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Judgment
Heard Shri Anil Mardikar, the learned Senior Advocate, assisted by Shri S.G. Joshi, Advocate appearing for the petitioner; and Shri S.D. Sirpurkar, the learned Additional Public Prosecutor appearing for the respondent.
Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
The challenge in this petition is to the order dated 882017 passed by the learned Special Judge & Additional Sessions Judge2, Wardha, in Crime No.247 of 2014 rejecting the closure report under Section 169 of the Criminal Procedure Code (Cr.P.C.) submitted by the prosecution. The order records the reasons as under : "... The investigation discloses the efforts of accused to pressurize the witnesses. Statements of victim were recorded repeatedly before Magistrate and Bal Kalyan Samiti disclosing the incident. Accused is a doctor, Was unknown to the victim under the circumstances with summary can not be filed. ..."
In the decision of the Apex Court in the case of Vasanti Dubey v. State of Madhya Pradesh, reported in (2012) 2 SCC 731, relied upon by Shri Mardikar, the learned Senior Advocate, it is held in para 21 as under : "21. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options: (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203; (ii) he is also entitled to take cognizance under Section 190 CrPC at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightaway direct submission of the chargesheet by the police."
It is apparent that upon submission of the report under Section 169 of Cr.P.C., the Court has two options: (i) the Court may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203; and (ii) the Court is also entitled to take cognizance under Section 190 of Cr.P.C. at once if it disagrees with the adverse police report but even in this circumstance, it cannot straightaway direct submission of the chargesheet by the police.
The order impugned in this petition does not disclose application of mind to the principles laid down by the Apex Court in the aforesaid decision. The learned Additional Sessions Judge has failed to adopt either of the two options and rejected the report. The order impugned cannot, therefore, be sustained and it will have to be set aside with an order of remand.
In the result, the petition is allowed. The order dated 8-8-2017 passed by the learned Special Judge & Additional Sessions Judge-2, Wardha in Crime No.247 of 2014, is hereby quashed and set aside. The learned Additional Sessions Judge to apply his mind to the principles laid down by the Apex Court in the aforesaid judgment and to adopt the proper course of action, as is permissible in law.
Rule is made absolute in the aforesaid terms.