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A civil court cannot ask the police to investigate an offence: Bombay high court

A civil court cannot direct the police to start criminal proceedings against anyone as this was a power that rested with a magistrate, said the Bombay high court on Wednesday

mumbai Updated: Mar 29, 2017 10:33 IST
Kanchan Chaudhari
The HC passed the order during criminal proceedings against Harishchandra Chavan, 78, and his 35-year-old son Santosh, residents of Nandgaon in Beed district.
The HC passed the order during criminal proceedings against Harishchandra Chavan, 78, and his 35-year-old son Santosh, residents of Nandgaon in Beed district.(HT)

The Bombay high court on Wednesday ruled that a civil court had no power to direct the police to investigate an offence or register an FIR. A magistrate, however, could ask the police to probe an offence through the power vested in him by the Criminal Procedure Code (CrPC).

The HC passed the order during criminal proceedings against Harishchandra Chavan, 78, and his 35-year-old son Santosh, residents of Nandgaon in Beed district. The father-son duo had filed a civil suit against one Ashok Shinde at Ambejogai to secure right of way to a piece of their land. While responding to the suit, Shinde made some counter allegations in his protest application filed in the civil court, and the judge issued an order to the Bardapur police to register an FIR, investigate the complaint and file a report. The police did as directed booked the father-son duo under provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 506 of the Indian Penal Code. The duo then approached the high court.

“The action of the civil judge (junior division) diverting a civil proceeding to criminal complaint and initiating penal action against the plaintiffs at the behest of defendant, appears somewhat strange,” said the division bench of Justice SS Shinde and Justice KK Sonawane, while quashing the criminal proceeding against the father and son.

The high court accepted the duo’s contentions saying that the presiding officer of the civil court should not have exercised powers conferred by the CrPC on a magistrate. “This is a unique case where the civil judge, junior division, while dealing with a civil proceeding, ventured to utilize the powers of a Magistrate as envisaged under the Code of Criminal Procedure, and proceeded to direct investigation under Section 156(3) of CrPC, barely on the protest application filed on behalf of the defendants in the suit,” reads the opening paragraph of the 16-page order.

“The presiding officer overlooked the law and exercised the powers of a magistrate. He should have remembered that he was dealing with civil proceedings and not a criminal complaint,” said the bench.“The defendant’s suit cannot be considered as a “complaint” according to Section 2(d) of the CrPC.”

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