Back
2018 Supreme(Bom) 1451
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
Sanjay s/o. Pukhraj Parikh & Anr. - Applicants
Versus
The State of Maharashtra, Through Taluka Jalna Police & Anr. - Non-applicants
Criminal Application No. 05325 of 2017
Decided On : 10-08-2018
Advocate Appeared:
For the Applicants : Mr. S.B. Deshpande, Mr. Swapnil S. Patunkar
For the Non-applicant : Mr. S.P. Sonpawale, Smt. Anjali Dube (Bajpai)
Headnote:
Constitution of India,1950 - Article 20(2) - Indian Penal Code,1860 - Section 34 - Criminal Procedure Code, 1973 - Section 482 - Investigation - Punishment - Complainant had come with case that she is running ginning business name and style Sad guru Fibers - She has also filed suit for specific performance of contract bearing Special Civil Suit against accused are owners of Ginning Pressing Industries - It has been contended that accused have prepared forged documents in order to have financial gain - Document styled as leave and license agreement has been fabricated in respect of property belonging to complainants business - Said document is shown to be notarized and true copy of same was obtained in June and then produced it in civil suit - She had not executed any such kind of document in favor of accused persons – Held, As regards point of double jeopardy it is to be noted that complaint which was filed before court was also sent for investigation Section report was given to concerned Magistrate that offence has taken place within jurisdiction of court - It was also observed that complainant is not interested in proceeding with matter further and therefore complaint came to be disposed of Section prescribes when accused shall be discharged - It provides that If upon taking all evidence referred to in Section Magistrate considers for reasons to be recorded that no case against accused has been made out which if unrequited would warrant his conviction Magistrate shall discharge him - Subsection provides that Nothing in this section shall be deemed to prevent Magistrate from discharging accused at any previous stage of case if for reasons to be recorded by such Magistrate he considers charge to be groundless - Thus what is contemplated is discharge of accused and not acquittal – Definitely acquittal is different from discharge - Therefore court do not find any substance in point regarding bar of complaint under Section - Much has been argued on point that Magistrate has directed in charge of police station to hand over investigation to other Investigating Officer - At cost of repetition court would like to say that even in case such directions were given by Magistrate conduct proper investigation again by another Police Officer through Assistant Commissioner of Police Central Crime Branch and file report - Said order has been upheld by Honble Supreme Court - Therefore no fault can be found with order passed by Magistrate - Only fault that can be found is in respect of use of word reinvestigation – Order accordingly
Present application has been filed invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973, in order to challenge the order below Exhibit 01 in protest petition, Summary No. 18 of 2016, passed by the learned 4th Joint Judicial Magistrate (F.C.), Jalna, on 14.08.2017.
2. The applicants are the original accused persons and non-applicant no.02 is the original complainant. Parties are referred hereinafter as per their status before the learned Magistrate.
3. The complainant had come with a case, that she is running ginning business under the name and style Sadguru Fibres at Mahora and Bhokardan. She has also filed suit for specific performance of contract, bearing Special Civil Suit No. 17 of 2012 against accused nos.01 to 03, who are the owners of Vardhman Ginning & Pressing Industries at Bhokardan. It has been contended that the accused nos.01 to 03 have prepared forged documents in order to have financial gain. The document styled as 'leave and license agreement' has been fabricated in respect of the property belonging to the complainant's business. The said document is shown to be notarized and true copy of the same was obtained in June 2012 and then produced it in the civil suit. She had not executed any such kind of document in favour of accused persons. Police had made preliminary enquiry with the Notary Advocate Shri Dilip Bhandarge. At that time, he had given statement before police, that the said document was not notarized before him. Inspite of giving complaint in writing, police had not taken cognizance and, therefore, she had filed the said complaint contending that all the three accused persons have committed offence punishable under Sections 420, 406, 471, 467, 468, 120B read with Section 34 of the Indian Penal Code. She had prayed for sending the complaint application for investigation under Section 156(3) of the Cr.P.C. Thereafter, vide order dated 18.09.2015, learned Judicial Magistrate (F.C.), Court No.03, Jalna, had sent the matter for investigation to Police Inspector, Taluka Jalna Police Station, as per Section 156(3) of the Cr.P.C.
4. After the investigation was done, police filed 'B' summary and placed all the documents before the learned Magistrate. Thereafter, notice was issued to the informant. In response to the same, the complainant filed protest petition. After hearing the complainant and perusing the record, the learned Magistrate allowed the protest petition. 'B' summary was rejected. Directions were given to issue letter to the incharge of Taluka Jalna Police Station, directing the case to be handed over to another Investigating Officer for reinvestigation and filing report within two months. The said order was passed on 14.08.2017 by the 4th Joint Judicial Magistrate (F.C.), Jalna. This order is under challenge in this application.
5. Affidavit in reply has been filed by non-applicant no.02, wherein the contents of her civil suit as well as the criminal complaint have been reiterated. She has supported the action taken by the learned Judicial Magistrate (F.C.), directing the reinvestigation to be carried out. It was also contended by her, that the Investigating Officer had manipulated the entire case only to give clean chit to the accused persons. She has given the instances of lapses on the part of the Investigating Officer and mainly she has contended that the notary Shri Dilip Bhandarge, who had given statement before police earlier when the preliminary enquiry was made, had thereafter given a contrary statement when matter was sent for investigation under Section 156(3) of the Cr.P.C.
6. Heard learned Advocate Mr. S.B. Deshpande, holding for Mr. S.S. Patunkar, for the applicants. Heard learned Additional Public Prosecutor Mr. S.P. Sonpawale, for non-applicant no.01. So also, heard learned Advocate Smt. Anjali Dube (Bajpai) for non-applicant no.02.
7. It has been submitted on behalf of the applicants, that the complainant has filed Special Civil
