1. Quashing of FIR alleging fraud, forgery, and criminal breach of trust in a land development transaction. (Para 4 )
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2026 Supreme(Online)(Bom) 4932
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJITSINHA RAJA BHONSALE
Tansukhlal Pannalal Jain – Appellant
Versus
State of Maharashtra – Respondent
Criminal Application No. 1293 of 2017
Important Points
Once a Magistrate takes cognizance of an offence and adopts the post-cognizance procedure under Chapter XV (Sections 200-203) of the CrPC, they cannot revert to the pre-cognizance stage to order an investigation under Section 156(3). Such an order is procedurally illegal and untenable.
Subject
Criminal Law - Procedural Law
Act Referred
CRIMINAL PROCEDURE CODE: S.156(3), S.200, S.202, S.203, S.482
Indian Penal Code: S.106, S.120, S.165, S.167, S.34, S.420, S.406, S.465, S.467
Code of Criminal Procedure, 1973: S.482, S.200, S.202, S.203, S.156(3), S.190(1)(a), S.192, S.204, S.154(1), S.173
Bharatiya Nagarik Suraksha Sanhita, 2023: S.528
Indian Penal Code: S.106, S.120, S.165, S.167, S.34, S.420, S.406, S.465, S.467
Code of Criminal Procedure, 1973: S.482, S.200, S.202, S.203, S.156(3), S.190(1)(a), S.192, S.204, S.154(1), S.173
Bharatiya Nagarik Suraksha Sanhita, 2023: S.528
Headnote
(A) Code of Criminal Procedure, 1973 - Sections 156(3), 190, 200, and 202 - Distinction between pre-cognizance and post-cognizance stages - The power to order police investigation under Section 156(3) is exercisable at the pre-cognizance stage, whereas the power to direct investigation under Section 202 is exercisable at the post-cognizance stage when the Magistrate is in seisin of the case - Once a Magistrate takes cognizance and embarks upon the procedure embodied in Chapter XV, they are not competent to revert to the pre-cognizance stage and avail of Section 156(3). (Paras 14, 17, 22)
(B) Quashing of FIR - An FIR cannot be registered or sustained on the basis of an untenable or illegal order; continuation of such proceedings would constitute an abuse of the process of law. (Paras 19, 23)
Facts of the case:
A private complaint was filed alleging fraud and forgery regarding a land development proposal and the manipulation of a power of attorney. The Magistrate directed the complainant to lead evidence under Section 200, which was duly recorded. Subsequently, the Magistrate postponed the issuance of process and directed an investigation under Section 202 to determine if sufficient grounds existed to proceed. Following a police report stating that no offence was made out, the Magistrate passed an order directing an investigation under Section 156(3), which led to the registration of an FIR against multiple accused persons.
Findings of Court:
The Court found that by directing the complainant to lead evidence under Section 200 and calling for a report under Section 202, the Magistrate had already taken cognizance and initiated proceedings under Chapter XV. The subsequent order directing investigation under Section 156(3) was procedurally illegal as it attempted to revert the case to a pre-cognizance stage, which is contrary to the object and scheme of the Code.
Issues: Whether once a Magistrate takes cognizance of an offence and adopts the procedure under Chapter XV of the CrPC, it is permissible in law to resort back to the pre-cognizance stage and direct investigation under Section 156(3) of the CrPC.
Ratio Decidendi: Sections 156(3) and 202 operate in distinct spheres at different stages. Section 156(3) is a direction for the police to exercise plenary powers of investigation before cognizance is taken. Section 202 is a limited inquiry conducted post-cognizance specifically to assist the Magistrate in deciding whether there is sufficient ground for proceeding. The CrPC does not provide for reverting to Section 156(3) after a complainant has been examined and an inquiry has been conducted under Section 202(1).
Result: Petition allowed; order dated 1st October 2016 and the resultant FIR are quashed and set aside. Matter remanded back to the Judicial Magistrate, First Class, to consider the report dated 6th April 2016 and decide the matter in accordance with law.
(B) Quashing of FIR - An FIR cannot be registered or sustained on the basis of an untenable or illegal order; continuation of such proceedings would constitute an abuse of the process of law. (Paras 19, 23)
Facts of the case:
A private complaint was filed alleging fraud and forgery regarding a land development proposal and the manipulation of a power of attorney. The Magistrate directed the complainant to lead evidence under Section 200, which was duly recorded. Subsequently, the Magistrate postponed the issuance of process and directed an investigation under Section 202 to determine if sufficient grounds existed to proceed. Following a police report stating that no offence was made out, the Magistrate passed an order directing an investigation under Section 156(3), which led to the registration of an FIR against multiple accused persons.
Findings of Court:
The Court found that by directing the complainant to lead evidence under Section 200 and calling for a report under Section 202, the Magistrate had already taken cognizance and initiated proceedings under Chapter XV. The subsequent order directing investigation under Section 156(3) was procedurally illegal as it attempted to revert the case to a pre-cognizance stage, which is contrary to the object and scheme of the Code.
Issues: Whether once a Magistrate takes cognizance of an offence and adopts the procedure under Chapter XV of the CrPC, it is permissible in law to resort back to the pre-cognizance stage and direct investigation under Section 156(3) of the CrPC.
Ratio Decidendi: Sections 156(3) and 202 operate in distinct spheres at different stages. Section 156(3) is a direction for the police to exercise plenary powers of investigation before cognizance is taken. Section 202 is a limited inquiry conducted post-cognizance specifically to assist the Magistrate in deciding whether there is sufficient ground for proceeding. The CrPC does not provide for reverting to Section 156(3) after a complainant has been examined and an inquiry has been conducted under Section 202(1).
Result: Petition allowed; order dated 1st October 2016 and the resultant FIR are quashed and set aside. Matter remanded back to the Judicial Magistrate, First Class, to consider the report dated 6th April 2016 and decide the matter in accordance with law.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
-
criminal procedure
- complaints to magistrates
- police investigation
- inherent powers of high court
-
criminal procedure
Advocates appeared:
Mr.Ambadas Chatuphale with W.F.Correia & Dillen D. Soeiro for the Applicant.
Ms.Sangita Phad, APP for the Respondent-State.
Mr.Vijay Gharat with Mr.Vaibhav Jagdale for Respondent No.2.
Mr.Amol Suryawanshi, PSI, Mumbra Police Station is present.
Mr.Ambadas Chatuphale with W.F.Correia & Dillen D. Soeiro for the Applicant.
Ms.Sangita Phad, APP for the Respondent-State.
Mr.Vijay Gharat with Mr.Vaibhav Jagdale for Respondent No.2.
Mr.Amol Suryawanshi, PSI, Mumbra Police Station is present.
Table of Contents
2. Dispute over whether Magistrate could order investigation under Section 156(3) CrPC after adopting post-cognizance procedure under Chapter XV. (Para 5 , 6 )
3. Magistrate took cognizance and proceeded under Chapter XV; reverting to Section 156(3) is a procedural illegality. (Para 7 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
4. Once a Magistrate takes cognizance under Chapter XV, the Court cannot revert to the pre-cognizance stage and order investigation under Section 156(3) CrPC. (Para 14 , 17 , 22 , 23 )
5. Petition allowed; impugned order and FIR quashed; matter remanded for proceeding under Section 202 CrPC. (Para 24 , 25 , 26 )
6. Can a Magistrate order investigation under Section 156(3) CrPC after taking cognizance of a complaint under Chapter XV?
No. Once the Magistrate takes cognizance and adopts the procedure under Chapter XV (Sections 200 to 203), it is impermissible to revert to the pre-cognizance stage and order investigation under Section 156(3) CrPC. (Para 7 , 14 , 17 , 18 , 22 , 23 )
7. What is the difference between an investigation under Section 156(3) and an inquiry under Section 202 CrPC?
Section 156(3) operates at the pre-cognizance stage to initiate a fresh police investigation culminating in a report under Section 173. Section 202 operates post-cognizance to assist the Magistrate in deciding whether sufficient ground exists to proceed. (Para 14 , 22 , 23 )
8. Is it mandatory for a Magistrate to conduct an inquiry under Section 202 CrPC before issuing process when the accused resides outside its jurisdiction?
Yes. If the accused resides at a place beyond the Magistrate's jurisdiction, it is mandatory for the Magistrate to conduct an inquiry or direct an investigation under Section 202 CrPC before issuing process. (Para 11 , 15 )
JUDGMENT :-
RANJITSINHA RAJA BHONSALE , J.
1) By the present Application filed under section 482 of the Code of Criminal Procedure, 1973 (now section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the Applicant seeks to quash and set aside the order dated 1st October 2016 passed by the learned Judicial Magistrate, First Class, Court No.1, Thane below Exhibit-1 in OMA No.824 of 2015 and also seeks to quash and set aside the FIR No.I-165 of 2017 dated 7th April 2017 registered pursuant to the order dated 1st October 2016 with Mumbra Police Station, Thane under sections 420, 406, 465, 467 and 34 of the Indian Penal Code (for short “IPC”).
2) Heard Mr. Ambadas Chatuphale for the Applicant. Ms. Sangita Phad, APP for the Respondent-State, and Mr. Vijay Gharat for Respondent No.2.
3) In the present case, the FIR has been registered on the basis of the order dated 1st October 2016 passed by the Judicial Magistrate, First Class, Court No.1, Thane passed in a private complaint filed by Respondent No.2/ original Complainant under section 200 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”).
4) The allegations in brief are as under:
4.1) Accused No.1 visited original Complainant/ Respondent No.2 to discuss a proposal for joint development of land bearing Survey No.59, Hissa No.2 of village- Ballondkhare admeasuring about 31 gunthas on 50:50 percent basis. That, Respondent No.2. was induced to execute a power of attorney in favour of accused Bhanudas Shivdas Naik. That, after the power of attorney dated 24th May 2007 was prepared, Bhanudas Naik obtained signatures of Respondent No.2 and other co-owners. That, accused No.1– Bhanudas Shivdas Naik did not give copies of the power of attorney to Respondent No.2. That, accused No.1 asked Respondent No.2 to execute the agreement by luring them of getting a good price. Accused No.1 along with the present Applicant have allegedly changed the contents of the power of attorney and prepared fabricated documents by attaching, removing and changing the last page of the power of attorney. 4.2) The power of attorney was then attested by original accused No.3, the Notary before whom Respondent No.2 and the witnesses allegedly never appeared to sign. That, accused No.3 did not properly notarize and register the power of attorney. That, accused No.1 and the present Applicant allegedly used the forged and fabricated power of attorney and transferred the land of Respondent No.2 to accused No.3. That, accused No.4, the Talathi in collusion with the agents illegally manipulated the record of the land for an unlawful profit and caused wrongful loss to Respondent No.2.
4.3) Mutation entries were carried out without following the legal procedure. Photographs of few persons have been used on the power of attorney. Accused Nos.5 and 6 were also beneficiaries as the Application filed before them was rejected on sou moto basis without following the due process of law. That, the Applicant executed a registered sale-deed in respect of the said land with vendors on 18th May 2009. The accused caused wrongful loss to Respondent No.2 and wrongful gain to themselves by committing the offence.
5) Mr.Chatuphale, learned Advocate appearing for the Applicant submitted that, 5.1) When the order dated 24th August 2015 was passed directing the original Complainant to lead evidence under section 200 of Cr.P.C., it was not appropriate for the Magistrate to then pass an order dated 1st October 2016 directing investigation under section 156(3) of Cr.P.C.
5.2) The evidence was already recorded in compliance of the provisions of section 200 of Cr.P.C., the issuance of process was postponed under section 202 of Cr.P.C. and the police report was awaited.
5.3) The inquiry under section 202 is only to assist the Court in deciding whether to proceed further to issue process or to dismiss the complaint.
5.4) The order of investigation under section 156(3), which is passed under Chapter XII of Cr.P.C. is required to be passed at pre- c
