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2013 DIGILAW 294 (MP)

Ramyash Tiwari v. State of M. P.

2013-03-06

M.C.GARG

body2013
JUDGMENT : This order shall also govern the disposal of Misc. Criminal Case No. 12539/2012 (Vanmali Prasad Dwivedi and two others Vs. Ram Milan Patel). In this case on a complaint filed by the complainant under Section 200, Cr.PC without recording any evidence on behalf of the complainant and simply on the basis of application under Section 156 (3), Cr.PC the Magistrate directed registration of FIR. The impugned order reads as under :- XXX XXX XXX 2. The order shows that there had been no application of mind, no evidence has been recorded under Section 200, Cr.PC. Such procedure has been deprecated by Hon'ble the Supreme Court as well as in the judgment delivered by this Court which stands approved by Hon'ble the Supreme Court in the case of Subhkaran Luharuka and another Vs. State and another, Cri.M.C. Nos. 6122-23/2005 and Cri.M.C. Nos. 6133-34/2005. In the aforesaid case also, the complainant filed a complaint under Section 200, Cr.PC along with an application under Section 156 (3), Cr.PC, the Trial Court without recording any evidence under Section 200, Cr.PC directed registration of FIR under Section 156 (3). This order of registration of FIR was challenged by the accused in a case before me while sitting as a Judge in Delhi High Court while filing the petition under Section 482, Cr.PC as also under Section 397, Cr.PC. One petition was filed for quashing of the criminal complaint while the other petition was filed for quashing the registration of FIR. 3. In that case, it was argued that the Metropolitan Magistrate allowed the application under Section 156 (3), Cr.PC without examining the witnesses of the complaint under Section 200, Cr.PC by a cryptic order as has been passed by the Court of Judicial Magistrate First Class in this case even though, no case was made out. 4. This Court after examining the facts of the case and also having considered the judgments relied upon by the parties which included the judgment delivered by the Apex Court framed the following two questions :- (i) How and when powers under Section 156 (3) of the Code are to be exercised by the Metropolitan Magistrate ? 4. This Court after examining the facts of the case and also having considered the judgments relied upon by the parties which included the judgment delivered by the Apex Court framed the following two questions :- (i) How and when powers under Section 156 (3) of the Code are to be exercised by the Metropolitan Magistrate ? (ii) Whether the complaint instituted under Section 200, the order dated 1-7-2005 passed under Section 156 (3) of the Code and also the FIR No. 436/2005, dated 6-8-05 of PS Defence Colony, New Delhi registered pursuant to the aforesaid order, are liable to be quashed in exercise of powers vested in this Court under Section 482 of the Code in the peculiar facts of this case ?'' 5. Vide the detailed judgment given in that case, this Court quashed the FIR, which was registered on the basis of an order passed by the Magistrate under Section 156 (3), Cr.PC, without recording the evidence under Section 200, Cr.PC. Certain observations made by this Court in that case are relevant and are reproduce for the sake of reference :- "23. Since the first question is one of public importance. I have heard all concerned including the intervenors at length for the purpose of understanding scope and ambit of the powers of a Magistrate under Section 156 (3) of the Code in the light of the provisions contained in Chapter XII and Chapter XV of the Code. All parties have filed written submissions and have also cited case laws. The issue has also been addressed by both sides even while addressing the final arguments. 24. The petitioners have relied upon following judgments on the first question :- (i) Maksud Syed Vs. State of Gujarat and others, (2008) 5 SCC 668 . (ii) Safari Vasu Vs. State of U.P. and others, (2008) 2 SCC 409 . (iii) Dharmesh Bhai Vasudev Bhai and others Vs. State of Gujarat, (2009) 6 SCC 576 . (iv) Raghu Raj Singh Rousha Vs. Shivam Sunderam Promoters Ltd., (2009) 2 SCC 363 . (v) Skipper Beverages Pvt. Ltd. Vs. State, 2001 (92) DLT 217 . 25. The 2nd respondent/complainant has referred to the following judgments :- (i) Kanti Bhadra Shah and another Vs. State of West Bengal, (2000) 1 SCC 722 . (ii) Acharya Arun Dev Vs. State and another, 2005 (2) JCC 897. (iii) Puran Mai Gupta and others Vs. (v) Skipper Beverages Pvt. Ltd. Vs. State, 2001 (92) DLT 217 . 25. The 2nd respondent/complainant has referred to the following judgments :- (i) Kanti Bhadra Shah and another Vs. State of West Bengal, (2000) 1 SCC 722 . (ii) Acharya Arun Dev Vs. State and another, 2005 (2) JCC 897. (iii) Puran Mai Gupta and others Vs. State and another, 2008 (4) JCC 2347. (iv) Priya Gupta Vs. State, 2007 (2) JCC 1058. (v) Vijay Bahadur Pandey Vs. State of U.P. and others, 2005 (5) CRJ 647. (vi) Him Lal Vs. State of U.P., 2008 Cri.LJ 113. (vii) Rajni Palriwala Vs. D. Mohan, 2009 (3) JCC 1896. (viii) Ritu Rawat Vs. Tej Singh, 2008 (4) JCC 2854. (ix) Aloshia Joseph Vs. Dr. Joseph Kollamparambil and another, 2009 Cri.LJ 2190. (x) Suresh Chand Jain Vs. State of M.P., 2001 (I) AD (Cri.) SC 34. (xi) Ram Babu Gupta and another Vs. State of U.P. and another, 2001 Cri.LJ 3363. (xii) S.P. Sharma Vs. NCT of Delhi, 1991 JCC 59 (Delhi). (xiii) Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, 2005 II AD (Cri.) SC 12. (xiv) Surinder Singh Sobti Vs. The State and others, 1999 (I) JCC 107 (SC). (xv) Superintendent of Police, CBI and others Vs. Tapan Kumar Singh, 2003 SCC (Cri.) 1305. (xvi) Renu Kumari Vs. Sanjay Kumar, 2008 (2) JCC 1032. (xvii) H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab Chandigarh Vs. State, (1980) 4 SCC 631 . (xviii) Collector of Central Excise, Calcutta Vs. Alnoori Tobacco Products and another, (2004) 6 SCC 186 . (xix) Sakiri Vasu Vs. State of U.P. and others, (2008) 2 SCC 409 . (xx) Mohd. Yusuf Vs. Afaq Jahan (Smt.) and another, (2006) 1 SCC 627 . (xxi) Dilawar Singh Vs. State of Delhi, (2007) 12 SCC 641 . (xxii) R.R. Chart Vs. State of U.P., 1962 Cri.LJ 510. (xxiii) Tula Ram and others Vs. Kishore Singh, (1977) 4 SCC 459 . (xxiv) Narayandas Bhagwandas Madhavdas Vs. State of West Bengal, 1959 Cri.LJ 1368. (xxv) Devarappali Lakshminarayan Ready and others Vs. V.Narayana Reddy and others, (1976) SCC 252. (xxvi) Gopal Das Sindhi and others Vs. State of Assam and another, 1961 Cri.LJ 39. (xxvii) Jamuna Singh and others Vs. Bhadai Sah, 1964 (2) Cri.LJ 468. (xxviii) Sanjay Bansal and another Vs. Jawaharlal Vats and others, (2007) 13 SCC 71 . (xxix) Madhu Bala Vs. (xxv) Devarappali Lakshminarayan Ready and others Vs. V.Narayana Reddy and others, (1976) SCC 252. (xxvi) Gopal Das Sindhi and others Vs. State of Assam and another, 1961 Cri.LJ 39. (xxvii) Jamuna Singh and others Vs. Bhadai Sah, 1964 (2) Cri.LJ 468. (xxviii) Sanjay Bansal and another Vs. Jawaharlal Vats and others, (2007) 13 SCC 71 . (xxix) Madhu Bala Vs. Suresh Kumar and others, (1997) 8 SCC 476 . (xxx) Supdt. & Remembrance W.B. Vs. Abani Kumar, 1951 Cri.LJ 806. 26. The intervenors cited following additional judgments :- (i) S. P. Shenbagamooty Vs. Mu. Ka. Stelin, 2003 Cri.LJ 271. (ii) Arvind Bhai Rajiv Bhai Patel Vs. State of Gujarat, 1998 Cri.LJ 463. (iii) Sukhwasi Vs. State of U.P., 2008 Cri.LJ 472. (iv) Nirmaljit Singh Hoon Vs. State of W.B., (1973) 3 SCC 753 . (v) Mahesh K. Garg Vs. State, 64 (1996) DLT 232. 27. All these judgments lay down as to how powers vested in the Court under Chapter XII and Chapter XV are to be exercised. It has been consistently held in all these cases that such power is to be exercised only after application of mind. One can take judicial notice of the fact that provisions of law, especially those relating to the procedure, often find misuse, generally enabled by an erroneous interpretation of a statutory provision. Thus, reference becomes necessary to Chapter XII of the Code, which starts from Section 154 of the Code titled as 'Information to the Police and their Power to Investigate'. 28. Section 154 of the Code enables every person who wishes to disclose information relating to commission of a cognizable offence to approach the concerned SHO, who then is required to reduce such information in writing and to register an FIR, if that information discloses commission of cognizable offences as provided for under Section 154 (1) of the Code. Sub-section (2) of the Code requires the SHO/concerned official to supply a copy of the information so recorded to the complainant forthwith free of cost. However, if the SHO/concerned officer is reluctant or refuses to register an FIR based upon the information with the complainant the complainant may approach senior officers in view of the provisions contained under Section 154 (3) of the Code as they also have similar powers in view of the Section 36 of the Code. However, if the SHO/concerned officer is reluctant or refuses to register an FIR based upon the information with the complainant the complainant may approach senior officers in view of the provisions contained under Section 154 (3) of the Code as they also have similar powers in view of the Section 36 of the Code. Once the FIR is registered, then the criminal law procedures are set into motion which will mean investigation under Section 156 of the Code till filing of report under Section 173 of the Code. The procedure for investigation has been prescribed under Section 157 of the Code, which enables the Investigating Officer to proceed to the spot, to investigate the facts and circumstances of the case and, if necessary, to take measures for discovery and even arrest of the offender even without warrant. After investigation, a report is filed in Court by the concerned Investigating Officer. That report can either be for recommending prosecution or recommending closure. It is possible that in this process, some degree of harassment may be there for the person who is sought to be made as an accused, which needs to be deprecated. Use of this to cut short the civil disputes, jealousies or for other undesirable purposes is growing fast as will be noticed in the later part of the judgment. 29. The SHO/concerned authority whenever approached by the complainant is bound to receive it, though he is not bound to register it in case no offence or wrong has taken place and a totally false complaint is filed. Holding a preliminary enquiry to that extent is permissible even as per Punjab Police Rules, which are applicable even in Delhi. Rule 24.4 of the Punjab Police Rules reads as under :- '24.4. Action when reports are doubtful.- (1) If the information or other intelligence relating to the alleged commission of a cognizable offence is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated. (2) If the Inspector or other Superior Officer, on receipt of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders. (3) *** *** *** (i) Even if the information discloses commission of cognizable offences and the SHO refuses to register a case, police manual provides that the complainant can go upto the Higher Officer (SSP), i.e., to the officers as provided for under Section 36, Cr.PC with a petition that the concerned SHO has not registered/refused to register the complaint. This is also the requirement of Section 154 (3) of the Code, which reads as under : - 154. Information in cognizable cases. - (2) *** *** *** (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. (ii) Section 36 of the Code provides for the powers of the senior officers and reads as under : - '36. Powers of superior officers of police. - Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to wish they are appointed, as may be exercised by such officer within the limits of his station. (iii) It would be useful to also refer to Section 155 and Section 156 of the Code. 155. - Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to wish they are appointed, as may be exercised by such officer within the limits of his station. (iii) It would be useful to also refer to Section 155 and Section 156 of the Code. 155. Information as to non-cognizable cases and investigation of such cases.- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 30. As per Section 155 of the Code, even if information given is in relation to commission of rton-cognizable offence, it is required to be recorded in a book to be kept by an officer who is in-charge of the Police Station and in such a case, investigation cannot be conducted by the police without the permission of the Court whereas in the case of a cognizable offence investigation has to be conducted by the police once it registers and FIR. 31. Section 156 of the Code reads as under :- 156. Police officer's power to investigate cognizable cases.-- (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. Police officer's power to investigate cognizable cases.-- (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. 32. It is the contention of the petitioners that the powers vested in the Court under Section 156 (3) of the Code can be exercised by the Court only in two situations, i.e.,- (i) Where the police despite having registered an FIR on the basis of information disclosing commission of cognizable offences is neither interested in investigating the crime nor the investigation is proceeding properly; or (ii) When the SHO has refused to record the information given by the complainant in writing, and/or to register an FIR even though commission of cognizable offences are disclosed. The senior officers also despite being approached have failed to take appropriate action in the matter as provided for under Section 154 (3) of the Code: Provided the Magistrate is satisfied that the information discloses commission of cognizable offences and, intervention of police is necessary for digging out the evidence which is neither in the possession of complainant nor can be produced by him. It is also submitted that such power may also be exercised even if a request is made by way of an application filed along with a complaint under Section 200, Cr.PC, but, only if the Magistrate decides not to take cognizance on the basis of the complaint under Section 190 of the Code for cogent reasons. 33. At this stage, I may also refer to the provisions of Chapter XV of the Code, which provide for an alternative mode to the complainant aggrieved from the inaction of the police in a case where the complaint approaches the police with information disclosing commission of cognizable offence for the purpose of registration of an FIR. This starts from Section 200 and ends upto Section 210 of the Code. This starts from Section 200 and ends upto Section 210 of the Code. These provisions enable the Magistrate to take cognizance of the offences disclosed in the complaint in accordance with procedure prescribed in this Chapter. The relevant provisions are reproduced hereunder for the sake of offence :- 200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) If the Magistrate makes over the case for inquiry, or trial, to another Magistrate under Section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall,- (a) If the complaint is in writing, return it for presentation to the proper Court-with to that effect; (b) If the complaint is not in writing, direct the complainant to the proper Court. 202. 202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made,- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and - in every such case he shall briefly record his reasons for so doing. 34. These provisions thus, provide additional remedy to the complainant aggrieved of inaction on the part of the police by filing a complaint under Section 200 of the Code to seek redressal of his grievance. He can do so even when he is not satisfied with the police action under Chapter XII by approaching the senior officer under Section-154 (3). 34. These provisions thus, provide additional remedy to the complainant aggrieved of inaction on the part of the police by filing a complaint under Section 200 of the Code to seek redressal of his grievance. He can do so even when he is not satisfied with the police action under Chapter XII by approaching the senior officer under Section-154 (3). However, when complaint is filed under Section 200 of the Code the Magistrate has a duty to record evidence led by the complainant and also to examine his witnesses and if necessary even to call for a police report, and then to decide as to whether he has to proceed under Chapter XV or has to dismiss the complaint. 36. At this stage, it will be appropriate to take note of the observations made by the Apex Court in few cases. In the case of All India Institute of Medical Sciences Employees' Union (Regd.) through its President Vs. Union of India and others, (1996) 11 SCC 582 , regarding the procedure to be followed if FIR is not registered under Section 154 of the Code. The relevant observations made by the Court are reproduced hereunder:- 3. The Code of Criminal Procedure, 1973 (for short, 'the Code') prescribes the procedure to investigate into the cognizable offences defined under the Code. In respect of cognizable offence, Chapter XII of the Code prescribes the procedure for disclosing information to the police and their powers to investigate the cognizable offence. Sub-section (1) of Section 154 envisages that 'every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant: and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. On such information being received and reduced to writing, the officer in charge of the police station has been empowered under Section 156 to investigate into the cognizable cases. The procedure for investigation has been given under Section 157 of the Code, the details of which are not material. On such information being received and reduced to writing, the officer in charge of the police station has been empowered under Section 156 to investigate into the cognizable cases. The procedure for investigation has been given under Section 157 of the Code, the details of which are not material. After conducting the investigation prescribed in the manner envisaged in Chapter XII, charge-sheet shall be submitted to the Court having jurisdiction to take cognizance of the offence. Section 173 envisages that : (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government giving details therein. Upon receipt of the report, the Court under Section 190 is empowered to take cognizance of the offence. Under Section 173 (8), the Investigating Officer has power to make further investigation into the offence. 4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire 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 concerned police to investigate into the 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 evidence recorded prima facie discloses commission of the offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. 37. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. 37. This judgment was followed by the Apex Court in Aleque Padamsee and others Vs. Union of India and others, (2007) 6 SCC 171 , which is a three Judges' Bench judgment. The relevant observations made in the said judgment are as under :- 7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and re-iterated in Gangadhar's case (supra), the remedy available is as set out above by filing a complaint before the Magistrate. Though, it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumarl's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari 's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra), the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re-iterated in Lallan Chaudhary and others Vs. State of Bihar, AIR 2006 SC 3376 . The-course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hart Singh's case (supra) and Minu Kumari's case (supra). State of Bihar, AIR 2006 SC 3376 . The-course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hart Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever, facts brought to its notice show that cognizable offence has been made out. In case, the police officials fail to do so, the modalities to be adopted are as set out in Sections 190 read with Section 200 of the Code...... 8. The writ petitions are finally disposed of with the following directions:- (1) 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 and observed. (2) It is open to any person aggrieved by the inaction of the police officials to'adopt the remedy in terms of the aforesaid provisions. 38. The matter was also dealt with by the Apex Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others, (2008) 2 SCC 409 , relied upon by both the sides. In this case, the Apex Court has discussed relevant provisions of Chapter XII and Chapter XV of the Code and has made the following observations :- 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482, Cr.PC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154 (3) and Section 36, Cr.PC before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156 (3). 26. 26. 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), Cr.PC or other police officer referred to in Section 36, Cr.PC. 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), Cr.PC instead of rushing to the High Court by way of a writ petition or a petition under Section 482, Cr.PC. Moreover, he has a further remedy of filing a criminal complaint under Section 200, Cr.PC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies ? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself)- The High Court should discourage the practice of filing a writ petition or petition under Section 482, Cr.PC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154 (3) before the concerned police officers, and if that is of no avail, under Section 156 (3), Cr.PC before the Magistrate or by filing a criminal complaint under Section 200, Cr.PC and not by filing a writ petition or a petition under Section 482, Cr.PC. 30. It may be further mentioned that in view of Section 36, Cr.PC if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI Vs. State of Rajasthan and another, 2001 Cri.LJ 968, R.P. Kapur Vs. S.P. Singh, (1961) 2 SCR 143 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar Vs. State of Rajasthan and another, 2001 Cri.LJ 968, R.P. Kapur Vs. S.P. Singh, (1961) 2 SCR 143 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar Vs. A.C. Saldanna, (1980) 1 SCC 554 . 39. A Divisional Bench of the Karnataka High Court in Guruduth Prabhu and others Vs. M.S. Krishna Bhat and others, 1999 Cri.LJ 3909 has also discussed the issue in detail both in the context of Chapters XII and XV of the Code. The relevant paragraphs reads as under:- 10. Let us first consider whether the learned Magistrate had jurisdiction to refer the matter for police investigation under Section 156 (3), Cr.PC. Sub-section (1) of Section 156 confers on the police unrestricted power to investigate a cognizable offence without the order of a Magistrate or without a formal First Information Report. The police are entitled to investigate cognizable offence either on information under Section 154 or on their own motion, on their own knowledge or from other reliable information. This statutory right to investigate cognizable offence cannot be interfered with or controlled by the Courts including the High Court. It is open to the Court to take or not to take action when the police prefer a charge-sheet after investigation. But the Court's function does not begin until the charge-sheet is filed. Under sub-section (2), police can investigate any offence taking the matter to be a cognizable offence although ultimately charges are filed for a non-cognizable offence since while investigating a cognizable offence, the police are not debarred from investigating any non-cognizable offence arising out of the same facts and including it in the report to be filed by them under Section 173, Cr.PC. Sub-section (3) empowers the Magistrate to refer and direct the police to investigate a cognizable offence. But, there is a restriction on the Magistrate before directing the police to investigate under sub-section (3), the Magistrate should form an opinion that the complaint filed by the complainant before him disclose a cognizable offence. When the allegation made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3). In the present case, the learned Magistrate without applying his mind had directed an investigation by the police. When the allegation made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3). In the present case, the learned Magistrate without applying his mind had directed an investigation by the police. Such an order which is passed without application of mind is clearly an order without jurisdiction. Therefore, the order passed directing the police to investigate under sub-section (3) of Section 156, Cr.PC, passed without jurisdiction is liable to be quashed by this Court either under Section 482, Cr.PC or under Article 226 of the Constitution of India. We find from the materials on record, the learned Magistrate has not at all applied his mind before directing police investigation under Section 156 (3), Cr.PC. If the Magistrate had applied his mind, the Magistrate could have found that no cognizable offence is made out even if the entire allegations made in the complaint are accepted. We have already come to the conclusion that none of the complaints filed by the complainants disclose a cognizable offence alleged under Section 167, IPC. On this count alone, the direction given by the Magistrate is liable to be quashed. The Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal, 1992 Cri.LJ 527 has held that the High Court could either exercise its power under Article 226 of the Constitution of India or under Section 482, Cr.PjC and quash the investigation to prevent abuse of the process of law or to secure the end of justice. 11. Sub-section (3) of Section 156, Cr.PC, empowers Magistrate to order an investigation. 11. Sub-section (3) of Section 156, Cr.PC, empowers Magistrate to order an investigation. Under Section 157 (1), Cr.PC an officer in charger of a Police Station having reason to suspect the commission of an offence which he is empowered under Section 156, Cr.PC to investigate should send a report to the Magistrate empowered to take cognizance of the offence upon a police report and should proceed in person or depute one of his prescribed deputies to proceed to the spot to investigate under Section 157 (1) (a) when the offender is named and if the case is not of a serious nature the officer need proceed in person or depute his subordinate, Under Section 157(1) (b), if it appears to such police officer that there is no sufficient ground for entering on an investigation he shall not investigate the case and the officer should inform the complainant under the prescribed manner. Thus, the police officer, who is empowered to investigate on the information received by him of the commission of a cognizable offence can decide whether there is no sufficient ground for entering into an investigation and if there is no sufficient ground he should not investigate the case. But, once the Magistrate orders an investigation under Section 156 (3), Cr.PC, the police officer is bound to investigate the matter and there is no question of his deciding not to investigate. Thus, by an order of the Magistrate under Section 156 (3) the discretion given to the police officer under Section 157 is taken away. It is, therefore, very important that the Magistrate applies his mind and finds that the allegations made in the complaint filed under Section 200, Cr.PC, before him discloses an offence. If every complaint filed under Section 200, Cr.PC is referred to the police under Section 156 (3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence. 40. The aforesaid judgment also emphasis that there should be application of mind before a complaint is sent to police for investigation and holds that it is not necessary to refer every complaint filed under Section 200 to the police for investigation under Section 156 (3) of the Code. It has been stated that if such order is passed in routine without application of mind there is every likelihood of causing harassment to the accused persons by unscrupulous complainants. 41. In another judgment delivered by this Court in the case of Skipper Beverages Pvt. Ltd. Vs. State (supra), also relied upon by the petitioner a similar view has been taken by this Court also. In that case, the judgment of the Apex Court in Suresh Chand Jain Vs. State of Madhya Pradesh (supra), relied upon by the complainant has also been referred to. The relevant paragraphs of that judgment are also reproduced for the sake of reference :- 7. It is true that Section 156 (3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations, but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases, where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156 (3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to help the complainant. The police assistance can be taken by a Magistrate even under Section 202 (1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129, titled 'Suresh Chand Jain Vs. The police assistance can be taken by a Magistrate even under Section 202 (1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129, titled 'Suresh Chand Jain Vs. State of Madhya Pradesh and others'. 10. Section 156 (3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases, where the same are warranted. The section empowers the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore, the Magistrate must apply his mind before passing an order under Section 156 (3) of the Code and must not pass these orders mechanically on the mere asking by the. complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reason of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact. 42. Thus, there are pre-requisites to be followed by the complainant before approaching the Magistrate under Section 156 (3) of the Code, which is a discretionary remedy as the provision proceeds with the word 'May'. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is thus, not necessary that in every case, where a complaint has been filed under Section 200 of the Code the Magistrate should direct the police to investigate the crime merely because an application has also been filed under Section 156 (3) if the Code even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the Court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored. 45. The decision to take cognizance under Chapter XV or to refer matter under Chapter XII should be taken only after application of judicial mind has also been laid emphasis even in the case of Ram Babu Gupta (supra), also relied upon by respondent No. 2/complainant heavily. The relevant observations made in this regard reads as under:- 17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr.PC. The first question stands answered thus. 46. A learned Judge of this Court in the case of State Vs. Mohd. Iqbal Ghazi and others, 154 (2008) DLT 481, has explained as to how application of mind can be made by the Magistrate in such matters. The relevant observation is reproduced hereunder :- 31. But, for the guidance of the learned Metropolitan Magistrate, the facts of the instant case require something more to be stated. I have noted hereinabove the language of Section 154 (1) of the Code of Criminal Procedure, 1973. A bare look at the language of said provision reveals that the pre-requisite of registration of an FIR is that the information disclosed must relate to the commission of a cognizable offence. Thus, even a Magistrate cannot proceed to issue any direction under Section 156 (3) of the Code unless he is prima facie satisfied that the information before him relates to the commission of a cognizable offence for the reason an order directing the police to investigate any cognizable offence would require the registration of an FIR inasmuch as relating to the commission of a cognizable offence no investigation can proceed without the registration of an FIR...... 33. 33. It means that the person required to apply his mind has to come to grips with the facts before him and has to bring into focus the law on the subject and applying the facts to the law, to arrive at a conclusion by a process of reasoning, evidencing that all relevant facts have been taken note of and properly analysed in the light of the law applicable. A truncated and an gibberish reproduction of facts, excluding relevant facts from the focus of the mind, would result in a decision being taken which can be classified as a decision without the application of mind. Informed reasoning is the heart of the matter." 6. In view of the aforesaid judgment and the legal position as contained in Chapter 15 of the Code of Criminal Procedure, this Court has observed :- "49. I am in complete agreement with the views expressed by learned Brother Judges of this Court in the judgments cited above. I may also observe that if the Magistrate decides to proceed under Section 200 of the Code, then also the Magistrate has power to call for a police report before issuing the process as provided for under Section 202 of the Code. However, before calling for such a report, the Magistrate will have to record evidence of the complainant as may be produced. If such a procedure is followed, chances of abuse of the process are less. Another safeguard can be to call for a status report from the police about the stage of investigation if the complainant has already approached the police before taking a view as to whether he should proceed under Chapter XII or under Chapter XV. 50. This Court would also like to reiterate the observations made by the Division Bench of Karnataka High Court in the case of Guru Dutt Prabhu and others (supra), expressing the fear in sending every complaint filed under Section 156 (3), Cr.PC for police investigation without application of mind, which certainly can be used as a tool of harassment in the hands of unscrupulous complainant and there are chances where this provision can be highly misused if the orders are passed under Section 156 (3) of the Code in routine, even where a complaint is filed under Section 200 of the Code. 51. 51. The judgment delivered by another Single Judge of this Court long ago in the case of Acharya Arun Dev Vs. State and another, 2005 (2) JCC 897, relied upon by the complainant dealing with similar direction given by the Magistrate under Section 156 (3) of the Code can also be referred to. Only because in that case, the Court felt that there was a necessity for directing investigation by the police for the purpose of collection of evidence. However, in the present case, situation is different. Here the agreement, the subject matter of dispute, was very much with the complainant, yet he did not feel it appropriate to place it on record intentionally. He also failed to produce subsequent agreements whereby his entire interest in the property in question stood assigned/transferred to a third party who has not cared to come to the Court even after mortgage which now stand re-conveyed. The narration of events mentioned by the Apex Court in the arbitration dispute (supra) also goes to show that the issues concerning the original agreement stood even otherwise settled between the parties. However, subsequently the complainant appears to have changed his mind and started litigating with the petitioners to force his design to insist upon giving him more land. None of these issues have been even discussed by the Metropolitan Magistrate. The Magistrate has not even cared to find out as to whether Delhi Courts will have jurisdiction or not and which part of the offence(s) if any has been committed in Delhi requiring investigation by Delhi Police. The Magistrate has neither discussed as to what offences are made out nor has discussed as to who are the persons actually responsible for the commission of such offence, if any. 7. The Magistrate has neither discussed as to what offences are made out nor has discussed as to who are the persons actually responsible for the commission of such offence, if any. 7. In the light of the above discussion, I quashed the FIR registered in that case on the direction of the Magistrate under Section 156 (3), Cr.PC without recording the evidence of the complainant under Section 200, Cr.PC was also summarised as :- "(i) Whenever, a Magistrate is called upon to pass orders under Section 156 (3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under Section 154 (3) of the Code. (ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by the SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders. (iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code. (iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filed along with a complaint under Section 200 of the Code, if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct police investigation in.the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.'' 8. In this case also, there is no application of mind while directing registration of FIR. In this case, simply on the basis of an application under Section 156 (3), Cr.PC by cryptic order Judicial Magistrate First Class has directed for registration of FIR. For the reason stated above, the FIR being Crime No. 133/2012 is therefore, quashed. This means that all the proceedings, which arises therefrom are also quashed. However, a liberty is granted to the complainant to proceed with this complaint under Section 200, Cr.PC he may lead evidence in support of his complaint. The Court would be free to take cognizance of the complaint if evidence is lead by the complainant, which may make out a case for proceeding further against the petitioner. With the aforesaid reasons, Misc. Criminal Case No. 12539/2012 is also allowed. A copy of the order be supplied on that file. 9. The Court would be free to take cognizance of the complaint if evidence is lead by the complainant, which may make out a case for proceeding further against the petitioner. With the aforesaid reasons, Misc. Criminal Case No. 12539/2012 is also allowed. A copy of the order be supplied on that file. 9. For the guidance of all the Subordinate Judicial Magistrate in the State of Madhya Pradesh, the Registrar General of this Court is directed to circulate the guidelines as mentioned below for dealing with the cases under Section 156 (3), Cr.PC, the directions are as follows :- (i) Whenever a Magistrate is called upon to pass orders under Section 156 (3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under Section 154 (3) of the Code. (ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders. (iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. (iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code. (iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filed along with a complaint under Section 200 of the Code, if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code. C.C. as per rules.