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Madhya Pradesh High Court · body

2011 DIGILAW 757 (MP)

Sanjay Rana v. Mahesh Garg

2011-07-12

I.S.SHRIVASTAVA, P.K.JAISWAL

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Judgment P.K. JAISWAL, J. ( 1. ) THIS order shall govern the disposal of M.Cr.C. No. 3636 of 2011, Sanjay Rana vs. Mahesh Garg and another. A copy of this order be placed in the record of M.Cr.C. No. 3636 of 2011. ( 2. ) BY this petition under section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'), the petitioner is praying for quashment of order dated 11-4-2011, passed by the First Addl. Sessions Judge (Special Judge) Indore, by which learned Special Judge directed for investigation and clubbing the complaints filed under section 156(3) and the private complaint filed under section 190/2001 of the Code and fixed the case for arguments of all the three cases. M.Cr.C. No. 3636 of 2011 has been filed by the petitioner for quashment of order dated 11-4-2011 passed by the learned Special Judge, Indore, by which learned Special Judge directed for report under section 156(3) of Code of Criminal Procedure. ( 3. ) BRIEF facts of the case are that the petitioner is a Inspector General of Police of Indore Zone, Indore and is residing in his official Bungalow situated at 6, Residency Area, Indore. The complainant/respondent No. 1 is a public interest litigant, who normally filed complaints and cases against the illegal act of the public officers. ( 4. ) ON 12-1-2011, the respondent No. 1 lodged an FIR at Police Station, Sanyogitaganj, Indore under section 154 of the Code against the petitioner and one Dr. Rajesh Kothari, Health Officer, Nagar Palika Nigam, Indore and the copy was sent to the Director General of Police, Bhopal, alleging that by cutting and selling 100 trees in the official bungalow of Inspector General of Police valued at Rs. 1,00,000/- [one lac] between the period from 1-1-2011 to 5-1-2011 and thereafter, levelling the land for agriculture purposes they have committed offences punishable under sections 409, 420, 467, 468, 471/34 of the Indian Penal Code read with section 13(l)(d) and 13(2) of the Prevention of Corruption Act, 1988. In the said complaint, it is prayed that the FIR be registered against the petitioner and Dr. Rajesh Kothari and thereafter, matter be investigated under section 157 of the Code. In the said complaint, it is prayed that the FIR be registered against the petitioner and Dr. Rajesh Kothari and thereafter, matter be investigated under section 157 of the Code. The respondent No. 1, without waiting for a considerable time on 18-1-2011 filed an application under section 156(3) of the Code before the Special Judge, Indore, seeking direction against the police to register and investigate the case, on the ground that after filing of the FIR, no prompt action was taken by the police because of the involvement of the petitioner in the alleged offences, therefore, he also filed a private complaint on 18-1-2011 under section 156 of the Code. ( 5. ) PLACING reliance on a decision of the Apex Court in the case of Dharmesh Bhai, Subhash Bhai vs. State of Gujarat, 2009 SCC (Criminal) 76, the Court below found the filing of the private complaint within a week of filing of the FIR under section 154 of Code of Criminal Procedure does not call for any order as the matter is already under enquiry by the police. Order dated 24-1-2011 passed by the First Addl. and Special District Judge, Annexure P/3, which reads as under:- ( 6. ) THE respondent No. 1 challenged the said order dated 24-1-2011 by filing a petition under section 482 of the Code. THE Division Bench of this Court vide order dated 7-2-2011 dismissed the petition on the ground that matter is under investigation/enquiry by the police and held that once the machinery is set in motion, the parallel proceedings by way of private complaint were misconceived and the application was rightly rejected by the Court below. Para 2 to 7 of order dated 7-2-2011 reads as under :- " 2. Applicant lodged an FIR against respondents alleging that they have committed offences punishable under sections 409, 420, 467, 468, 471 read with 34 of the IPC and sections 13(l)(d)/I3(2) of the Prevention of Corruption Act. THE said FIR was lodged on 12-1-2011 at Police Station, Sanyogitaganj, Indore. 3. According to applicant after filing of the FIR no prompt action was taken by Police because of the involvement of I.G. Police, Indore Zone in the alleged offences, therefore, he also filed a private complaint on 18-1-2011 under section 156 (3) of the Code of Criminal Procedure. 4. 3. According to applicant after filing of the FIR no prompt action was taken by Police because of the involvement of I.G. Police, Indore Zone in the alleged offences, therefore, he also filed a private complaint on 18-1-2011 under section 156 (3) of the Code of Criminal Procedure. 4. Placing reliance on a decision of the Supreme Court in the case of Dharmesh Bhai, Subhash Bhai vs. State of Gujarat, reported in 2009 SCC (Cri) 76, the Court below found that the filing of the private complaint within a week of filing of the FIR under section 154 of the Code of Criminal Procedure does not call for any order as the matter is already under enquiry by the Police. 5 . It is pertinent to point out that a notice under section 160 of the Code of Criminal Procedure was issued to the applicant calling upon him to make his statement. It is stated by the learned counsel for the applicant that pursuant to the said notice statement of the applicant had already been recorded by the Police. 6. Thus, it is clear that the matter is under investigation/enquiry by the Police. Once the machinery is set in motion, in our considered opinion, the parallel proceedings by way of private complaint were misconceived and the application was rightly rejected by the Court below. 7. We find no merit in this petition under section 482 of the Code of Criminal Procedure and the same is dismissed accordingly." That in the meantime, on 27-1-2011, the respondent No. 1 had filed second application under section 156(3) of the Code of Criminal Procedure in the Court of 1st Addl. Sessions Judge cum (Special Judge) Indore against the petitioner and three others and same allegation has been made in the said application. The learned Special Judge, Indore, rejected the said application on 7- 2-2011 (Annexure P/6) on the ground that FIR application was lodged on 12-1- 2011 before Sanyogitaganj, Indore, Police Station under section 154 of Code of Criminal Procedure and thereafter, private complaint under section 156 (3) on 18-1-2011, which was rejected on 24-1-2011 and, therefore, within a short period, it cannot be said that the police have not done its duty of investigating the matter and no order to monitor the case or to call the report from the police is made out. It is also observed that police authority should get reasonable time to investigate the matter. With the aforesaid, the second application dated 27-1- 2011 was rejected on 7-2-2011. ( 7. ) THE respondent No. 1 is not satisfied with the order dated 7-2-2011 and filed third application under section 156 (3) of the Code, against the petitioner and three others (Health Officer of the Municipal Corporation, Superintendent of Police, Indore and Police Inspector Office In-charge Sanyogitaganj Police Station) on 3-3-2011. On 14-3-2011, the Special Judge directed to produce the case diary and police report and fixed the matter on 1-4-2011. As ordered by the Court, Police Inspector cum Officer In-charge of Police Station Sanyogitaganj made a detailed enquiry in respect of report dated 3-3-2011 and recorded the statement of. complainant and other witnesses and filed his report on 1-4-2011 (Page 42 of petition). In the report, it is alleged that all the allegations made by the complaint were false and baseless and no cognizable offence has been committed nor there is any misappropriation of Government funds. ( 8. ) IN the meanwhile, on 22-2-2011, Station House Office, Thana Sanyogitaganj, Indore, after conducting detailed inquiry in respect of FIR dated 12-1-2011 and after recording the statement of complainant, on 24-1-2011 submitted its report to Senior Superintendent of Police, Indore. IN that report (Annexure P/8), it is found that all the allegations made by the respondent No. 1 were false and baseless and no cognizable offence has been committed by the petitioner. After submission of police report by Station House Officer, Police Station Sanyogitaganj, Indore, on 1-4-2011 in the Court on 6-4-2011, the respondent No. 1 filed a private complaint under sections 190 and 200 of the Code of Criminal Procedure for talking action against the petitioner and three others under sections 409, 420, 467, 468, 471/34 of the Indian Penal Code read with sections 13(l)(d) and 13(2) of the Prevention of Corruption Act. ( 9. ) ON 1-4-2011, the In-charge of Sanyogitaganj police station and CSP Sanyogitaganj, Indore, both appeared in the Court, but at the request of the respondent No. 1, the case was adjourned to 11-4-2011 for consideration of the police report. ( 10. ) AS per order dated 6-4-2011 (Annexure P/10), it appears that the complaint lodged by the respondent No. 1 under section 156(3) of the Code has been for consideration on 11-4-2011. ( 10. ) AS per order dated 6-4-2011 (Annexure P/10), it appears that the complaint lodged by the respondent No. 1 under section 156(3) of the Code has been for consideration on 11-4-2011. From perusing the complaint dated 12-1- 2011 (Annexure P/1), application dated 27-1-2011 under section 156(3) (Annexure P/5), application dated 3-3-2011 under section 156(3) and private complaint under section 190/200 (Annexure P/9), it is not in dispute that all the above complaints relate to the same incident dated 1-1-2011 to 5-1-2011. The only difference is that in the subsequent complaint Superintendent of Police, Indore and Police Inspector SHO of Police Station Sanyogitaganj were also impleaded by the respondent No. 1. It is submitted by the learned counsel for the petitioner that impugned order dated 11-4-2011 is wholly without jurisdiction and is nothing but an abuse of process of Court. He submitted that earlier an applications under section 156(3) of the Code dated 18-1-2011 and 27-1-2011 were rejected by the Special Judge on 24-1-2011 (Annexure P/3) and 27-1-2011 (Annexure P/5). The order dated 18-1-2011 (Annexure P/3) was upheld by this Court on 7-2-2011 on the ground that investigation is going on. He also submitted that complaint of the petitioner filed under section 154 was entertained by the SHO of Sanyogitaganj Police Station, the notice under section 160 of the Code was issued to the respondent No. 1 and thereafter, after examining the matter a detail report has been prepared by the Station House Officer and filed the same before the Special Judge on 1-4-2011 and submitted that in respect of an earlier report the investigation was completed and report was filed on 22-2-2011, the learned Special Judge without going through the police report and without applying his mind passed the order for consideration of application under section 156(3) along with private complaint filed by the respondent No. 1 under sections 190 and 200 of the Code. It is urged that once a private complaint has been filed then, the learned Court has no jurisdiction to call for further report under section 156(3) of Code of Criminal Procedure. ( 11. ) HE further submitted that the impugned order has been passed without any material on record and without application of mind, contrary to the settled position of law and prayed that impugned order dated 11-4-2011 be quashed. ( 11. ) HE further submitted that the impugned order has been passed without any material on record and without application of mind, contrary to the settled position of law and prayed that impugned order dated 11-4-2011 be quashed. His submission was that petitioner is a Senior I.P.S. Officer and in order to take political gain and to harm his reputation, the respondent No. 1 lodged a frivolous complaint against the petitioner and also got published in daily leading newspaper vide (Annexure P/11), which shows that the complaint has been lodged for ulterior motive just to harm his reputation, which amounts to the abuse of the process of the Court and deserves to be quashed. ( 12. ) IT would contend by the Learned counsel for the petitioner that the learned Court below without applying its mind ordered for investigation under section 156 (3) of Code of Criminal Procedure, which is bad in law. On the other hand, Shri Manohar Dalai, learned counsel for respondent No. 1 has submitted that the petitioner, taking advantage of his status is interfering with the investigation and also tampering the evidence and, therefore, he has filed private complaint. It is urged that looking to the fact that number of private complaints are pending against the petitioner and, therefore, the learned trial Court has not committed any illegality or the irregularity in passing the order dated 11-4-2011 and prayed for dismissal of the petition. ( 13. ) FROM the facts as narrated hereinabove, it is clear that respondent is raiding Court one after another by filing complaints under section 156(3) of Criminal Procedure Code. ( 14. ) CHAPTER XII of the Code relates to "information to the police and their powers to investigate". Section 154 deals with 'police officer's power to investigate cases'. It cannot be disputed that the remedy which is inbuilt in the Code for the complainant, when the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case, he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. ( 15. ) IF we take panoramic view of Chapter XII and XV of the Code of Criminal Procedure, it is quite clear that the legislature in its wisdom contemplated two different situations. Chapter XII deals with the power of the police authorities to investigate in respect of cognizable offence on receipt of information thereof. While section 156, which forms part of Chapter XII, deals with the power of an Officer in-charge of a police station to investigate cognizable cases. Chapter XV is about the complaints to Magistrate which is compartmentalized separately to deal with the inquiry and procedure required to be followed by the Magistrate while dealing with the complaint filed. ( 16. ) IN Aleque Padamsee and ors. vs. Union of INdia and ors., (2007) 6 SCC 171 , Hon'ble the Supreme Court clarified that in those cases where police refuses to register an FIR, filing of a writ petition is not the remedy. If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in section 190 read with section 200 of the Code are to be adopted. On perusal of the impugned order, it is clear that the Court has only mentioned that it would be appropriate to direct the investigation under section 156 (3) of Criminal Procedure Code. The Court has neither mentioned any reason for issuance of the aforesaid direction nor did mention the fact whether from private complaint any offence is made out or not. The Court has neither mentioned any reason for issuance of the aforesaid direction nor did mention the fact whether from private complaint any offence is made out or not. The Hon'ble Supreme Court in the case of Maksud Saiyed vs. State of Gujarat and ors., 2008(2) MPLJ (Cri) (SC) 679 = (2008) 5 SCC 668 has held that where a jurisdiction is exercised on a complaint petition filed in terms of section 156(3) or section 200, Criminal Procedure Code, the Magistrate is required to apply his mind. In the case in hand, it appears that the learned trial Court has not applied its mind while passing the order under section 156 (3) of the Code, directing the police investigation in the matter. The learned trial Court also failed to see that Station House Officer, Police Station Sanyogitaganj, Indore investigated the complaint and, thereafter, submitted its report on 22-2-2011 (Annexure P/8) and second report was also submitted by the investigating officer on 1-4-2011. The trial Court without considering both the reports passed the impugned order on 11-4-2011. The issuance of direction to investigate through police is not a mere formality, the trial Court while passing an order ought to have applied its mind to the allegation as alleged in the complaint and only on finding some substance the direction for investigation may be ordered. ( 17. ) AS per law laid down by the Apex Court in the case of Maksud Saiyed vs. State of Gujarat and ors. (supra), it is clear that it is the duty of the Court to apply its mind before passing an order under section 156(3) of Criminal Procedure Code to the fact that whether any offence is made out on the basis of complaint lodged by the complainant. ( 18. ) IN the case of Mohammed Yousuf vs. Afaq Jahan, AIR 2006 SC 705 , the Hon'ble Supreme Court after considering the provisions of section 156 and 202 of the Code has held that any judicial Magistrate, before taking cognizance of the offence, can order investigation under section 156(3) of the Code, If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. It is well settled by a series of decision of the Hon'ble Supreme Court that cognizance cannot be taken unless there is atleast some material indicating the guilt of the accused. In the present case there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court but there has to be some material implicating the accused and cognizance cannot be taken merely on the basis of suspicion, as it appear to have been done in the present case, considering the fact that private complaint under section 190 has been filed by the respondent No. 1. The complaint under section 190 in respect of same charges and in that case the trial Court is empowered either to investigate the matter or to call for the police report and after examining the complaint passed an appropriate order for registering the case, if the alleged offence is made out against the petitioner. ( 19. ) IN view of the mentioned legal position, we are of the view that if a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under section 154(3), Criminal Procedure Code or other police officer referred to in section 36 Criminal Procedure Code. ) IN view of the mentioned legal position, we are of the view that if a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under section 154(3), Criminal Procedure Code or other police officer referred to in section 36 Criminal Procedure Code. If despite approaching the Superintendent of Police or the officer referred to in section 36 his grievance still persists, then he can approach a Magistrate under section 156(3), Criminal Procedure Code. Moreover, he has a further remedy of filing a criminal complaint under section 200, Criminal Procedure Code. ( 20. ) IN the case in hand, the respondent No. 1 complainant filed an FIR on 12-1-2011 and on 18-1-2011 filed a complaint before the Magistrate under section 156(3) of Code on the pretext that his FIR has not been registered by the police station, which was rejected on 24-1-2011. He filed another complaint before the Magistrate on 27-1-2011 and during pendency of his second complaint, he challenged the order of rejection dated 24-1-2011 by filing a petition under section 482 of the Code before the High Court, which was dismissed by the Division Bench on 7-2-2011. Thereafter, his second complaint under section 156(3) of Code filed before the Magistrate on 27-1-2011 was also rejected by the trial Court on 3-3-2011. He is not satisfied with that filed another complaint on 3-3-2011 before the Magistrate under section 156(3) of the Code, without considering the fact that his earlier two complaints under section 156(3) of Code were rejected and when third complaint was fixed for 14-3-2011, the learned trial Court directed for case diary and report and thereafter, report was filed on 1-4-2011 and the earlier FIR dated 12-1-2011 was also investigated by the concerned police officer and submitted his report on 22-2-2011 stating therein that no case is made out against the petitioner. The learned trial Court at the instance of the learned counsel for the respondent No. 1 fixed for 11-4-2011 and directed that pending complaint under section 156(3) of the case may be considered along with the complaint lodged by the petitioner under section 190 of the Code. The learned trial Court at the instance of the learned counsel for the respondent No. 1 fixed for 11-4-2011 and directed that pending complaint under section 156(3) of the case may be considered along with the complaint lodged by the petitioner under section 190 of the Code. Therefore, in view of the facts and circumstances of this case, as discussed hereinabove, we hold that the police machinery promptly acted upon and submitted the report before the Superintendent of Police on 22-2-2011 and had also taken a prompt action in compliance to order dated 14-3-2011 and after investigation submitted its report on 1-4-2011. ( 21. ) FOR the reasons stated, therefore, we do find this is an exceptional case with a valid ground to entertain the petition in the facts and circumstances stated by the petitioner. It is noteworthy that in this case, the police acted from the day one and issued notice to the complainant and other witnesses and gave a report to the Superintendent of Police on 22-2-2011 that no offence was committed and copy of the said report was filed before the trial Court. ( 22. ) THUS, in view of the above facts and circumstances, we are of the view that the learned Court below acted without applying his mind and committed a bona fide mistake in clubbing the matter and passing the order dated 11-4-2011. In view of the aforesaid and the law laid down by the Apex Court in the case of Maksud Saiyed vs. State of Gujarat and ors., the impugned order passed by the Special Judge is contrary to the law and consequently, application filed under section 482 of Criminal Procedure Code is allowed. The impugned order dated 11-4-2011 is hereby quashed. The matter is remitted to the Court below for passing an order afresh after considering all the facts and circumstances of the case within a period of two weeks from the date of filing of the order. In the result, both the M.Cr.C. are allowed. Order accordingly.