HAMANT YASHWANT DHAGE Vs. STATE OF MAHARASHTRA & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 110 of 2016, Judgment Date: Feb 10, 2016

                                                                  REPORTABLE

                  IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 110 OF 2016
       (Arising out of Special Leave Petition(Crl.) No. 3251 of 2012)


HAMANT YASHWANT DHAGE                                           Appellant(s)       

                                     Versus


STATE OF MAHARASHTRA AND OTHERS                                Respondent(s)       


                                  O R D E R



SHIVA KIRTI SINGH, J.

1.    We have heard learned counsel for the parties at some length.
2.    Leave granted.
3.    Though the matter has remained pending for long, fortunately the  core
issue involved for our consideration is a very simple one.
4.    The appellant was respondent in two Criminal Appeals  bearing  Numbers
766 and 767 of 2010 arising out of a common judgment of the  High  Court  of
Bombay dated September 8, 2009 in CRL.W.P. No. 2482 of 2008.
5.    This Court disposed of both the appeals vide  order  dated  April  12,
2010.  It did not approve the action of  High  Court  in  entertaining  writ
petitions for change of investigating officer.  The relevant parts  of  that
order read as follows :-
“We are of  the  opinion  that  if  the  High  Courts  entertain  such  writ
petitions, then they will be flooded with such writ petitions and  will  not
be able to do any other  work  except  dealing  with  such  writ  petitions.
Hence, we have held that the complainant must avail of his alternate  remedy
to approach the concerned Magistrate under Section 156(3),  Cr.P.C.  and  if
he does so, the Magistrate will ensure, if  prima  facie  he  is  satisfied,
registration of the first  information  report  and  also  ensure  a  proper
investigation in the matter, and he can also monitor the investigation.

In view of the settled position  in  Sakiri  Vasu's  (supra),  the  impugned
judgment of the High Court cannot be sustained  and  is  hereby  set  aside.
The concerned Magistrate is directed to  ensure  proper  investigation  into
the alleged offence under  Section  156(3),  Cr.P.C.  and  if  he  deems  it
necessary he can also recommend to the S.S.P./S.P. concerned change  of  the
investigation  officer,  so  that  a  proper  investigation  is  done.   The
Magistrate can also monitor the  investigation,  though  he  cannot  himself
investigate (as investigation is the job of the police. Parties may  produce
any material  they  wish  before  the  concerned  Magistrate.   The  learned
Magistrate shall be uninfluenced by any observation in  the  impugned  order
of the High court.

The appeals are allowed in the above terms.

In view of the aforesaid order, no orders need be passed on the  application
for intervention and it is disposed of accordingly.”

6.    The appellant, in the capacity of complainant, approached the  learned
Judicial Magistrate F.C. Court No.2, Pune who took notice  of  this  Court's
order and issued several directions in RCC No. 0402459/2008  as  is  evident
from its order dated February 17, 2011,  including  relevant  directions  to
the  investigating  officer.  But   unfortunately   the   learned   Judicial
Magistrate came to a wrong conclusion that in the absence  of  any  specific
direction of this Court, the prayer of the complainant for  registration  of
F.I.R. had to be rejected.  The complainant then approached the  High  Court
of Bombay through  Criminal  Writ  Petition  No.  3009  of  2011  which  was
disposed of by the impugned order dated February 13, 2012.  The  High  Court
declined to issue a direction for registering an F.I.R. by taking  the  view
that it was open for the petitioner to  seek  clarification/modification  of
the order from the apex Court.
7.    Mr. Ram Jethmalani, learned senior counsel appearing on behalf of  the
appellant argued with vigor that investigation into a serious case has  been
unnecessarily delayed at the instance of vested  interests  and  hence  this
Court should now take a strong view and in the light of earlier order  dated
April 12, 2010, the police should be directed to treat the pending  case  as
a police case in view of implications arising from  Section  156(3)  of  the
Criminal Procedure Code (in short 'the Code').  He  further  submitted  that
without  wasting  much  time,  the  police   should   conduct   a   thorough
investigation and complete the same within a reasonable time period such  as
six months and submit its final views to the learned  Magistrate  through  a
proper report.
8.    Mr. P. Chidambaram,  learned  senior  counsel  appearing  for  private
respondents did not oppose the aforesaid prayer.  In fact, according to  his
submissions, the police could be asked to complete  the  investigation  even
in a shorter span of time and submit  its  final  views  to  the  Magistrate
without wasting time on the formality of registration of F.I.R.
9.    Mr. Arvind Sawant, learned senior counsel appearing on behalf  of  the
State of Maharashtra has drawn our attention to copies  of  various  reports
submitted by the investigating officer.  He expressed his  concurrence  with
the view that police may be directed to submit  its  final  opinion  in  the
matter through an appropriate report within a reasonable time.
10.   In view of the aforesaid broad consensus amongst the counsel  for  the
various parties, it is not necessary for us to go deeper into  the  relevant
issue of law as to whether the earlier  order  of  this  Court  dated  April
12,2010 warranted registering of F.I.R.  by  the  police  before  commencing
investigation. But  we would like to only indicate in brief the law on  this
subject expressly stated by this Court in the case of  Mohd.  Yousuf  versus
Afaq Jahan (Smt.) and another, (2006) 1 SCC 627.  This Court explained  that
registration of an  F.I.R.  involves  only  the  process  of  recording  the
substance of information relating to commission of  any  cognizable  offence
in a book kept by the officer incharge of the concerned police station.   In
paragraph 11 of the aforementioned case, the law was further  elucidated  by
pointing out that to enable the police to start investigation,  it  is  open
to the Magistrate to direct the police to register an F.I.R. and even  where
a Magistrate does not do so in explicit words but directs for  investigation
under Section 156(3) of the Code,  the  police  should  register  an  F.I.R.
Because Section 156 falls within chapter XII of the Code  which  deals  with
powers of the  police  officers  to  investigate  cognizable  offences,  the
police officer concerned would always  be  in  a  better  position  to  take
further steps contemplated in Chapter  XII  once  F.I.R.  is  registered  in
respect of the concerned cognizable offence.
11.   In our considered view, the same was the import of this Court's  order
passed on April 12, 2010.  In the light  of  the  said  earlier  order;  the
legal position noticed above and the  stand  of  the  parties,  we  have  no
difficulty in directing the concerned Magistrate and the police  officer  to
rectify their mistake by ensuring  registration  of  an  appropriate  F.I.R.
The delay in lodging of such F.I.R. occurring after  April  12,  2010  shall
not have any  effect  on  the  investigation  already  carried  out  by  the
investigating officer(s).  We also    direct  the  police  to  complete  the
investigation  fairly  and  in  accordance  with  law  at  an  early   date,
preferably within six months.  On receipt of  appropriate  report  from  the
police on conclusion of investigation,  the  learned  Magistrate  will  deal
with the matter strictly in accordance with law on the  basis  of  materials
available on record without being influenced by orders passed  by  different
Courts.
12.   The appeal is allowed to the aforesaid extent.


                                                   .......................J.
                                                               (M.Y. EQBAL)



                                                   .......................J.
                                                        (SHIVA KIRTI SINGH)
New Delhi,
February 10, 2016