Interim Order 2

Order Details: Order
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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
C.C.No.826/MISC/2018
ORDER PASSED ON PROTEST APPLICATION FILED AT EXH.NO.02
(Passed on 27/05/2025)
The informant namely Pratima Rai filed the present protest
petition on hand against the ‘B’ summary report filed by the Officer-in-
charge of Police Station Versova, Mumbai. Before dealing with the
protest petition, it is necessary to mention here the facts of the FIR
which the informant, Pratima Rai had lodged against Ramesh Nainani
on 07/04/2018 before the Police Station Versova. The facts mentioned
in the FIR are summarized as under:
“Shri Ramesh Nainani and the informant Pratima Rai reside in
Gayatri Co.operative Housing society, near Bonbon, Sat
Bungalow, Andheri (West), Mumbai. Said Ramesh Nainani is
the next door neighbour of the informant. It is alleged by the
informant that on 03/04/2018 at about 7.15 a.m. the informant
opened the door of her flat and came out in the common
passage to collect the news paper. Meanwhile, said Ramesh
Nainani also opened his inner main door of his flat and showed
middle finger of his right hand towards the informant by
making obscene gestures. Hence, the informant felt ashamed.
Thus, according to the informant, said Ramesh Nainani had
intention to outrage her modesty. Thereafter, on 07/04/2018 at
about 11.00 a.m. said Ramesh Nainani was getting the angle of
the C.C.T.V. camera changed by his technician. At that time, said
Ramesh Nainani stood behind the informant. When the
informant felt that she was touched by left side, then she asked
said Ramesh Nainani not to touch and further asked as to why
said Ramesh Nainani came close to her. It is further alleged that
in spite of taking the objections, the complainant and the said
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C.C.T.V. technician moved forward. Said Ramesh Nainani
insulted the informant. Thus, according to the informant, said
Ramesh Nainani used criminal force to the informant intending
to outrage her modesty. Said Ramesh Nainani is also alleged to
have made gesture intending to insult the modesty of the
informant. Hence, the informant, Pratima Rai lodged the First
Information Report against said Ramesh Nainani on
07/04/2018 before the Police Station Versova and accordingly
the offence punishable under section 354 (A) and 509 of Indian
Penal Code was registered against said Ramesh Nainani vide
Crime No.144/2018 dated 07/04/2018.”
2. During the course of investigation, the concerned
Investigating Officer recorded the statements of the witnesses and
seized pen drive. He collected the other evidence. Having investigated
the matter, the concerned investigating officer of the said offence filed
‘B’ summary before this Court on 01/12/2018 wherein it is mentioned
that the informant had lodged false FIR against said Ramesh Nainani
and therefore, no offence is made out as alleged by the informant.
3. On 09/08/2019, the informant, Pratima Rai approached
this Court and filed the protest petition on the ground that the
concerned investigating officer did not investigate the matter in
accordance with law. According to her, the police had acted in partial
manner and recorded the statements of the persons who are favourable
to accused. She raised several another grounds in the protest
application and prayed to reject the said ‘B’ summary.
4. In view of the said protest petition, the learned predecessor
of this Court rejected the ‘B’ summary filed by the Police Station Versova
and gave directions for further investigation. The concerned Police
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Station was directed to submit the report within next two months. This
order came to be passed on 06/10/2022.
5. On 09/07/2024, the Senior Police Inspector Versova filed
the report in pursuance of the order dated 06/10/2022 passed by the
learned Predecessor of this Court. In the said report, it is mentioned
that no sufficient evidence is available against Ramesh Nainani who is
shown as the accused in the FIR lodged by the informant on
07/04/2018.
6. On 09/07/2024, the informant filed the application before
this Court and submitted that the report filed on record is not in the
prescribed format as contemplated under section 173 of the Code of
Criminal Procedure and therefore, the informant sought the direction
against the said Police Station Versova for filing the report as per the
provisions of section 173 of the Code of Criminal Procedure.
7. It is pertinent to note here that on 09/07/2024, said
Ramesh Nainani sue moto appeared before this Court and sought the
permission to participate in this matter on the ground that the first ‘B’
summary which was filed by the police authority was already rejected
and the police authority again failed ‘B’ summary. According to said
Ramesh Nainani, the informant adopted delay tactics. He further
mentioned that he would suffer great loss, if he is not heard in this
matter. On that application dated 09/07/2024, the say of the informant
was called. The informant opposed the application on the ground that
said Ramesh Nainani is not arraigned as accused and the process is yet
to be issued. Therefore, according to the informant, the accused has no
locus-standi to participate in the proceeding. Having heard both the
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parties, this Court allowed that application. However, the record shows
that the informant has challenged the order passed by this Court on
09/07/2024 whereby said Ramesh Nainani is allowed to participate in
the protest petition proceeding filed by the informant. The said
Criminal Revision Application (201 of 2024) is still pending before the
Hon’ble Court of Session, Dinoshi, Mumbai. Thus, it appears that the
informant has objected the participation of said Ramesh Nainani in the
present protest petition and the matter is subjudice before the Hon’ble
Session Court, Dindoshi, Mumbai. However, there is no stay in this
matter granted by the higher Court. Hence, this Court is of humble
opinion that there is no bar to proceed further with the protest petition
filed by the informant against the ‘B’ summary.
8. The learned advocate for Shri Ramesh Nainani filed the
written notes of argument and placed reliance on the following
citations:
i Judgment passed by Hon’ble Apex Court in Special Leave
Petition (Cri) 1093 of 2021
ii (2006) Supp (3) SCR 704
iii (1990) Supp (3) SCR 259
iv Judgment passed by Hon’ble Apex Court in Special Leave
Petition (Cri) 9598 of 2022
9. I have gone through the citations relied upon by the
learned advocate for Shri Ramesh Nainani. With due respect to the
ratio laid down therein, this Court is of humble opinion that in all these
citations the scope of Section 482 of the Code of Criminal Procedure is
discussed. Moreover, the facts and circumstances mentioned therein are
different than that of the facts and circumstances of the present case on
hand.
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10. The learned advocate for the informant also filed his
written notes of argument and relied upon the several documents.
11. Having heard the learned advocates for both the sides, I
perused the record.
12. The record shows that the informant filed the another
protest petition on 21/11/2024 and mentioned the grounds which she
had already stated in the prior protest petition dated 09/08/2019. Said
Ramesh Nainani filed the reply to this petition on 01/12/2025. In the
present case on hand, while filing the ‘B’ summary report on
01/12/2018, the concerned investigating officer mentioned that the
informant had given the false complaint against said Ramesh Nainani.
However, while filing the report on 09/07/2024, the concerned Police
Station mentioned that there is dispute between the informant and the
accused Ramesh Nainani on the ground of installation of C.C.T.V.
camera. It is further mentioned in the report dated 09/07/2024 that
the statement of the informant came to be recorded under section 164
of the Code of Criminal Procedure. As per the averments made in the
said report, it appears that the informant stood side by side to said
Ramesh Nainani. Moreover, it is further mentioned in that report that
the offence punishable under section 509 of Indian Penal Code is made
out. Thus, it appears that the concerned investigating officer has given
two different opinions about the alleged incident. In other words, after
perusal of the ‘B’ summary filed on dated 01/12/2018 and the report
filed on dated 09/07/2024, it prima facie appears that both the report
filed by the same police station are contrary to each other. In such
circumstances, it cannot be certainly said that no offence is made out.
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13. It is settled that the summary/final report or closure report
filed by the police is not substantive evidence. Therefore, it is not
binding on the Court. Moreover, the learned predecessor of this Court
has already rejected the ‘B’ summary filed by the concerned Police
Station. In such scenario, this Court is guided by the ratio laid down by
the Hon’ble Apex Court in the case of Bhagwant Singh Vs Commissioner
of Police and Anr., which is reported in (1985) 2 SCC (537). In this
citation, the Hon’ble Apex Court held that on receipt of a negative
report, the following four courses are open to the Magistrate -
i to accept the report and to drop the proceeding;
ii to direct further investigation to be made by the police;
iii to investigate himself or refer the investigation to be made by
another Magistrate under section 159 of the Code of Criminal
Procedure and
iv to take cognizance of the offence under section 200 of the Code
of Criminal Procedure as private complaint when the material
are sufficient in his opinion as if complainant is prepared for
that course.
14. The record shows that on 06/10/2022, the learned
predecessor of this Court has already rejected the ‘B’ summary and
directed further investigation. However, while filing the report dated
09/07/2024, the concerned investigating officer has mentioned that
there was dispute between the informant and Ramesh Nainani on the
day of incident as mentioned in the FIR dated 07/04/2018. The FIR
shows that the offence punishable under section 354 (A) and 509 of
Indian Penal Code was registered against said Ramesh Nainani. In
such circumstances, having regard to the material placed on record, this
Court is of humble opinion that the present protest petition may be
treated as the private complaint case.
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15. After perusal of the record, it appears that the matter was
argued on 15/05/2025. Thus, it appears that the present proceeding on
hand is regulated under the provisions of the Bharatiya Nagarik
Suraksha Sanhita, 2023.
16. Since this complaint is made under chapter XVI of the
Bharatiya Nagarik Suraksha Sanhita, it is necessary to give the accused
an opportunity of being heard as per the provision of Section 223 of the
Bharatiya Nagarik Suraksha Sanhita.
17. In the case of Sri Basanagauda R. Patil (Yatnal) Vs Sri
Shivananda S. Patil (Criminal Petition No.7526 of 2024 decided on
27/09/2024) the Hon'ble Karnataka High Court observed that
“
A complaint is presented before the Magistrate under section 223 of
the Bharatiya Nagarik Suraksha Sanhita; on presentation of the
complaint, it would be a duty of the Magistrate, concerned Court to
examine the complainant on oath, which would be his sworn statement
and examine the witness present if any, and the substance of such
examination should be reduced into writing. The question of taking of
cognizance would not arise at this juncture. The Magistrate has to, in
terms of the proviso, issue a notice to the accused who is given an
opportunity of being heard. Therefore, notice shall be issued to the
accused at that stage and after hearing the accused, take cognizance
and regulate its procedure thereafter”.
18. In view of the ratio laid down in the citation
supra and the
provisions of section 223 of the Bharatiya Nagarik Suraksha Sanhita,
this Court is of humble opinion that taking of cognizance under section
223 of the Bharatiya Nagarik Suraksha Sanhita would come after
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recording the sworn statement of the complainant and the witness if
any. Hence, I proceed to pass the following order:
ORDER
The complainant shall file sworn statement and examine witness
if any.
Sd/-
( Sujitkumar C. Tayde )
Judicial Magistrate First Class,
Date :- 27/05/2025 44th Court, Andheri, Mumbai.
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