Saturday, 26 October 2013

Magistrate should order registration of FIR U/S 156 of crpc only when offence is prima facie made out against accused



In many of such cases, 
we   have   come   across   that   the   learned   Magistrates   are   passing 
mechanical   orders   directing   investigation   under   Section   156(3)   of 
Cr.P.C.,   without   recording   any   reasons   and   without   verifying   as   to 
whether the complaint discloses the ingredients to constitute the offence 

or not.   It is needless to say that least that is expected of the learned 
Magistrate before passing the order under Section 156(3) of Cr.P.C., is 
to satisfy himself, that taking the allegations to be true in entirety, as to 
whether  the ingredients   to constitute    the  offence alleged  have been 
made out or not. The least that is expected of   the learned Magistrate 
while passing an order, directing investigation is to at least give some 
reasons, as to why he finds substance in the complaint and as to how 
the   complaint   discloses   ingredients   to   constitute   the   offence   alleged. 
The learned Magistrates ought to take  into consideration, that passing 
such mechanical orders in complaints which do not have any criminal 
element   causes   great   hardships,   humiliation,   inconvenience   and 
harassment   to   the   citizens.     For   no   reasons,   the   reputation   of   the 
citizens  is   put  to  stake  as   immediately   after  said  orders  are   passed, 


innocent citizens are termed as accused.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL  APPLICATION  NO. 258 OF 2013 (APL).

State of Maharashtra Vs Shashikant  s/o Eknath Shinde,
       
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
          
                 CORAM:  B.R.GAVAI & P.N.DESHMUKH,JJ 
                                DATE    :  2.7.2013
                   

  

The State of Maharashtra has approached this Court being 

aggrieved by the order passed by the learned Judicial Magistrate, First 
Class, Nagpur in Misc. Criminal Application No. 683 of 2013, dated 30
th 
March, 2013, thereby directing investigation to be conducted as per the 
provisions of Section 156(3) of the Code of Criminal Procedure on a 
complaint filed by respondent herein.  Since during the pendency of the 

present application, First Information Report came to be registered by 
Police Station, Dhantoli  Nagpur, the application has been amended so 
as to raise the challenge to the registration of the said First Information 
Report.     Consequently,   the   State   has   also   prayed   for   quashing   and 
setting aside the First Information Report.
2.
The   facts,   in   brief,   giving   rise   to   the   present     application 
arises as under.
The respondent, who is an Officer belonging to I.P.S. Cadre, 
addressed   communication   to   the   Senior   Police   Inspector,   Dhantoli 
Police   Station,   Nagpur,   contending   therein   that     four   Officers   of   the 
State   Government   had   committed   offence   punishable   under   Section 
3(1) (ix) (x) and section 4 of the Scheduled Castes and the Scheduled 

Tribes   (Prevention   of  Atrocities)   Act,   1989   (hereinafter   referred   to   as 
“the Atrocities Act” ) read with Section 191, 192 and 34 of the Indian 
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Penal   Code.   The   complaint   was   lodged   on   4   March,   2013.   On 
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6  March, 2013 the Senior Police Station Officer, Dhantoli informed the 
petitioner that, since the matter in the complaint is concerned with the 
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Office of the Director of Police, State of Maharashtra, Mumbai, the same 
has been forwarded for further inquiry to the Additional Director General 
of   Police,   Protection   of   Civil   Rights,   Mumbai.   It   appears   that   further 
communication   was   addressed   by   the   respondent   no.1   to   the 
Commissioner of Police Nagpur, Deputy Commissioner of Police (Zone 
­4)  and Assistant Commissioner of Police, Ajni Division, Nagpur stating 
therein, that the  complaint was  disclosing  commission of   cognizable 
offence and in spite of lapse of  48 hours First Information Report was 
not   registered.   A   request   was,   therefore,   made   to   take   over   the 
investigation and direct registration   of offence for congnizable offence. 
Since the First Information Report was not registered, the respondent 
no.1 made an application before the learned Judicial Magistrate, First 
Class, Nagpur for directing the Police Station Officer, Dhantoli, Nagpur 

to conduct investigation under Section 156 (3) of the Code of Criminal 
Procedure.   In   the   said   complaint,   learned   Judicial   Magistrate,   First 
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Class, Nagpur passed the following order on 30  March, 2013.
“Order
Heard complainant personally as well as his counsel at 
length.     The   offences   so   levelled   are   in   respect   of 
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giving false information regarding complainant to other 
public   servant,   insulting   and   humiliating   treatment, 
willful   negligence   to   perform   necessary   duties   by   a 
person other than SC or Tribe, in respect of such SC, 
ST Person. On perusal of the record it reveals that it 
discloses   the   commission   of   cognizable   offences.   It 
requires  the  assistance   of  investigation  machinery   to 
investigate present alleged crime.
Hence,   I   hereby   direct   that   the   investigation   be 
conducted   as   per   section   156   (3)   of   Cr.P.C.   by   the 
officer not below the rank of Dy. S.P. of said Zone or 
concerned Police Station.”
3.
Being   aggrieved   thereby,   the   State   has   approached   this 
Court for invoking extra ordinary jurisdiction of this Court under Section 
482 of the Code of Criminal Procedure.   Subsequently, since the First 

Information   Report   is   also   registered   by   Dhantoli   Police   Station,   the 
application has been amended and the prayer for quashing the same 
has also been made. 
Heard Shri D.J.Khambata, learned Advocate General for the 
4.
5.

petitioner and Shri R.R.Vyas, learned counsel for respondent.
Shri D.J.Khambata, learned Advocate General appearing on 
behalf   of  the   State,   submits   that   even  if   the  allegations   made   in  the 
complaint   are   taken   to   be   true   at   its   face   value,   the   ingredients   to 
constitute the offence under the provisions of Section 3(1) (ix) (x) and 4 
of the Atrocities Act are not made out. The learned Advocate General 
submits that at the most the respondent complainant may have a case 
for approaching the learned Central Administrative Tribunal with respect 
to   his   grievance   regarding   non   granting   of   promotion   when   he   was 
entitled for the same.   The learned Advocate General, further submits 
that no ingredients to constitute the offences under the provisions of the 
Atrocities Act are made out, even if allegations as made in the complaint 

are taken to be true in totality.  The learned Advocate General submits 
that   the   proceedings   initiated   at   the   behest   of   the   respondent   no.1 
complainant are nothing but an  abuse of process of law. 
The learned Advocate General further submits that the order 
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passed by the learned Magistrate under Section 156(3) of the Code of 
Criminal   Procedure   is   mechanical   order,   passed   without   giving   any 
reasons   therefor.     The   learned   Advocate   General   relied   upon   the 
Judgment of the Apex Court in the case of Maksud Saiyed .vs. State of 
Gujrat, reported in  2008 (5) Supreme Court Cases, 668,  the judgment 
of   the  Division  Bench  of   this   Court   in   the   case   of  Yogiraj   Vasantrao 
Surve   vs. State of Maharashtra and another, and the judgment of the 
Division Bench of Karnataka High Court in the case of Guruduth Prabhu 
and others  vs. M.S.Krishna Bhat and others reported in 1999 CRI. L.J, 
3909.   The learned Advocate   General further submits that this is a fit 
case wherein this Court invoking the powers under Section 482 of Code 
of Criminal procedure should quash and set aside the order passed by 
the learned Magistrate under Section 156(3) of the Code of Criminal 

7.
Procedure and subsequent registration of First Information Report. 
Shri   Vyas,   the   learned   counsel   for   the   respondent 
complainant has raised two preliminary submissions, relying on the Full 
Bench   Judgment   of   the   Allahabad   High   Court   in   the   case   of  Father 
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Thomas .vs.  State of U.P. and another, reported in 2011 Cri. L.J., 2278. 
The learned counsel submits that the Revision under section 397 or the 
application   under   Section   482   of   the   Code   of   Criminal   Procedure 
against   the   order   passed   by   the   learned   Magistrate   directing 
investigation under section 156(3) of the Code of Criminal Procedure 
would   not   be   tenable.     In   the   alternative,   he   submits   that   since   an 
alternative remedy by way of Revision under Section 397 of the  Code 
of Criminal Procedure is available, the present application under section 
482   of   the   Code   of   Criminal   Procedure   would   not   be   tenable.   The 
learned Counsel further submits that in the present matter the aggrieved 
persons could be at the most the persons who have been arrayed in the 
First Information Report as accused and as such the application filed at 
the behest of the State is not tenable on the ground of locus. 

   The learned counsel relying on the Judgment of this Court 
8.
in the case of  Panchabhai Popotbhai Butani and others   vs. State of 
Maharashtra     reported   in   2010(1)   Mh.   L.J.,   421  submits   that   the 
application under Section 156(3) of Cr.P.C.  cannot be equated with the 
criminal   complaint   as   provided   under   section   2(d)   of   Cr.P.C..     The 
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learned counsel further relying upon the Judgment of this Court in the 
case of Rajendra Ramlal Jaiswal and others  vs. State of Maharashtra 
an another,  reported in 2011 ALL MR (Cri.) 3107  submits
that the order directing investigation is an administrative order and the 
challenge to the same is not tenable. 
9.
Shri   Vyas,   learned   counsel,   however,   fairly   conceded   that 
though the case is made out by the complainant  under section 3 (1) (ix) 
of the Atrocities Act, there is no material so as to constitute the offence 
under section 3 (1) (x) and section 4 of the Atrocities Act.
10.
   In that view of the matter, we would only be required to 
consider as to whether taking the allegations in the complaint  at its face 

Section 3(1) (ix) of the Atrocities Act are made out or not?
value, whether ingredients to constitute the offence punishable under 
Section 3(1) (ix) of the Atrocities Act reads thus:­
  “3.   Punishment   for   offences   of   atrocities;­­(1) 
Whoever,   not   being   a   member   of   a   Scheduled 
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Caste or a Scheduled Tribe,­­­(ix)   gives any false 
or frivolous information to any public servant and 
thereby   causes   such   public   servant   to   use   his 
lawful   power   to   the   injury   or   annoyance   of   a 
member   of   a   scheduled   caste   or   a   Scheduled 
Tribe.”
It, thus, would be clear that for bringing an offence under the 
ambit of Section 3(1) (ix) of the Atrocities Act, the following ingredients 
would be necessary. 
i)
a person, who is  accused of having committed  
the  offence,    gives    any   false   or   frivolous 
information to any public servant;
ii)
thereby   causes   such   public   servant   to   use   his  
lawful power;
iii)
said     exercise  of  power  is  to  the  injury  or 
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annoyance of a member of a Scheduled caste or a 
11.
Scheduled Tribe.
Before we proceed to consider the rival submissions, it would 
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be necessary to spell out as to what has been alleged in the complaint. 
We   are   aware   about   the   limitations   while   exercising   the 
jurisdiction   under   Section   482   of   the   Code   of   Criminal   Procedure. 
Unless the allegations made in the complaint taken at its face value do 
not   make   out   ingredients   to   constitute   the   offence,   it   would   not   be 
permissible   for   this   court   to   interfere.   Though   the   complaint   is   some 
what   lengthy,   we   have   attempted   to   capsulize   the   allegations   of   the 
complainant against the persons named in the complaint. 
13.
Taking   the   allegations   in   the   complaint   lodged   by   the 
respondent complainant under Section 156 of Cr.P.C. to be totally true 
and correct, let us examine what is the case sought to be made out 
against     the   four   persons   who,   according   to   the   complainant,   have 

committed the offence punishable under the Atrocities Act. 
The   allegations   against   Shri   Kailash   Bilonikar,  
i)
                      
Under   Secretary   (Pol­   1),   Home   Department,  
Mantralaya, Mumbai. 

The allegation against Shri Bilonikar  are that  he 
is a Controlling Officer of POL­1 and handling subjects connected with 
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establishment   of   IPS   Officers   and   has   handled   all   the   proposals   of 
promotions.  According to the complainant, Shri   Bilonikar ought to have 
brought   to   the   notice   of   the   Review   Committee   about     inappropriate 
decision taken by the Committee. According to the complainant, he has 
failed in his responsibility and duty in not pointing the correct rules to the 
notice of the Government and as such committed offence punishable 
under   Section   3(1)   (ix)   (x)   and   4   of   the   Atrocities   Act.     It   is   further 
alleged   that   when   the   complainant’s   name   should   have   been 
incorporated in the proposal for  confirmation into IPS of the Officers of 
1998   batch,   deliberately   his   confirmation   is   withheld   by   omitting   his 
name   from   the   proposal   of   confirmation   into   IPS.     It   is   the   further 
allegation   that   he   had   not   brought   to   the   notice   of   the   Review 
Committee for promotion to the rank of D.I.G. Police, that   promotion 

cannot   be   withheld   unless   charge   sheet   is   served   under   the 
departmental proceedings.  According to the complainant, since the said 
Mr. Bilonikar had failed in his legal duty, he had committed the offence 
punishable under section 3(1) (ix) (x) and section 4 of the Atrocities Act. 
It   is   the   further   allegation   that   Shri   Bilonikar   had   not   brought   to   the 

notice of the Government about the fact that office of D.G.P. has not 
submitted   proposal   for   promotion   and   posting   only   on   the   ground   of 
proposed departmental inquiry.  It is the further allegation that only after 
the   complainant     has   made   complaint   to   the   Scheduled   Caste   and 
Scheduled Tribe Commission, Shri Bilonikar had informed the Office of 
the D.G.P. about the legal provisions, which he could have done  earlier 
also. It is the further allegation that said Shri Bilonikar has not submitted 
the  proposal  to  the   Government   to  initiate  action  against  the  officers 
responsible for submission of illegal proposal. It is further alleged that 
said Shri Bilonikar has acted with criminal conspiracy with the Office of 
the   D.G.P.   and   harassed   and   humiliated   the   complainant   and   has 
committed the aforesaid offence.
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Shri R.N.Deshmukh, Joint Secretary (Pol 0 1 and 
2), Home Deaprtment, Mantralaya, Mumbai.
ii)
The   only   allegation   against   him   is   that,   he   is   a 
Supervising Officer of Under Secretaries in charge of Desk Pol – 1 and 
2 and all files are routed and submitted through him to the Government.
Shri   Sanjeev   Dayal,   Director   General   of   Police, 
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iii)
Maharashtra State, Mumbai.
That said Shri Dayal had submitted   proposal for 
Departmental Inquiry against the complainant to the Government,   on 
the basis of the news published in the Newspaper, forwarded by the Anti 
Corruption Bureau on 15.7.2011.  That he ought to have scrutinized the 
report before submitting it to the Government. That the representation 
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made by the complainant on 25   August, 2011 was deliberately filed 
without examining the contentions therein. That the promotions of the 
complainant   were   deliberately   withheld   on   the   ground   of   proposed 
departmental inquiry against him. That before submitting the report to 
the State Government by the Director General of Police on the basis of 
the news report, the Director General of Police ought to have obtained 
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                       14               Criminal Application No.258.13 (APL)
complainant’s   explanation   on the news and only after receipt of the 
explanation, the report could have been submitted to the Government. 
That   the   proposal   for   conducting   departmental   inquiry   against   the 
complainant   was   sent   with   a   prejudicial     mind   so   as   to   deprive   the 
complainant of his legal right of promotion.     That deliberately the Anti 
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Corruption   Bureau   was   directed   to   inquire   into   the   offence   of 
malpractices by the complainant. However, no malpractice was detected 
by   the   Anti   Corruption   Bureau   and   only   administrative   action   was 
proposed and on that basis the proposal for departmental inquiry was 
submitted to the Government. This was done by the Director General of 
Police with deliberate intention of misleading the Government.  That the 
permission granted to the Anti Corruption Bureau for conducting open 
inquiry into the complainant’s property was also illegal inasmuch as it 
was not according to the norms of the Government. That the Director 
General   of   Police   has   committed   criminal   conspiracy   to   insult   and 
humiliate the complainant. 
iv)
Shri   Umeshchandra   Sarangi   ­Additional   Chief  
Secretary ( Home Department) Mantralay, 
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Mumbai.
The allegation against this  officer is that he has 
entered the Indian Administrative Service, 1977 and retired in 2012 and, 
therefore,   he   is   aware   about   the   Rules   of   the   Indian   Services.   That 
though   the Director General of Police had recommended satisfactory 
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completion of  the period of probation, he had illegally taken a decision 
to extend the period of probation. Though it was necessary for him to 
intimate to the complainant the reasons for extending the probation, the 
same were not communicated. This was done with an intention to stall 
further promotions of the complainant, so that he faces humiliation and 
insult  in the  society   and  Police  Department  and as   such  the  offence 
punishable under Section 3(1) (ix) (x) and section 4 of the Atrocities Act 
is committed. Though the extended period of probation was completed 
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on   17.2.2011,   still   in   the   meeting   dated   8   February   2011,   the 
complainant   was   illegally   considered   unfit   for   promotion.   In   spite   of 
being aware that the promotion cannot be withheld unless the charge 
sheet   is   served,   he   was   denied   promotion   to   the   post   of   Deputy 
Inspector General  of Police in contravention of the Judgments of the 
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Apex Court.  Though in the meeting dated  8  February, 2011  chaired 
by Shri Sarangi it was decided to give promotion to the post of Selection 
Grade   Police   Superintendent,   in   the   said   meeting     illegally     he   was 
denied the promotion to the post of Deputy Inspector General of Police. 
This amounted to an offence under Section 3(1)(ix) (x) and section 4 of 
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the Atrocities Act. It is further alleged that though the complainant had 
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completed only 11 months at his posting, he was transferred on 26
May, 2011 which is in violation of the provisions of the Law. 
14.
At the end of the complaint, the complainant has stated that 
from the entries in his service record, the aforesaid four accused were 
fully aware that the complainant was an officer belonging to Scheduled 
Caste and that he had also brought this fact to their notice  from time to 
time.  It is further stated  that these officers had deliberately humiliated 
the complainant in community, by not complying with the orders only of 
the State Government but also of the Hon’ble Supreme court. It   has 
further  been  stated  that  the  complainant  has  been   humiliated   just
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15.
 because he is an officer belonging to Backward Class.
                       17               Criminal Application No.258.13 (APL)
In   nutshell,   it   can   be   seen   that   the   allegations   of   the 
complainant against the Director General of Police Shri Dayal is that he 
had   recommended   inquiry   by   Anti   Corruption   Bureau   on   erroneous 
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grounds and that his case for promotion was not submitted to the State 
Government   on   untenable   ground.   It   is   the   contention   of   the 
complainant that unless the charge sheet was served, the proposal for 
giving   him   promotion   could   not   have   been   withheld   merely   on   the 
ground of proposed departmental inquiry against him.   The allegation 
against the Under Secretary Shri Bilonikar is that he had not brought to 
the   notice   of   the   Departmental   Promotion   Committee   and   Review 
Committee   the   relevant   Rules   governing   the   promotion.   The   only 
grievance against Shri R.N. Deshmukh, Joint Secretary  is that he was 
Supervising   Officer     of   Under   Secretaries   and   all   files   were   routed 
through him. The allegation against Shri Umeshchandra Sarangi, who 
was the then Additional chief Secretary (Home), is that Shri Sarangi had 
intentionally   extended   the   probation   of   the   complainant   and   that 
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16.
intentionally denied by said Shri Sarangi.
promotion   to   the   post   of   Deputy   Inspector   General   of   Police     was 
It   could,   thus,   be   clearly   seen   that   the   entire   thrust   in   the 
complaint is that Shri Sanjeev Dayal, the Director General of Police had 
submitted   a   report   for   initiation   of   open   inquiry   on   account   of   the 
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complaints into the complainant’s property, in illegal manner. It is the 
further   allegation   against   Mr.   Sanjeev   Dayal,     that   though   promotion 
could not have been denied unless the charge sheet was served, his 
name was not recommended on the basis of the proposed departmental 
inquiry. The allegation against Shri Bilonikar is that he did not place the 
relevant   Rules   before   the   Committee.     The   allegation   against   Shri 
Sarangi,   who   was   the   Additional   Secretary   (Home)   is   that   he   had 
illegally   extended   the   probation   of   the   complainant   and   denied 
promotion   to   him   in   the   meeting   dated   8.2.2011.   As   already   stated 
hereinabove   that   one   of   the   necessary   ingredients   for   bringing   the 
offence under the ambit of Section 3(1) (ix) is that a person accused to 
have committed an offence must give a false or frivolous information to 
any public servant. Another necessary ingredient is that  by giving such 
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false or frivolous information, the public servant should be caused to use 
his lawful power to the injury or annoyance of a member of a Scheduled 
Caste   or   a   Scheduled   Tribe.     Perusal   of   the   entire   complaint   would 
reveal that there is no averment   stating that   any of the accused had 
given any false or frivolous information to any public servant.   It is not 
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even averred that on account of such frivolous information any of the 
public servants were made to use their lawful authority so as to cause 
injury or annoyance to the complainant.
17.
It can, thus, clearly be seen that the entire grievance of the 
complainant   is   regarding   denial   of   promotion   to   the   post   of   Deputy 
Inspector General of Police when according to him he was due.  It is the 
case of the complainant that same was done in breach of the various 
Rules, Regulations and notifications issued by the Government and the 
Judgments of the Apex Court.  It can, thus, clearly be seen that dispute 
of the present complainant with the State is purely a dispute pertaining 
to service matter.   However, the complainant has attempted to bring it 
under the provisions of the Atrocities Act, taking advantage of the fact 
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that   the   complainant   belongs   to   Scheduled   Caste.     As   already 
discussed   hereinabove,   we   find   that   the   complaint   addressed   to   the 
learned Magistrate even if taken at its face value and correct in entirety, 
does   not   constitute   ingredients   so   as   to   make   out   the   offences 
punishable   under   Section   3(1)   (ix)   of   the   Atrocities   Act.     As   already 
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stated hereinabove, the learned counsel for the respondent complainant 
has fairly conceded that there are no ingredients to bring the offnece 
under the ambit of Section 3(1) (x) and section 4 of the Atrocities Act. 
As such we need not analyse the averments made in the complaint in 
that regard.  However, upon perusal of the  entire complaint, it would be 
clear that there are no averments to connect the accused even remotely 
with the offence punishable under Section 3(1) (ix) and Section 4 of the 
Atrocities Act.   Perusal of section 3 (1) (x) of the Atrocities Act would 
reveal   that   to   constitute   an   offence   a   person   must   be   accused   of 
intentionally insulting or intimidating with intent to humiliate a member of 
a Scheduled caste or a Scheduled Tribe in any place within public view. 
Whereas, Section 4 provides for penalty when the public servant not 
being a member of the Scheduled Caste or a Scheduled Tribe willfully 
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neglects his duties required to be performed by him under the said Act. 
We may state that there is not even a whisper regarding the same.  No 
averments could be found in the entire complaint as to what are the 
duties which the accused were required to be performed under the Act 
Apart   from   that   we   find   that   the   complainant   has   been 
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and which are the duties neglected to be performed by them.  
selective in choosing the persons against whom the accusation have 
been   made.   The main grievance of the complainant appears to be 
regarding the decision in the meeting of the Screening Committee/ SCM 
held on 8.2.2011 for consideration of the promotion of IPS   Officers to 
the post of Deputy Inspector General of Police. The complainant himself 
has   annexed   along   with   the   complaint   the   minutes   of   the   Screening 
Meeting held on 8.2.2012.  From perusal of the said minutes, it can be 
seen that, the said Committee consisted of following three officers.
1. Shri Ratnakar Gaikwad, 
Chief Secretary.
2. Shri Umesh Chandra Sarangi,
Additional Chief Secretary (Home) and also
non IPS Officer in the rank of Chief Secretary.
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3. Shri K. Subramanyam, IPS,
Director General and Inspector General of
Police, Maharashtra State.
                       22               Criminal Application No.258.13 (APL)
It   will   be   relevant   to   refer   to   the   following   notings   in   the 
minutes of the said meeting.
“The Committee considered the available ACRS/PAR 
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up to 2009­2010 along with service record. In case of 
S.E.Shinde,   IPS­1998,   Committee   observed   that 
there   are   no.   of   complaints   received   against   him 
regarding corruption and violation of All India Service 
(Conduct) Rule, 1969. Though as per his ACRS/ PAR 
he has got 65 marks out of 90, it is also necessary to 
consider   his   overall   service   record.   As   Deputy 
Inspector   General   of   Police   is   a   promotional   post, 
involves   higher   responsibilities.   Committee 
considered   the   overall   record   in   case   of   Shri 
S.E.Shinde, IPS.”
“11. Accordingly, the Committee recommended as follows:
       A) Following Officers are found fit for promot on the post 
            in the Grade of  Deputy Inspector General of Police:
1.­­­­­­­­­­­­­­­­­­­­­­­­
2.­­­­­­­­­­­­­­­­­­­­­­­­
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3­­­­­­­­­­­­­­­­­­­­­­­
­­­­­­­­­­­­­­­­­­­­­­­­­­­
16.­­­­­­­­­­­­­­­­­­­­­­­
­­­­­­­­­­­­­­­­­­­­­­­­­­­
      B.)    Following Officer is found ‘Unfit’  for promotion to 
the post in the grade of Deputy Inspector Director 
General of police.
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1.    Shri S.E.Shinde, IPS (MH:1998)”
It can, thus, clearly be seen that the Screening Committee 
which consisted of Chief Secretary and Director General of Police apart 
from Shri Sarangi, the then Additional Chief Secretary, has found that 
there   were   number   of   complains   received   against   the   complainant 
regarding corruption and violation of All India Services (Conduct) Rules,
1969. The Committee, therefore, found that though as per the ACRS he 
has got 65 marks out of 90, it was also necessary to consider his overall 
service record. 
19.
It can, thus, be clearly seen that in the said meeting though 
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the Committee has found various persons to be fit to be promoted, has 
found the present complainant to be unfit for promotion. It is to be noted 
that the said decision is taken by three persons including Shri Sarangi. 
However, the complainant has chosen only to name Shri Sarangi and 
not other two persons i.e.  Shri Ratnakar Gaikwad, Chief Secretary and 
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Shri   K.   Subramanyam,   Director   General   and   Inspector   General   of 
Police.   It   may   not   be   out   of   place   to   mention   that   Shri   Ratnakar 
Gaikwad,   the   then   Chief   Secretary   who   has   an   outstanding   and 
exemplary   record,   incidentally   belongs   to   Scheduled   Caste.     In   our 
considered view, the conduct of the complainant respondent in naming 
only one person present in the meeting dated 8.2.2011 and not naming 
two others, speaks volume of his conduct. In our considered view, if the 
allegations  in the complaint are to be entertained, then every person 
belonging   to   Scheduled   Caste   or   Scheduled   Tribe   who   is   denied 
promotion,   will   have   a   cause   of   action   to   file   complaint   under   the 
provisions of Atrocities Act and name the persons who are the members 
of   the   Departmental   Promotional   Committee   as   accused.     It   is   not 
impossible   that   a   person   with   ingenious   mind,   if   not   selected   in   the 
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selection   process may also invoke the provisions of the Atrocities Act 
against the members of the Selection Committee alleging that he was 
not selected since he belongs to Scheduled Caste or Scheduled Tribe 
and as such offence is made out under the provisions of Atrocities Act. 
If this is to be permitted, it would amount nothing else but gross abuse 
20.
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of process of law. 
We will now deal with the preliminary   issue raised by the 
learned counsel for the respondent complainant regarding locus.   No 
doubt  that  the   present  application  under   Section  482  of  the   Code  of 
Criminal Procedure is filed by the State. The administration of justice is 
a paramount duty and function of the Sovereign State.  The main aim of 
the administration of justice is to have just society. In the administration 
of criminal justice, while it is the duty of the State to make every effort to 
see that every person guilty of crime is penalized, at the same time, it is 
also   its   duty   to   ensure   that   innocent   persons   are   not   harassed   and 
victimized   by   abuse   of   process   of   the   Court,   at   the   hands   of   the 
cantankerous complainants, by filing frivolous complaints.   All the four 
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                       26               Criminal Application No.258.13 (APL)
persons,   against   whom   allegations   have   been   made,   are   or   were 
Officers of the State.  As has been discussed by us hereinabove and in 
the following paragraphs, there is no material to proceed against the 
said Officers for the offences alleged with.  It is also the contentions of 
the learned counsel for the respondent complainant that the accused 
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persons  do not have any  locus  to challenge  the order passed under 
Section 156 (3) of the Code of  Criminal Procedure.  In such a situation, 
the question would be as to whether the Officers of the State should be 
forced   to   face   ignominy   of   being   accused   in   a   crime,   which,   in   our 
considered view, would not be made out even taking the allegations in 
the complaint to be  true  in entirety.  In this respect, we may gainfully 
refer to the observations of the Full Bench of this Court in the case of 
Sandeep   Rammilan   Shukla     vs.   State   of   Maharashtra   and   others, 
reported in 2009(1) Mh.L.J., 97, which are thus:­
“61.   Rule     of     criminal   jurisprudence   make   no 
exception to the principle that a fair investigation is 
the soul of proper administration of criminal justice 
system.   Criminal   justice   system   has   two 
components. The role of  the State and role of the 
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judiciary.   Exercise   of   power   or   authority   by   any   of 
these components has to ensure due protection with 
dignity   to   the   rights   of   a   complainant   as   well   as 
suspect and the society at large, while ensuring that 
there is no adverse impact on the social fabric of the 
Insofar   as   the   contention   of   the   learned   counsel   for   the 
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21.
society.”
respondent regarding the revision or application under Section 482 of 
the   Code   of   Criminal   Procedure   not   being   tenable   against   the   order 
passed by the learned Magistrate under Section 156 (3) of the Code of 
Criminal Procedure is concerned, the learned counsel is right in relying 
on the Judgment of the Full Bench of Allahabd High Court in the case of 
Father Thomas  (supra).   In the case of Father Thomas, the Allahabad 
High Court has taken a view that the revision as well as the application 
under   Section   482   of   the   Code   of   Criminal   Procedure   would   not   be 
tenable against the order of directing investigation under Section 156(3) 
of the Code of Criminal Procedure.  However, in the said Judgment  the 
Allahabad High  Court has taken a view that once the First Information 
Report is  registered and if taken at its  face value, does  not disclose 
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commission   of   an   offence,   the   application   under   Section   482   of   the 
Code of Criminal Procedure for quashing the proceedings is very much 
tenable. In the present case, now the First Information Report is already 
registered and by way of amendment the prayer for quashing the same 
Apart   from   that   a   different   view   has   been   taken   by   the 
22.
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is also made.
Division Bench of this Court in the case of Yogiraj Vasantrao Surve .vs. 
State   of   Maharashtra   and   another   (Criminal   Application   No.   470   of 
2011(APL) decided on 28.2.2013. The Division Bench after considering 
Popotbhai   Butani   and   others   vs.   State   of   Maharashtra   and   others 
(supra)    has held thus:­
the Judgment of the Full Bench of this Court in the case of  Panchabhai 
“The Full Bench held that a petition under Section 
156(3) 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 
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offence.  Thus, sine qua non     for filing a petition 
under Section 156(3) of Cr.P.C. is commission of 
cognizable offence.  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) 
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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   offence   and   in   such   eventuality   the 
person   against   whom   First   Information   Report   is 
lodged may not be entitled to challenge the order 
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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.” 
It   is,   thus,   clear   that   the   Division   Bench   of   this   Court   has 
23.
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         (emphasis supplied).  
taken a view that if the petition purported to be under Section 156(3) of 
the   Code   of   Criminal   Procedure   does   not   disclose   commission   of 
cognizable offence, it is difficult to accept the contention that the person 
against whom First Information Report is registered, is not entitled to 
challenge the same.
24.
The Division Bench of the Karnataka High Court in the case 
of  Guruduth   Prabhu  (supra)   had   an   occasion   to   consider   the   similar 
issue. The Division Bench after considering the scope of Section 156 of 
the Code of Criminal Procedure observed thus:­
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“When   the   allegation   made   in   the   complaint 
does   not   disclose   cognizable   offence,   the 
Magistrate  has  no   jurisdiction  to   order  police 
investigation   under   sub­section   (3).   In   the 
present   case,   the   learned   Magistrate   without 
applying his mind had directed an investigation 
by the police. Such an order which is passed 
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without application of mind is clearly an order 
without jurisdiction. Therefore, the order passed 
directing   the   police   to   investigate   under   sub­
section (3) of Section 156, Cr.P.C., passed without 
jurisdiction   is   liable   to   be   quashed   by   this   Court 
either under Section 482, Cr.P.C., or under Article 
226 of the Constitution of India.”
25.
      (emphasis supplied)
Between   the   larger   Bench   of   Allahabad   High   Court   and 
Division Bench of this Court,  we would be bound by the view taken by 
this Court.   In any case, we find that the view taken by Division Bench 
of this Court and by the Division Bench of Karnataka High Court is a 
correct view in law.  In any case, the Allahabad High Court in the case 
of  Father   Thomas   (supra)  itself   held   that,   the   registration   of   First 
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Information Report, if does not disclose an offence, can be challenged 
by   way   of   application   under   Section   482   of   the   Code   of   Criminal 
Procedure.   In that view, we find that the contention in that regard is 
The   next   submission   of   the   learned   counsel   for   the 
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26.
without substance.
respondent   complainant   is   that   upon   receipt   of   the   complaint   under 
section 156(3) of Cr.P.C., the Magistrate has no other option than to 
direct investigation under Section 156(3) of Cr.P.C., and that the Police 
Authorities are bound to register the First Information Report. 
27.
For  considering  this   submission  of  the  learned  counsel  for 
the respondent, it will be necessary to refer   to the Judgment of the 
Apex Court in the case of  Maksud Saiyed  (supra).   In the said case 
criminal complaint came to be filed before the Court of Chief Judicial 
Magistrate, Vadodara.  The allegation in the said complaint was that in 
prospectus published for the purpose of public issue, some false and 
misleading information had been given with regard to sanction limits, the 
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                       33               Criminal Application No.258.13 (APL)
dues   and export  bills   of the  Company.    It was  alleged that  one  Shri 
G.C.Garg   with   fabricated   and  fraudulent   dishonestly   and   purposefully 
misused the documents with mala fide intention.   An order came to be 
passed under   Sub­section 3 of Section 156 of the Code of Criminal 
Procedure   relying   on   or   on   the   basis   of   the   allegations   made   in   the 
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complaint. The said order was challenged before the High Court under 
the provisions of Section 482 of Cr.P.C..  The said petition was allowed. 
Being aggrieved thereby, the complainant approached the Apex Court. 
The Apex Court observed thus:
“Where   a   jurisdiction   is   exercised   on   a 
complaint   petition   filed   in   terms   of   Section 
156(3) or Section 200 of the Code of Criminal 
Procedure, the Magistrate is required to apply 
his mind. Indian Penal Code does not contain any 
provision for attaching vicarious liability on the part 
of   the   Managing   Director   or   the   Directors   of   the 
Company when the accused is the Company. The 
learned Magistrate failed to pose unto himself the 
correct question viz. As to whether the complaint 
petition, even if given face value and taken to be 
correct in its entirety, would lead to the conclusion 
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that the respondents herein were personally liable 
for any offence.   The Bank is a body corporate. 
Vicarious   liability   of   the   Managing   Director   and 
Director would arise provided any provision exists 
in that behalf in the statute. Statutes indisputable 
must   contain   provision   fixing   such   vicarious 
liabilities.     Even   for   the   said   purpose,   it   is 
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obligatory on the part of the complainant to make 
requisite   allegations   which   would   attract   the 
 (emphasis supplied)
provisions constituting vicarious liability.”
28.
It   can,   thus,   be   seen   that   the   Apex   Court   in   unequivocal 
terms has held that   where a   jurisdiction is exercised on a complaint 
petition     filed     under   Section   156(3)   or   Section   200   of   the   Code   of 
Criminal Procedure,  the Magistrate is required  to apply his mind.
29.
The Apex Court in the said case has referred to its earlier 
observations   made  in  the  case  of  Pepsi   Foods   Ltd.  And  another  vs. 
Special Judicial Magistrate and others, reported in (1998) 5 SCC 749), 
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which reads thus:
“Summoning of an accused in a criminal case is a 
serious   matter.     Criminal   law   cannot   be   set   into 
motion   as   a   matter   of   course.   It   is   not   that   the 
complainant   has   to   bring   only   two   witnesses   to 
support his allegations in the complaint to have the 
criminal   law   set   into   motion.   The   order   of   the 
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Magistrate   summoning   the   accused   must   reflect 
that   he   has   applied   his   mind   to   the   facts   of   the 
case   and   the   law   applicable   thereto.   He   has   to 
examine   the   nature   of     allegations   made   in   the 
complaint   and   the   evidence   both   oral   and 
documentary in support thereof and would that be 
sufficient   for   the   complainant   to   succeed   in 
bringing charge home to the accused.  It is not that 
the Magistrate is a silent spectator at the time of 
recording   of   preliminary   evidence   before 
summoning of the accused.  The magistrate has to 
carefully  scrutinize the evidence brought on record 
and   may   even   himself   put   questions   to   the 
complainant and his witnesses to elicit answers to 
find   out   the   truthfulness   of   the   allegations   or 
otherwise and then examine if any offence is prima 
facie committed by all or any of the accused.”
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In view of the aforesaid Judgments of the Apex Court, it can, 
30.
thus, clearly be seen that when the Magistrate passes order directing 
investigation under Section 156 (3) of Cr.P.C., it is necessary that, prior 
to doing so, he should apply his mind to the case before him.  Least that 
is   expected   of  the   Magistrate,   is   to   verify   from   the   averments   of   the 
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complaint   as   to   whether   the   ingredients   to   constitute   the     offence/s 
complained of have been made out or not.   As such the order under 
Section 156(3) of Cr.P.C., should depict the application of mind.   No 
doubt the Magistrate is not expected to give elaborate Judgment at that 
stage.     However,   the   least   expected   is   that   the   order   should   depict 
application   of   mind   and   as   to   how   the   complaint   discloses   the 
ingredients to constitute the offence complained of. 
31.
   It would also be appropriate to refer to the observations of 
the Division Bench of this Court in the case of Yogiraj Surve (supra) in 
para no.13, which reads thus:­
“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 
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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 
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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.”
     (emphasis supplied)
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It can, thus, be seen that the Division Bench of this Court has 
32.
clearly   held   that   if   the   petition   or   complaint   does   not   disclose 
commission of cognizable offence, the learned Magistrate cannot pass 
the order under Section 156(3) of Cr.P.C.. It is also held that disclosure 
33.
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Section 156 (3) of Cr.P.C..
of commission of the offence is sine quo non for issuing the order under 
Insofar   as   the   reliance   of   the   learned   counsel   for   the 
respondent complainant on the Full Bench Judgment of this Court in the 
Case   of  Panchabhai   Butani   (supra)   is   concerned,   the   questions   that 
arose for consideration before the Full Bench were as under:

1. Whether in absence of a complaint to the police, a complaint can 
be made directly before a Magistrate ?
2. 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?
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It can, thus, be clearly seen that the questions that fell for 
34.
consideration before the Full Bench were;  as to whether in the absence 
of a complaint to the police, a complaint can be made directly before the 
Magistrate and as to whether without  filing of the complaint within the 
meaning of Section 2(d) and praying only for an action under Section 
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156(3),   a   complaint   before   a   Magistrate     was   maintainable.     It   can, 
therefore, be seen that the question whether the learned Magistrate is 
required to apply his mind before passing an order under section 156(3) 
and required to give reasons did not fall for consideration.  In any case, 
when the Apex Court in the case of Maksud Saiyed has held that while 
exercising jurisdiction under Section 156(3) of Cr.P.C., the Magistrate is 
required to apply his mind, it will have to be held that when the order is 
passed by the Magistrate without considering the material and without 
finding   out   as   to   whether   the   complaint   discloses   ingredients   of   the 
offence or not, the order is without jurisdiction.  In this respect, we may 
gainfully refer to the observations of  Division Bench of Karnataka High 
Court in the case of Guruduth Prabhu (supra), which reads thus:­ 
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“If every complaint filed, under Section 200, Cr.P.C. 
is referred to the police under section 156(3) without 
application   of   mind   about   the   disclosure   of   an 
offence,   there   is   every   likelihood   of   unscrupulous 
complaints in order to harass the alleged accused 
named   by   them   in   their   complaints   making   bald 
allegations just to see that the alleged accused are 
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harassed by the police who have no other go except 
to   investigate   as   ordered   by   the   Magistrate. 
Therefore, it is mandatory for the Magistrate to 
apply   his   mind   to   the   allegations   made   in   the 
complaint and in only cases which disclose an 
offence, the Magistrate gets jurisdiction to order 
an investigation by the police if he does not take 
cognizance of the offence. In the present case, the 
learned   Magistrate   without   applying   his   mind   has 
blindly   ordered   the   investigation   under   Section 
156(3)   and   the   said   order   is,   therefore,   without 
jurisdiction.
                  (emphasis   supplied)
We   are   in  respectful   agreement   with   the   view taken 
by the Karnataka High Court. 
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It   will,   thus,   have   to   be   held   that   it   is   mandatory   for   the 
35.
Magistrate to apply his mind to the allegations made in the complaint 
and   only   when   the   allegations   made   in   the   complaint   make   out   the 
ingredients to constitute an offence, the learned Magistrate can pass an 
order of investigation under Section 156(3) of Cr.P.C..,   Equally, when 
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the   ingredients   to   constitute   the   offence   are   not   made   out   in   the 
complaint,   the   learned   Magistrate   cannot   direct   investigation   under 
Section 156(3) of Cr.P.C..  Such an order is without jurisdiction.  If the 
contention of the learned counsel for respondent complainant that once 
the   complaint   is   filed   under   Section   156(3)   of   Cr.P.C.,     the   learned 
Magistrate has no option but to pass an order under Section 156(3) of 
Cr.P.C.,   is   accepted,     it   would   amount   to   reducing   the   learned 
Magistrate to nothing else but the postman.  As such, we have no other 
option but to rejected the said contention. 
36.
In the present case we have spelled out in  detail, allegations 
made by the complainant in his complaint.  At the risk of repetition, we 
need to state that even taking the allegations to be true in their entirety, 
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the ingredients to constitute offence  under the Atrocities  Act, are not 
made out.   Therefore, in our considered view, the learned Magistrate 
was not justified in passing the order impugned. 
Insofar as the reliance placed by the learned counsel for the 
37.
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respondent complainant  on the Judgment of the Full Bench in the case 
of Sandeep Shukla (supra)   is concerned, it will be appropriate to refer 
to the following observations of the Full Bench:­
“The   essence   appears   to   be   that   the   information 
should disclose commission of a cognizable offence 
which alone would vest power and jurisdiction in the 
officer­in­charge to put into motion the investigation 
machinery.” 
38.
  It is, thus, clear that the Full Bench has held that only when 
the information discloses     commission of a cognizable offence would 
vest power and jurisdiction in the Officer­in­charge to put into motion the 
investigating machinery. It is to be noted that the question before the 
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                       43               Criminal Application No.258.13 (APL)
Full Bench in the said case was  as to whether preliminary inquiry could 
be   made   by   Police   Officer   In­charge   of   Police   Station   prior   to   the 
registration of First Information Report.   The Full Bench has   held that 
the   preliminary   inquiry   is   necessary   prior   to   registration   of   First 
Information Report,   to avoid undue harassment to any person at the 
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behest of unscrupulous complainants. The Full Bench, even in the case 
of registration of the First Information Report, has held that only when 
the   information   discloses   commission   of   cognizable   offence,   the 
jurisdiction would vest in the   Officer­in­charge to put into motion the 
investigating machinery.  As such the learned Magistrate, who performs 
judicial   function,   must   satisfy   himself   that   the   complaint   petition 
discloses     commission   of   cognizable   offence/s   before   he   directs 
investigation under the provisions of Section 156(3) of Cr.P.C..   In that 
view of the matter, we do not find that said Judgment would be of any 
assistance   to   the   contentions   made   by   the   learned   counsel   for   the 
respondent complainant.
39.
Now,   the   only   question   that   would   be   required   to   be 
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                       44               Criminal Application No.258.13 (APL)
considered   is   as   to   whether   the   facts   of   the   present   case   justify 
warranting invoking the jurisdiction under Section 482 of Cr.P.C. or not. 
We may gainfully refer to the observations of the Apex Court in the case 
of  State of Haryana and others   vs. Ch. Bhajan Lal, reported in AIR 
1992 SC, 604    which  reads thus:
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“108.   In the backdrop of the interpretation of the 
various   relevant   provisions   of   the   Code   under 
Chapter XIV and of the principles of law enunciated 
by this Court in a serious of decisions relating to the 
exercise of the extra­ordinary power under Article 
226 or the inherent powers under Section 482 of 
the code  which we have extracted and reproduced 
above, we give the following categories of cases by 
way   of   illustration   wherein   such   power   could   be 
exercised either to prevent abuse of the process of 
any   Court   or   otherwise   to   secure   the   ends   of 
justice, though it may not be possible to lay down 
any   precise,   clearly   defined   and   sufficiently 
channelised   and   inflexible   guidelines   or   rigid 
formulae and to give an exhaustive list of myriad 
kinds   of   cases   wherein   such   power   should   be 
exercised.
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                       45               Criminal Application No.258.13 (APL)
1. Where   the   allegations   made   in   the   First 
Information 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.
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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 underSection 151(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 
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                       46               Criminal Application No.258.13 (APL)
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 
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person can ever reach a just conclusion that 
there   is   sufficient   ground   for   proceeding 
against the accused. 
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   vengeance   on 
the accused and with a view to spite him due 
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40.
to private and personal grudge.
                       47               Criminal Application No.258.13 (APL)
We have already held hereinabove that  in the present case 
even if the allegations   taken  at its face value are accepted to be true 
and correct, they do not prima facie constitute commission of offence. 
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We, therefore,   find that the present case would fall under clause 1 of 
As   already   discussed   hereinabove,   the   complainant   has 
41.
the guidelines laid down by the Apex Court.
chosen only one person as   accused   when the Screening Committee 
was consisting of three persons. We find that the present complaint has 
been   filed   with   an   ulterior   motive   for   wreaking   the   vengeance   on 
account of the grievance of the respondent complainant that he was not 
given   promotion   when,   according   to   him,     he   was   entitled   to.   We, 
therefore,  find that  the present case would  also fall under clause 7 of 
the aforesaid Guidelines. 
42.
The Apex Court in the case of Zandu Pharmaceutical Works 
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                       48               Criminal Application No.258.13 (APL)
Ld.   And   others     vs.   Mohd.   Sharaful   Haque   and   another,   reported   in 
(2005)   1   Supreme   Court   Cases,   122    had     an   occasion   to   consider 
similar  issue  arising   out  of  service  matter.   The  Apex  Court  observes 
thus:­
“Exercise of power under Section 482 of the Code in 
a case of this nature is the exception and not the 
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rule. The section does not confer any new powers 
on the High Court. It only saves the inherent power 
which the Court possessed before the enactment of 
the Code.   It envisages three circumstances under 
which   the   inherent   jurisdiction   may   be   exercised, 
namely,     (i)   to   give   effect   to   an   order   under   the 
Code,  (ii) to prevent abuse of the process of court 
and (iii) to otherwise secure the ends of justice. It is 
neither   possible   nor   desirable   to   lay   down   any 
inflexible   rule   which   would   govern   the   exercise   of 
inherent   jurisdiction.   No   legislative   enactment 
dealing with procedure can provide for all cases that 
may possibly arise. Courts, therefore, have inherent 
powers apart from express provisions of law which 
are necessary for proper discharge of functions and 
duties   imposed   upon   them   by   law.   That   is   the 
doctrine which finds expression in the section which 
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                       49               Criminal Application No.258.13 (APL)
merely   recognises   and   preserves   inherent   powers 
of   the   high   Courts.   All     courts,   whether   civil   or 
criminal,   possess,   in   the   absence   of   any   express 
provision, as inherent in their constitution, all such 
powers as are necessary to do the right and to undo 
a wrong in course of administration of justice on the 
principle   “   quando   lex   aliquid   alicui   concedit, 
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concedere videtur et id sine quo res ipsae esse non 
potest”   (when   the   law   gives   a   person   anything,   it 
gives him that without  which it cannot exist). While 
exercising powers under the section, the court does 
not   function   as   a   court   of   appeal   or   revision. 
Inherent jurisdiction under the section though wide 
has   to   be   exercised   sparingly,   carefully   and   with 
caution and only when such exercise is justified by 
the tests specifically laid down in the section itself. It 
is to be exercised ex debito justitiae to do real and 
substantial   justice   for   the   administration   of   which 
alone courts exist. Authority of the court exists for 
advancement of justice and if any attempt is made 
to abuse that authority so as to produce injustice, 
the court has power to  prevent abuse.  It would be 
an abuse of process of the court to allow any  action 
which   would   result   in   injustice   and   prevent 
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                       50               Criminal Application No.258.13 (APL)
promotion   of   justice.   In     exercise   of   the   powers, 
court would be justified to quash any proceeding if it 
finds   that   initiation/   continuance   of   it   amounts   to 
abuse of the process of court or quashing of these 
proceedings   would   otherwise   serve   the   ends   of 
justice.   When   no   offence   is   disclosed   by   the 
complaint, the court may examine the   question of 
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fact.  When a complaint is sought to be quashed, it 
is permissible to look into the materials to assess 
what the complainant has alleged and whether any 
offence   is   made   out   even   if   the   allegations   are 
accepted in toto. 
43.
It can, thus, be clearly seen that the Apex Court has held that 
inherent powers are all such powers that  are necessary to do the right 
and to undo a wrong in the course of administration of justice. The Apex 
Court   further   held   that   inherent   powers   are   to   be   exercised 
ex   debito   justitiae  to   do   real   and   substantial   justice   for   the 
administration of which alone courts exist. It has been further held that 
the authority of the court exists for advancement of justice and if any 
attempt is made to abuse that authority so as to produce injustice, the 
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                       51               Criminal Application No.258.13 (APL)
court has power to prevent abuse.  It has been further held that to allow 
any   action   which   would   result   in   injustice   and   prevent   promotion   of 
justice could be abuse of process of the court.  It has been further held 
that in exercise of the powers, court would be justified to quash any 
proceedings if it finds that initiation/ continuance of it amounts to abuse 
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of   the   process   of   court.     It   has   been   held   that   when   a   complaint   is 
sought   to   be   quashed,   it   is   permissible   to   look   into   the   materials   to 
assess what the complainant has alleged and whether   any offence is 
made out even if the allegations  are accepted in toto.
 It will also  be appropriate to refer to the observations of the 
Apex Court in the case of   R.Kalyani   vs. Janak C. Mehta and others 
(2009) 1 SCC 516, which reads thus:
44.
“ 15, Propositions of law which emerge from the said 
decisions are:
(1) The High Court ordinarily would not exercise 
its   inherent   jurusdiction   toquash   a   criminal 
proceedings   and,   in   particular,   a   first 
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                       52               Criminal Application No.258.13 (APL)
information   report   unless   the   allegations 
contained therein, even if given face value and 
taken to be correct in their entirely, disclosed 
no cognizable office.
(2) For   the   said   purpose   the   Court,   save   and 
except   in   very   exceptional   circumstances, 
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the defence.
would not look to any document relied upon by 
(3) Such   a   power   should   be   exercised   very 
sparingly.   If the allegations made in the FIR 
disclose   commission   ofan   offence,   the   Court 
shall   not   go   beyond   the   same   and   pass   an 
order in favour of the accused to hold absence 
of any means rea or actus reus.
(4) If the allegation discloses  a  civil  dispute, the 
same by itself may not be ground to hold that 
the criminal proceedings should not be allowed 
to continue.
      16.
It is furthermore well known that no hard­
and­fast rule can be laid down. Each case has to be 
considered   on   its   own   merits.    The   Court,   while 
exercising   its   inherent   jurisdiction,   although   would 
not   interfere   with   a   genuine   complaint   keeping   in 
view the purport and object for which the provisions 

of   Section   482   and   483   of   the   Code   of   Criminal 
Procedure   had   been   introduced   by   Parliament   but 
would   not   hesitate   to   exercise   its   jurisdiction   in 
appropriate cases.   One of the paramount duties of 
the  superior courts   is   to see  that  a person  who is 
apparently innocent is not subjected to persecution 
and  humiliation  on the  basis   of  a false and  wholly 
45.

untenable complaint.”
As   already   discussed   hereinabove,   the   present   case   is 
nothing else but a glaring  example of harassment and humiliation to the 
Officers of the State Government, at the instance of   another employee 
of  the State Government, so as to settle the score with them on account 
of   his   grievances   of   denial   of   promotion.       As   already   discussed 
hereinabove,     though   the   Screening   Committee   consisted   of   three 
senior officers viz.  Chief Secretary, Additional Chief Secretary and the 
Director   General of Police, the complainant has chosen only one of 
them.     As   we   have   already   pointed   out   hereinabove   that   one   of   the 
members i.e. Shri Ratnakar Gaikwad who at the relevant time was Chief 
Secretary belongs to Scheduled Caste.   The complainant, for the best 

reasons known to him, has not made any allegations against other two 
officers.  If the Chief Secretary would also have been made accused by 
the complainant, may be the complaint under the Atrocities  Act itself 
would   not   have   been   tenable.   It,   therefore,     speaks   volumes   of   the 
It may not be out of place to mention that day in and day out 
46.
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complainant’s intentions.
we come across various cases wherein the provisions of the Atrocities 
Act are misused.  We find that various  complaints are filed  immediately 
after   the   Gram   Panchayat   Elections,   alleging   offences   under   the 
Atrocities   Act.    We   have  no   hesitation   in  saying  that  in   many   of   the 
instances,   it  was   found   that   the  complaints   were   filed     only   to  settle 
score   with   their   opponents,   after   defeat   in   the   Gram   Panchayat 
elections.   We have also come across various cases wherein private 
civil   disputes   arising   out   of   property,   monetary   matters,   disputes 
between   the   members   and   office   bearers   of   cooperative   societies; 
disputes between the trustees of the Charitable Trusts are given penal 
and   complaints   are   being   filed   either   under   Section   190   read   with 

Section 200 or under Section 156(3) of Cr.P.C..  In many of such cases, 
we   have   come   across   that   the   learned   Magistrates   are   passing 
mechanical   orders   directing   investigation   under   Section   156(3)   of 
Cr.P.C.,   without   recording   any   reasons   and   without   verifying   as   to 
whether the complaint discloses the ingredients to constitute the offence 
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or not.   It is needless to say that least that is expected of the learned 
Magistrate before passing the order under Section 156(3) of Cr.P.C., is 
to satisfy himself, that taking the allegations to be true in entirety, as to 
whether  the ingredients   to constitute    the  offence alleged  have been 
made out or not. The least that is expected of   the learned Magistrate 
while passing an order, directing investigation is to at least give some 
reasons, as to why he finds substance in the complaint and as to how 
the   complaint   discloses   ingredients   to   constitute   the   offence   alleged. 
The learned Magistrates ought to take  into consideration, that passing 
such mechanical orders in complaints which do not have any criminal 
element   causes   great   hardships,   humiliation,   inconvenience   and 
harassment   to   the   citizens.     For   no   reasons,   the   reputation   of   the 
citizens  is   put  to  stake  as   immediately   after  said  orders  are   passed, 

47.
innocent citizens are termed as accused.  
In the present matter, as has   already been held by us that 
the complaint does not disclose the ingredients to constitute the offence 
under the provisions of the Atrocities Act.  We have no hesitation to say 
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that   the   complaint   and   the   order   passed   by   the   learned     Magistrate 
under   Section   156(3)   of   Cr.P.C.,   are   nothing   else   but   an   abuse   of 
process of the court. We have no hesitation to hold that continuance of 
the   proceedings   would   amount   to   humiliation,   harassment   and 
persecution of the officers of the State against whom allegations have 
been made in the complaint and would perpetuate injustice.  May be the 
respondent complainant has a case, insofar as his grievance of denial of 
promotion   is   concerned,   but   the   forum,   he   has   chosen,   is   not   one 
wherein he can seek redressal. We have no hesitation in observing that 
the respondent  complainant if has  genuine grievance, he could have 
very   well   approached   the   Central   Administrative   Tribunal.   If   his 
contention   that   he   was   denied   promotion   when   he   was   entitled   was 
found   to   be   justified   by   the   learned   Tribunal,   the   learned   Tribunal   is 
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                       57               Criminal Application No.258.13 (APL)
always empowered to grant him all the reliefs including deemed date of 
promotion.     However,   the   course   that   has   been   chosen   by   the 
respondent  complainant  is  not  the   one,  which  is   permissible in  law. 
Having come to the considered conclusion that the complaint so also 
the   order   passed   under   Section   156(3)   of   Cr.P.C.,   and   subsequent 
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registration of First Information Report by police is nothing, but an abuse 
of process of law, the application deserves to be allowed.
th
In that view of the matter, the order dated 30   March, 2013 
48.
passed by the learned Judicial Magistrate First Class in Miscellaneous 
F.I.R. by the Police Station, Dhantoli Nagpur are hereby quashed and 
set aside.
Rule made absolute in aforesaid terms.  No order as to costs. 
Criminal Application No. 683/2013   and the subsequent registration of 

                 

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