J.G. Chitre, J.
1. Two petitioners are hereby taking exception to the act of in charge of Cuffe Parade Police station, by which a charge sheet has been filed against the petitioners in the Court of Metropolitan Magistrate, 37th Court Esplanade, Mumbai, dated 31/6/1994 for the offence punishable under provisions of Section 143, 145, 147, 148, 149, 353, 332, 447 of Indian Penal Code r/w Section 37/135 of Bombay Police Act. They are assailing the act of the learned Magistrate in taking cognizance against them for the said offences.
2. Shri Mundargi pointed out that annexures to the charge sheet did not make out a case against these two officers for the offences indicated above. He submitted that the said charge sheet submitted against the present petitioners and the cognizance taken by the learned Magistrate have to be quashed and these two petitioners be exonerated. He submitted in support of said contention that other persons who were indicted for these offences had pleaded guilty and they were resultantly punished.
3. Shri Saste, A.P.P. appearing for the State of Maharashtra made reference to the case diary and submitted that an appropriate order be passed in accordance with law. He requested the Court to peruse the case diary.
4. The entire material which has been placed in support of the charge sheet does not show that a notification as contemplated by Section 37 of Bombay Police Act was legally promulgated and published. There is nothing on record to show that any police officer called members of said assembly and asked the persons present in the said assembly to disassemble from it. At this juncture it is pertinent to note that the defence put forth by petitioner No. 1 is that he is activists of Human Right Institute and a practicing lawyer and he had gone there with inquisitiveness for knowing what was happening there. The petitioner No. 2 has claimed that he was a Journalist. The investigation done which resulted in the submission of charge sheet shows that there is force in the contention raised by the petitioners.
5. When the investigating officer after completing the investigation decides to submit a report for initiating the prosecution against accused, in view of provisions of Section 173 of Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience) he is bound to produce all the documents on which the prosecution intends to rely on for proving the guilt of the accused so indicted in the charge sheet. Needless to point out that those documents should make out a prima facie case against the persons who have been so mentioned in the charge sheet as accused in context with the offence for which they have been chargesheeted. In the present case it can be said that they were near or in near proximity of those persons who were taking said 'morcha.' The members of the said 'Morcha' were shouting some slogans for venting out their grievance but at the same time they were shouting nasty slogans against police officers and Bombay Police as a unit. The number of persons present in the said 'morcha' was very much uncontrollable and by itself was the problem to be controlled as the record shows. Therefore, it is possible that a mistake might have been committed by the concerned police officers in taking the petitioners in custody for some time and unfortunately, that resulted in submitting a charge sheet against them.
6. Journalist and social activities should not go touchingly near such sensitive situations at least now a days. Because by close proximity they would be inviting all sorts of risk. At least petitioners should have immediately informed the concerned police officers about their identity and purpose for coming to that spot. The petitioner No. 1 should have told immediately to those police officers that he was a legal practitioner and as a social activist was interested in protection of human rights. He was duty bound to tell those police officers in such aloud tone, which may have heard properly and would have understood them correctly and that would have made them to react appropriately. There was every possibility of those police officers not noticing their identity in that hustle and bustle tense situation. Same is the case in respect of the petitioner No. 2. He should have immediately disclosed his identify to those police officers and in the same way like petitioners No. 1. He should have also disclosed his identity that he was a journalist and was present there for lawful purpose. Everybody going near such situation, and near proximity of such situation has to do it now a days for getting safe of possible risk.
7. When the charge sheet is submitted in a Court the Magistrate taking cognizance of such charge sheet and report as contemplated by Section 173 of the Code has to apply judicial mind to the averments in the said charge sheet and report and its annexures for a prima facie scrutiny. He has to find out by judicial scrutiny whether a prima facie case has been made out against a person or all the persons who have been mentioned in the said charge sheet qua the offence mentioned in it. The Magistrate should not act in a mechanical way and should initiate criminal proceedings against said persons who have been mentioned in the charge sheet at once. A judicial enquiry has to be made to appropriate extent for finding out the prima facie case, if any, in respect of each accused mentioned in the charge sheet. Had that been done in this case then the present Application would not have taken birth and would not have demanded its hearing.
8. Let by gone be gone. This court now comes to the conclusion that prosecution which has been initiated against the present petitioners needs to be quashed for maintaining the clean flow of administration of justice with its majesty. Thus, a writ of certiorari stands granted in favour of the petitioners in view of Article 226, 227 of the Constitution and the said prosecution stands quashed by exercising the jurisdiction and authority conferred by provisions of Section 482 of the Code. The petitioners need not attend the said Court henceforth. Bond if executed by them be treated as cancelled. Case diary called from Mr. Yadav, Cuffe Parade Police station be handed over to him, as it is not required any more for hearing of this case. Shri Shankar Puri, A.C.P. Bandra stands discharged. He need not attend the Court.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.