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2013 Supreme(Bom) 965
In the High Court of Bombay at Aurangabad
NARESH H. PATIL & A.V. NIRGUDE, JJ.
Ajit & Others
Versus
State of Maharashtra & Another
Criminal Application No.1091 of 2013
Decided On : 09-05-2013
Advocate Appeared:
For the Applicants:N.S. Ghanekar, Advocate.
For the Respondents:R1, S.G. Nandedkar, Additional Public Prosecutor, R2, M.D. Gitte, Advocate.
Headnote:Criminal Procedure Code, 1973 - Sections 155, 156(3) and 482 - S.C. & S.T. Act, 1989, Section 4 - Quashing of complaint filed under Section 4 of Act. - Where Magistrate passed order without following proper procedure enunciated under Section 155 of CrPC, therefore complaint liable to be quashed. - In case of Madhu Bala v. Suresh Kumar and others, AIR 1997 SC 3104 : 1997 (4) All MR 738 (SC), the Apex Court observed that when the complaint disclosing cognizable offence is made before the Magistrate, he may take cognizance upon same under Section 190(1)(a) of the Code and proceed with the same in accordance with provision of Chapter XV. The other option available to the Magistrate in such a case could be to send the complaint to the appropriate police station under Section 156(3) of the Code for investigation.
In the case at hand, that except certified copy of the Roznama, the applicants could not get copies of either of the complaint or the order passed by the Judicial Magistrate, First Class Beed under Section 156(3) of the Code, as both these original documents were forwarded by the Magistrate to the concerned police station. It would be appropriate that the original record of the Court is retained by the Court itself. The same would be useful for exercise of powers by the Magistrate which are incidental, implied in respect of the subject complaint for the purposes of issuing further directions and monitoring the police investigation
[Ref. : Sakiri Vasu v. State of Uttar Pradesh and others, (2008) 2 SCC 409 : 2008 All SCR 1890].
Criminal Procedure Code, 1973 - Sections 482, 155 and 156(3). - See Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 4.
NareshH. Patil, J.
Rule, returnable forthwith. By consent heard finally.
2. The applicants pray for setting aside the order passed under section 156(3) of the Criminal Procedure Code dated 19-1-2013 by the learned Judicial Magistrate, First Class, Beed and the First Information Report No.M.B./02 of 2013 registered with Peth Police Station Beed, for offence punishable under section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 166 of the Indian Penal Code.
3. The applicants state that the respondent No.2 filed a complaint with the Magistrate bearing MCA No.99 of 2013. The learned Magistrate passed an order dated 19th January 2013 and forwarded the complaint to the Deputy Superintendent of Police Beed for investigating the matter under section 156(3) of the Code of Criminal procedure (for short, "the Code").
4. Substance of the complaint filed by respondent No.2 is that the complainant is resident of Officer Colony Beed and he belongs to Scheduled Caste. The complainant was appointed on 4-1-1993 in Government Polytechnic as Carpenter. He is discharging his duties in the said capacity since January 2006 in Government Polytechnic Beed. It is alleged that the complainant has become eligible for getting promotion. However, the accused deliberately did not carry out the process of promotion and failed to promote the complainant. This act of the accused, according to the complainant, is an offence punishable under section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "Act of 1989"). The police registered the offence under section 4 of the Act of 1989 and under section 166 of the Indian Penal Code on 24th January 2013.
5. From the record forwarded by the Judicial Magistrate, First Class, Beed to the Registry of this Court by communication dated 12th April 2013 we have noticed that the learned Magistrate had observed in the order that the offence was cognizable hence matter was sent to the Deputy Superintendent of Police Beed for investigation under section 156(3) of the Code. According to the communication received by the Registrar, High Court, the original copy of private complaint was sent to the concerned police for investigation under section 156(3) of the Code. The First Information Report was registered for offence punishable under section 4 of the Act of 1989 and under section 166 of the Indian Penal Code.
6. The learned counsel appearing for the applicants submitted that from reading of the complaint it could be ascertained that no offence is disclosed to have been committed under section 4 of the Act of 1989. The learned Magistrate has committed error in passing the order under section 156(3) of the Code. The said order is erroneous and suffers from non application of mind. In the submission of the counsel under section 4 of the Act of 1989 a person may be sentenced for a term which shall not be less than six months but which may extend to one year. Considering the classification made in respect of offences against other laws in Schedule First of the Code, it is clear that offence if punishable with imprisonment for less than 3 years or with fine only would be non cognizable one. The punishment for offence punishable under section 166 of the Indian Penal Code is simple imprisonment for one year or fine or both. The said offence is also non cognizable one. Therefore, the complaint lodged for offence under section 4 of the Act of 1989 and under section 166 of the Indian Penal Code being non cognizable one the police could not have registered the First Information Report nor the learned Magistrate could have passed order under section 156(3) of the Code.
7. The learned counsel for respondent No.2 has supported the order passed by the Magistrate. Affidavit in reply is also filed on behalf of respondent No.2. Reference was made to Section 20 of the Act of 1989 which refers to giving overriding effect of the provi
