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2019 DIGILAW 460 (MP)

Rustam Singh v. State of M. P.

2019-06-28

VISHAL MISHRA

body2019
ORDER 1. This petition under section 482 of CrPC has been preferred challenging the order dated 14.3.2016 passed in Special Case No. 5/2016 whereby cognizance under section 392 of IPC read with Section11/13 of MPDVPK Act has been taken. 2. It is alleged by the counsel for the petitioners that a private complaint has been filed by one Munshi Singh under sections 392, 395, 397 of IPC and section 11/13 of MPDVPK Act along with the documents i.e., report to the SHO, Police Station Sariachola, District Morena, complaint to Superintendent of Police, District Morena and complaint to I.G. Chambal Division Gwalior. It is alleged that the private complaint filed by the complainant is not supported by any affidavit which is against the law laid down by the Hon'ble Supreme Court in the case of Priyanka Srivastava and another v. State of Uttar Pradesh and others reported in (2015) 6 SCC 287 . Counsel for the petitioners has further alleged that as per the law laid down in Priyanka Srivastava (supra), applications filed for taking cognizance under section 156 (3) of CrPC are mandatorily required to be supported by an affidavit because the Hon'ble Supreme Court has considered the fact that the remedy available under section 156 (3) of CrPC is not of routine nature, it requires application of judicial mind. A Magistrate exercising the said powers must remain vigilant with regard to the allegations made in the application and not to issue directions without proper application of mind. Powers under section 156(3) of CrPC cannot be invoked by a litigant at its own whim to harass others. It can be invoked only by a principled and really aggrieved citizen approaching the Court with clean hands. The Hon'ble Supreme Court has further considered that requirement of an affidavit in support of the application under section 156 (3) of CrPC would have deterrent effect with regard to casual invocation of jurisdiction under section 156 (3) CrPC because filing of a false affidavit by the applicant would make him liable for prosecution in accordance with law. The petitioner has alleged that in the present case the application filed for taking cognizance under sections 392, 395, 397 IPC and section 11/13 of MPDVPK Act is not being supported by any affidavit. The petitioner has alleged that in the present case the application filed for taking cognizance under sections 392, 395, 397 IPC and section 11/13 of MPDVPK Act is not being supported by any affidavit. Therefore, in terms of the law laid down by the Hon'ble Supreme Court in the aforesaid case, the complaint is not maintainable and deserves to be rejected. The learned trial Court has committed an error in taking cognizance vide order dated 14.3.2016, therefore, the said order which is impugned, deserves to be quashed. 3. On the other hand, learned counsel for the State has stated that the learned trial Court has taken cognizance only after recording the statement under section 200 of CrPC and being fully satisfied has applied its judicial mind and has taken cognizance in the matter. It is further contended that it is not a case where only on the basis of an application the cognizance is taken by the learned Magistrate. He has contended that the order impugned does not suffer from any illegality, therefore, the present petition is sans merit and deserves to be dismissed. It is further contended that on earlier occasion, the petitioner has filed MCrC No. 36362/2018 which was dismissed as withdrawn vide order dated 31.10.2018, thus, the second petition under section 482 of CrPC is not maintainable for the similar relief. 4. Heard the learned counsel for the parties and perused the record. 5. The complaint was filed by one Munshi Singh i.e., respondent No. 2 stating therein that owing to some dispute with respect to taking back the truck which was forcefully taken away from the complainant by the accused persons on 5.11.2010. The matter was taken up to the village panchayat on 6.11.2010 but the same was not done and the accused persons have assaulted Kalyan and Keshav and truck was not returned back. Immediately thereafter, the matter was reported to the police authorities, but no action was taken. Thereafter, the complainant approached the Superintendent of Police and thereafter I.G. Chambal Division Gwalior but no action was taken by the police authorities on the complaint being filed by the respondent No. 2, therefore, he has preferred a complaint under sections 392, 395, 397 of IPC read with section 11/13 of MPDVPK Act. Thereafter, the complainant approached the Superintendent of Police and thereafter I.G. Chambal Division Gwalior but no action was taken by the police authorities on the complaint being filed by the respondent No. 2, therefore, he has preferred a complaint under sections 392, 395, 397 of IPC read with section 11/13 of MPDVPK Act. The learned trial Court on the complaint being received has recorded the statements under section 200 of CrPC of one Munshi Singh, Pappu s/o Kalyan Singh, Jandel Singh s/o Gopal Singh and Keshav s/o Kalyan who have supported the complainant's version. After recording the statements under section 200 CrPC, the learned trial Court has taken cognizance in the matter holding that there are sufficient material available in record against the accused persons, therefore, the order impugned dated 14.3.2016 was passed. 6. It is not disputed that the complaint filed by Munshi Singh was not supported by any affidavit. The petitioners have placed reliance upon the judgment passed by the Hon'ble Supreme Court in Priyanka Shrivastava (supra) which was further considered by this Hon'ble High Court in MCrC. No. 19437/2018 and 19443/2018 in analogous hearing and this Hon'ble Court vide order dated 14.2.2019 was pleased to set aside the order impugned and has set aside all the consequential proceedings. 7. In Priyanka Srivastava's case (supra) para 24, 25 and 27 are relevant which read as under: “24. 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) CrPC 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 circumspec-tion has to be adhered to. 25. 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. 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) CrPC 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. 27. In our considered opinion, a stage has come in this country where section 156 (3) CrPC 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. 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. 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. 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.” 8. From the perusal of the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that such directions are being issued by the Hon'ble Supreme Court just to avoid frivolous litigation and just to curb down the tendency of litigants thereby just for their personal grievances and just to wreck vengeance they are filing frivolous litigation before the Courts. Therefore, there should be some responsibility check casted upon to the complainant who has approaching the Courts by way of filing private complaints. 9. Considering the aforesaid analogy, the Hon'ble High Court in MCrC. No. 19437/2018 and 19443/2018 has set aside the order impugned and also the further proceedings of the trial Court in pursuance to the order by which the cognizance was taken. 10. The coordinate Bench of this Court at Principal Seat, Jabalpur has dealt with the similar aspect in the case of Shankarlal Khambra v. State of M.P. and Ors. being MCrC. 10. The coordinate Bench of this Court at Principal Seat, Jabalpur has dealt with the similar aspect in the case of Shankarlal Khambra v. State of M.P. and Ors. being MCrC. No. 13554/13 where by the Hon'ble High Court considering the law laid down by the Hon'ble Supreme Court in Priyanka Srivastava (supra) has set aside the order passed by the learned trial Court with a liberty to the complainant to prefer a fresh application along with affidavit to enable the trial Court to ponder over it and to pass a well reasoned order as per law. The situation in the present case is exactly the same, therefore, considering the law laid down by the Hon'ble Supreme Court in the case of Priyanka Srivastava (supra) and the order passed by the coordinate Bench of this Court, the order impugned dated 14.3.2016 passed in Special Case No. 5/2016 is hereby set aside and liberty is extended to the complainant to proceed afresh by filing an appropriate application before the learned trial Court duly accompanied by an affidavit and the same may be taken care of by the learned trial Court in accordance with law. 11. Needless to say that if such an application is filed before the trial Court, the same will be dealt as expeditiously as possible preferably within a period of two months from the date of filing of application. Accordingly, the petition stands disposed of.