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Madhya Pradesh High Court · body

2009 DIGILAW 560 (MP)

Ashok Singh Bhadoriya v. State of M. P.

2009-04-28

S.K.GANGELE

body2009
ORDER 1.Petitioner has filed this petition for quashing of order dated 9.9.2008.Respondent NO.2 filed a private complaint before the Special Court mentioning the fact that the petitioner has committed offences punishable under Section 384 and 120-B of IPC and Section No. 7,8,9,10 and 13 (1) (c) of Prevention of Corruption Act. He stated in detail in the application with regard to demand of money by the accused. 2. On the basis of the aforesaid private complaint learned Special Judge, Gwalior vide order dated 09.09.2008 directed the Lokayukt for investigation. The aforesaid order has been passed by the Court under Section 156 (3) of Cr. P.C. Subsequent to the passing of the order, the complainant himself filed an application before the Court that he wants to withdraw the private complaint. Copy of the application has been filed as Annexure B along with an application for taking additional documents on record. 3. Learned counsel for the petitioner has submitted that the Court has not applied its mind at all in ordering investigation under Section 156 (3) of the Cr.P.C. hence the order is bad in law. Contrary to this, learned P.P. has submitted that the Court has only directed investigation under Section 156 (3) of the Cr. P.C. and it is as per law. 4. From the facts of the case, it is clear that the respondent No.2 filed private complaint before Special Judge alleging that the petitioner has committed offences under Section 384 and 120-B of IPC and Sections 7,8,9,10 and 13 (1) (c) of Prevention of Corruption Act. Complainant prays for taking cognizance against the petitioner and to award proper punishment. On the aforesaid complaint the Court has passed the impugned order, which 290 is an under:" 09.09.2008. Petitioner through Shri, A.B. Tripathi, Advocate. Considering applicant on VIS 256 Cr.P.C. it is apparent that the complaint itself not registered hence till further orders complainant exempted for appearance. Regarding the application for investigation it would be appropriate to direct investigation into U/s 156 (3) Cr. P.C. by Lokayukt. Hence for report 21.10.2008." It is clear from the aforesaid order that the Court has only mentioned that it would be appropriate to direct investigation under section 156 (3) of Cr. P.c. The Court has neither mentioned any reason for issuance of the aforesaid direction nor did it mention the fact whether from the private complaint any offence is made out or not? P.c. The Court has neither mentioned any reason for issuance of the aforesaid direction nor did it mention the fact whether from the private complaint any offence is made out or not? 5. The Hon'ble Supreme Court in the case of Maksud Saiyed v. State of Gujarat and Others (2008) 5 SCC 668 has held under with regard to the duty of the Court while passing an order Section 156 (3) of Cr. P.c. that, " 13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156 (3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statue. Statutes indisputably must contain provision fixing such vicarious liabilitites. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would, attract the provisions constituting vicarious liability." Further, the Hon 'ble Apex Court in paragraph 14 of the same judgment in the case of, Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 ) has observed as under: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the Criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions 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 all or any of the accused." The learned Magistrate, in our opinion, shall have kept the said principle in mind." 6. As per law laid down by the Hon'ble Supreme Court, it is clear that it is the duty of the Court to apply its mind before passing an order under Section 156 (3) of Cr. P. C. to the fact that whether any offence is made out 0 the basis of the complaint submitted by the complainant. From the facts 0 the case, it is clear that the Court has not passed any reasoned order. Hence, order passed by the Special Court is contrary to the law. 7. Consequently, application under Section 482 of Cr. P.c. is allowed, order impugned dated 09.09.2008 is hereby quashed. The matter is remanded to the Court for passing the order afresh after considering all the facts of the case and the fact that the complainant himself has filed an application for withdrawal of the complaint. Petitioner is free to raise all the grounds before the Special Court.