Sunday, 2 August 2015

Whether criminal prosecution can be initiated against Judicial and quasi judicial authorities for orders passed by them?

Insofar as  to the point of limitation is concerned,  in our view
the only remedy available to the non­applicant no.2 was to challenge the
order before the authorities under the Act, if aggrieved.  Similar is the
case in respect of  jurisdiction.  If the non­applicant no.2 was aggrieved

by the recovery certificate issued by the applicant on any ground, he
ought   to  have   resorted   to  appropriate  proceedings   to   challenge   the
certificate. Instead of resorting to the remedy available under the Act,
the non­applicant no.2 chose to file  report before the non­applicant no.1
and having failed to get the First Information Report registered against
the applicant, approached the Magistrate under Section 156(3) of the
Code   of   Criminal   Procedure.     Moreover,   since     the   applicant     was
exercising   the   quasi   judicial   function   while   issuing   certificate   under
Section 101 of the Act, the criminal action initiated against the applicant
on the grounds stated in the petition, is unsustainable in law. Such a
course,   if   permitted,   would   shake   the   confidence   of   the   authorities
exercising judicial and quasi judicial function and expose the judicial and
quasi judicial authorities to unwarranted criminal actions.   If a party is
aggrieved by the order passed by a judicial or quasi judicial authority,
appropriate remedy for such a aggrieved person is to resort remedy
available under  a particular statute or to approach this Court depending
upon the facts and circumstances of the case.   If criminal  action is
permitted against persons exercising judicial or quasi judicial function

they     would   be   exposed   to   vexatious   criminal   proceedings   at   the
instance of disgruntled persons who are aggrieved by the orders passed
or actions taken against them by such authorities. Such a course can
never be countenanced.   Moreover, under Section 162 of the Act, no
suit, prosecution or other legal proceeding is maintainable against the
Registrar or any person subordinate to him or acting on his authority in
respect of anything in good faith done, or purported to be done by him
under the Act.  Therefore, the applicant is not liable to be prosecuted for
issuing recovery certificate under the Act in good faith.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 470/2011 (APL)
Yogiraj  Vasantrao Surve,
aged about  35 years, Occupation:
Service,  District Deputy Registrar,
Cooperative Societies, Akola
                                                                  ...APPLICANT.
                
      VERSUS
1. State of Maharashtra,

2. Pravin Madhavrao Thute,

                                         .. NON­APPLICANTS
             
Mr. Anil Mardikar, Advocate for the applicant.
Mr. T.A.Mirza, APP for non­applicant no.1.
Mr. W.G. Paunikar, Advocate (appointed) for non­applicant no.2.
          
           CORAM:  A.P.LAVANDE & A.B.CHAUDHARI,JJ
             
        DATE OF PRONOUNCEMENT OF JUDGMENT:28.2.2013



Heard   Mr.   Anil   Mardikar,   the   learned   counsel   for   the
applicant, Mr. T.A.Mirza, learned APP for non­applicant no.1 and Mr.
Paunikar, learned counsel (appointed) for non­ applicant no.2.
2. Rule.  Rule is made returnable forthwith and heard finally with
the consent of the learned counsel for the parties and learned APP.
3. By this application, filed under Section 482 of the Code of
Criminal Procedure, the applicant seeks the following reliefs.
i) Quash   the   Regular   Criminal   Case   No.   1105/2011   at
Annexure   P­1   and   the   First   Information   Report   vide
Crime   No.   M­2/11   registered   by   non­applicant   no.1
Police Station, Ambazari, Nagpur at Annexure P­3 being
an abuse of process of law, in the interest of justice.
ii) Quash and set aside the order passed by the learned
Chief   Judicial   Magistrate,   Nagpur   dated   18.6.11   at
Annexure   P­2   in   Criminal   Complaint   Case   No.

iii) Stay the investigation in Crime No. M­2/2011, as also
stay all further proceedings in Regular Criminal  Case
No. 1105/2011 and stay the arrest of the applicant in
Crime   No.   M­2/2011   and   R.C.C.   No.   1105/2011,
pending   disposal   of   the   present   application,   in   the
interest of justice. 
4. Briefly, the case of the applicant is as under:
The   applicant   is   presently   working   as   District   Deputy
Registrar at Akola.  From 2006 to 2009, the applicant was working as
Deputy   Registrar   Cooperative   Society,   City­2,Nagpur.     On   6.1.2009
Nagpur Friends Urban Sahakari Sanstha Maryadit, Nagpur (hereinafter
referred   to   as   “the   Society”)   registered   under   the   Maharashtra
Cooperative   Societies   Act,   1960   (hereinafter   referred   to   “the   Act”),
initiated proceedings under Section 101 of the Act.   The said Society
was not a Multi State Cooperative Society.  The non­applicant no.2 had
taken a loan of Rs. 50,000/­ for business purpose in the year 2003 and
he had not paid the entire loan amount and there was a subsisting
liability of Rs. 32,842/­.  Due notice was given to the non­applicant no.2.

On   17.4.2009,   the   non­applicant   no.2   filed   an   application   opposing
recovery certificate under Section 101 of the Act and asserted that the
claim was time barred.   On 28.5.2009, the applicant issued recovery
certificate, copy of which has been placed on record. The non­applicant
no.2 did not challenge the said certificate under the Act. On 27.3.2011
the non­applicant no.2 lodged report with non­applicant no.1 alleging
that the applicant had committed offences under Sections   109, 166,
219, 418, 422 and 406 of the Indian Penal Code.   The non­applicant
no.1   refused   to   register   the   First   Information   Report   against   the
applicant for the said offences.  On 18.4.2011, the non­applicant no.2
filed petition  purporting to be under Section 156 (3) of the Code of
Criminal Procedure which was registered as Regular Criminal Case No.
1105/2011 before the Chief Judicial Magistrate,  Nagpur.  On 18.6.2011
the learned Chief Judicial Magistrate, Nagpur passed an order directing
investigation under Section 156(3) of the Code of Criminal Procedure.
On the basis of the said order non­applicant no.1 registered offence vide
Crime No. M­2/11 under Sections  109, 166, 219, 406 and 422 of the
Indian   Penal   Code.     The   applicant   has   challenged   the   order   dated

18.6.2011 and consequential First Information Report registered by the
non­applicant no.1.
5. On behalf   of   the   non­applicant   no.1   reply   has   been   filed
opposing  the petition  primarily  on the ground  that the  application  is
premature and at this stage the applicant has no cause of action and it
is only if the process is issued against the applicant, the applicant is
entitled   to   resort   to   remedies   available   under   the   Code   of   Criminal
Procedure. 
6. Reply has also been filed on behalf of non­applicant no.2
stating that no case has been made out for interference in exercise of
inherent powers under Section 482 of the Code of Criminal Procedure
inasmuch as the applicant is entitled to file appropriate application only
after issuance of the process.   It has been further stated that power
under Section 482 of the Code of Criminal Procedure must be exercised
sparingly and cautiously. 

7. Mr. Mardikar, learned counsel for the applicant submitted that
filing of petition under Section 156(3) of the Code of Criminal Procedure
is nothing but an abuse of process of the court as none of the offences
alleged in the petition is made out against the applicant.     He further
submitted that actually no offence is made out against the applicant who
was discharging quasi judicial function while considering the grant of
recovery certificate under Section 101 of the Act.   According to the
learned counsel, probably in order to avoid deposit of half of the amount
under the Award, the non­applicant no.2 filed the petition under Section
156 (3) instead of challenging the recovery certificate under Section 154
of the Act.   According to the learned counsel, primarily two grounds
were raised in the petition viz. i)  the recovery proceeding under Section
101 of the Act was time barred and  ii) the Society being a Multi State
Society the applicant had no jurisdiction to issue certificate in terms of
the Judgment of this Court in the case of Adarsh Ginning and Pressing
Factory   vs. State of Maharashtra, reported in  2008(1) Mh. L.J., 300.
The learned counsel further submitted that the Society not being Multi
State   Society,   the   applicant   was   entitled   to   issue   the   certificate.

According to the applicant, the claim was not time barred claim and in
any case, if aggrieved by the grant of the certificate, the non­applicant
no.2 had effective remedy of challenging the same by filing Revision
under Section 154 of the Act.   According to the learned counsel, the
learned Chief Judicial Magistrate did not even bother to see whether
petition   made   out   cognizable   offence/s   which   were   required   to   be
investigated by the police.   The learned counsel, therefore, submitted
that   the   petition   has   been   filed     mala   fide   with   a   view   to   wreak
vengeance   against   the   applicant   since   the   applicant   had   issued
recovery certificate under Section 101 of the Act.
Mr.   Mardikar,   learned   counsel   for   the   applicant   placed
reliance on the following Judgments.
I) State   of   Haryana   and   others     vs.   Ch.   Bhajan   Lal   &
others.
AIR  1992 Supreme Court, 604.
II) Mr. Panchabhai Popotbhai Butani & others  vs. State of
Maharashtra and others.
2010 ALL MR (Cri.)  244.
8. Mr. Mirza, the learned APP submitted that the order under

Section 156(3) of the Code of Criminal Procedure has been passed by
the learned Magistrate before taking cognizance and as such merely
because the First Information Report is registered against the applicant,
the   applicant   is   not   entitled   to   challenge   the   said   First   Information
Report.    Mr.  Mirza,  further  submitted  that  it is only  in the  event  of
process being issued against the   applicant after filing of the charge
sheet, the applicant is entitled to challenge the proceedings against him.
Mr. Mirza,placed reliance upon the following Judgments:
   I)    R.R.Chari  vs. The State of Uttar Pradesh.
         AIR (38) 1951 Supreme Court, 207.
  II)   Gopal Das Sindhi and others  vs. State of Assam and 
          another.
                           AIR 1961 Supreme Court, 986.
  III)   Mohd.  Yousuf  vs. Afaq Jahan (Smt.) and another.
(2006)  1 Supreme Court Cases, 627
9. Mr.  Paunikar,  learned counsel  appointed for non­applicant
no.2  adopted the submissions made by Mr. Mirza and submitted that
unless   the   charge   sheet   is   filed   and   process   is   issued   against   the
applicant pursuant to the First Information Report registered against the
applicant,   the   applicant   is   not   entitled   to   challenge   either   the   order

passed under Section 156 (3) of Cr.P.C. or consequential registration of
First Information Report by non­applicant no.1.
10. The first question which arises for consideration is whether
the   petition   purporting   to   be   under   Section   156(3)   of   the   Code   of
Criminal   Procedure   discloses   cognizable   offence/s     against   the
applicant   warranting   registration   of   First   Information   Report   by   the
Officer In­charge of the concerned Police Station. The second question
which arises for consideration is, whether the applicant is entitled to
challenge the order passed under Section 156 (3)  and First Information
Report registered pursuant to the order passed under Section 156(3) of
the Code of Criminal Procedure by the learned Magistrate.  
11. In the case of R.R.Chari (supra), the three Judge Bench of
the Apex Court held that if the Magistrate applies his mind not for the
purpose   of   proceeding   under   subsequent   sections   but   orders
investigation under Section 156(3) of the Code of Criminal Procedure,
he cannot be said to have taken cognizance of the offence.  The Apex

Court   further   held   that   in   the   case   of   a   cognizable   offence,   the
Magistrate   takes   cognizance   when   the   police   have   completed   their
investigation   and   come   to   the   Magistrate   for   issuance   of   process.
Another three Judge Bench of the Apex Court in the case of Goapl Das
Sindhi (supra) has taken similar view.
12. In the case of Mohd. Yousuf   (supra), the Apex Court held
that if the Magistrate passes order under Section 156(3) of the Code of
Criminal Procedure, it is only for the purpose of enabling the police to
start investigation and once the order under Section 156(3) is passed by
the learned Magistrate, the Officer In­charge of the Police Station is duty
bound to register First Information Report, regarding cognizable offence
disclosed by the complaint inasmuch as the Police Officer could take
further   steps   contemplated   in   Chapter   XII   of   the   Code   Criminal
Procedure only thereafter.  The Full Bench of this Court in the case of
Panchbhai Popatbhai Butani (supra) has referred to the Judgment of the
Apex Court in the case of Mohd. Yousuf. 

13. No doubt, in view of the  clear ratio laid down by the Apex
Court in the aforesaid cases, at the stage of passing an order under
Section   156(3)   of   the   Code   of   Criminal   Procedure,   the   learned
Magistrate does not take cognizance.   However, it is axiomatic   that
before   ordering   investigation   under   Section  156(3),  the  petition  filed
simplicitor under Section 156(3) or the complaint filed under Section 190
read with Section 200 of the Code of Criminal Procedure must disclose
cognizable  offence/s.    If the petition  or complaint  does not  disclose
commission of cognizable offence/s, it is difficult to hold that the learned
Magistrate can still pass the order under Section 156(3) of the Code of
Criminal Procedure inasmuch as such an order can be passed only if at
least   one   cognizable   offence   is   made   out   either   in   the   petition   or
complaint.  In other words, the disclosure of commission of cognizable
offence/s is a sine qua non for issuing the order under Section 156 (3).
In the present case, a bare reading of the petition (styled as complaint)
filed under Section 156(3) of Cr.P.C. discloses that no offence even
prima facie  has been made out against the applicant.   Indisputably, the
applicant was exercising quasi judicial function while considering the

grant of recovery certificate under Section 101 of the Act.  Admittedly,
the non­applicant no.2 was heard before issuance of the certificate.  In
this factual background, the only remedy available to the non­applicant
no.2 was to challenge the said order under the Act.  However, instead of
resorting to any remedy under the Act, initially the non­applicant no.2
chose to file report before the non­applicant no.1 which was rightly not
registered by the non­applicant no.1.  The learned Magistrate ought to
have found out whether the petition discloses commission of cognizable
offence/s by the applicant before passing the order under Section 156
(3).  From a bare reading of the petition purporting to be under Section
156(3)   of   Cr.P.C.,   it   is   evident   that   the   non­applicant   no.2   was
challenging   the   said   certificate   primarily   on   two   grounds   namely
jurisdiction and limitation.
14. Insofar as  to the point of limitation is concerned,  in our view
the only remedy available to the non­applicant no.2 was to challenge the
order before the authorities under the Act, if aggrieved.  Similar is the
case in respect of  jurisdiction.  If the non­applicant no.2 was aggrieved

by the recovery certificate issued by the applicant on any ground, he
ought   to  have   resorted   to  appropriate  proceedings   to   challenge   the
certificate. Instead of resorting to the remedy available under the Act,
the non­applicant no.2 chose to file  report before the non­applicant no.1
and having failed to get the First Information Report registered against
the applicant, approached the Magistrate under Section 156(3) of the
Code   of   Criminal   Procedure.     Moreover,   since     the   applicant     was
exercising   the   quasi   judicial   function   while   issuing   certificate   under
Section 101 of the Act, the criminal action initiated against the applicant
on the grounds stated in the petition, is unsustainable in law. Such a
course,   if   permitted,   would   shake   the   confidence   of   the   authorities
exercising judicial and quasi judicial function and expose the judicial and
quasi judicial authorities to unwarranted criminal actions.   If a party is
aggrieved by the order passed by a judicial or quasi judicial authority,
appropriate remedy for such a aggrieved person is to resort remedy
available under  a particular statute or to approach this Court depending
upon the facts and circumstances of the case.   If criminal  action is
permitted against persons exercising judicial or quasi judicial function

they     would   be   exposed   to   vexatious   criminal   proceedings   at   the
instance of disgruntled persons who are aggrieved by the orders passed
or actions taken against them by such authorities. Such a course can
never be countenanced.   Moreover, under Section 162 of the Act, no
suit, prosecution or other legal proceeding is maintainable against the
Registrar or any person subordinate to him or acting on his authority in
respect of anything in good faith done, or purported to be done by him
under the Act.  Therefore, the applicant is not liable to be prosecuted for
issuing recovery certificate under the Act in good faith.
15. In the case of State of Haryana   vs. Bhaja Lal (supra), the
Apex Court in para no.108 has referred to seven types of   cases in
which the High Court can exercise powers under Article 226 of the
Constitution of India or inherent power under Section 482 of the Code of
Criminal Procedure to quash the First Information Report or complaint.
The Apex Court has further clarified that they are only illustrative and
not exhaustive. They are as follows:
1. Where   the   allegations   made   in   the   First   Information
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Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute  any offence or make out a case against
the accused.
2. Where  the  allegations  in the  First  Information  Report
and other materials, if any, accompanying the F.I.R. do
not   disclose   a   cognizable   offence,   justifying   an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence
and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non­cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are
so absurd  and  inherently  improbable  on the  basis  of
which   no   prudent   person   can   ever   reach   a   just
conclusion that there is sufficient ground for proceedings
against the accused.
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6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which   a   criminal   proceeding   is   instituted)   to   the
institution and continuance of the proceedings and/ or
where there is a specific provision in the code or the
concerned   Act,   providing   efficacious   redress   for   the
grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with
mala fide and/ or where the proceeding is maliciously
instituted   with   an   ulterior   motive   for   wreaking
vengenance on the accused and with a view to spite him
due to private and personal grudge. 
16. In the present case, in our considered view, the guidelines 1
and   7     mentioned   above   are   clearly   attracted   and,   therefore,   the
impugned order passed under Section 156(3) of the Code of Criminal
Procedure   and   consequent   registration   of   First   Information   Report
deserves to be quashed.  At the cost of repetition, we state that if the
non­applicant   no.2   was   aggrieved   by   the   certificate   issued   by   the
applicant on the ground that it was in respect of time barred claim or that
the applicant had no jurisdiction to issue the certificate, the applicant
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ought to have resorted to remedy available under the Act. 
17. In the case of Panchabhai Popotbhai Butani (supra), the Full
Bench answered the following two questions: 
I) Whether in the absence of a complaint to the police, a
complaint can be made before a Magistrate?
II) Whether without filing a complaint within the meaning of
Section   2(d)   and   praying   only   for   an   action   under
Section  156(3),   a  complaint   before   a  Magistrate  was
maintainable?
The  Full Bench answered question no.2 as follows:
  “A Petition under Section 156(3) cannot be strictly
construed as a complaint in terms  of Section 2(d) of
the   Code and absence of a specific or improperly
worded prayer or lack of complete and definite details
would   not   prove   fatal   to   a   petition   under   Section
156(3),   in   so   far   as   it   states   facts   constituting
ingredients  of a cognizable  offence.    Such  petition
would be maintainable before the Magistrate.”
18. The  Full  Bench  held  that  a petition  under  Section  156(3)
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cannot be strictly construed as a complaint in terms of Section 2(d) but a
petition under Section 156(3) is maintainable provided it states facts
constituting  ingredients of a cognizable offence.  Thus,  sine qua non
for filing a petition under Section 156(3) of Cr.P.C. is commission of
cognizable oiffence.  In the present case, we have already held that the
petition filed by non­applicant no.2 does not disclose any cognizable
offence having been committed by the applicant.   It is   axiomatic that
once the order under Section 156(3) is passed, the In­charge in Police
Station is bound to register the First Information Report and carry out
further investigation in terms of Chapter XII of the Code of Criminal
Procedure.   Therefore, in case a petition purporting to be under Section
156(3)   of   Cr.P.C.   is   filed   which   does   not   disclose   commission   of
cognizable offence, it is difficult to accept the submission that the person
against whom First Information  Report is registered, is not entitled to
challenge the order passed under Section 156(3) and consequential
registration of First Information Report. It would be a different  matter, if
the petition filed under Section 156(3) discloses cognizable office and in
such eventuality the person against whom First Information Report is
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lodged, may not be entitled to challenge the order passed under Section
156(3)   and   consequential   registration   of   First   Information   Report
inasmuch as since the commission of cognizable offence is disclosed it
is within the jurisdiction of the Magistrate to direct investigation in terms
of Section 156(3) of the Code of Criminal Procedure.  
19. In reply filed by non­applicant no.2, reliance has been placed
upon the Judgment of the learned Single Judge of this Court in the case
of  Pavankumar Bhurmalji Ostwal and others vs. State of Maharashtra
and another   reported in  2008(6) Mh.L.J., 691.   In the said case, the
learned Single Judge has held that if an order is passed under Section
156(3)   of   the   Code   of   Criminal   Procedure   in   criminal   complaint,
persons, against whom First Information Report is registered, are not
entitled to challenge the order because they are not accused and their
liberty is not affected.  In the said case, learned Single Judge held that
the application filed by the applicant under Section 482 Code of Criminal
Procedure was not maintainable.   In the cases of   of  B.S.Khatri   vs.
State of Maharashtra reported in 2004(1) Mh.L.J., 474 and  Narayandas
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Hiralalji   Sarda     and   others     vs.   State   of   Maharashtra   and   another
reported in  2009(2)Mh.L.J.  426,  two different Division Benches have
held that against   an order passed under Section 156 (3), revision is
maintainable.  As such, a person against whom investigation has been
ordered under Section 156(3), is entitled to challenge the said order by
filing revision.   In any case, the aforesaid Judgment  of learned Single
Judge would not advance the case of non­applicant no.2 inasmuch as
we have already held that the petition filed under Section 156(3) does
not disclose commission of any cognizable offence by the applicant.  It
is difficult to accept the contention  of the learned  APP and learned
counsel for non­applicant no.2 that even if the petition does not disclose
commission of cognizable offence under Section 156(3) of the Code of
Criminal Procedure and if an order is passed by the learned Magistrate
directing   investigation,   the   person   against   whom   First   Information
Report is registered, is not entitled to challenge the order passed under
Section 156(3) of the Code of Criminal Procedure and consequential
registration of First Information Report.   Needless to mention that the
registration of First Information Report   against a person, affects his
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liberty inasmuch as under Section 41 of Cr.P.C., if the Officer In­charge
of the Police Station or the Investigating Officer is entitled to arrest such
person even without an order from the Magistrate.   Therefore, in our
considered   view,   the   Judgment   in   the   case   of  Pavankumar   Ostwal
(supra) does not advance the case of the non­applicant no.2. 
20.   In view of the above, we are of the considered view that
initiation of the proceeding  against the applicant by non­applicant no.2
by filing petition under Section 156(3) of the Code of Criminal Procedure
is patently mala fide and with an ulterior motive for wreaking vengeance
since the applicant had issued certificate under Section 101 of the Act.
As stated above, the applicant cannot be prosecuted for his act done in
good faith while discharging quasi judicial function in terms of Section
162   of   the   Act.   Therefore,   in   our   opinion,   the   order   passed   under
Section 156(3) of the Code of Criminal Procedure and consequential
registration of First Information Report against applicant deserve to be
quashed and  set aside. 
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21. In   the   result,   Rule   is   made   absolute   in   terms   of   prayer
clauses  (i)  and  (ii)  with  costs  quantified  at Rs.  5000/­  (Rupees  five
thousand only) to be paid by the non­applicant no.2 to the applicant. 
22. We have noticed that in number of complaints filed under
Section 190 read with Section 200 of the Code of Criminal Procedure or
petitions under Section 156(3) of the Code of Criminal Procedure, the
Magistrates have been  passing orders under  Section 156(3)  without
even finding out whether the petition purporting to be under Section
156(3) Cr.P.C. discloses cognizable offence/s.   The Magistrate before
passing an order under Section 156(3) Cr.P.C.  ought to satisfy himself/
herself that the averments made in the complaint or petition filed under
Section 156(3) disclose  commission of cognizable offence and whether
the prosecution would lie.  Only in such an eventuality, it is permissible
for the Magistrate to direct investigation under Section 156(3) Cr.P.C., if
he or she deems fit considering the facts and circumstances of the case.
We, therefore, deem it appropriate to direct the Registrar (J) to circulate
a copy of this Judgment to all the Principal District and Sessions Judges
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                       23               cri.appln.no.470.11
within the jurisdiction of Nagpur Bench, who shall, in turn, circulate the
Judgment to all the Magistrates within their jurisdiction.
With the above directions, the application stands disposed of.
                             JUDGE                                     JUDGE
patle
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