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Madhya Pradesh High Court · body

2017 DIGILAW 27 (MP)

Jareena Khan v. Shailendra Pagare

2017-01-06

G.S.AHLUWALIA

body2017
JUDGMENT : G.S. Ahluwalia, J. 1. This petition has been filed under Section 482 of CrPC against the order dated 05/07/2011 passed by First Additional Sessions Judge, Bhind in Criminal Revision No.64/2011 arising out of order dated 29/03/2011 passed by JMFC, Bhind in Unregistered Complaint Case No./2011. 2. The necessary facts for the disposal of this application are that the applicant/complainant filed a criminal complaint under Section 200 of CrPC against the respondents for offences punishable under Sections 306,120-B and 166 of IPC. 3. It was alleged that her husband Akram Khan was working on the post of Food Inspector and he was transferred from Bhind to Indore but the respondents, who were his senior officers, did not relieve him and were unnecessarily harassing him as a result of which her husband committed suicide. On these allegations, it was alleged by the applicant that the respondents have committed offences punishable under Sections 306,120-B and 166 of IPC. The Trial Court, by order dated 29/03/2011, considered the application filed under Section 156(3) of CrPC of the complainant/applicant and allowed the same and directed the Police Station-City Kotwali, Bhind to register the offences and conduct the investigation. It was further directed that the charge-sheet be filed. 4. Being aggrieved by the order dated 29/03/2011, the respondents filed a revision which was allowed by the Revisional Court holding that as the offences are triable by the Court of Sessions, therefore, the Magistrate should not have given a direction under Section 156(3) of CrPC and should have conducted the enquiry as per provisions under Section 202 of CrPC. Revision was accordingly allowed and the matter was remitted back. 5. Being aggrieved by the order of the Revisional Court, the complainant/applicant has filed the present petition under Section 482 of CrPC. 6. None appears for the applicant even in the second round. 7. Kumari Neha Malaliya appeared for the respondents and submitted that the order passed by the Revisional Court is in accordance with law and does not require any interference. 8. From the plain reading of the order of the Revisional Court, it appears that while holding that the Magistrate has no jurisdiction to pass an order under Section 156(3) of CrPC in a case which is triable by the Court of Sessions, the Revisional Court has ignored the judgment passed by the Supreme Court in the case of Devarapalli Lakshminarayana Reddy and ors. v. V. Narayana Reddy and ors. reported in AIR 1976 SC 1672 . The Supreme Court in the case of Devrapalli Laxminarayana Reddy(Supra) has held as under:- Para 18 and 19 "18. In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police under Section 156. 19. This being the position, Section 202(1), 1st Proviso was not attracted. A Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to Section 202(1) of the Code of 1973. Suffice it to say, the stage at which Section 202 could become operative was never reached in this case. We have therefore in keeping with the well established practise of the Court, decided only that much which was essential for the disposal of this appeal, and no more." 9. Thus it is clear that when the Magistrate has not taken any cognizance of the offence and before taking cognizance of offence, he has passed an order under Section 156(3) of CrPC, then the embargo as contained in Section 202(2) of CrPC would not apply. Accordingly, it is held that an order under Section 156(3) can be passed even in those cases which are exclusively triable by the Court of Sessions. Thus, this observation made by the Revisional Court does not appear to be correct. 10. However, looking to the allegations as made in the complaint, the mere observation by the Court below that the allegations prima facie discloses the commission of offence punishable under Section 300 of IPC, is not sufficient. It is well established principle of law that while exercising powers under Section 156(3) of CrPC, the Magistrate is under obligation to apply its mind to the facts and circumstances of the case. 11. It is well established principle of law that while exercising powers under Section 156(3) of CrPC, the Magistrate is under obligation to apply its mind to the facts and circumstances of the case. 11. The Supreme Court in the case of Priyanka Srivastava and anr. v. State of U.P. and ors. reported in (2015) 6 SCC 287 has held as under:- "20. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision: "156. Police officer's power to investigate congnizable case. -(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognisable 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." 21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others (1976) 3 SCC 252 , had to express thus: "17.....It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173." 22. In Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 , the two-Judge Bench had to say this: "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. In Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 , the two-Judge Bench had to say this: "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed (2008) 5 SCC 668 examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 23. In Dilawar Singh v. State of Delhi (2007) 12 SCC 641 , this Court ruled thus: "18. ... 11. The clear position therefore is 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. 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 cognisable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. 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 cognisable 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 cognisable offence is closed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter." 24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. (2005) 7 SCC 467 , the Court while dealing with the power of the Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: (Madhao v. State of Maharashtra (2013) 5 SCC 615 , SCC pp.620-21, para 18) "18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognisable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognisable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)." 25. However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)." 25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC 439 , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p.456, para 22) "22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. 22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed." 26. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. State of U.P. (2014) 2 SCC 1 , in this regard. The larger Bench had posed the following two questions: (SCC p.28, para 30) "(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and (ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognisable offence but the FIR is compulsorily registered then does it infringe the rights of an accused." Answering the questions posed, the larger Bench opined thus: (Lalita Kumari case reported in (2015) 6 SCC 1 ), SCC pp.35-36, 41 & 58-59, paras 49, 72, 111 & 115) "49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognisable offence. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognisable offence. If any information disclosing a cognisable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty bound to register the case on the basis of information disclosing a cognisable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. 111. ... the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has "reason to suspect the commission of an offence". Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognisable offence. 115. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognisable offence. 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognisable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." (emphasis in original) After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognisable offence. After laying down so, the larger Bench proceeded to state: (Lalita Kumari v. State of U.P., (2014) 2 SCC 1 ), SCC p.61, para 120) "120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry." We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognisable offence is made out or not. 27. The fact of such delay and the causes of it must be reflected in the General Diary entry." We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognisable offence is made out or not. 27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate 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 also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognisable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as 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, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 12. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 12. If the order passed by the JMFC is considered in the light of the judgment passed by the Supreme Court in the case of Priyanka Srivastava(supra), Anil Kumar v. M.K. Aiyappa reported in (2013) 10 SCC 705 , it is clear that except mentioning the fact that the complaint discloses commission of cognisable offence, no application of mind to the facts of the case has been done. 13. Under these circumstances, viewed from that point of view, it is clear that before issuing order under Section 156(3) of CrPC, the Magistrate had not applied his mind and accordingly, for that reason, the order dated 29/03/2011 passed by the Magistrate cannot be allowed to sustain. 14. Under these circumstances, the direction given by the Revisional Court to the Magistrate to proceed further in accordance with, provisions of Section 202 of CrPC does not call for any interference and the order passed by the Revisional Court is maintained, for different reason. This petition accordingly fails and is hereby dismissed.