Final Order 1

Pdf Text: IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
29TH COURT, DADAR, MUMBAI
ORDER BELOW EXHIBIT- 1
IN CC NO.1191/MISC/2024
This is an application filed by the informant viz. Vaijayanta
Gudlkar in accordance with Section 156 (3) of the Code of Criminal
Procedure.
02. According to the applicant, the accused have taken loan of
Rs.1,05,000/- from the informant in the year-2020. They have not
repaid that loan. On dated 28/08/2023, at about 8.30 p.m., the
accused called the informant and her mother-in-law for having a talk
about money. They called the informant at Somaiyya Hospital Ground.
When the informant and her mother-in-law reached to Somaiyya
Hospital Ground, the accused arrived thereat. They abused and
assaulted the informant and her mother-in-law with kick and fist blows
along with wooden stick. The accused have also pushed the informant
on ground. Therefore, the informant and her mother-in-law sustained
grievous hurt. Hence, the informant went to police station to lodge the
report. However, as per insistence by Station House Officer, the
informant first undergone treatment at Sion Hospital along with taking
CT Scan, lodged report with the police station. However, I.O. has not
recorded FIR as per statement of the informant, he applied wrong
sections of the IPC and also, has not seized weapon of assault. Even
after approaching to DCP with written complaints on dated 25/06/024
and 26/06/2024, no further statement of the informant has been
recorded by I.O. On these grounds, the informant prayed for
investigation in accordance with Section 156 (3) of the Code of
Criminal Procedure.
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03. In Vinubhai Malaviya V/s. State of Gujrat (2019 SCC
OnLine SC 1346), the Hon’ble Supreme Court held that, “ Under
Section 156 (3) of the Code of Criminal Procedure, all powers
necessary, which may also be incidental or implied, are available to
the Magistrate to ensure a proper investigation in the matter in the
sense of a fair and just investigation by the police. Said power
includes ordering of further investigation after submission of police
report under Section 173 (2) of the Code of Criminal Procedure.
Exercise is available even at post cognizance stage until trial
commences i.e. charges are framed. This power can also be exercised
su-moto by the Magistrate himself, depending on the facts of each
case.”
04. As per ratio from Abdul Latheef V/s. State of Kerala
(Criminal Revision Petition NO. 1579/2012 decided on dated
22/08/2014 by the Hon’ble Kerala High Court), the application filed
by the informant in person is well maintainable under Section 173
(8) of the Code of Criminal Procedure.
05. In light of above said ratios, perusal of the FIR shows that
statement of the informant is recorded on dated 29/08/2023 by LPSI
Sonali Jadhav. The substance of the report is that the informant and
her husband provided financial help to the accused in the year-2020.
Said amount has not been returned back by them. On dated
28/08/2023, at about 7.40 p.m., the accused viz. Ashok called the
informant and her mother-in-law for having a talk about hand loan
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C.C.No.2901191/MISC/2024
Exh.1
amount. Accordingly, the informant and mother-in-law went to
Somaiyya Hospital Ground as per say of accused. The accused were
present thereat. Discussion took place between them. But, during
that discussion, altercation took place between them. The accused
viz. Prabhavati snatched hair of the informant and pushed her on
ground, due to which, she sustained injury to her left cheek. As also
the accused viz. Ashok abused mother-in-law of the informant and
pushed her on ground. The accused viz. Pratik and Abhishek hurled
abuses to them. After taking treatment at Sion Hospital, the
informant lodged report with the police station.
06. Hence, it is clear that as per the report itself, the accused
have, in furtherance of their common intention, intentionally caused
hurt to the informant. In addition to this, copy of medical certificate
issued by Sion Hospital shows that there is specific allegation of
assault to the informant as well as her mother-in-law with use of
stick.
07. In circumstances, as the accused have caused hurt to the
informant with use of stick, then, it is but natural, that she should
state said fact in FIR lodged by her. But, this fact is nowhere
mentioned in FIR registered by LPSI Jadhav. Furthermore, at least as
per statement recorded by I.O. herself, she ought to have register
crime for the offence punishable under Section 325 and 504 of the
IPC. But, she registered the offence punishable under Section 337
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and 338 of the IPC i.e. grievous hurt caused due to negligence and
without any intention. As no mentioning of assault with stick is there
in FIR, there would be no question of seizure of same. However, as
stated earlier, there is allegation of assault with use of stick at the
time of medical treatment, which took place prior to lodging FIR by
the informant. Hence, this scenario prima facie goes to show that
there is no fair and just investigation conducted by I.O. viz. LPSI
Sonali Jadhav.
08. In circumstances, it is clear that there is lacuna/lapses in
investigation at hands of I.O. Hence, for the proper investigation for
just decision of the case, directions for further investigation will meet
ends of justice. Hence, the order :-
-::- O R D E R -::-
(01) The application is allowed.
(02) I.O. shall conduct further investigation in accordance
with Section 173 (8) of the Code of Criminal Procedure
and shall file report.
(03) The petition stands disposed off and be tagged with
4412/PS/2023.
(04) J. C. shall intimate order to the concerned Police Station.
(P. S. Shinde)
Date :- 21.07.2025 Judicial Magistrate First Class,
Place :- Dadar, Mumbai. 29th Court, Dadar, Mumbai.
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