Others Appellant
Versus
The State of Maharashtra & Others Respondent
Criminal Writ Petition No.270 of 2009 along With Criminal Writ Petition Nos.1445 of 2009, 2031 of 2009, 2408 of 2009, 2737 of 2009 and 2883 of 2009
Decided on: 10-12-2009
"Question No. (i). - Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate?
Answer. - Normally a person should invoke the provisions of Section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156(3). Atleast an intimation to the police of commission of a cognizable offence under Section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception. There can be cases where non-compliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the of fence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.
Question No. (ii). - Whether without filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable?
Answer. - A petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence. Such petition would be maintainable before the Magistrate.
Criminal Procedure Code, 1973 - Sections 154, 156(3), 159 and 190 - Reference to Full Bench - Can a complaint be lodged directly before Magistrate - Normal procedure is to invoke Section 154 of Code prior to adopting Section 190 where magistrate is competent to take action against - But at least an information to police is a pre-condition in cases of cognizable offence - Non-compliance of provisions of Section 154(3) would not provide Magistrate of his jurisdiction in terms of Section 156(3). - There can be cases where strict compliance to the provisions of Section 154(1) and (3) in their entirety may not be insisted upon by the Court. This will be the case where heinous crime is committed and despite intimation to the police, the police failed to take action forthwith and/or cases where there is likelihood of crucial material evidence being destroyed, damaged and/or tampered with to the prejudice of the complainant. In such cases, the Court may have to entertain an application under Section 156(3) without compliance of Section 154(3) but still an averment that the police were approached and have failed to act or why the applicant has chosen to directly approach the Court for issuance of direction under Section 156(3) would be somewhat necessary, to be mentioned in the complaint.
Swatanter Kumar, C.J.
Preamble of our Constitution guarantees to a citizen justice, liberty, equality and fraternity. All these are possible only when there is rule of law. The rule of law could discernibly be dissected into two well accepted concepts : (i) governance and (ii) administration of justice. They are not only the pillars of the Constitutional mandate, but are linchpin to the growth, development and independence of any nation or society. Governance obviously means good governance and it refers to the task of running the Government in an effective manner. Right to a legitimate and accountable government under which fundamental rights and human rights are respected and the Government controlled by the rule of law are the basic elements of good governance. Rule of law indicates good governance which requires fair legal framework that enforce law impartially. Impartial enforcement of laws requires an independent judiciary and an impartial and incorruptible police force.
2. Edward W Younkins in “The Purpose of Law and Constitutions” has noted, “The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals.” Law is the activity of subjecting human behaviour to the rules of governance. The rule of law is concerned with regulating the use of power and its imperative is that this power is not misused. The rule of law ensures that Judges decide disputes in terms of the existing, known and general rules and not according to the perceived desirability of particular outcomes. In a free society, each person has a recognized private sphere, a protected rule which government authority cannot infringe upon and the purpose of law is to preserve freedom and moral agency. (See : www.quebecoislibre.org).
3. Where rule of law is strong, people uphold the law not out of fear but because they have a stake in its effectiveness. Virtually any State, after all, can enact laws and maintain respect and pursue genuine rule of law. Genuine rule of law requires the cooperation of State and society and is an outcome of complex and deeply rooted social processes. (Ref.: “Good Governance: Rule of Law, Transparency and Accountability” by Michael Johnston, Department of Political Science, Colgate University).
4. The primary purpose of law is to regulate the flow of human interaction to prevent and check harm not only to the person and property of an individual but against the society as a whole. Crime is the main reason people believe that societies have law, which is true. If one looks at the expression “crime”, it normally could be explained as what society as a whole does not want to be allowed. The Legislature has created laws to have the security to live and work in peace and harmony and not having to worry about concentrating on ways and means to protect themselves against crime of any kind. (Ref.: http:// cjencyclopedia.com/index.php? title-Purpose of Law).
5. Within the realm of codified laws, there are generally two forms of laws with which the Courts are mainly concerned. Civil laws are rules and regulations which govern transactions and grievances between individuals, while criminal law is concerned with action which are dangerous or harmful to a society as a whole in which prosecution is pursued not by an individual but rather by the State. The purpose of criminal law is to provide the specific definition of what constitutes a crime and to prescribe punishments for it. In absence of any of these factors probably the essentials of criminal law would not be satisfied. (Ref.: Criminal justice – Wikipedia, the free encyclopedia – http://en.wikipedia.org.).
6. It is not only the obligation of the State administration but for that matter even of the Courts to ensure that a fair and effective criminal justice system is in place and is implemented. Administration of crimina
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