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Madhya Pradesh High Court · body

2008 DIGILAW 996 (MP)

In reference v. Alok Singhai

2008-08-08

RAKESH SAKSENA

body2008
JUDGMENT : 1.This revision has been registered as suo rnotu criminal revisionl by theorders of the Hon'ble the Chief Justice in the matterof order dated 19-06-2008 passed by Shri O.K. Singh,JMFC, Bhopal in an unregistered complaint filed by Alok Singhai and Narendra Bhavsar against Shri Justice RipSudan Dayal , Lokayukta ,M.P. and his wife Smt . Usha Dayal under Sections 420,465,467 and 471/34 of theIndian Penal Code making allegation that they with a view to obtain illegalbenefit committed forgery in the land acquisition and development scheme leasedeed executed by the Housing Commissioner of M.P. Housing Board, Bhopal. Alongwith the complaint, an application under Section 156 (3) of the Code ofCriminal Procedure was also filed. 2.Learned Magistrate after perusal of the material on record, on 19-06-2008 passed an order underSection 156 (3) of the Code of Criminal Procedure directing the Officer Incharge of Police Station Kohefiza , Bhopal to register the FirstInformation Report, if from the complaint any cognizable offence appeared tohave been committed. The documents filed by the complainants were also sentalong with the aforesaid order. The case was fixed on 20-08-2008 . 3.On 25-06-2008 , the StationOfficer of Police Station Kohefiza filed its reportbefore the Court of Magistrate. Learned Magistrate ordered it to be put up forconsideration 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 onthe direction of Lokayukta with a view to inform thereal state of affairs of the case. In the said letter; it was mentioned thatthe Director General of Special Police Establishment had filed a complaintagainst Alok Singhai and Narendra Bhavasar on 12-06-2008 under Sections 182, 193,199 and 211 of the Indian Penal Code in the Court of Shri O.K. Singh, JMFC, 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 O.K. Singh, JMFC, Bhopal on 18-06-2008 . Learned Magistrate finding that hehad no jurisdiction to entertain the complaint, returned it to the complainantsunder Section 201 of the Code of Criminal Procedure for its presentation to theproper Court. Thereafter, Alok Singhai and Narendra Bhavasar filed a complaint against Lokayukta and his wife before Shri O.K. Singh, JMFC, Bhopal on 18-06-2008 . Learned Magistrate finding that hehad no jurisdiction to entertain the complaint, returned it to the complainantsunder Section 201 of the Code of Criminal Procedure for its presentation to theproper Court. On 19-06-2008, Alok Singhai and Narendra Bhavasar thenfiled the present complaint against Lokayukta and hiswife under Sections 420,465,467 and 471/34 of the Indian Penal Code in theCourt of Shri D.K. Singh, whereupon he passed anorder under Section 156 (3) of the Code of Criminal Procedure directing theOfficer Incharge of Police Station Kohefiza to register the First Information Report if acognizable offence is found and to file report in this regard. On 25-06-2008 , Police Kohefiza presented its report to the effect that from thefacts stated in the complaint no cognizable offence was found to have beencommitted. It was further mentioned in the aforesaid letter that anothercomplaint filed by the Special Police Establishment against the complainantswas 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 stressedthat in the present complaint the learned Magistrate passed the order dated19-06-2008 without applying mind and without even ascertaining whether theallegation discloses commission of any cognizable offence. According to it, onbare perusal of the complaint no offence was disclosed on the basis ofallegations contained therein. It has also been mentioned that two complaintscontaining similar allegations were also filed by the same complainants beforethe Director General, SPE. The facts of those complaints were verified by theSpecial Police Establishment and it was found that the allegations made in complaintswere not only false, but also actuated with mala fides. It was also found that both the complainants had committed offencesunder Sections 182,193,199 and 211 of the Indian Penal Code, as such, acomplaint was filed by the Director General, SPE before the Magistrate forprosecuting them on 12-06-2008 and all the evidence which was collected to showthat the complaints were false and motivated, had been annexed. The complaintsfiled earlier before the Director General, SPE were similar to that which wasfiled before the same Magistrate. The complaintsfiled earlier before the Director General, SPE were similar to that which wasfiled before the same Magistrate. The only difference was that in the complaintwhich had been filed before the SPE the offences under Section 13 (1) (d) ofthe Prevention of Corruption Act and under Section 120-B of the Indian PenalCode were also mentioned, whereas the complainants omitted this part in thecomplaints filed before Magistrate Shri D.K. Singh.This was done because otherwise the Magistrate could not have jurisdiction toentertain the complaint and the case could have been entertained only by theSpecial Judge designated under the provisions of the Prevention of CorruptionAct. It has been stated that this fact was within the knowledge of theMagistrate as he himself had heard the matter relating to the complaint filedby the Director General, SPE. It has further been stated that palpably falsestatements were made with a view that Shri D.K.Singh, Magistrate might have jurisdiction to hear the case. In the end, it hasbeen 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 casefor 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 acase on the basis of material on record of that particular case. He is notsupposed to remember and pass the orders in a case on the basis of facts of anyother case much less on his personal memory. Even if anothercomplaint was filed by the Director General, SPE. against the complainants alleging that the allegations made by the complainants against Lokayukta and his wife were false and were actuatedwith mala fides, the complainants were not debarredfrom filing the complaint before the Magistrate. In Anandwardhan and another Vs. Pandurang and others, (2005) 11 SCC195, the Apex Court observed : - "Wedo not wish to make any comments about the investigation of the case or theresult of the investigation. In Anandwardhan and another Vs. Pandurang and others, (2005) 11 SCC195, the Apex Court observed : - "Wedo not wish to make any comments about the investigation of the case or theresult of the investigation. The law provides that if the police fails toinvestigate a case arising from a first information report lodged before itdisclosing commission of a cognizable offence, it is open to theinformant/complainant to move the Magistrate concerned for appropriate orderunder Section 156 Cr.PC , or may file a complaint andobtain appropriate orders from him for issuance of process against the accusedfor trial. If the grievance of the respondent was that the police was not properlyinvestigating his case, or that the report made by the police was wrong orbased on no investigation whatsoever, it was open to him to move the Magistrateconcerned." 8.Even if the first complaint filed by the complainant was returned by the Magistrateto the complainants on the ground that he had no jurisdiction to entertain thesame as commission of offence under Section 13 (1) (d) of the Prevention ofCorruption Act was alleged, it did not debar the Magistrate to entertain thecomplaint again, if those allegations were omitted by the complainants in thesecond complaint. 9.On perusal of the order dated 19-06-2008, it is apparent that learnedMagistrate instead of taking recourse to examine the complainants and recordtheir evidence, simply passed an order under Section 156 (3) of the Code ofCriminal Procedure with a direction to the Police to register the FirstInformation Report if a cognizable offence is found to have been committed onthe facts alleged in the complaint. The learned Magistrate even did not directthe Police to register the First Information Report. Section 156 of the Code ofCriminal Procedure reads as under : - "156.Police Officer's power to investigate cognizable case : - (1)Any officer in charge of a police station may, without the order of aMagistrate, investigate any cognizable case which a Court having jurisdictionover the local area within the limits of such station would have power toinquire 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 calledin question on the ground that the case was one which such officer was notempowered under this Section to investigate. (2)No proceeding of a police officer in any such case shall at any stage be calledin question on the ground that the case was one which such officer was notempowered under this Section to investigate. (3)Any Magistrate empowered under Section 190 may order such an investigation asabove mentioned." Itis clear that any officer in charge of a police station may without the orderof a Magistrate investigate any cognizable case which a Court havingjurisdiction over the local area within the limits of such station would havepower to inquire into or try under the provisions of Chapter-XIII and anyMagistrate empowered under Section 190 may order such an investigation asmentioned in sub-section (1) of Section 156 of the Code of Criminal Procedure. 10.In Madhu Bala Vs. SureshKumar and others, AIR 1997 SC 3104 , the Apex Court held that :- "Whenevera Magistrate directs an investigation on a 'complaint' the police has toregister a cognizable case on that complaint treating the same as the FIR andcomply with the requirements of the Police Rules. Therefore, the direction of aMagistrate asking the police to 'register a case' makes an order ofinvestigation 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 empowersthe Police to investigate into a cognizable 'case' and the Rules framed underthe Police Act, 1861 it (the Police) is duty bound to formally register a caseand then investigate into the same. The provisions of the Code, therefore, donot in any way stand in the way of Magistrate to direct the police to registera case at the police station and then investigate into the same.""When a written complaint disclosing a cognizable offence is made before aMagistrate, he may take cognizance upon the same under Section 190 (1) (a) ofthe Code and proceed with the same in accordance with the provisions of ChapterXV. The other option available to the Magistrate in such a case is to send thecomplaint to the appropriate Police Station under Section 156 (3) forinvestigation. The other option available to the Magistrate in such a case is to send thecomplaint to the appropriate Police Station under Section 156 (3) forinvestigation. Once such a direction is given under sub-section (3) of Section156 the police is required to investigate into that complaint under sub-section(1) thereof and on completion of investigation to submit a 'police report' inaccordance with Section 173 (2) on which a Magistrate may take cognizance underSection 190 (1) (b) but not under 190 (1) (a)." 11.It is true that the learned Magistrate ought to have expressed in the order ifhe prima facie found the complaint disclosing a cognizable case, before passingthe order under Section 156 (3) of the Code of Criminal Procedure, but he leftit on the police to register the First Information Report if it found thecommission of a cognizable offence on the facts alleged in the complaint, butevery mistake does not necessarily call for correction. 12.Officer In charge of Police Station Kohefiza , Bhopalsubmitted its report before the learned Magistrate on 25-06-2008 stating thatthe facts mentioned in the complaint did not constitute a cognizable offence,therefore, it would not be in accordance with law to register the FirstInformation Report under Section 154 of the Code of Criminal Procedure or areport even under Section 155 of the Code of Criminal Procedure for a non-cognizableoffence. 13.In view of the above, in my opinion it would not be appropriate to interfere inthe order dated 19-06-2008 passed by the learned Magistrate and direct him to reconsider the material onrecord and pass a fresh order. 14.Though the allegation made against the learned Magistrate that there had been anexus between him and the complainants appears to be baseless and unfounded,yet in the peculiar circumstances of the case it would be appropriate, in orderto put the matter beyond the pale of slightest suspicion, in the interest ofjustice that it may also appear to have been accorded, to exercise the powervested in this Court under Section 407 (2) of the Code of Criminal Procedure,to transfer the present case from the Court of Shri O.K. Singh, JMFC, Bhopal to the Court of Chief Judicial Magistrate, Bhopal forhearing it himself or to make it over to some other competent Magistrate forproceeding according to law. 15.For the reasons stated above, find no ground for interference in the impugnedorder in the revisional jurisdiction of this Court.This revision is accordingly, disposed of subject to the aforesaid direction oftransfer of the case to the Chief Judicial Magistrate, Bhopal . 16.Record of the lower Court be sent back immediately.