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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

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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

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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

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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

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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

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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

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