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Madhya Pradesh High Court · body

2008 DIGILAW 1031 (MP)

STATE v. ALOK SINGHAI

2008-08-18

RAKESH SAKSENA

body2008
Judgment ( 1. ) THIS revision has been registered as suo-motu criminal revision by the orders of the Honble the Chief Justice in the matter of order dated 19. 06,2008 passed by Shri D. K. Singh, J. MFC, Bhopal in an unregistered complaint filed by Alok Singhai and Narendra Bhavsar against Shri Justice ripusudan Dayal, Lokayukta, M. R and his wife Smt. Usha Dayal under Sections 420. 465, 467 and 471/34 of the Indian Penal Code making allegation that they with a view to obtain illegal benefit committed forgery in the land acquisition and development scheme lease deed executed by the Housing Commissioner of M. P. Housing Board, Bhopal. Along with the complaint, an application under Section 156 (3) of the Code of Criminal Procedure was also filed. ( 2. ) LEARNED Magistrate after perusal of the material on record, on 19. 06. 2008 passed an order under Section 156 (3) of the Code of Criminal Procedure directing the Officer Incharge of Police Station Kohefiza, Bhopal to register the First information Report, if from the complaint any cognizable offence appeared to have been committedq The documents filed by the complainants were also sent along with the aforesaid order. The case was fixed on 20. 08. 2008. ( 3. ) ON 25. 06. 2008, the Station Officer of Police Station Kohefiza filed its report before the Court of Magistrate. Learned Magistrate ordered it to be put up for consideration on 20. 08. 2008, the date on which the case was already fixed. ( 4. ) THE action for taking up this matter as suo- motu revision arose when the deputy Secretary of Lokayukta Office sent a letter dated 27. 06. 2008 to the registrar General of High Court on the direction of Lokayukta with a view to inform the real state of affairs of the case. In the said letter; it was mentioned that the Director General of Special Police Establishment had filed a complaint against Alok Singhai and Narendra Bhavasar on 12. 06. 2008 under Sections 182, 193, 199 and211 of the Indian Penal Code in the Court of Shri D. K. Singh, J. M. F. C. , bhopal. After hearing the arguments on the said complaint, on 16. 06. 2008 learned magistrate fixed the case for orders on 26. 06. 2008. 06. 2008 under Sections 182, 193, 199 and211 of the Indian Penal Code in the Court of Shri D. K. Singh, J. M. F. C. , bhopal. After hearing the arguments on the said complaint, on 16. 06. 2008 learned magistrate fixed the case for orders on 26. 06. 2008. Thereafter, Alok Singhai and narendra Bhavasar filed a complaint against Lokayukta and his wife before Shri d. K. Singh, J. M. F. C, Bhopal on 18. 06. 2008. Learned Magistrate finding that he had no jurisdiction to entertain the complaint, returned it to the complainants under section 201 of the Code of Criminal Procedure for its presentation to the proper court. On 19. 06. 2008, Alok Singhai and Narendra Bhavasar then filed the present complaint against Lokayukta and his wife under Sections 420, 465, 467 and 471/ 34 of the Indian Penal Code in the Court of Shri D. K. Singh, whereupon he passed an order under Section 156 (3) of the Code of Criminal Procedure directing the officer Incharge of Police Station Kohefiza to register the First Information Report if a cognizable offence is found and to file report in this regard. ,on 25. 06. 2008, police Kohefiza presented its report to the effect that from the facts stated in the complaint no cognizable offence was found to have been committed. It was further mentioned in the aforesaid letter that another complaint filed by the Special Police establishment against the complainants was fixed for hearing on 26. 06. 2008, but magistrate Shri D. K. Singh went on leave. ( 5. ) ANOTHER paper which addressed to nobody and purports to be signed by r. Dayal, is also on record, in which it has been stressed that in the present complaint the learned Magistrate passed the order dated 19. 06. 2008 without applying mind and without even ascertaining whether the allegation discloses commission of any cognizable offence. According to it, on bare perusal of the complaint no offence was disclosed on the basis of allegations contained therein. It has also been mentioned that two complaints containing similar allegations were also filed by the same complainants before the Director General, S. P. E. . The facts of those complaints were verified by the Special Police Establishment and it was found that the allegations made in complaints were not only false, but also actuated with malafides. It has also been mentioned that two complaints containing similar allegations were also filed by the same complainants before the Director General, S. P. E. . The facts of those complaints were verified by the Special Police Establishment and it was found that the allegations made in complaints were not only false, but also actuated with malafides. It was also found that both the complainants had committed offences under Sections 182, 193, 199 and 211 of the Indian Penal code, as such, a complaint was filed by the Director General, S. P. E. before the magistrate for prosecuting them on 12. 06. 2008 and all the evidence which was collected to show that the complaints were false and motivated, had been annexed. The complaints filed earlier before the Director General, S. P. E. were similar to that which was filed before the same Magistrate. The only difference was that in the complaint which had been filed before the S. P. E. the offences under Section 13 (lxd) of the Prevention of Corruption Act and under Section 120-B of the indian Penal Code were also mentioned, whereas the complainants omitted this part in the complaints filed before Magistrate Shri D. K. Singh. This was done because otherwise the Magistrate could not have jurisdiction to entertain the complaint and the case could have been entertained only by the Special Judge designated under the provisions of the Prevention of Corruption Act. It has been stated that this fact was within the knowledge of the Magistrate as he himself had heard the matter relating to the complaint filed by the Director General, S. P. E. . It has further been stated that palpably false statements were made with a view that Shri D. K. Singh, Magistrate might have jurisdiction to hear the case. In the end, it has been mentioned that all this suggests a nexus between the Magistrate and complainants. ( 6. ) ON examining the order dated 19. 06. 2008, the documents and the record of the complaint, I am of the view that no case for interference in the impugned order, in the revisional jurisdiction of this Court is made out. ( 7. ) IT is well settled that the Magistrate has to proceed and pass the. orders in a case on the basis of material on record of that particular case. ( 7. ) IT is well settled that the Magistrate has to proceed and pass the. orders in a case on the basis of material on record of that particular case. He is not supposed to remember and pass the orders in a case on the basis of facts of any other case much less on his personal memory. Even if another complaint was filed by the director General, S. P. E. against the complainants alleging that the allegations made by the complainants against Lokayukta and his wife were false and were actuated with malafides, the complainants were not debarred from filing the complaint before the Magistrate. In Anandwardhan and another vs. Pandurang and others, (2005) 11 SCC 195 , the Apex Court observed "we do not wish to make any comments about the investigation of the case or the result of the investigation. The law provides that if the police fails to investigate a case arising from a first information report lodged before it disclosing commission of a cognizable offence, it is open to the informant / complainant to move the Magistrate concerned for appropriate order under Section 156 Crpc, or may file a complaint and obtain appropriate orders from him for issuance of process against the accused for trial. If the grievance of the respondent was that the police was not properly investigating his case, or that the report made by the police was wrong or based on no investigation whatsoever, it was open to him to move the Magistrate concerned. " ( 8. ) EVEN if the first complaint filed by the complainants was returned by the magistrate to the complainants on the ground that he had no jurisdiction to entertain the same as commission of offence under Section 13 (l) (d) of the Prevention of corruption Act was alleged, it did not debar the Magistrate to entertain the complaint again, if those allegations were omitted by the complainants in the second complaint. ( 9. ) ON perusal of the order dated 19. 06. 2008, it is apparent that learned magistrate instead of taking recourse to examine the complainants and record their evidence, simply passed an order under Section 156 (3) of the Code of Criminal procedure with a direction to the Police to register the First Information Report if a cognizable offence is found to have been committed on the facts alleged in the complaint. The learned Magistrate even did not direct the Police to register the first Information Report. Section 156 of the Code of Criminal Procedure reads as under:- "156. Police Officers power to investigate cognizable case:- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. " It is clear that any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter-XIII and any Magistrate empowered under Section 190 may order such an investigation as mentioned in sub-section (1) of Section 156 of the Code of Criminal Procedure. ( 10. ) IN Madhu Bala Vs. Suresh Kumar and others, AIR 1997 SC 3104 , the apex Court held that "whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the Police Rules. Therefore, the direction of a Magistrate asking the police to register a case makes an order of investigation under Section 156 (3) cannot be said to be legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156 (1) of the Code which empowers the Police to investigate into a cognizable case and the Rules framed under the police Act, 1861 it (the Police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of Magistrate to direct the police to register a case at the police station and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of Magistrate to direct the police to register a case at the police station and then investigate into the same. " "when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190 (l) (a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate police Station under Section 156 (3) for investigation. Once such a direction is given under sub section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a police report in accordance with Section 173 (2) on which a Magistrate may take cognizance under Section 190 (l) (b) but not under 190 (l) (a ). " ( 11. ) IT is true that the learned Magistrate ought to have expressed in the order if he prima facie found the complaint disclosing a cognizable case, before passing the order under Section 156 (3) of the Code of Criminal Procedure, but he left it on the police to register the First Information Report if it found the commission of a cognizable offence on the facts alleged in the complaint, but every mistake does not necessarily call for correction. ( 12. ) OFFICER Incharge of Police Station Kohefiza, Bhopal submitted its report before the learned Magistrate on 25. 06. 2008 stating that the facts mentioned in the complaint did not constitute a cognizable offence, therefore, it would not be in accordance with law to register the First Information Report under Section 154 of the Code of Criminal Procedure or a report even under Section 155 of the Code of Criminal Procedure for a non-cognizable offence. ( 13. ) IN view of the above, in my opinion it would not be appropriate to interfere in the order dated 19. 06. 2008 passed by the learned Magistrate and direct him to reconsider the material on record and pass a fresh order. ( 14. ( 13. ) IN view of the above, in my opinion it would not be appropriate to interfere in the order dated 19. 06. 2008 passed by the learned Magistrate and direct him to reconsider the material on record and pass a fresh order. ( 14. ) THOUGH the allegation made against the learned Magistrate that there had been a nexus between him and the complainants appears to be baseless and unfounded, yet in the peculiar circumstances of the case it would be appropriate, in order to put the matter beyond the pale of slightest suspicion, in the interest of justice that it may also appear to have been accorded, to exercise the power vested in this Court under Section 407 (2) of the Code of Criminal Procedure, to transfer the present case from the Court of Shri D. K. Singh, J. M. F. C. , Bhopal to the Court of Chief Judicial Magistrate, Bhopal for hearing it himself or to make it over to some other competent Magistrate for proceeding according to law. ( 15. ) FOR the reasons stated above, I find no ground for interference in the impugned order in the revisional jurisdiction of this Court. This revision is accordingly, disposed of subject to the aforesaid direction of transfer of the case to the Chief Judicial Magistrate, Bhopal. ( 16. ) RECORD of the lower Court be sent back immediately. Revision disposed of.