BANO RAHIM CHAUDHARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned counsel Shri M.P.Khajanchi for applicants, learned counsel Shri Raheel Mirza for non-applicant No.2, and learned Additional Public Prosecutor Shri M.J.Khan for non-applicant No.1/State. By consent, the matter is heard finally.

(2.) By this application under Sec. 482 of the Code of Criminal Procedure (CrPC), applicants seek following reliefs:

(3.) As per contention of applicants, non-applicant No.2 filed a criminal complaint bearing No.228/2014 before learned Judicial Magistrate First Class at Mangrulpir seeking direction to register offence against them in view of Sec. 156(3) of the Code of Criminal Procedure. It is alleged by the complainant that applicants, who were officers and employees of the Municipal Council, Mangrulpir, committed various irregularities during the period from years 2005-2006 to 2009-2010. It is further contention of the complainant that the said irregularities have been noted in the Washim District Local Fund Audit Report of the year 2012 and, therefore, he had lodged report with Mangrulpir Police Station on 10/11/2014 for criminal action against wrong doers. However, since the police have not taken any action, he filed a criminal complaint before learned Judicial Magistrate First Class at Mangrulpir. It is contention of applicants that though no offence is made out against applicants, learned Magistrate without application of mind directed to register First Information Report against applicants. In fact, the President of the Municipal Council has no direct control over day to day financial business of the Municipal Council. A Public Interest Litigation bearing No.54/2013 was also filed before this Court in which initiation of criminal proceedings against office bearers and officers of the Municipal Council for irregularities committed was prayed. Learned Magistrate had not considered the same before issuing directions. As per contention of applicants bare perusal of the order of learned Magistrate would demonstrate that it does not even reflect application of mind by learned Magistrate so as to conclude that cognizable offences are made out. The order passed by learned Magistrate is illegal and not following the due procedure of law. Learned Magistrate committed error in entertaining proceedings under Sec. 156(3) of the CrPC as there was no compliance under Sec. 154(3) of the CrPC by the complainant. The complainant also did not file necessary documents to show that there was compliance on the part of the complainant in respect of provisions under Sec. 154(3) of the CrPC. Before availing recourse under provisions of Sec. 156(3) of the CrPC, the complainant has to comply provisions of Sec. 154(3) of the CrPC. Therefore, the order passed by learned Magistrate deserves to be quashed and set aside.