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2019 DIGILAW 444 (HP)

Geeta Singh v. State of H. P.

2019-04-23

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. By medium of this petition under Section 482 of the Code of Criminal Procedure (for short 'Code'), the petitioner has sought quashing of the order dated 12.07.2017, passed by the learned Special Judge (Forest) in Cr.M.P. No. 177-S/4 of 2016, whereby he directed the Investigating Officer to further investigate into the matter in light of the objections put-forth by the petitioner. 2. At the outset, I find it rather intriguing as to why the petitioner has, in fact, filed this petition. The petitioner is the complainant in this case, whose objections has been accepted by the learned Court below and accordingly further investigation has been ordered to be conducted. However, the learned Senior Counsel would argue that by passing the impugned order, the learned Special Judge has reviewed the order passed by his predecessor, who in an application filed by the petitioner under Section 156(3) of the Code had ordered the registration of FIR and thereafter directed the Investigating Officer to further investigate the matter. The petitioner is either too naive or has deliberately and intentionally mis-construed the order passed by the learned Special Judge (Forest), on an earlier occasion on 17.10.2015. 3. No doubt, the petitioner in her application under Section 156 (3) of the Code had made two prayers therein; (i) that since the complainant discloses commission of cognizable offences under Sections 7 and 13(2) of Prevention of Corruption Act, therefore, an FIR deserves to be registered; (ii) the matter be investigated. 4. The learned Special Judge vide its order dated 17.10.2015 did not accede to the first request regarding the registration of FIR against the alleged accused but directed respondent No. 2 to conduct investigation in the matter in accordance with law within three months from the date of receipt of the matter by the police. This would be evidently clear from the operative portion of the order, as contained in para-13 thereof, which reads as under:- "13. Keeping in view the law laid down by the Hon'ble High Court of H.P. in Sh. Ganesh Dutt Thakur vs. Mrs. Gita Singh, Cr.MMO NO. 178 of 2014, decided on 30th July, 2015, the application be sent to Add. Keeping in view the law laid down by the Hon'ble High Court of H.P. in Sh. Ganesh Dutt Thakur vs. Mrs. Gita Singh, Cr.MMO NO. 178 of 2014, decided on 30th July, 2015, the application be sent to Add. Superintendent of Police, Incharge SV & ACB, Khalini, Shimla-2 to conduct investigation in the matter in accordance with law within three months from the date of receipt of the matter by the police." 5. In this view of the matter, this Court has no hesitation to hold that para-4 of the petition is based on false averments, the relevant portion whereof reads as under: "The Ld. Special Judge (Forest) on an application under Section 156 (3) of the Code of Criminal Procedure has passed an order to register FIR and thereafter investigate the matter. However, respondents have not registered any FIR in the case, therefore, it appears that the respondents were not interested in taking any action against the said Shri Jagdish Chander for the reasons best known to them." 6. It is more than settled that 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 cognizable 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 observed earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 153(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). 7. To be fair to the learned Senior Counsel for the petitioner, she has placed strong reliance on the judgments of the Hon'ble Supreme Court in Mohd. 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). 7. To be fair to the learned Senior Counsel for the petitioner, she has placed strong reliance on the judgments of the Hon'ble Supreme Court in Mohd. Yousuf vs. Afaq Jahan and another, (2006) 1 SCC 627 and Dilawar Singh vs. State of Delhi, (2007) 12 SCC 641 , wherein the Hon'ble Supreme Court has held that for the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR and 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. 8. Learned Senior Counsel for the petitioner has particularly relied upon the following observations: "Even if a Magistrate does not say in so many words while directing investigation under Section 156 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." 9. The learned Senior Counsel for the petitioner further argued on the strength of the Constitution Bench judgment of the Hon'ble Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh, (2014) 2 SCC 1 , that registration of an FIR in case of instant kind is obligatory. 10. Notably, the aforesaid judgment alongwith host of other judgments were later on considered by the Hon'ble Supreme Court in Priyanka Srivastava and another vs. State of Uttar Pradesh and others, (2015) 6 SCC 287 wherein after taking into consideration the aforesaid, it was specifically held that issuing an direction to lodge an FIR straightway creates a very unhealthy situation in the society and also reflects the erroneous approach of the Magistrate. After all the learned Magistrate has to remain vigilant with regard to the allegations made and nature of the allegations and not to issue directions without proper application of mind. After all the learned Magistrate has to remain vigilant with regard to the allegations made and nature of the allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter for further investigation would be conducive to justice or else this would encourage unscrupulous and unprincipled litigants. 11. It is apt to reproduce relevant observations as contained in paragraphs 24 to 28, which read thus:- 24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 467 , the Court while dealing with the power of 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 vs. State of Maharashtra, (2005) 7 SCC 467 "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 cognizable offence and the forwarding of the complaint to the police for investigation under [pic]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 cognizable-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. Recently, in Ramdev Food Products Private Limited v. State of Gujarat Criminal Appeal No. 600 of 2007 decided on 16.03.2015, while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: ".... the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. Recently, in Ramdev Food Products Private Limited v. State of Gujarat Criminal Appeal No. 600 of 2007 decided on 16.03.2015, while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: ".... 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. 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. Govt. of U.P., (2014) 2 SCC 1 in this regard. The larger Bench had posed the following two questions:- "(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 cognizable 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: "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 cognizable offence. If any information disclosing a cognizable 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 cognizable [pic]offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 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 cognizable [pic]offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. xxx xxx xxx xxx 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. xxx xxx xxx xxx 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 cognizable offence. xxx xxx xxx xxx 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable 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. 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." 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 cognizable offence. After laying down so, the larger Bench proceeded to state:- "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 cognizable 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 cognizable case is remotely made out. 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 cognizable 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. [28] Issuing a direction stating "as per the application" to lodge an FIR 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.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned. 12. Thus, what flows from the aforesaid discussion is that there was in fact no order even at an earlier occasion passed by the learned Special Judge on 17.10.2015 for registration of FIR and, therefore, the learned Special Judge while passing the order dated 12.07.2017 by directing further investigation into the matter has not committed any impropriety much less illegality as suggested by the petitioner, rather the petitioner is guilty of trying to mislead this Court, as is evident from Para-4 of the petition and is, therefore, directed to be careful in future or else appropriate proceedings in accordance with law be initiated against her . 13. Consequently, there is no merit in this petition and the same is accordingly dismissed.