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2015 DIGILAW 935 (MP)

Atul Arora v. State of M. P.

2015-09-04

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 482 CrPC assails the order dated 9.10.2007 and subsequent FIR based on it. 2. The singular contention raised by Shri Prashant Sharma is that the Court below has mechanically passed the order dated 9.10.2007. The necessary ingredients for invoking said power were not taken into account and in routine manner police authorities were directed to register the matter and start investigation. He relied on judgment of this Court and recent judgment of Supreme Court in (Priyanka Shrivastava v. State of U.P.). 3. Shri R. S. Bansal, Advocate for the complainant submits that Court below has given a finding in the impugned order that averment of complainant were examined. This shows that there was proper application of mind. He also relied on 2008(2) SCC 409 (Sakiri Vasu v. State of U.P. and others). On the strength of this judgment, it is urged that power of Magistrate under sections 200, 156(3) CrPC are very wide. The High Court should not interfere in a routine manner against orders passed by the Magistrate. 4. No other point is pressed by the learned counsel for the parties. 5. I have heard the parties and perused the record. 6. This Court in 2013 (2) MPHT 521 (Ramyash Tiwari v. State of M.P.) opined as under :- “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), CrPC, 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. 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. 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.” Pertinently this judgment was directed to be circulated among the judges of subordinate judiciary. 7. The apex Court in its recent judgment in case of (Priyanka Srivastava and another v. State of Uttar Pradesh and others), reported in (2015)6 SCC 287 held as under :- “The duty cast on the Magistrate while exercising power under section 156(3) CrPC cannot be marginalised. The power under section 156(3) CrPC warrants application of judicial mind. A Court of law is involved. It is not the police taking steps at the stage of section 154 CrPC. The Magistrate exercising power under section 156(3) CrPC has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has to bear in mind that sending the matter for investigation would be conducive to justice and then he may pass the requisite order. There has to be prior applications under sections 154(1) and 154(3) CrPC while filing a petition under section 156(3) CrPC. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. A litigant at his own whim cannot invoke the authority of the Magistrate under section 156(3) CrPC. A principled and really aggrieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when perverted litigants take this route to harass their fellow citizens, efforts must be made to scuttle and curb the same. A number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, are being filed. Consequently, in an appropriate case, the truth and veracity of the allegations made can be verified by the Magistrate, regard being had to the nature thereof.” 8. A plain reading of aforesaid judgment shows that Magistrate was required to apply mind whether the complainant has availed remedy available to him under section 154 CrPC ? Whether he has filed the document showing that said remedy is availed ? A plain reading of aforesaid judgment shows that Magistrate was required to apply mind whether the complainant has availed remedy available to him under section 154 CrPC ? Whether he has filed the document showing that said remedy is availed ? The Magistrate is further required to examine whether complainant has taken further steps before higher authorities, if his application under section 154 CrPC is not entertained by the police station In-charge. After examining the relevant pleadings and documentary evidence only the Magistrate may exercise his power under section 156(3). No doubt as held in Sakiri Vasu (supra), the Magistrate has wide powers. However, existence of power and propriety in exercising power are two different things . Power can be exercised only when essential ingredients for exercising power are satisfied. 9. The Court below has mechanically recorded that averments of the complaint are perused and a case is made out for issuance of certain directions. The necessary and relevant consideration mentioned by this Court and Supreme Court have not been taken into account. Resultantly, impugned order dated 9.10.2007 is set aside and FIR based on it is also set aside. The matter is remitted back to the trial Court to proceed from that stage in accordance with law. 10. Petition is allowed to the extent indicated above. ...........