Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Bom) 567

IN THE HIGH COURT OF BOMBAY
Revati Mohite Dere, N. J. Jamadar, Sharmila U. Deshmukh, JJ.
Arun P. Gidh & Ors. - Appellants
Versus
Chandraprakash Singh & Ors. - Respondents
Writ Petition No. 2517 Of 2022 with Writ Petition (St) No. 10232 of 2023 with Interim Application No.2950 of 2023 in Writ Petition (St) No.10232 of 2023; with Interim Application No. 2951 of 2023 in Writ Petition (St) No.10232 of 2023 with Writ Petition No. 2518 of 2022; with Writ Petition No. 2519 of 2022 and Writ Petition No. 2520 of 2022
Decided On : 10-04-2024

Advocates appeared:
Mr. Aabad Ponda, Senior Advocate, a/w Mr. Juggal Kanani, Priya Pervi, Pradeep Rane and Mahadeo Sherekar, i/b Akshay Kapadia, for the Petitioner in WP/2517/2022, WP/2518/2022, WP/2519/2022 and WP/2520/2022.; Dr. Nilesh Pawaskar, a/w Mr. Neeschey Dixit, Ms. Sudha Dwivedi, Mr. Prashant Trivedi, Mr. Aditya Sharma, Mr. Irfan Khan, Ms. Khushboo Jain, i/b Sudha Dwivedi and Asso., for the Petitioner in WP(St)/10232/2023., Mr. Amit Desai, Senior Advocate, a/w Gopal Shenoy, M. S. Federal, Mr. Veer Ashar and Mr. Aaroha Kulkarni, for the Intervenor/Applicants in IA 2951/2023 in WP(St)/10232/2023, Dr. Abhinav Chandrachud, i/b Pavan Patil, Mr. Pranit Kulkarni Namitkumar Pansare, for Respondent No.1 in WP/2519/2022., Mr. Aabad Ponda, Senior Advocate, a/w Ekta Tyagi, Mr. Vikrant Singh Negi, Pratik Thakkar and Anjali Shah, i/b DSK Legal for Respondent No.3 in WP(St)/10232/2023, Mr. A. S. Rao with Mr. R. V. Dighe, for Respondent Nos.11 to 13 in WP/2517/2022, for Respondent Nos.3 to 5 in WP/2518/2022 and for Respondent Nos.4 to 6 in WP/2520/2022, Mr. Drupad Patil with Mr. Suyash Sule for Respondent Nos.1, 3 to 5, 7 to 9 and 15 to 18 in WP/2517/2022, Respondent Nos.6, 8 to 12 and 14 in WP/2518/202, Mr. Karan Kadam with Mr. Ishwar Nankani, Mr. Jagdish Choudhary, Ms. Rhea Sinkar, Ms. Prajakta Sawardekar i/by M/s. Nankani and Associates for Intervener/Applicant In IA 2950 in WP(St)/10232/2023, Mr. Abhay Ostwal i/by Mr. Drupad S. Patil with Mr. Suyash Sule for Respondent Nos.2, 7 to 12, 14 to 16 and 18 in WP 2520 of 2022, Mr. A. R. Patil, APP for the Respondent/State.

The remedy of revision under Section 397 of the Cr.P.C. is not efficacious after the registration of an FIR following an order under Section 156(3), but the revisional court retains the power to intervene in specific circumstances.

Headnote:(A) Indian Penal Code, 1860 - Sections 120B, 420, 418, 415, 467, 448 read with Section 34 - Prevention of Corruption Act, 1988 - Sections 9 and 13 - Criminal Procedure Code, 1973 - Section 156(3) - Allegations of cheating and forgery against municipal officials and a developer in a redevelopment project - The petitioner sought investigation after police inaction - The Magistrate directed investigation, which was later set aside by the Sessions Court - The maintainability of revision against such an order was questioned - The court noted conflicting views among previous judgments regarding the revisability of orders under Section 156(3) - The court framed the pivotal question of whether a revision under Section 397 is available post-registration of FIR - The court concluded that the remedy of revision is not efficacious after FIR registration, but the revisional court can still intervene in specific circumstances. (Paras 9, 10, 129)

(B) Revisability of Orders - The court emphasized that the nature of the order under Section 156(3) is significant, and while the revisional court can intervene, it cannot quash FIRs or subsequent proceedings once they are initiated unless jurisdictional errors are present. (Paras 126, 129)

Judgement Key Points

Key Points: - The judgment holds that the remedy of revision under Section 397 CrPC is not efficacious after FIR registration following a Section 156(3) order (Kailash Dattatraya Jadhav lineage) (!) (!) (!) . - It discusses the divergence among Division Benches and ultimately answers that question (i) negatively: revision is not an efficacious remedy after FIR is registered (!) (!) . - It states that the revisional court can interfere with Section 156(3) orders at stage and extent described in paragraph 126, including staying proceedings pre-FIR or post-FIR under certain jurisdictional conditions; however, after charges are filed or cognizance is taken, quashing FIR/prosecution lies in extraordinary writ or inherent powers, not revision (!) (!) (!) . - It clarifies that FIR registration is the police’s statutory duty and that a Section 156(3) order is a reminder/direction to ensure proper investigation, not an inherently final action, but its consequences (FIR, investigation) are real and potentially altered by revisional orders before completion of investigation (!) (!) (!) (!) . - It concludes with answers: (i) revision is not efficacious; (ii) revisional court can interfere at the stage and to the extent described in para 126; the reference is answered accordingly (!) (!) . - The judgment references Priyanka Srivastava (affidavit requirement) and 156(3) procedural prerequisites as part of the illegality analysis (!) (!) .

What is the availability and efficacy of a revision under Section 397 CrPC after an order under Section 156(3) CrPC has directed investigation and led to FIR registration?

What is the extent of revisional court interference with subsequent investigation/proceedings after FIR registration pursuant to a Section 156(3) order?

What is the proper scope of the power of the Court of Session under Section 397/401 to quash FIR or proceedings following the setting aside of a Section 156(3) order?

JUDGMENT

N. J. Jamadar, J. - A question of general importance is posed for consideration in these matters on a reference made by a learned Single Judge of this Court, (R. G. Avachat J.), by a referral order dated 14th February, 2023.

2. In order to appreciate the context in which reference came to be made to a Larger Bench, it may be apposite to note the facts in Criminal WP/2517/2022 as a representative case.

[A] The Reference :

Facts:

3. The petitioner, a former Municipal Councilor of Kalyan Dombivali Municipal Corporation, lodged a complaint purportedly espousing the cause of the tenants of Manek Colony, which was under re-development. In the complaint, the petitioner alleged that during the period 2004 - 2021, accused Nos.1 to 5/Respondent Nos.1 to 5 were the Municipal Commissioners, accused Nos.6 to 8 were the Assistant Directors, Town Planning and accused Nos.9 to 16 were the then Assistant Town Planners and Engineers and accused No.17 was the developer of the said Manek Colony Re-development Project. The substance of the accusation was that the officers of the Municipal Corporation in connivance with the developer committed various acts of omission and commission resulting in grave prejudice to the eligible occupants of the Manek Colony and wrongful gain to the developer. In the process, the accused committed various offences of cheating, preparation of false documents and forgery in pursuance of a criminal conspiracy. The complainant thus alleged that the accused persons committed offences punishable under Sections 120B, 420, 418, 415, 467, 448 read with Section 34 of the Indian Penal Code, 1860 ('the Penal Code') and Sections 9 and 13 of the Prevention of Corruption Act, 1988. The complainant further alleged that he had approached the Competent Authority as well as jurisdictional police and superior police officers, and yet the police did not register the FIR. Hence, the complainant sought a direction of the learned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 ('the Code').

4. By an order dated 18th January, 2022, the learned Judicial Magistrate, First Class, Kalyan, ('JMFC') directed the Bazargate Police Station to conduct investigation under Section 156(3) of the Code. Pursuant to the aforesaid direction, Bazargate Police registered FIR bearing CR No.11 of 2022 for the offences punishable under Sections 120B, 420, 418, 415, 467, 448 read with Section 34 of the Penal Code and Sections 9 and 13 of the Prevention of Corruption Act, 1988, on 27th January, 2022.

5. Being aggrieved, the respondents-accused preferred Criminal Revision Application No.10 of 2022. Initially, the learned Additional Sessions Judge by an order dated 24th February, 2022 stayed the operation of the order passed by the learned JMFC. Eventually, by the judgment and order dated 21st May, 2022, the learned Additional Sessions Judge was persuaded to allow the revision application and set aside the order dated 18th January, 2022 passed by the learned JMFC, Kalyan, under Section 156(3) and the complaint filed by the complainant stood dismissed.

6. When WP/2517/2022 to WP/2520/2022 assailing the aforesaid order passed by the Court of Session in revision were taken up for hearing by the learned Single Judge, the maintainability of the revision application before the Court of Session against the order passed by the learned Magistrate, pursuant to the said direction under Section 156(3) of the Code, after the FIR came to be registered, was assailed.

7. The learned Single Judge upon consideration of the submissions canvassed on behalf of the parties noted that there were three Division Bench judgments of this Court, namely, B. S. Khatri vs. State of Maharashtra, (2004) 1 Mh.L.J. 747, Narayandas S/o Hiralalji Sarda vs. State of Maharashtra, (2009) 2 Mh.L.J. 426 and Avinash s/o Trimbakrao Dhondage vs. The State of Maharashtra and another, (2015) SCC Online Bom 5197, which had taken the view that revision was maintainable against an order under