Section 156 (3) Cr.P.C.; Jignesh Patel Vs. Edrich Miranda [Bombay High Court, 13-06-2016]

Criminal Procedure Code, 1973 – Section 156 (3) – Order under – Registration of crime against the police officers mechanically, without application of mind and without scrutinising the relevant material and ascertaining whether the facts disclosed, constitute cognizable offence cannot be sustained.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM: SMT. ANUJA PRABHUDESSAI, J.

13th JUNE, 2016

CRIMINAL APPLICATION NO.1220 OF 2015

Jignesh Patel Age: 29 years Occup: Station House Officer, Khanvel Police Station, Residing at: village: Kudacha, DNH Silvasa. …Applicant Versus 1. Edrich Miranda Age 54 years Occup: Journalist R/o: 204, Old Amdar Nivas, Shahid Bhagat Singh Road, Mumbai 400 030. 2. Union Territory of DNH and Silvassa (through Supdt. Of Police DNH Silvasa) 3. The State of Maharashtra …Respondents … Mr. S.V. Marwadi for the Applicant. Mr. Edrich Miranda, Respondent No.1 in person present. Mrs. P.H. Kantharia, for Respondent No.2.

JUDGMENT

This is an application under section 482 of the Criminal Procedure Code whereby the Applicant has challenged the order dated 21.10.2015 passed in the revision application No.12 of 2015 confirming the order dated 28th May, 2015 passed under

Section 156(3) of the Criminal Procedure Code

in C.C. No.61 of 2015 on the file of J.M.F.C., Silvassa.

2. The Applicant, who is a station house officer at Khanvel Police Station, Kudcha, DNH, Silvasa, has been arrayed as accused No.2 in C.C. No.61 of 2015 filed by Respondent No.1 for offences punishable under sections 3 (iv) and (v) of Scheduled Castes and Scheduled Tribes Act, section 64 of the Bombay Police Act and sections 217 and 218 r/w. 120 B of the IPC. One Nasruddeen Suleman Khutliwala, Haribhai Rohit, the Talati, P.U. Patel, Mamlatdar and Smt. Jasuben Patel, Assistant Superintendent of Civil and Criminal Court at Silvassa, have been arrayed as accused Nos.1,3, 4 and 5 respectively.

The case of Respondent No.1 is that accused No.1- Nasruddeen Sulaiman Khutliwala had in connivance with the other accused Nos. 3 and 4 had usurp the property belonging to one Halpati family. The case of the Respondent No.1 is that the Applicant herein and the other police personnels were reluctant to register the FIR even though the same disclosed the ingredient of cognizable offence. The Respondent No.1 further stated that since the Applicant herein and other police personnel dissuaded him from filing complaint he had addressed several written complaints and thereafter addressed a legal notice to the superintendent of police. The Respondent No.1 claimed that it was incumbent upon the Applicant to make necessary entry in the record and to register the FIR. The Respondent No.1 claimed that the acts committed by the Applicant constitute an offence under section 217 of the IPC. The Respondent No.1 has stated that the Applicant having failed and neglected to register the FIR, he is liable for offence under section section 217 of the IPC.

3. By order dated 28.5.2015 under section 156 (3) of the Cr.P.C., the learned Chief Judicial Magistrate, Silvasa directed investigation of the alleged crime. The said order was challenged by all the accused including the Applicant herein in Criminal Revision Application No.7 of 2015 and 12 of 2015. By order dated 21.10.2015 the learned Sessions Judge set aside the order dated 28.5.2015 qua accused No.3-Haribhai Rohit, accused No.4-Prabhubhai Ukadbhai Patel, and accused No.5 -Jasuben S. Patel. The revision application as against the accused No.1-Nasruddeen Sulaiman Khutliwala and the present Applicant Jignesh Patel was dismissed. Aggrieved by the said order the Applicant has invoked the powers of this Court under section 482 of the Cr.P.C.

4. I have perused the records and considered the submissions advanced by Mr. Marwadi, the learned counsel for the Applicant and Mr. Edrich Miranda, Respondent No.1 in person.

5. It is not in dispute that the Applicant is a senior inspector of police, who at the relevant time was posted as station house officer, Khanvel Police Station, Silvasa. The substratum of the allegations of the Respondent No.1 herein, as disclosed in para four of the complaint are that the Applicant herein was reluctant to register the FIR lodged by the Respondent No.1. The records reveal that one Shri Bhikhal Khulat had addressed letters dated 3.3.2015 and 9.4.2015 on the letter head of Bahujan Vikas Aghadi to the Administrator and Deputy Collector Dadra, Nagar Haveli at Silvassa regarding fraudulent transfer of land of Halpati family in favour of accused No.1-Nasruddeen Sulaiman Khutliwala. Copies of these applications were forwarded to S.P., Dadra Nagar Haveli at Silvassa. Said Bhikhal Khullat had addressed a letter dated 20.5.2015 on the letter head of Bahujan Vikas Aghadi to the incharge of Khanvel Police Station, Dadra Nagar Haveli at Silvasa, wherein he had alleged that the accused No.1-Nasruddeen Sulaiman Khutliwala had wrongfully transferred the land of Halpati family, who are the members of Scheduled Tribe. The said Bhikhal Khulat therefore, requested the incharge police officer to register the FIR against said Nasruddeen Sulaiman Khutliwala for committing offence under the provisions of Scheduled Castes and Scheduled Tribes Act.

6. It is pertinent to note that the Respondent No.1 had not lodged any report before the Khanvel Police Station, Silvassa under section 154 (1) of Cr.P.C. Shri Bhikhal Khulat, who had addressed the letters on the letter head of Bahujan Vikas Aaghadi had also not taken recourse to file any application under section 154 (3) of the Cr.P.C. The copy of the said letter, which is placed on record indicates that said Bhikhal Khulat had merely complained that Nasruddeen Sulaiman Khutliwala had usurp/encroached upon the land of Halpati family, who are the members of Hindu Adivasi Tribe. Apart from this statement, the said letter did not contain any other particulars. This being the case the Officer, Incharge of the concerned police station was certainly could not have registered the FIR on the basis of vague statement made in the said letter. It is also pertinent to note that said Khulat had also not sent substance of information to the superintendent of police as required under section 154 (3) of Cr.P.C. On the contrary the records reveal that a legal notice was sent to the superintendent of police on behalf of Respondent no.2, who is stated to be an activist.

Undisputedly, the Respondent No.2 had not lodged any report under section 154 (1) of the Cr.P.C.

7. The records reveal that since said Bhikal Khullat had not given any details of the property and further particulars of the offence allegedly committed by Nasruddeen Sulaiman Khutliwala, the concerned police officers had undertaken a preliminary enquiry and thereafter registered a crime and upon investigation of the said crime submitted the report to superintendent of police. In the meantime the Applicant, who had neither filed a report under section 154 (1) nor an application under section 154 (3) of the Cr.P.C., filed an application before the learned Magistrate under section 156 (3) of Cr.P.C. The records reveal that the Magistrate without application of mind directed registration of crime against the Applicant for offence under sections 217 and 218 of the IPC.

8. It may be mentioned that in the case of

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