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2017 DIGILAW 602 (RAJ)

Devi Dutt v. State of Rajasthan

2017-02-20

MAHESH CHANDRA SHARMA

body2017
JUDGMENT : MAHESH CHANDRA SHARMA, J. This Cr. Misc. Petition has been filed under Section 482 CrPC for quashing of FIR No. 651/2016 registered at Police Station Vaishali Nagar, Jaipur Metropolitan (West) for the offence under Sections 195, 196, 465, 477-A, 471, 120-B IPC. 2. Brief facts of the case are that on 29.11.2008, petitioner's daughter Bhumika was married to son of respondent no. 2. After marriage, the family of respondent no. 2 especially his son and his wife Vijaya Devi made demand of dowry and tortured her. On 21.7.2015, the petitioner received a telephone from Madan Gopal, who informed that Bhumika had committed suicide. The petitioner lodged FIR No. 697/2015 with Police Station, Vaishali Nagar, Jaipur for the offence under Sections 498A, 304B IPC. During investigation, the police found dying declaration of deceased Bhumika written on 21.7.2015 at 11.39 AM. In post-motem conducted on 22.7.2015 by the Board of Doctors, 19 injuries were found on the body of deceased Bhumika, which were all anti-mortem in nature, out of which 11 injuries were about 5-7 days prior to death. Subsequently, Sunil, husband of deceased Bhumuka was arrested. Brother of respondent no. 2 namely Madan Gopal threatened petitioner in trial court, whereupon the complainant made complaint to the local police, which initiated proceedings under Section 107, 151 of CrPC. The wife of respondent no. 2 filed S.B. Cr. Misc. Petition No. 4360/2015 before this Court, which was disposed of vide order dated 3.9.2015 with the observations that in the investigation, all the material should be examined and help of IT experts may be taken. The I-phone was sent for forensic examination and in forensic examination, it was found that the suicide note was created on 21.7.2015 at about 11.39 AM. 3. The wife of respondent no. 2 namely Vijaya Devi was arrested. She filed bail application before this Court, but the same was withdrawn with liberty to file the same after filing of the charge sheet. The charge sheet was filed against the accused persons. Thereafter the Vijaya Devi again filed the bail application, but the same was dismissed vide order dated 20.5.2016. He has further contended that the genuineness of the investigation in FIR No. 697/2015 has been examined by the concerned Magistrate and he has taken cognizance against son and wife of respondent no. 2. Thereafter the matter was taken to the Sessions Court, but of no avail. 4. He has further contended that the genuineness of the investigation in FIR No. 697/2015 has been examined by the concerned Magistrate and he has taken cognizance against son and wife of respondent no. 2. Thereafter the matter was taken to the Sessions Court, but of no avail. 4. Thereafter with malafide intention and just to put pressure upon the petitioner, the respondent no. 2 submitted a complaint to the Magistrate concerned, which was sent for investigation under Section 156(3) to the concerned police whereupon FIR No. 651/2016 was lodged at police Station, Vaishali Nagar, Jaipur (West). Hence, this Cr. Misc. Petition has been filed for quashing FIR no. 651/2016 registered at Police Station, Vaishali Nagar, Jaipur Metropolitan (West). 5. Learned counsel for the petitioner has contended that FIR No. 651/2016 is not only actuated with malafide, but is also abuse of the process and has been filed with object to get FIR No. 697/2015 re-investigated after filing of the charge sheet and after taking judicial note by concerned Judicial Magistrate and Sessions Judge. He has further contended that the object of present FIR is to throttle criminal proceedings in FIR No. 697/2015, which is not permissible in law. He has further contended that in FIR No. 651/2016, besides petitioner, respondent no. 2 has named Tarun Kumar, Rajeev Doyee, Bhanwar Gurjar, Mahavir Prasad as accused. All these persons are witnesses in FIR No. 697/2015, in which the charge sheet has been filed. However, this fact has been concealed by respondent no. 2. In this view of the matter, FIR No. 651/2016 is nothing, but a device to pressurize witnesses not to depose against wife and son of respondent no. 2. He has further contended that a reading of FIR No. 651/2016 will evince that FIR is nothing but reproduction of contents of bail application of Vijaya Devi. The similar allegations were raised before the Magistrate concerned and thereafter before the Sessions Court, but with no result. However, the learned Magistrate did not bother to examine the relevant facts and law before sending the complaint for investigation under Section 156(3) CrPC. He has further contended that the object of investigation is to find the truth. Accused cannot force the police or investigating agency to give a report as per his whims and wishes. A bare reading of FIR No. 651/2016 will show that respondent no. He has further contended that the object of investigation is to find the truth. Accused cannot force the police or investigating agency to give a report as per his whims and wishes. A bare reading of FIR No. 651/2016 will show that respondent no. 2 was only pressurizing investigating agency to give the report as they wanted with regard to the crime, which they have committed. Due to failure for the same, this FIR has been filed with oblique motive and without any substance. The investigation cannot be interfered by such device of falsehood. He has further contended that from bare reading of FIR, no offence is made out against the petitioner, particularly when forensic science laboratory has examined the device and has given its opinion. Furthermore when a Board of Medical Doctors examined the dead body of deceased Bhumika and found 19 anti mortem injuries. In this view of the matter, the FIR lodged in this matter against the petitioner deserves to be quashed and set-aside. 6. IO is present in person today in the Court, who has submitted the factual report in the matter, according to which the police has found the offence not to have been made out against the petitioner in FIR No. 651/2016 and this FIR has been lodged by the respondent no. 2 in order to save the skin of accused persons of FIR No. 697/2015. The IO has contended that they have prepared the Negative Final Report in this matter, which they are going to present in the court. 2 in order to save the skin of accused persons of FIR No. 697/2015. The IO has contended that they have prepared the Negative Final Report in this matter, which they are going to present in the court. A copy of the factual report submitted by IO is ordered to be taken on record, the relevant part whereof is reproduced as under:— ^^izdj.k la[;k 651@16 iqfyl Fkkuk oS'kkyh uxj ds vuqla/kku /kkjk 195] 196] 465] 477,] 471] 120ch vkbZŒihŒlhŒ dk vijk/k ?kfVr gksuk ugha ik;k tkrk gSA ;g izdj.k vfHk;ksxh Jh d`".k xksiky xqtZj us dzksl dsl la[;k 697@15 /kkjk 498,] 304ch vkbZŒihŒlhŒ esa U;k;ky; esa fopkj.k ds nkSjku fxjrkj vfHk;qDr Jh lquhy ljk/kuk ¼iq=½ ,oa Jherh fot;k xqtZj ¼iRuh½ dks Qk;nk feyus dh lEHkkouk ls cpko esa ntZ djok;k gSA eqdnek gktk esa lEiw.kZ rrh'k gklyk ls ekeyk ,Qvkj vne odq vkenu >wB dk ik;k tkus ij Jheku iqfyl mik;qDr if'pe t;iqj ls tfj;s vkns'k dzekad 1206&08 fnukad 13-1-017 dks ,Qvkj vkns'k vne odq >wB esa izkIr dj eqdnek gktk esa ,Qvkj uaEcj 1@17 fnukad 13-1-17 vne odq vkenu >wB esa rF;kRed fjiksVZ Jheku fd lsok esa is'k gSA ,lMh@& iqfyl Fkkuk oS'kkyh uxjA** 7. Learned PP appearing for the state assisted by counsel for the complainant have opposed the same. They have contended that the averments made by the accused petitioner in this petition are absolutely vague and without any basis. The petitioner has committed the alleged offence, hence, the impugned FIR should not be quashed. 8. I have heard the learned counsel for the parties and carefully perused the relevant material on record. In the case of Ramdev Food Products Pvt. Ltd. v. State of Gujarat reported in 2015 Cr. L.J. 2382 : 2015 (2) RLW 1722 (SC), their Lordships of Hon'ble Apex Court have held that direction for investigation under Section 156(3) CrPC is to be issued only after application of mind by Magistrate. In the case of Mrs. Priyanka Srivastava v. State of UP Reported in 2015 Supreme Court 1758 : 2015 (3) RLW 2404 (SC), their Lordships of Hon'ble Apex Court have held that the Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions under S. 156(3) without proper application of mind. Priyanka Srivastava v. State of UP Reported in 2015 Supreme Court 1758 : 2015 (3) RLW 2404 (SC), their Lordships of Hon'ble Apex Court have held that the Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions under S. 156(3) without proper application of mind. In the case of Anil Kumar v. M.K. Aiyappa reported in AIR 2014 SC (Supp) 1801, this Lordships of Hon'ble Apex Court have held that 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, will not be sufficient. Their Lordships of the Supreme court in the case of Lalita Kumari v. Government of UP rendered in SLP (Cr.) No. 5898 of 2006 and 5200 of 2009 have held that if the information received does not disclose a cognizance offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It has further been held that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received, but only to ascertain whether the information reveals any cognizable offence. 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. In the case of Jaipur Ex-Servicemen Welfare Coop. Society v. State (S.B. Cr. Misc. Petition No. 351/2012; decided on 9.2.2012 = 2012 (3) RLW 2017), this Court has held that it is necessary for the Magistrate to look into the complaint and may record statement of the complainant to find out whether any offence is made out or not. 9. At this stage, it would be necessary to have a look at the various provisions of the criminal procedure code, which are as under: 154. (1)…. (2) …. 9. At this stage, it would be necessary to have a look at the various provisions of the criminal procedure code, which are as under: 154. (1)…. (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. 156. Police officer's power to investigate cognizable case. (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. 157. Procedure for investigation preliminary inquiry. (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. 157. Procedure for investigation preliminary inquiry. (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that— (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. 190. Cognizance of offences by Magistrates. 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 10. 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, but before that he has to see as to whether the prima-facie case is made out or not. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 11. 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 in a routine manner. 11. 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 in a routine manner. 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 petitioner is father of deceased Bhumika, who was tortured and subjected to dowry death by wife and son of the complainant. The learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. Issuing a direction stating to lodge an FIR in the facts and circumstances of the case, creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 2, to take adventurous steps with courts to bring the victim (father of the deceased Bhumika) on their knees. As the factual exposition would reveal, after failing at all levels, he took wreck vengeance while filing the complaint for lodging the FIR. I am only stating about the devilish design of the respondent No. 2 to harass the petitioner with the sole intend to knee down the petitioner. 12. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. Where 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 litigation takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 13. In my considered opinion, a stage has come in this country where under 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. 13. In my considered opinion, a stage has come in this country where under 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. This affidavit can make the applicant more responsible. I am 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, but it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 14. There has to be prior applications under Section 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. The need for giving a direction that the application under Section 156(3) be supported by an affidavit has arisen, 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, the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. I am 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, are being filed. 15. I have to say that learned Magistrate should have kept himself alive to the facts and circumstances of the case, before venturing into directing registration of the FIR under Section 156(3) Cr. P.C. 16. 15. I have to say that learned Magistrate should have kept himself alive to the facts and circumstances of the case, before venturing into directing registration of the FIR under Section 156(3) Cr. P.C. 16. In the instant matter, earlier the petitioner lodged an FIR No. 697/2015 at Police Station, Vaishali Nagar, Jaipur for the offence under Sections 498A and 304-B IPC against the accused persons; there is a dying declaration of deceased Bhumika; 19 injuries were found on the body of deceased Bhumika by the Medical Board; the wife of the complainant earlier filed S.B. Cr. Misc. Petition No. 4360/2015, which was disposed of vide order dated 3.9.2015 and as per the directions of Court, forensic science laboratory examined the device and gave its opinion; the bail application filed by the complainant's wife Vijaya Devi in FIR No. 697/2015 has been dismissed as withdrawn with liberty to file a fresh bail application after filing of the challan. After filing the challan, she again filed the bail application, but the same was also dismissed vide order dated 20.5.2016. Being failed at all levels, the instant complaint was filed by the complainant with oblique motive and in order to save the skin of accused persons of FIR No. 697/2015, in which the police, after thorough investigation, has prepared the Final Negative Report and they are going to file the same before the court concerned, as stated by the IO concerned, who is present in the Court today, in my view, dragging the petitioner in the instant FIR without any substance is wholly irrelevant. 17. In this view of the matter, the complaint is found to have been sent under Section 156(3) CrPC by the Magistrate concerned to the police for investigation in routine manner, particularly when the genuineness of the device, the allegations with regard to which have been made in the instant FIR, has already been examined by the Forensic Science Laboratory and they gave their opinion. Furthermore, for cyber crimes, the Information & Technology Act is in vogue. The aforesaid approach of the Magistrate concerned is not legally sustainable in the light of settled principles of law by Hon'ble Apex Court in the case of Ramdev Food Products Pvt. Ltd. (supra); Mrs. Priyanka Srivastava (supra) and Anil Kumar (supra). 18. Furthermore, for cyber crimes, the Information & Technology Act is in vogue. The aforesaid approach of the Magistrate concerned is not legally sustainable in the light of settled principles of law by Hon'ble Apex Court in the case of Ramdev Food Products Pvt. Ltd. (supra); Mrs. Priyanka Srivastava (supra) and Anil Kumar (supra). 18. It is noticed by this Court that in number of cases, the Judicial Magistrates are sending the complaints filed by the complainants without going through the contents of the complaints to the police stations concerned under Sec. 156(3) CrPC, whereupon after thorough investigation, the police submits the negative final report. Due to filing the false complaints, the Courts are becoming over-burdened and the genuine complainants are not getting justice. The intention of the Legislature while enacting the provision under Section 156(3) CrPC was to make available the speedy and fair justice to the needy people. 19. For the reasons mentioned above as also looking to the fact that police has prepared negative final report in this matter and they are going to submit the same in the court concerned, there is no need to pass the order in this petition, which has been filed for quashing the FIR. However, in order to curb the practice of filing false complaints by the complainants with a view to take wreck vengeance, this petition is disposed of with the following directions; (I) No Magistrate shall send the complaint under Section 156(3) CrPC to the police station concerned unless and until he himself/herself does not satisfy prima-facie from a bare reading of the contents of complaint that any cognizable offence is made out. (II) The Magistrate concerned will also ask for the report from the police station concerned whether the complainant had tried to lodge the FIR or not, and if it is so, then what steps had he taken for lodging the FIR - whether he submitted any report to the Police Station concerned or SP concerned or any other concerned authority. (III) The magistrate concerned will also see in the complaint, whether the complainant has simply named the accused persons with ill motive just to gain or achieve something by way of filing the complaint. (III) The magistrate concerned will also see in the complaint, whether the complainant has simply named the accused persons with ill motive just to gain or achieve something by way of filing the complaint. (IV) He will also see while forwarding the complaint to the concerned police station that prima-facise case is made out against each of the accused person/persons, whose names have been mentioned in the complaint. (V) He will also see the requirements of law for sending the complaint under Section 156(3) CrPC to the concerned police station. (VI) The Magistrate concerned for verifying the truth and to test the veracity of the allegations, should ask for an affidavit from the complainant, who seeks the invocation of the jurisdiction of the Magistrate. This affidavit can make the complainant more responsible and if 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) CrPC. (VII) Magistrate concerned should always keep in mind while a complaint has been filed before him that invoking the jurisdiction by him is alternate remedy. They should avoid invoking this alternate remedy to curb the practice of filing false complaints for the reason that issuing a direction to lodge an FIR on the basis of false complaints creates a very unhealthy situation in the society. It also encourages the unscrupulous and unprincipled litigants, to bring the victim on their knees for the purpose of taking revenge or wreck vengeance. (VIII) While sending the complaints to the Police Station concerned U/s. 156(3) CrPC for the purpose of registering the FIR, the Magistrate concerned shall pass the order in his own writing. 20. Magistrate concerned should have kept himself alive to the aforesaid points before venturing into sending the complaint under Section 156(3) CrPC to the police for investigation, otherwise he may take the alternate remedy, which is provided under the Criminal Procedure Code. 21. Deputy Registrar (Judl.) is directed to send a copy of this order to all the Sessions Judges in Rajasthan and the Sessions Judges may be requested to send copy of this order to all the Judicial Magistrates in his jurisdiction. No order passed for quashing the F.I.R.