902-revn156-2021.doc

AGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.156 OF 2021

Dinesh Shivajirao Sonawane

… Applicant

V/s.

The State of Maharashtra & Ors.

… Respondents

Mr. Tapan Thatte i/by Mr. Amar M. Patil for the

applicant.

Mr. A.R. Patil, APP for respondent no.1/State.

Mr. Balasaheb Deshmukh for respondent no.2.

Mr. Sanjeev B. Deore with Ms. Suchita J. Pawar and Mr.

D.R. Singh for respondent nos.3 and 4.

CORAM :AMIT BORKAR, J.

DATED

:DECEMBER 8, 2022

P.C.:

1.

The order impugned in the present revision is dated 24^th

June 2021, thereby dismissing the complaint of the applicant

under section 203 of the Criminal Procedure Code, 1973 (hereafter

“CrPC”, for short).

2.

The applicant had filed a private complaint against

respondent nos.2 and 3 under sections 218, 420, 468, 471, 473

read with 120-B of the Indian Penal Code, 1860 and under section

13(1)(d)(ii) of the Prevention of Corruption Act, 1988. It is alleged

that while conducting the process of appointment of teaches, the

accused persons had forged certain documents and obtained

1

ATUL

GANESH

KULKARNI

Digitally

signed by

ATUL

GANESH

KULKARNI

Date:

2022.12.09

10:39:41

+0530

902-revn156-2021.doc

pecuniary benefits from the Government. The request was,

therefore, made for investigation under section 156(3) of the

CrPC.

3.

The learned Special Judge after hearing both sides, recorded

a finding that the ingredients to constitute offences alleged against

the accused persons are not made out. After going through the

ingredients of the complaint, a finding has been recorded that

there is no prima facie case made out by the complainant. The

applicant has, therefore, filed present revision under section 482 of

the CrPC.

4.

Learned advocate for the applicant submitted that the initial

application filed by the applicant was under section 156(3) of the

CrPC and, therefore, the learned Special Judge had only two

options available: either to conduct the investigation under section

156(3) and adjudicate as to whether the offences made out; or to

take cognizance of the complaint and thereafter holding inquiry

under section 202 to decide as to whether to issue process or to

dismiss the complaint under section 203 of the CrPC. According to

him, instead of opting either of the options, the learned Special

Judge without following procedure under sections 200 and 202 of

the CrPC has dismissed the complaint under section 203 of the

CrPC, which is impermissible.

5.

Per contra, learned advocate for respondent no.3 submitted

that the investigation under section 156(3) is contemplated at the

pre-cognizance stage and the procedure under sections 200 to 203

is contemplated only after the cognizance of the complaint is

2

902-revn156-2021.doc

taken. Since the learned Special Judge has not taken cognizance of

the complaint, there was no question of passing order under

section 203 of the CrPC, but as a matter of fact the order has been

passed in exercise of power under section 156(3) after considering

the averments in the complaint and after being satisfied that the

ingredients of the offence alleged against the accused are not

made out.

6.

Learned advocate for respondent no.2 submitted that the

learned Special Judge has in fact considered the averments in the

complaint and has exercised power under section 156(3) of the

CrPC and, therefore, there was no need of taking cognizance or

following procedure under sections 200 and 202 of the CrPC.

7.

The rival contentions fall for consideration.

8.

On perusal of the scheme under Chapter XIV, XV and XVI, it

appears that when the Magistrate receives a complaint/

application under section 156(3) of the CrPC, he has discretion to

take cognizance under section 190(1)(a) by applying his mind to

the facts of the case and in the said eventuality to proceed in the

manner provided under sections 200 and 202 of the CrPC. Under

section 200, he is required t