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Madhya Pradesh High Court · body

2009 DIGILAW 152 (MP)

AYYUB AHMAD v. STATE OF M P

2009-01-30

S.R.WAGHMARE

body2009
Judgment ( 1. ) BY this revision, the petitioner has challenged the order dated 22/12/08 passed by the Additional Chief Judicial Magistrate, Indore in case no 0/08 directing the police to investigate the complainant and register the offence agaisnt the present petitioner under section 420 of the IPC. ( 2. ) COUNSEL for the petitioner has stated that the Learned Magistrate had erred in issuing process and the order may be recalled primarily because the complaint as such pertains to an agreement for purchase of land and if at all the complainant was aggrieved, he could take recourse to the Civil Court and since primarily no criminal offence was made out, hence ,the police at Bhawarkuwan Police Station, the Investigating Agency of the first instant had refused to take cognizance of the same despite which the complainant went ahead and filed criminal complaint before the Learned Magistrate along. with the petitioner. He also filed application under section 156 (3) of the Cr. P. C. Counsel further urged that no opportunity of hearing was given to the petitioner before passing the order for investigation under section 156 (3) by the Learned Magistrate and the Apex Court had time and again cautioned against the abuse of power when the discretionary power is misused without application of mind relying on Maksud Saiyed Vs. State of Gujarat and others [2008 (2) SCC (Cri) 692]. Counsel submitted that the Apex Court had held thus : "magistrate ordering the police investigation under section 156 (3) of the Cr. P. C without-applying his mind ordered police investigation, the quashing of the proceeding by the High Court was upheld" ( 3. ) COUNSEL submitted that in the said case, when the accused was a company, the liability of the Directors was in question. The Apex Court found that all the charges levelled against the company were untenable and the Magistrate had failed to re-examine whether the complaint made Directors personally liable. Stating that the summoning of the accused in criminal case being a serious matter, the application of the mind by Magistrate was essential and the exercise of jurisdiction is to be made with abundant caution. Counsel further emphasizes that the Magistrate is required to apply his mind whether to take action under section 156 (3) or section 200 of the Cr. P. C. Criminal law cannot be set into motion as a matter of course. Counsel further emphasizes that the Magistrate is required to apply his mind whether to take action under section 156 (3) or section 200 of the Cr. P. C. Criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinize the evidence brought on record and even himself put question to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by or any of the accused. ( 4. ) COUNSEL stated that in the instant case, the agreement entered into between the complainant Rajkumar Agrawal and the applicant pertaining to purchase of land together and the registration was not being made. Upon enquiry, the complainant found that the land had been sold to third person and the complainant started demanding money from the applicant. Stating that the applicant had not committed any cheating as alleged; since, there was no dishonest intention at the time of signing of the agreement alleging that both the applicant as well as the complainant had together entered into purchase of the property, due to some reasons, the complainant had been mislead into believing that there was further transfer of said property by the applicant alone to third party. Counsel stated that the the police as the first investigating agency had already refused to take cognizance since apparently the transaction was such to which civil remedy was available, then the Learned Magistrate ought to have kept this in his mind and permitted the applicant under section 200 of the Cr. P. C to cross-examine the complainant and the Magistrate should also have examined witnesses before taking cognizance of the complaint. Instead the Learne Magistrate has straight away directed the investigating agency i. e. the police to register the offence under section 420 of the IPC and also ordered investigation under section 156 (3) of the cr. P. C, which is not in accordance with the provisions of law. ( 5. ) COUNSEL has relied on several precedents namely Pepsi Foods Ltd and another Vs. Special Judicial Magistrate and others [1998 SCC (Cri) 1400], hridaya Ranjan Prasad Verma and Others Vs State of Bihar and Another [ 2000 SCC (Cri) 786], Cadbury Schweppes Beverage India Pvt. Ltd Vs. ( 5. ) COUNSEL has relied on several precedents namely Pepsi Foods Ltd and another Vs. Special Judicial Magistrate and others [1998 SCC (Cri) 1400], hridaya Ranjan Prasad Verma and Others Vs State of Bihar and Another [ 2000 SCC (Cri) 786], Cadbury Schweppes Beverage India Pvt. Ltd Vs. State of m. P. [ 2005 (4) MPLJ 20 and Ganesh Dass and others Vs. State of Kerala and another [ 1996 Cri L. J. 612 ] whereby it has been held that if a civil remedy is available, the criminal case should not be allowed to continue and moreover, if the guilty intention is essential ingredient of the offence of cheating and where no dishonest intention was alleged in business contract and the only allegations is of deceit due to betrayal of confidence, it does not constitute an offence of cheating. The matter should not be allowed to continue in the criminal Court, since alternative remedy is available to the party. When prima facie the allegations made by the complainant did not constitute offence punishable under section 420 of the IPC, then continuing criminal proceedings against the applicant would amount to abuse of process of Court. ( 6. ) COUNSEL stated that in the instant case also, Learned Magistrate had transgressed his powers and directed the police to carry on investigation when actually he should have applied his judicial mind and if. at all he wanted to take cognizance, he ought to have examined the complainant as well as the accused applicant. Thus, Counsel prayed for setting aside of the impugned order. ( 7. ) SHRI Girish Desai, Dy. Advocate General appearing on behalf of the respondent-State has, however, put the entire controversy to rest stating that the petition was pre- mature and the applicant petitioner did not even have the locus-standi to file the present petition since the Learned Magistrate had not taken cognizance of the offence as is being made out by the applicant. Stating that it was crystal clear from the impugned order itself that the complainant Raj Kumar agrawal had filed a private complaint against the present petitioner for offence under section 420 of the IPC before the Learned Magistrate and along with complaint, he had also filed an application under section 156 (3) of the Cr. Stating that it was crystal clear from the impugned order itself that the complainant Raj Kumar agrawal had filed a private complaint against the present petitioner for offence under section 420 of the IPC before the Learned Magistrate and along with complaint, he had also filed an application under section 156 (3) of the Cr. P. C along with an affidavit and other documents stating by the said application that the Bhavarkuwa police station, Indore had refused to register his complaint and the FIR could not be registered, nor did they give him any receipt regarding the report filed before the police station, then under the circumstances, Counsel for the State clearly pointed out that the Magistrate had two options before him. He may either take the cognizance of the private criminal complaint or he could issue process under section 156 (3) of the Cr. P. C. Counsel urged that the entire principles were considered very recently by the Apex Court in the matter of Fakruddin ahmad Vs. State of Uttarakhand and another [ JT 2008 (1) SC 240 ] whereby their Lordships were considering offences under sections 420, 467, 468, 471 of the IPC and section 138 of the Negotiable Instruments Act and private complaint was filed under the IPC and the FIR was registered. The complaint under the Act of 1881 was taken cognizance of, however, when the High Court was approached, no material was produced, nor placed before the Magistrate and held that the petition for quashing the charge-sheet should not have been rejected and the matter was remitted back. Discussing the process to be undertaken under section 190, 200, 202 and 156 (3) at length, the Apex Court had directed thus : "one of the courses open to the Magistrate is that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under section 200 or section 202 of the Code, he may order an investigation to be made by the police under section 156 (3) of the Code, which the learned Magistrate did in the instance case. When such an order is made, the police is obliged to investigate the case and submit a report under section 173 (2) of the Code. On receiving the police report, if the magistrate is satisfied that on the facts discovered or. When such an order is made, the police is obliged to investigate the case and submit a report under section 173 (2) of the Code. On receiving the police report, if the magistrate is satisfied that on the facts discovered or. unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under section 190 (1) (b) of the Code and issue process straightway to the accused. However, section 190 (1) (b) of the. Code does not lay down that a Magistrate can take cognizance of an offence only if th investigating officer gives an opinion that the investigation makes out a case against the accused. Undoubtedly, the magistrate can ignore the conclusion (s) arrived at by the investigating Officer (para9)The Magistrate is is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under section 173 (2) of the, Code, which will contain the facts "discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance offence is made out or not (para 10)" ( 8. ) THUS, Counsel for the respondent-State emphasized that taking cognizance under section 190 of the Cr. P. C was not defined in the Court but by taking cognizance, it also necessarily implies that the Magistrate has to apply his mind and whether the Magistrate has taken cognizance or not will depend on the circumstances of each case. It is here according to Counsel that Counsel for the petitioner is making a mistake; elaborating that the two options, were available to the Magistrate since the petitioner had not filed the private complaint simplieiter and it was not the only cause of action that was required to be taken cognizance of by the Magistrate. The complainant had also moved another application under section 156 (3) of the Cr. P. C, which clearly mandates that any Magistrate being empowered under section 190 of the Cr. The complainant had also moved another application under section 156 (3) of the Cr. P. C, which clearly mandates that any Magistrate being empowered under section 190 of the Cr. P. C may order such an investigation as mentioned above. Primarily, therefore, considering the fact that the Officer In-charge of the police station ought to have registered the FIR, the Learned magistrate has by the impugned order directed the registration of the offeence under section 420 of the IPC and thus when investigation under section 156 (3) of the Cr. P. C itself makes it imperative for the Officer In-charge to register the FIR even when the Magistrate explicitly does not say so. ( 9. ) IT will be profitable to rely on Mohd. Yousuf Vs. Afaq Jahan [ 2006 (1)SCC 627 ]. It is also necessary that the Magistrate must take notice of the accusation and apply his mind to the allegations made in. the complaint or in the police report or in the information received from a concerned other than police report. The Apex Court has held that it need little emphasis that is it is only when the Magistrate applies his mind and is satisfied with the allegations if proved would constitute an offence that he decided to initiate the proceedings against the alleged offender that it can be stated that he had taken cognizance of the offence. ( 10. ) THUS, in the present case, Shri Girish Desai, Learned Dy. Advocate General on behalf of the State has pointed out that the apprehension in the mind of the present petitioner has made him to take hasty step of filing present revision by alleging that the Magistrate has already taken the cognizance when he has only ordered investigation. Merely because the Magistrate has directed registering of the FIR, should not be construed to mean taking of cognizance. Counsel stated that it was a natural corollary to the directions for investigation that the offence be registered first since prima facie, the private complaint was for offence under section 420 of the IPC against the present petitioner. Counsel thus, stated that no other elaboration was required to support the impugned order and it does not call for any interference. ( 11. ) CONSEQUENT to the above submissions, I agree with the contentions put forth by the Learned Dy. Counsel thus, stated that no other elaboration was required to support the impugned order and it does not call for any interference. ( 11. ) CONSEQUENT to the above submissions, I agree with the contentions put forth by the Learned Dy. Advocate General primarily because I am of the humble opinion that merely issuing process under section 156 (3) of the Cr. P. C would not amount to take cognizance under section 190 of the Cr. P. C; putting or initiating investigating Agency into action is only the preliminary step. Two options were before the Magistrate on receiving the report from the police station after the investigation, whether to take the cognizance for the offence or not. In this sense, i find that seeking the quashment or setting aside of the impugned order passed under section 156 (3) of the Cr. P. C would be challenging an interlocutory under the circumstances and the revision would not be maintainable. The petitioner ought to have filed an application under section 482 of the Cr. P. C, if at all he was aggrieved in this sense also. ( 12. ) CONSIDERING the controversy in the light of Fakfuddin Ahmad ( supra), find that Learned Magistrate was perfectly justified in issuing the directions for investigation after registration of the complaint. The present petitioner would have every opportunity to represent his case; merely registering the FIR would not place the petitioner in a jeopardy, so also there are other legal remedies available to the petitioner if at all he apprehends his arrest as stated in the application for staying the arrest. ( 13. ) I find that the petition is without merit. The order of the Magistrate is impeccable and is hereby upheld and the petition is dismissed in limine. Revision dismissed.