Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 290 (MP)

Shikha v. Ajay Hardia

2017-02-27

ALOK VERMA

body2017
ORDER 1. This application under section 482 CrPC is directed against the order passed by learned Special Judge and Additional Sessions Judge, Indore, in Criminal Revision No.611/2016, which was in its turn directed against the order passed by Judicial Magistrate First Class, Sanwer, in an unregistered criminal complaint case Dr. Ajay Hardia v. Harerama Hare Krishna (Siksha Samiti) dated 12.8.2016, wherein the learned Judicial Magistrate allowed an application filed by respondent No.1 and issued directions to Police Station-Kshipra, District Devas to register a crime under the relevant provision of law and after preparing FIR on the basis of the facts stated in the complaint commence investigation. 2. So far as the order of the revisional Court is concerned, the revision was dismissed treating the order passed by learned Judicial Magistrate as an interlocutory order against which the revision was not maintainable under section 397(2) CrPC. The counsel for applicants relied on the principle laid down in case of Avinash Trimbakrao v. State of Maharastra [2016 CrLJ (NOC)102 (Bombay)]. However, the learned Additional Sessions Judge relied on the case of Ayyub Ahmed v. State of M.P. [ILR (2009) M.P. 1484], and held that the order passed deciding an application under section 156(3) CrPC is an interlocutory order, and therefore, revision was not maintainable. 3. Reverting back to the history of the present case, this is second round of litigation before this Court. Earlier, the complaint was filed by respondent No.1 against the present petitioners and the learned Judicial Magistrate ordered registration of crime and FIR under section 156(3) CrPC. The order was challenged before this Court by a petition under section 482 CrPC, the same was disposed of by this Court in Miscellaneous Criminal Case No.1554/2016 order dated 28.6.2016. The Co-ordinate Bench of this Court relying the principle laid down in case of Ramyash Tiwari v. State of M.P. [ILR (2014) M.P. 1404], and in case of Priyanka Shrivastava v. State of M.P., reported at (2015)6 SCC 278], and this Court disposed of the matter by observing as follows :- “[13] I am of the view that the learned Magistrate has committed an error of law as without verifying the veracity of the allegations and the application was not supported by the affidavit, even though directed for registration of the offence against the applicants. Thus, the impugned order is not sustainable in law. Thus, the impugned order is not sustainable in law. Therefore, the order dated 4.2.2016 is hereby set aside. However, the Magistrate can exercise the jurisdiction under section 156(3) of the Code keeping in view the law laid down by the Hon'ble apex Court in the case of Priyanka Shrivastava (supra)”. 4. When the matter reached before learned Judicial Magistrate, the matter was freshly heard by the Court below and the impugned order was passed by which again, the application filed by respondent No.1, was allowed. The learned Magistrate took note of various case law including the principles laid down in case of Priyanka Shrivastava (supra), and while allowing the application, issued direction as aforesaid. 5. Aggrieved by this order, this application is filed on the ground inter alia that (i) prior to filing of the complaint, the respondent No.1 filed a complaint on which the inquiry was held and it was found that no offence was committed by the petitioners. The outcome of this inquiry was not taken into consideration by the Magistrate before passing the impugned order (ii) the order was not passed in accordance with directions issued by the apex Court in case of Priyanka Shrivastava (supra), and by this Court in Ramyash Tiwari (supra), (iii) the learned Magistrate has also not taken into consideration that criminal case is pending against respondent No.1 himself and his other family members and only as counter blast, the complaint was filed. 6. I have gone through the impugned order. This Court in an order passed in Miscellaneous Criminal Case No.8707/2016 dated 29.9.2016, on a petition filed by wife of respondent No.1, observed that while dealing with an application under section 156(3) CrPC, the directions issued by Hon'ble apex Court in case of Priyanka Shrivastava (supra), and by this Court in case of Ramyash Tiwari (supra), should be followed. It was observed by this Court that Magistrate should apply his mind whether any cognizable offence appeared to have been committed from the allegations levelled in the complaint. Taking them on their face value and entirely true if a cognizable offence is apparently appeared to have been committed, then only such directions should be issued. In the present case, however, the Magistrate took into consideration the earlier inquiry conducted by respondent No.2 on a complaint filed by respondent No.1. Taking them on their face value and entirely true if a cognizable offence is apparently appeared to have been committed, then only such directions should be issued. In the present case, however, the Magistrate took into consideration the earlier inquiry conducted by respondent No.2 on a complaint filed by respondent No.1. The learned Magistrate also to some extent narrated the facts of the case in the impugned order. Though, the Magistrate did not express his mind as to whether the cognizable offence was made out from the facts stated in the complaint. However, from going through the order in totality, it can be inferred that to Magistrate to apply his mind to come to conclusion that direction issued under section 156(3) CrPC must be issued, and therefore, the Magistrate proceeded to issue the direction as above. 7. Learned counsel appearing for respondent No.1 placed reliance on judgment passed by Hon'ble apex Court in HDFC Security Limited and others v. State of Maharashtra and another [ (2017)1 SCC 640 ]. In this case, it was held by Hon'ble apex Court that the order passed under section 156 (3) CrPC is an interlocutory order, and therefore, normally no interference should be made till cognizance is taken by the Magistrate on a report filed under section 173 CrPC. However, in this case, a different question was involved. It is still obligatory on the concerning Magistrate to follow the principles and directions issued by Hon'ble apex Court in case of Priyanka Shrivastava (supra), i.e. the basic requirement before direction issued by the Magistrate, if such a direction was followed by the Magistrate, then no further interference is called for. 8. Coming back to the present case, I find that the Magistrate has taken into consideration the directions issued by the Hon'ble apex Court in case of Priyanka Shrivastava (supra). He has also applied his mind on the facts of the case, and thereafter, issued the directions. This apart, at present, the investigation would take place and investigating officer would draw his own inferences during the investigation. It doesn't appear that even if the order passed by learned Magistrate do not comply strictly the directions issued by Hon'ble apex Court in case of Priyanka Shrivastava (supra), it would cause any prejudice to the present applicants. 9. Taking all the factors into consideration, no interference is called for. It doesn't appear that even if the order passed by learned Magistrate do not comply strictly the directions issued by Hon'ble apex Court in case of Priyanka Shrivastava (supra), it would cause any prejudice to the present applicants. 9. Taking all the factors into consideration, no interference is called for. This application is accordingly devoid of any force and liable to be dismissed. 10. Accordingly, this application is dismissed, however, the applicants are at liberty to appear before the Magistrate and raise their points when charge-sheet is filed taking cognizance in this matter.