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Madhya Pradesh High Court · body

2019 DIGILAW 87 (MP)

BRAJESH SHUKLA v. ANIRUDDH MUKHERJI

2019-01-25

ANJULI PALO

body2019
JUDGMENT : 1. As these petitions have been separately filed by the petitioners being aggrieved by the common order dated 12-4-2018 passed by the Court of Judicial Magistrate First Class, Katni in Complaint Case No. Unregistered/2018 whereby the learned trial Court gave a direction to the police in exercise of powers under section 156(3) of Criminal Procedure Code to investigate into the complaint filed by the respondent, the same were heard analogously and are being disposed of by this common order. 2. Petitioners are police personnel. Brief facts of the case are that the respondent filed a complaint case against the petitioners on 16-2-2018 before the Court of Judicial Magistrate First Class, Katni alleging that on 19-11-2015 when he was going to Jabalpur, all the petitioners along with other persons restrained and arrested him. Thereafter, a false case was made against him. It is submitted by the petitioners that during the execution of warrant on 19-11-2015, the respondent manhandled them, resultantly Brajesh Shukla sustained injuries. Another case vide Crime No. 647/2015, under sections 353, 332 and 427 of Indian Penal Code has been registered against the petitioners for pressurizing him. Respondent-complaint filed a complaint case against petitioner-Anurag Pathak (Head Constable) which was registered by the learned Judicial Magistrate First Class. All the facts are suppressed by the respondent, hence, the entire proceeding initiated at the instance of respondent is an abuse of process of law and are liable to be quashed. Learned Magistrate passed an order of registration of a case, mechanically without assigning any reason and without applying the mind. It is also submitted that the prosecution of the petitioners is not tenable without sanction under section 197 of Criminal Procedure Code. 3. Learned counsel for the respondent vehemently opposed the contentions and submitted that the learned trial Court is empowered to direct the police to register as FIR against the accused persons and to investigate into the matter. 4. It is also submitted that the prosecution of the petitioners is not tenable without sanction under section 197 of Criminal Procedure Code. 3. Learned counsel for the respondent vehemently opposed the contentions and submitted that the learned trial Court is empowered to direct the police to register as FIR against the accused persons and to investigate into the matter. 4. On the contrary, learned counsel for the petitioners has placed reliance on the case of Ramyash Tiwari vs. State of M. P., 2013 (2) MPHT 521 , in which, the following directions have been given : “(i) Whenever a Magistrate is called upon to pass orders under section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under section 154(3) of the Code. (ii) The Magistrate should then form his own opinion whether the fact mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if not such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing the final orders. (iii) The Magistrate, when approached with a complaint under section 200 of the Code, should invariably proceed under section Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance process to the accused. (iii) The Magistrate, when approached with a complaint under section 200 of the Code, should invariably proceed under section Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under section 202 of the Code. (iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under section 156(3) of the Code is also filed along with a complaint under section 200 of the Code, if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct the police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of the complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.” 5. In the case of Priyanka Shrivastava and anr. vs. State of Uttar Pradesh and ors., (2015) 6 SCC 287 , the Hon’ble Supreme Court has observed that, the remedy available under section 156(3), Criminal Procedure Code is not of routine nature. Exercise of powers there under requires application of judicial mind. Magistrate exercising the said powers must remain vigilant with regard to nature of allegations made in the application and not to issue directions without proper application of mind. In an appropriate case, Magistrate can verify truth and veracity of allegations made in the complaint, having regard to nature thereof. Furthermore, it is now mandatory that for section 156(3) of Criminal Procedure Code application is to be supported by an affidavit. Powers under section 156(3) of Criminal Procedure Code cannot be invoked by a litigant at his own whim to harass others. Furthermore, it is now mandatory that for section 156(3) of Criminal Procedure Code application is to be supported by an affidavit. Powers under section 156(3) of Criminal Procedure Code cannot be invoked by a litigant at his own whim to harass others. It can be invoked only by a principled and really aggrieved citizen who has approached the Court with clean hands. Order under section 156(3), Criminal Procedure Code may be passed where it would be conducive to justice. Prior applications under section 154(1) of Criminal Procedure Code and section 154(3) of Criminal Procedure Code have to be in existence while filing petition under section 156(3), Criminal Procedure Code and these aspects should be clearly spelt out in the application under section 156(3), Criminal Procedure Code and necessary documents to that effect have to be filed. 6. In the present case it does not appear that the Court without giving any cogent reason has passed the impugned order. 7. Further that, all the petitioners are public servants and were on duty at the time of incident. Hence, for their prosecution, sanction under section 197 of Criminal Procedure Code was required. 8. In the case of Satyendra Kumar Singh @ Shailendra Kumar Singh vs. State of Bihar, 1991 (3) Crimes 76 (Patna) by following the law laid down in the case of K. P. Singh vs. Aftabuddin, AIR 1955 Patna 453, it was held that :— “Where the facts mentioned in the complaint give rise to two offences one of which required either a complaint by the Court concerned or a sanction by the prescribed authority, the prosecution cannot be started under the section which did not require any complaint by the Court or sanction necessary in law for taking cognizance of the case. The competence of a Court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this, taking cognizance of the offences is also material in this regard. Under the Code a Court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it are fulfilled. If they are not fulfilled the Court does not obtain jurisdiction to try the offence. In addition to this, taking cognizance of the offences is also material in this regard. Under the Code a Court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it are fulfilled. If they are not fulfilled the Court does not obtain jurisdiction to try the offence. Without sanction order of cognizance being illegal and liable to be set aside.” [See also case of Surendra Natha Swain vs. State of Orissa, 2006 CrLJ 462 (463) (DB)] 9. Hence, in the light of principles laid down by the Hon’ble Supreme Court with regard to section 197 of Criminal Procedure Code and section 156(3) of Criminal Procedure Code, the impugned order passed by the learned trial Court is liable to be set aside. 10. Accordingly, all these petitions are allowed. The cases registered against the petitioners under sections 182, 211, 467, 468, 471, 500, 506 and 120-B of Indian Penal Code without sanction from the authority under section 197 of Criminal Procedure Code are hereby quashed. 11. However, if the complainant/respondent files a complaint after obtaining prior sanction from the competent authority, the trial Court may take cognizance of the same and pass appropriate reasoned order on the same in accordance with law.