Shekhar Sheshappa Karkera S/O. Sheshappa Karkera And ANR v. The State Of Maharashtra And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1361 OF 2014 Shekhar Sheshappa Karkera and anr ....

Petitioners

Versus

The State o Maharashtra and ors ....

Respondent Mr. Sanjeev Punalekar, a/w PRS Legal, for the petitioners. Mr. P.D. Dalvi a/w Mr.V. M. Dalvi, for respondent Nos 3 to 6 & 8. Mrs. A. S. Pai, for the respondent State.

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 24TH FEBRUARY 2016.

P.C. :

1.

Heard learned counsel for both the parties.

2.

This writ petition is preferred by the original complainants challenging the order dated 30th December, 2013, passed by the Additional Chief Metropolitan Magistrate, 30th Court, Esplanade, Mumbai, thereby directing that the allegations made by the petitioners in their complaint do not warrant any investigation by police and the cognizance can be taken by the Court also and therefore, directed the matter be put up for verification.

3.

Submission of learned counsel for petitioner is that the

petitioners and respondent Nos 3 to 6 and 8 are members of Bank of India Staff Co-operative Credit Society Ltd. Respondent Nos. 3 to 6 and 8 had committed irregularities in managing the affairs of the society. The petitioners, therefore, filed complaint with various authorities under Maharashtra Co-operative Societies Act, 1960, pursuant to which there was enquiry and various adverse observations were made against the committee of respondent Nos. 3 to 6 and 8, managing the affairs of the society. According to petitioners, the observations made in the enquiry report reveals commission of offence under Section 406, 408, 409, 420, 120(b) read with Section 34 of the Indian Penal Code and therefore, the petitioners have approached the trial Court with a request to refer the matter to Azad Maidan Police Station under Section 156(3) of the Code of Criminal Procedure for investigation. However, the trial Court instead of referring the complaint to police for investigation, took cognizance thereof directing the petitioners to remain present themselves for recording verification.

4.

As per learned counsel for petitioners, the enquiry as ordered by the trial Court may not be sufficient to unravel the various aspects of the acts and various irregularities committed by the managing committee of respondent Nos 3 to 8. The police can only properly do the same. Therefore, according to facts of the present case, it requires proper

investigation more than that of enquiry by the Court under Section 202 of the Code of Criminal Procedure, after taking cognizance of the case. 5.

However, as rightly submitted by learned counsel for respondent Nos. 3 to 8, once th trial Court has taken cognizance of the case which was legal within the jurisdiction of the trial Court, then this court should be slow in interfering in the discretion exercised by the trial Court. It is needless to say that when any private complaint is filed, there are two courses open to the Magistrate, one is to direct investigation under Section 156(3) of the Code of Criminal Procedure and the another course is to take cognizance under Section 202 of the Code and thereafter to direct enquiry by the police. Here in the present case, the course adopted by trial court cannot called as perse illegal or ab-initiovoid. In such situation, this Court cannot interfere in the impugned order passed by the trial court. This writ petition, therefore, holds no merits and hence stands dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.]