Back
2014 Supreme(Bom) 401
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
M.L. TAHALIYANI, J.
Vipin s/o. Vincent Bower & Anr.
Vs.
State of Maharashtra & Anr.
Criminal Application (Apl) No. 154 of 2012
Decided On : 17th February, 2014
Shri ANIL MARDIKAR, Senior Counsel for the Applicants.
Shri P.V. BHOYAR, Addl. P.P. for Non-Applicant No.1/State.
Ms. S.R. ASHAR, Adv. for Non-Applicant No. 2.
Headnote:Criminal Procedure Code, 1973 - Section 204 - Issuance of process. - If Magistrate directed police enquiry into complaint, he has to consider report submitted by police.
Criminal Procedure Code, 1973 - Sections 204 and 482 - Indian Penal Code, Sections 323, 341, 504 and 506, Part I - Quashing of proceedings. - Where police report stated that accused not committed any offence as alleged in complaint therefore inspite of said adverse police report, process issued by Courts below deserves to be quashed. - The police report is in detail and it clearly states that brother of non-applicant No. 2 was not allowed to visit the Church because of his campaign against the applicants that the applicants were not good persons and they were not obedient to the God. The said report could not have been rejected. The statement of ’S’ has been recorded. It is not clear as to whether the statement of ’S’ was recorded after the order of police enquiry or before the order of police enquiry. The Magistrate has not given any comment on the police report while issuing the process against applicant No. 1. The Additional Sessions Judge has also considered the police report and the views expressed by the Magistrate. The Additional Sessions Judge has stated that the police report was not binding on the Magistrate. However, what is important to be noted is that once a police enquiry is ordered and it is adverse to the complainant and if despite the adverse report, the trial Magistrate intend to issue process, it is incumbent on the part of the trial Magistrate to give cogent reasons for rejecting the police report. The Magistrate cannot mechanically proceed with the matter by ignoring the police report. Section 202 of the Criminal Procedure Code enjoins upon the trial Magistrate to enquire into the complaint himself or direct the police enquiry to be made in the complaint. Once the Magistrate has directed police enquiry, he has to take into consideration the report submitted by the police. The report may be in favour of’ the complainant or adverse to the complainant. In either situation the Magistrate is under obligation to record his reasons for accepting or rejecting the police report. In the present case, the Magistrate and the Additional Sessions Court, both have turned blind eye to the police report and have laid too much emphasis on the statements of the complainant and her brother. Both the Courts below have misdirected themselves in not recording the reasons for ignoring the police report.
Heard learned Senior Counsel Shri Anil Mardikar for the applicants, learned Additional Public Prosecutor Shri P.V. Bhoyar for non-applicant No. 1/State and learned Counsel Ms. S.R. Ashar for non-applicant No. 2.
2. Admit. Heard finally by consent of the learned Counsel for the parties.
3. The applicants are accused in Criminal Complaint Case No. 4 of 2007 in the Court of learned Additional Chief Judicial Magistrate, Nagpur and are facing trial for the offences punishable under Sections 323, 341, 504 and 506 Part-II of the Indian Penal Code. Applicant No. 2 is wife of applicant No. 1. Applicant No. 1 is a Priest in New Life Christian Church and is a practising lawyer. Non-applicant No. 2 Nisha Choudhary is the complainant in the said criminal case. The aggrieved party mainly appears to be the brother of the complainant namely Shekhar Manikrao Choudhary. The complainant/non-applicant No. 2 filed criminal complaint before the learned Additional Chief Judicial Magistrate alleging that the applicants had committed offences punishable under Sections 323, 341, 504 and 506 Part-II of the Indian Penal Code, inasmuch as Shekhar was prevented from visiting the Church and he was assaulted. Shekhar was also criminally intimidated with a view to prevent him from visiting the Church.
4. The learned Magistrate, after recording the statement of the complainant on oath, directed police enquiry. The police reported to the learned Magistrate that the complainant/non-applicant No. 2 and her brother Shekhar started a campaign to tell the devotees that applicant No. 1 was not offering prayers properly to the God and therefore, the devotees should not visit the said Church. Since non-applicant No. 2 and her brother Shekhar started such a campaign, the applicants put a restriction on their visit to the Church. In brief, it was reported by the police that the applicants had not committed any offence as alleged in the complaint. The learned Magistrate, however, was not satisfied with the police report. He was, however, convinced that applicant No. 2 had not committed any offence. According to view of the learned Magistrate, applicant No. 1 had committed offence punishable under Section 506 Part-II of the Indian Penal Code, inasmuch as he had threatened the brother of non-applicant No. 2 that applicant No. 1 would insert a stick in private part of brother of non-applicant No. 2. According to the learned Magistrate, it amounted to criminal intimidation punishable under Section 506 Part-II of the Indian Penal Code. He, therefore, issued a process against applicant No. 1 Vipin and discharged applicant No. 2 Smt. Vinus.
5. Applicant No. 1 moved the Sessions Court against the order of issuance of process. Non-applicant No. 2 also moved the Sessions Court against refusal of process against applicant No. 2 as well as refusal of process for some other offences alleged by non-applicant No. 2. The learned Additional Sessions Judge rejected the revision application filed by applicant No. 1. He allowed the revision filed by non-applicant No. 2 in part and directed that a process for the offences punishable under Sections 323, 341, 504 and 506 Part-II of the Indian Penal Code be issued against both the applicants. It is in this background that the applicants are before this Court by filing the present application under Section 482 of the Criminal Procedure Code.
6. Learned Senior Counsel Shri Anil Mardikar is heard on behalf of the applicants. Learned Additional Public Prosecutor Shri P.V. Bhoyar is heard on behalf of non-applicant No.1/State. Learned Counsel Ms. S.R. Ashar is heard on behalf of non-applicant No. 2. I have gone through the complaint and statement of the complainant on oath as well as the police report. The police report is in detail and it clearly states that brother of non-applicant No. 2 was not allowed to visit the Church because of his campaign against the applicants that the applicants were not good persons and they were not obedient to the G
