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CORAM : R. M. JOSHI, J.
RESERVED ON : 11th OCTOBER, 2023.
PRONOUNCED ON : 23rd OCTOBER, 2023.

JUDGMENT

1. A landlord is interested in seeking possession of premises

let out to tenants. Tenant fled suit seeking injunction against the

landlord and subsequent purchasers restraining them from

obstructing their possession over the property. Landlord commits

suicide. Police get information about the said suicidal death and also

suicide note left behind by the deceased. No offence is registered.

Tenants are called in the police station and they are detained there

for more than 24 hours. While they are in custody of police,

premises concerned are demolished. Documents were got executed

from them in presence of police personnel. The contents of document

are approved by PI of Police Station. Said documents are to the effect

that the tenants are voluntarily surrendering tenancy rights in favour

of the landlord.

2. These are broadly set of facts, as they are appearing from

applications being Misc. Application No. 137/2022 and 147/2022

fled by the tenants before Judicial Magistrate First Class, Amalner,

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for seeking direction to register crime and to investigate the same

under Section 156(3) of Code of Criminal Procedure. Learned

Magistrate, on the day of presentation of complaint, placed the said

matters for recording verifcation. Verifcations were recorded on 3 rd

October, 2022 and 12th October, 2022 respetively. Thereafter, order

dated 20th December, 2022 was passed directing an inquiry under

Section 202 of Code of Criminal Procedure and to call report from

Superintendent of Police, Jalgaon about involvement of non-

applicants No. 7 to 13 therein.

3. Being not satisfed with the said order,

respondents/original applicants/tenants preferred Criminal Revision

Application No. 4/2023 and 5/2023 under Section 397 of Code of

Criminal Procedure before Additional Sessions Judge, Amalner. By

passing order dated 23rd March, 2023, said revision came to be

allowed and the order passed by Judicial Magistrate First Class,

Amalner on 20th December, 2022 was set aside. It was directed that

application fled before Judicial Magistrate First Class be forwarded

to the concerned police station for investigation under Section 156(3)

of Code of Criminal Procedure. Direction was issued to Local Crime

Branch, Jalgaon to conduct investigation into the said crime.

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Petitioners being aggrieved by orders passed by Revisional Court have

preferred petitions involving Article 227 of Constitution of India and

Section 482 of Code of Criminal Procedure.

4. Petitioners in Criminal Writ Petitions No. 473/2023 and

474/2023 are police personnel attached to Amalner Police Station at

the relevant time. Criminal Applications No. 1209/2023 and

1210/2023 are fled by purchasers of the property in question from

erstwhile landlord deceased Rajeev Ramrao Chavan. Brother of the

deceased fled Criminal Applications No. 1377/2023 and 1378/2023.

Since all these petitions/applications involve same facts and similar

questions of law, by consent of both sides, they are heard together

fnally and decided by this common judgment.

5. Broadly, it is the contention of the petitioners that no

offence has been committed by them and the tenants/applicants on

their own accord has executed documents/affdavit as well as

possession receipt handing over possession of the tenanted premises

to the wife of the deceased landlord. The purchasers of the said

property claim that they have no concern with the said transaction

as possession of property is handed over to wife of deceased.

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Similar is the case of brother of deceased and he claims that he has

neither witnessed the said document nor possession is handed over

to him. As far as police personnel are concerned, it is their main

contention that considering the provisions of Section 156(3) and 197

of Code of Criminal Procedure and in particular Maharashtra

Amendment of 2015 to Section 156(3), no offence could be directed to

be registered against them without obtaining sanction as they are

public servants. It is also sought to be claimed that once cognizance

is taken by Magistrate of application as complaint, it is not open to

direct registration of First Information Report and investigation into

the same. Similarly, as report of enquiry under Section 202 of Code

of Criminal Procedure has been fled, it is not open to turn the clock

back.

6. Submissions :

Criminal Writ Petitions No. 473/2023 and 474/2023

6.1 Learned Senior Counsel among other contentions raised

following issues and relied upon binding precedents to support his

submissions :-

(i) Order directing the complainant to record verifcation amounts

to taking cognizance and since the said order has not been

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challenged, it was not open for the Revisional Court to set the clock

back.

(ii) In view of Maharashtra Amendment to Section 156(3) of Code

of Criminal Procedure, no offence can be registered against any

public servant without obtaining prior sanction, irrespective of fact

whether offence alleged is arising out of or related to discharge of his

duties.

(iii) That it is not been open for the Magistrate at that stage to

decide as to whether the alleged acts on the part of public servant

are arising out of discharge of their duties or in the colour of the duty

and that the same only could be considered by the Sanctioning

Authority while granting of sanction. (Sainath vs. State of

Maharashtra and others, 2018 ALL MR (Cri) 2151), ( Anil Kumar and

others vs.M. K. Aiyappa and others, (2013) 10 SCC 705)

(iv) There is non-compliance of Section 154 of Code of Criminal

Procedure which is mandatory for the purpose of maintaining an

application under Section 156(3) of Code of Criminal Procedure.

(Priyanka Srivastava and others vs. State of U.P. and others, AIR 2015

SC 1758) and (Wasim Ishaque Shaikh and others vs. Aileen

Darabshaw Mistry, MANU/MH/0729/2023)

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(v) Filing of affdavit is mandatory and failure on the part of

complainant to fle affdavit disentitles him to seek any order under

Section 156(3) of Code of Criminal Procedure. (Babu Venkatesh and

others vs. State of Karnataka and others, (2022)5 SCC 639)

Criminal Applications No. 1209/2023 and 1210/2023

6.2 Learned counsel for applicants apart from adopting above

submissions argued that the Revisional Court has committed serious

error of appreciation of facts and has recorded incorrect fnding in

respect of execution of document and handing over possession of the

disputed property etc. According to him, purchasers of the property

have nothing to do with possession obtained from the tenants. He

also contended that once the matter is placed for verifcation, the

Court is deemed to have taken cognizance of application as complaint

and hence it is not open for the Magistrate thereafter to issue any

order under Section 156(3) of Code of Criminal Procedure. He also

drew attention of the Court to the report of inquiry conducted by the

police authorities under Section 202 of Code of Criminal Procedure

submitted before the Judicial Magistrate First Class to claim that the

order passed by the Judicial Magistrate First Class has been

implemented and hence the order of Revision Court does not sustain.

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He relied upon judgments in case of Rameshbhai Pandurao Hedau

vs. State of Gujrat, (2010) 4 Supreme Court Cases 185 and Suresh

Chand Jain vs. State of M.P. and another, (2001) 2 Supreme Court

Cases 628 to support his submissions.

Criminal Applications No. 1377/2023 and 1378/2023

6.3 Learned counsel for applicants made submissions about

incorrect observations recorded by the learned Additional Sessions

Judge in the impugned order. In this regard, it is submitted that the

brother of the deceased has no concern with the taking over of

possession of the disputed property or execution of affdavit etc.

However, such observations are incorrectly made while passing

impugned order. He also adopted arguments of other counsels.

6.4 Learned counsel for respondents/tenants supported the

impugned order. It is his submission that Maharashtra Amendment

to Section 156(3) would apply only if the offence committed by a

public servant has nexus to his duty and done while performing of

his duty and not otherwise. By drawing attention of Court to report

of inquiry, submitted by Additional Superintendent of Police, it is

argued that prima facie offences alleged against the petitioners are

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cognizable and hence Magistrate committed error in not issuing

directions under Section 156(3). It is also submitted that there is

substantial compliance of direction of Hon’ble Apex Court while fling

application.

Facts appearing from record :

7. Prima facie perusal of material placed on record and in

particular inquiry conducted by Additional Superintendent of Police

more than suffciently demonstrates that Rajeev was owner/landlord

of property wherein two tenants had premises in their possession.

Landlord sold property to purchasers, vide registered sale-deed dated

27th October, 2021. Tenant fled suit being Regular Civil Suit No.

27/2021 against landlord and subsequent purchasers, seeking order

restraining interference in his possession over tenanted premises.

On 8th March, 2022, Rajeev committed suicide and AD was registered

vide No. 18/2022 under Section 174 of Code of Criminal Procedure on

the same day. It further appears that it was informed to the Amalner

police about a suicide note being left by the deceased holding tenants

responsible for his death. Inspite of such knowledge of the concerned

police no First Information Report was registered. Admittedly,

tenants were called to Amalner Police Station on 9th March, 2022.

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They were detained in the police station for 28 hours (which claimed

to be a voluntary stay, in the enquiry conducted by Additional

Superintendent of Police). While they were in police station, the

tenanted premises were demolished by using JCB. Documents

surrendering tenancy were executed in presence of police personnel

of Amalner Police Station. The said fact of apparent illegal

detainment of tenants gets confrmed by letter dated 21 st October,

2022 issued by Dr. Rajeev Mundhe, Superintendent of Police

addressed to PI Hire, i.e. petitioner in Criminal Writ Petitions No.

473/2023 and 474/2023 certifying him for registration of crime

immediately, though the report was lodged after 25 days of incident

of suicide. Superintendent of Police also confrms the fact that the

complainants/tenants were detained in the police station and though

it is observed that it is not legally correct but no action is taken in

this regard by stating that he does not fnd any ill-motive therein.

8. In the light of aforestated facts, the Applications under

Section 156(3) of Code of Criminal Procedure before Judicial

Magistrate First Class were fled for seeking direction to the

concerned police station to investigate into the crime and subsequent

events in Magistrate Court are required to be considered. In

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Applications, specifc allegations are made against the petitioners

herein and the facts regarding his illegal detention, obtainment of

Rs. 1,00,000/- by police personnel, obtainment of documents and

demolition of the premises are specifcally averred. In paragraph No.

5 of the application, it is specifcally stated that on 4 th April, 2022, a

complaint was lodged with concerned police station as well as

reminder was issued on 18th April, 2022.

Non-compliance of Section 154(1) and (3) of Code of Criminal

Procedure :

9. Section 154 of Code of Criminal Procedure requires the

information in respect of cognizable offence to be given to the Offcer

In-charge of the police station. Sub-section (3) provides that any

person aggrieved by refusal on the part of the Offcer In-charge of

police station to record information may send substance of such

information in writing to the Superintendent of Police. Section 156 of

Code of Criminal Procedure enables the Magistrate to order

investigation. The Hon’ble Apex Court in case of Priyanka Srivastava

(supra) has held that for the purpose of exercising powers under

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Section 156(3) of Code of Criminal Procedure, compliance of Section

154(1) and 154(3) is mandatory.

10. In the instant case, there is specifc pleading in the

application that on 4th April, 2022, a complaint was made to the PI

Amalner Police Station giving details with regard to the acts which

prima facie disclose offence against petitioners. There is further

pleading to the effect that reminder was issued on 18 th April, 2022.

There are documents on record which indicate that said written

complaint was received by Amalner Police Station on 4 th April, 2022.

Section 154(1) of Code of Criminal Procedure, mandates Offcer

Incharge of a police station to record substance of a oral or written

complaint in book to be kept by such offcer in form as prescribed by

State Government. Acknowledgment of complaint dated 4th April,

2022 fled on record shows that there is compliance of Section 154(1)

of Code of Criminal Procedure. The said complaint is also addressed

to the other senior offcers including Superintendent of Police,

Amalner. However, no cognizance of the said complaint has been

taken by the concerned police station. There is compliance of Section

154(1) of Code of Criminal Procedure. As regards compliance of

Section 154(3) of Code of Criminal Procedure, admittedly, complaint

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dated 4th April, 2022 was addressed to all superior offcers including

Superintendent of Police and reminder was also issued on 18 th April,

2022. Thus, this is not a case wherein without approaching to

concerned police station or higher police authorities, an application

came to be fled before Magistrate invoking his jurisdiction under

Section 156(3) of Code of Criminal Procedure. No further compliance

is expected from any victim of the crime at the hands of police

personnel. Thus, this Court fnds no substance in the contention of

petitioners that there is non-compliance of Section 154(1) and

Section 154(3) of Code of Criminal Procedure.

Cognizance of complaint by Magistrate :

11. It is the main contention of petitioners that the learned

Magistrate by directing applicants to record verifcation has taken

cognizance of the same and since the said order has not been taken

exception to, now it is not open for the complainant to claim that the

order under Section 156(3) of Code of Criminal Procedure should

have been passed by the Magistrate.

12. At the outset, it needs to be recorded that tenants fled

application under Section 156(3) of Code of Criminal Procedure and

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not complaint contemplated by Section 2(d) of Code of Criminal

Procedure. An application would constitute a complaint, if

allegations are made with a view that Magistrate takes action under

this Code. A bare perusal of applications in that case, would show

that the same is made only for direction under Section 156(3) of Code

of Criminal Procedure and not for any other purpose. There is no

defnition of term ‘cognizance’ in Code of Criminal Procedure however,

in view of judgments of Hon’ble Supreme Court, it can be said that

taking cognizance only happens when a Magistrate examines the

alleged commission of offence and a critical analysis of the facts

before the Court is done and further action is taken thereon. Thus,

for the purpose of taking cognizance there must be application of

mind by the Magistrate to the facts of the case and it also must

reflect from order passed.

The Hon’ble Apex Court in case of Anil Kumar (supra) in

paragraph No. 8 has observed thus :-

“8. …… The application of mind by the Magistrate

should be reflected in the order. The mere statement
that he has gone through the complaint, documents
and heard the complainant, as such, as reflected in
the order, will not be suffcient. After going through

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the complaint, documents and hearing the

complainant, what weighed with the Magistrate to
order investigation Under Section 156(3) Code of
Criminal Procedure, should be reflected in the order,
though a detailed expression of his views is neither
required nor warranted…..”

13. In the instant case, it is absolutely clear from the record

that as is often found done by Magistrates in a private complaint, the

application was posted for recording verifcation mechanically, which

reflects from said order “put up for verifcation”. This does not

indicate any application of mind to the facts of the case before

passing said order. Even at the time of recording of verifcation

statement of complainant, the Magistrate was not required to apply

his judicious mind to facts of the case and was only expected to

record statement given by complainant on oath. It is thus clear that

for the frst time on 20 th December, 2022, while passing the

impugned order, the learned Magistrate can be said to have taken

cognizance of the applications and after analysing the facts and

circumstances, as reflected in the said order, direction was issued for

obtaining report under Section 202 of Code of Criminal Procedure.

Thus, cognizance has been taken of only on 20 th December, 2022 and

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not at any time before. The applicants have promptly challenged the

said order before the Revisional Court. Thus, this Court fnds no

reason or justifcation to accept the contention of petitioners that the

Magistrate has taken cognizance of the complaint with order of “put

up for verifcation” and recording of verifcation. Even otherwise,

applicants had asked for direction under Section 156 (3) of Code of

Criminal Procedure and if Magistrate was not inclined to issue such

directions, he could have simply dismissed applications.

Non-fling of affdavit along with application :-

14. Issue is raised about non-fling of affdavit along with

complaint which is a mandatory requirement after the judgment of

the Hon’ble Apex Court in case of Babu Venkatesh (supra). Hon’ble

Apex Court in the said judgment has observed that :-

“25. This Court has clearly held that, a stage has

come where applications Under Section 156(3) of
Code of Criminal Procedure are to be supported by an
affdavit duly sworn by the complainant who seeks
the invocation of the jurisdiction of the Magistrate.

26. This Court further held that, in an appropriate

case, the learned Magistrate would be well advised to
verify the truth and also verify the veracity of the

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allegations. The court has noted that, applications

Under Section 156(3) of the Code of Criminal
Procedure are fled in a routine manner without
taking any responsibility only to harass certain
persons.

27. This Court has further held that, prior to the

fling of a petition Under Section 156(3) of the Code of
Criminal Procedure, there have to be applications
Under Section 154(1) and 154(3) of the Code of
Criminal Procedure. This Court emphasizes the
necessity to fle an affdavit so that the persons
making the application should be conscious and not
make false affdavit. With such a requirement, the
persons would be deterred from casually invoking
authority of the Magistrate, Under Section 156(3) of
the Code of Criminal Procedure. In as much as if the
affdavit is found to be false, the person would be
liable for prosecution in accordance with law.”

29. From the perusal of the complaint it can be

seen that, the complainant/Respondent No. 2 himself
has made averments with regard to the fling of the
Original Suit. In any case, when the complaint was
not supported by an affdavit, the Magistrate ought
not to have entertained the application Under Section
156 (3) of the Code of Criminal Procedure. The High
Court has also failed to take into consideration the

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legal position as has been enunciated by this Court in

the case of Priyanka Srivastava v. State of U.P.
(supra), and has dismissed the petitions by merely
observing that serious allegations are made in the
complaint. (emphasis supplied.)

Hon’ble Apex Court therefore has held that for the

purpose of fling of an application under Section 156(3) of Code of

Criminal Procedure, compliance of Section 154(1) and (3) is must.

Meaning thereby, an application under this provision would not be

tenable in case of said non-compliance. However, Hon’ble Apex

Court, while holding that when application under Section 156(3) is

not supported by an affdavit, Magistrate ought not to have

entertained that application. Thus, bar is created for entertainment

of application unless affdavit in support thereof is fled by applicant.

In respectful view of this Court fling of an affdavit even after fling of

application, would make the same entertainable. Thus, it would be

open for the applicant to fle affdavit in the intervening period from

fling of application and eterntainment thereof and such defect could

be curable one.

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In a recent judgment, Hon’ble Apex Court in case of

Godrej Sara Lee Ltd. vs. Excise and Taxation Offcer, 2023 SCC

OnLine Sc 95 has distinguished terms “maintainability” and

“entertainability” in the context of exercise of writ jurisdiction with

following observations in paragraph No. 4. Relevant part thereof is

reproduced thus :-

“4. …… Though elementary, it needs to be restated

that “entertainability” and “maintainability” of a writ
petition are distinct concepts. The fne but real
distinction between the two ought not to be lost sight
of. The objection as to “maintainability” goes to
theroot of the matter and if such objection were found
to be of substance, the courts would be rendered
incapable of even receiving the lis for adjudication. On
the other hand, the question of “entertainability” is
entirely within the realm of discretion of the high
courts, writ remedy being discretionary.”

Though these observations pertain to maintainability or

entertainability of writ petition, before High Courts but from ratio

culled out therefrom it can be said that in case of non-

maintainability there would be complete bar to the jurisdiction such

as not compliance of Section 154(1) and (3) before fling application

under Section 156(3). But as far as non-fling of affdavit is

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concerned, application becomes non-entertainable, meaning thereby

on compliance of requirement of fling of affdavit such application

can be entertained by Magistrate.

15. Moreover, from observations made by Hon’ble Apex Court

in case of Babu (supra) it is clear that in an appropriate case

Magistrate would bewell advised to verify truth and verify veracity of

allegations and direction of fling an affdavit is to ensure that

complainant takes responsibility of the allegations and that he would

be deterred from casually invoking authority of the Magistrate. Thus,

in appropriate case, Magistrate may call upon the applicant to fle

affdavit in support of complaint and to owe responsibility of

statements made therein. A reference can be made to judgment of

Uttarakhand High Court in case of Commercial Toyota vs. State of

Uttarakhand and another in Criminal Revision Application No.

252/2019 wherein it is held thus :-

“12. The very observation made in paragraph 30 ( as

quoted above) of the judgment of the Priyanka
Srivastava’s case (supra) where a responsibility has
been shouldered on the Magistrate with regards to the
priority of the application to be supported by an
affdavit, i.e. the stage when the proceedings are

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initiated that in itself makes the defect of the

application being supported by an affdavit as to be
curable in nature because if an application is not
supported by an affdavit and is rejected, it may in a
particular circumstance result into depriving of a right
of a citizen to invoke the proceedings of Section 156(3)
and in these circumstances the Court or the
Magistrate can always direct the applicant to fle an
affdavit in support of his application under Section
156(3) so as to make it maintainable before the Court.
If that defect of application under Section 156(3) not
being supported with affdavit, is made as an
uncurable, it may at times in some cases be giving
superior hard to the Magistrate to deprive the
applicant of fling application under Section 156(3) by
rejecting the same on this procedural ground itself.”

Thus, in the instant case, it would be open to relegate

the matter back to the learned Magistrate with direction to seek

compliance of the fling of affdavit before passing appropriate order.

However, in the peculiar facts and circumstances of the case, wherein

there are serious allegations against police personnel and matter in

question pertains to two years before, it would not be advisible to call

upn the respondents/tenants to go before the Magistrate and seek

order afresh. In any event, in the instant case, tenants on oath

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before Magistrate have reiterated contents of application and thus

they owned responsibility thereof. Having considered peculiarity of

facts of this case, the same can be treated substantial compliance of

directions of Hon’ble Apex Court, which of course may not be

applicable in any other case.

Direction under Section 156(3) of Code of Criminal

Procedure against public servant :

16. It is sought to be canvassed by learned Senior Advocate

in Criminal Writ Petitions No. 473/2023 and 474/2023 that with

introduction of the Maharashtra amendment to Section 156(3), there

is complete ban on fling of First Information Report against public

servant without sanction irrespective of the fact whether the act has

been done while acting or purporting to act in discharge of offcial

duties or not. To support this submission reliance is sought to be

placed on the judgment of Division Bench of this Court in case of

Sainath (supra).

17. Perusal of judgment of Sainath does not show that any

such preposition as sought to be canvassed by the petitioners is

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accepted by the Court. Paragraph No. 9 of the said judgment shows

that what has been held therein is that direction under Section

156(3) against public servant cannot be issued in respect of act done

or purported to be done in discharge of duties, without sanction.

18. In order to meet these submissions it would be relevant

to refer to provisions of Section 197 and 156(3) of Code of Criminal

Procedure, which read thus :-

197. Prosecution of Judges and public servants :-

(1) When any person who is or was a Judge or
Magistrate or a public servant not removable from his
offce save by or with the sanction of the Government
is accused of any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his offcial duty, no Court shall take
cognizance of such offence except with the previous
sanction [save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013] -

(a) xxx

(b) xxx

[Explanation – For the removal of doubts it is hereby

declared that no sanction shall be required in case of

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a public servant accused of any offence alleged to have

been committed under section 166-A, section 166-B,
section 354, section 354-A, section 354-B, section
354-C, section 354-D, section 370, section 375,
section 376, section 376-A, section 376-AB, section
376-C, section 376-D, section 376-DA, section 376-
DB] or section 509 of the Indian Penal Code.
(2) xxx
(3) xxx
(4) xxx

19. This provision therefore creates bar to take cognizance of

any offence committed by public servant in respect of act done or

purported to have been done in discharge of duties. At this stage it

would also be relevant to consider Section 156 of Code of Criminal

Procedure, which reads thus :

156. Police offcer’s power to investigate cognizable

case –
(1) Any offcer in charge of a police station may,
without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over
the local area within the limits of such station would
have power to inqure into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police offcer in any such
case shall at any stage be called in question on the

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ground that the case was one which such offcer was
not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190
may order such an investigation as above-mentioned.

Sub-section (3) empowers Magistrate to direct

investigation, as mentioned in sub-section (1). Unlike Section 197,

which deals with stage of cognizance, stage for the invocation and

exercise of power by Magistrate under Section 156(3) is not of taking

cognizance. Therefore, there was found abuse of this provision by

unscrupulous persons to cause harassment to public servants.

Apparently, in order to curb such complaints, amendment to Section

156 (3) was introduced in State of Maharashtra.

20. The Amendment Act XXXIII of 2016, is reproduced herein

below :-

WHEREAS it is expedient further to amend

the Code of Criminal Procedure, 1973, in its
application to the State of Maharashtra; it is hereby
enacted in the Sixty-sixth Year of the Republic of
India as follows:-

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1. (1) This Act may be called the Code of

Criminal Procedure (Maharashtra Amendment) Act,
2015.

(2) It shall come into force on such date as the

State Government may, by notifcation in the Offcial
Gazette, appoint.

2. In section 156 of the Code of Criminal

Procedure, 1973, in its application to the State of
Maharashtra (hereinafter referred to as “the said
Code.”) after sub-section (3), the following provisos
shall be added, namely:-

“Provided that, no Magistrate, shall order an

investigation under this section against a person
who is or was a public servant as defned under any
other law for the time being in force, in respect of
the act done by such public servant while acting or
purporting to act in the discharge of his offcial
duties, except with the previous sanction under
section 197 of the Code of Criminal Procedure, 1973
or under any law for the time being in force:

Provided further that, the sanctioning

authority shall take a decision within a period of
ninety days from the date of the receipt of the
proposal for sanction and in case the sanctioning

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authority fails to take the decision within the said

stipulated period of ninety days, the sanction shall
be deemed to have been accorded by the
sanctioning authority.”

3. In section 190 of the said Code, in sub-

section (1), after clause (c), following provisos be
added, namely :-

“Provided that, no Magistrate shall take

cognizance of any offence alleged to have been
committed by any person who is or was a public
servant as defned under any other law for the time
being in force, while acting or purporting to act in
the discharge of his offcial duties, except with the
previous sanction under section 197 of the Code of
Criminal Procedure, 1973 or under any law for the
time being in force :

Provided further that, the sanctioning

authority shall take a decision within a period of
ninety days from the date of the receipt of the
proposal for sanction and in case the sanctioning
authority fails to take the decision within the said
stipulated period of ninety days, the sanction shall
be deemed to have been accorded by the
sanctioning authority.”.

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21. This indicates that the amendment is not only made to

Section 156 but also to Section 190 of Code of Criminal Procedure.

By virtue of this amendment bar is created to take cognizance of

complaint and investigation of crime against public servant, when

offence is alleged to have been committed while acting or purporting

to act in discharge of duty. Thus, there can not be iota of doubt that

intention of legislature is not to protect any act of public servant but

only those acts which are done in discharge or purported discharge

of duty by such public servant. Legislature never seems to have

intended to extend protection to the public servant in respect of acts/

offences unconnected with discharge of duty. When any such

intention is apparently absent, it would not be open to accept the

preposition that no offence can be registered or investigated into

against the public servant even in respect of act having no bearing on

discharge of his duties.

22. Next contention raised is about Magistrate having no

right to ascertain whether the act/offence alleged to have been

committed is in discharge of duties or not and it has left to the

discretion of sanctioning authority. Maharashtra Amendment to

Section 156 of Code of Criminal Procedure shows that no Magistrate

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shall order any investigation in respect of act done by public servant

in discharge of his duties. Meaning thereby, before passing any such

order, Magistrate to come to conclusion of course prima facie that the

act alleged against public servant forms part of or is in discharge or

even purported discharge of duties. It is neither appearing from the

relevant provisions nor it would be appropriate to leave such decision

which involves application of judicious mind to the discretion of

Administrative Authority. In considered view of this Court, only

possible interpretation of provision of Section 156 as amended by

State of Maharashtra would be that in case Magistrate fnds that the

offence/act alleged against public servant is touching to discharge of

his duties and if there is absence of previous sanction no direction of

investigation can be issued under Section 156(3) of Code of Criminal

Procedure.

Exercise of power under Section 397 of Code of Criminal

Procedure by Revisional Authority

23. Learned Revisional Court has rightly observed in the

impugned judgment in paragraph No. 20 that acts alleged against the

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public servant are not in discharge or purported discharge of their

duties. The observation about conspiracy hatched by the accused

gets support from facts apparent on record. While exercising power

under Section 397 of Code of Criminal Procedure, Revisional Court is

permitted to go into legality of order impugned before it. Perusal of

order of the Magistrate dated 20th December, 2022, does not show

proper application of mind to the facts and law and it was rightly

interfered with by Revisional Court.

24. Prima facie perusal of facts on record indicates that

cognizable offences are committed by petitioners and in such

circumstances it was not open for the Magistrate to refuse

investigation under Section 156(3) of Code of Criminal Procedure. In

this regard, useful reference can be made to the judgment of Hon’ble

Apex Court in case of XYZ vs. State of Madhya Pradesh, 2022

LiveLaw (SC) 676 and paragraphs No. 22 to 24 of the judgment are

reproduced below :-

“22. In the present case, the narration of facts

makes it clear that upon the invocation of the
jurisdiction of the Magistrate under Section 156(3)
of CrPC, the JMFC came to the conclusion that
serious allegations had been levelled against the

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accused by the appellant and, that, from a perusal

of the documents in this regard, the statements of
the complainant were satisfactory. After taking note
of the fact that the police had at an earlier stage
reported that the occurrence of an incident or
offence was not found, the JMFC opined that, from
the facts which were set out by the complainant in
the complaint, prima facie, the occurrence of an
offence was shown.

24. Therefore, in such cases, where not only does

the Magistrate fnd the commission of a cognizable
offence alleged on a prima facie reading of the
complaint but also such facts are brought to the
Magistrate’s notice which clearly indicate the need
for police investigation, the discretion granted in
Section 156(3) can only be read as it being the
Magistrate’s duty to order the police to investigate.
In cases such as the present, wherein, there is
alleged to be documentary or other evidence in the
physical possession of the accused or other
individuals which the police would be best placed to
investigate and retrieve using its powers under the
CrPC, the matter ought to be sent to the police for
investigation. (emphasis supplied)

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Thus, once cognizable offence is made out it is duty of

Magistrate to exercise powers under Section 156(3) and direct

investigation therein which in the case in hand has not been

exercised by Magistrate. Revisional Court, therefore, has rightly

invoked its jurisdiction under Section 397 of Code of Criminal

Procedure and directed investigation of crime. In the instant case,

application fled before Magistrate and material placed before this

Court, this is a ft case wherein investigation must be done into the

allegations against petitioners and others.

Direction to Local CID to investigate :-

25. Impugned order is also challenged on the ground that

learned Additional Sessions Judge has exceeded its jurisdiction by

directing investigation into the crime to be conducted by Local CID,

Jalgaon. By referring to Section 156 and 36 of Code of Criminal

Procedure, it is contended that the concerned police station or

superior offcer than Incharge of police station may conduct

investigation. There is no doubt that the provisions of Section 156

and 36 deal with power of police offcers to conduct investigation,

within the local area of jurisdiction of that police station. It is

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therefore not open for the learned Revisional Court to direct

investigation by any other agency. Exercise of jurisdiction under

Section 397 of Code of Criminal Procedure ought to have been

restricted to the challenge to the order impugned. The direction

issued by the said Court with regard to the agency to investigate

cannot sustain.

26. However, in particular facts and circumstances of the

case, it would not be in the interest of justice even to direct

Superintendent of Police of Jalgaon district to conduct investigation

leave apart any offcer inferior to him. The said opinion is inevitable

in view of the documentary evidence on record. The enquiry

conducted by Additional Superintendent of Police clearly shows

prima facie unlawful detention of the complainant in the police

station however, the Superintendent of Police of the district fails to

initiate any action in this regard on his own. Infact he goes one step

ahead and gives certifcate to PI, Amalner Police Station that there

was no ill motive in the said detention of complainants by concerned

police personnel and furthermore appreciates prompt recording of

First Information Report, when admittedly no First Information

Report is lodged for 25 days, though police had knowledge of

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commission of cognizable offence after suicidal death of Rajeev, which

is in utter disregard to the dictum of Lalita Kumari’s case by

Supreme Court.

27. It would be travesty of justice if investigation into the

crime is entrusted to local police station or even to the

Superintendent of Police. This Court, therefore, fnds it ft to invoke

its inherent jurisdiction under Section 482 of Code of Criminal

Procedure and to issue direction to concerned police station to

register crime on the basis of the compliant made before Magistrate

in Criminal Misc. Applications No. 137/2022 and 146/2022 and

forthwith to transfer investigation to Crime Investigation Department,

Ahmednagar. Having regard to the alleged involvement of high rank

police personnel in crime in question, the said investigation shall be

conducted by any offcer not below rank of Deputy Sperintendent of

Police. Such offcer is not permitted to delegate investigation to any

offcer inferior to his rank. Investigation of crime be completed at the

earliest.

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28. In the above circumstances, challenge made to the

impugned order must fail. Petitions/applications stand dismissed

with above observations and directions.

29. Pending application, if any, does not survive and stands

disposed of.

30. Learned counsel for applicants/petitioners seek

extension of interim order for the period of four weeks to approach

the Hon’ble Apex Court.

31. Learned counsel for informant and learned APP opposed

the said request.

32. Since the order in question is in force from 21 st March,

2023, the same is extended for a period of four weeks from today.

( R. M. JOSHI)
Judge

dyb

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