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Madhya Pradesh High Court · body

2020 DIGILAW 535 (MP)

Suraj Rajoria v. Ram Singh Imle And Others

2020-05-11

S.A.DHARMADHIKARI

body2020
JUDGMENT 1. Heard on the question of admission. 2. I n this petition u/s 482 of Code of Criminal Procedure (hereinafter referred to as "Code"), the petitioner has called in question the legality, validity and propriety of order dated 07/01/2019 passed by Judicial Magistrate First Class, Gwalior in unregistered case number batch of 2018 and order dated 22/10/2019 passed in criminal revision No. 140/2019 by 7th Additional Sessions Judge, Gwalior, whereby, application filed by the petitioner under Section 156 (3) of the Code has been rejected and the petitioner has been directed to examine his witnesses as per the provision of Section 200 and 202 of the Code. 3. T he brief facts leading to filing of this case are that the petitioner has filed a complaint case before the Magistrate against the respondents No. 1 to 13 for the offences punishable under Sections 452, 354, 323, 294, 148, 149, 506-B of IPC along with an application under Section 156 (3) of the Code for issuance of necessary directions to register an FIR on the ground that there was a dispute in respect of a well situated on a Government land. The High Court has passed an order dated 28/07/2017 in W.P. No. 653/2017 in favour of the petitioner and, therefore, the respondents/accused are maintaining grudge against him. It is further submitted that on the date of incident i.e 08/02/2018 all the accused persons entered in his house and used abusive language against him and also assaulted him, due to which he sustained various injuries. The petitioner had lodged written complaint with regard to the aforesaid incident before the concerned police station, where he was not heard since the accused persons were having connivance with the police authorities and they had managed the police authorities not to register an FIR against them. Being aggrieved, the petitioner has filed a complaint under Section 200 of the Code along with an application under Section 156 (3) of the Code for necessary directions. 4. T he trial Court vide order dated 07/01/2019 rejected the application under Section 156 (3) of the Code filed by the petitioner and held that no offence under Sections 452, 354, 323, 294, 148, 149, 506-B of IPC is made out against the accused persons/respondents. 4. T he trial Court vide order dated 07/01/2019 rejected the application under Section 156 (3) of the Code filed by the petitioner and held that no offence under Sections 452, 354, 323, 294, 148, 149, 506-B of IPC is made out against the accused persons/respondents. Being aggrieved by the order dated 07/01/2019, the petitioner has preferred a criminal revision No. 140/2019 before the revisional Court and the revisional Court vide order dated 22/10/2019 affirmed the order passed by the Magistrate and rejected the revision. 5. L earned counsel for the petitioner submits that both the Courts below erred in rejecting application under Section 156 (3) of the Code inasmuch as on the date of incident i.e 08/02/2018 all the accused persons entered in the house of petitioner and used abusive language against him and also assaulted him, due to which, he sustained various injuries, therefore, the offence under Section 452 of IPC is made out. Moreover, other offences are also made out, hence, the respondents/authorities ought to have allowed the application. 6. Per contra, learned Public Prosecutor for the State has opposed the prayer made by the petitioner and supported the orders passed by the Courts below. It is submitted that the orders passed by the Courts below are in accordance with law and, therefore, no interference is warranted. Accordingly, it is prayed that the instant petition deserves to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. I t is settled legal position that once the Magistrate has come to the conclusion that allegations made in the complaint do not prima facie make out offence then the Magistrate was right in rejecting the application under Section 156 (3) of the Code and he is also right in fixing the case for recording the statement of the complainant and his witnesses under Sections 200 and 202 of the Code. It is also well established principle of law that order under Section 156 (3) of the Code could not be passed in a mechanical manner. There has to be due application of mind. It is also well established principle of law that order under Section 156 (3) of the Code could not be passed in a mechanical manner. There has to be due application of mind. Once the Magistrate has applied his mind and if he comes to the conclusion that prima facie the applicant has failed to make out a case for cognizable offence warranting issuance of an order under Section 156 (3) of the Code then the Magistrate is right in rejecting the application, if otherwise does not obligatory on the Magistrate to issue an order under Section 156 (3) of the Code only on the basis of averments made in the complaint. In the present case, the Magistrate was of the view that the allegations made in the complaint do not prima facie make out a cognizable offence against the respondents/accused. In such a situation, only course of action available to the Magistrate is to proceed further with the complaint and decide the question of issuance of summons after examination of complainant and his witnesses under Sections 200 and 202 of the Code. 9. T he Supreme Court in the case of Priyanka Shrivastava and Another Vs. State of U.P. reported in (2015) 6 SCC 287 has held as under:- ''20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision: '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 abovementioned." 21. (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 abovementioned." 21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a threeJudge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 had to express thus: (SCC p. 258, para 17) '17. It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173." 22. In Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 , the two-Judge Bench had to say this: (SCC p.711, para 11) '11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed (2008) 5 SCC 668 examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. 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, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 23. In Dilawar Singh v. State of Delhi (2007) 12 scc 641 this Court ruled thus: (SCC p. 647, para 18) '18. 11. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 23. In Dilawar Singh v. State of Delhi (2007) 12 scc 641 this Court ruled thus: (SCC p. 647, para 18) '18. 11. 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. 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.' 24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. (2005) 7 SCC 467 , the Court while dealing with the power of the 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 v. State of Maharashtra, (2013) 5 SCC 615 , SCC pp. 620-21, para 18) '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. And again: (Madhao v. State of Maharashtra, (2013) 5 SCC 615 , SCC pp. 620-21, para 18) '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 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 a 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 precognizance stage and avail of Section 156(3).''**** 25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC 439 , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p. 456, para 22) '22.1. 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. 22.2. The 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. State of U.P. (2014) 2 SCC 1 in this regard. 22.2. The 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. State of U.P. (2014) 2 SCC 1 in this regard. The larger Bench had posed the following two questions: (SCC p. 28, para 30) '(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: (Lalita Kumari case SCC pp. 35-36, 41 & 58-59, paras 49, 72, 111 & 115 '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 offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. *** 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. *** 111. the Code gives power to the police to close a matter both before and after investigation. *** 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. *** 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. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." (emphasis in original) 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: (Lalita Kumari case, SCC p. 61, para 120) '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 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 in 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 the 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 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 society and also reflects the erroneous approach of the learned Magistrate.........." 10. 28. Issuing a direction stating 'as per the application' to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate.........." 10. I n the light of aforesaid judicial pronouncement in the case of Priyanka Shrivastava (supra) and in the facts and circumstances of the case, the learned Magistrate as well as revisional Court have not committed any mistake in coming to the prima facie conclusion that no cognizable offence is disclosed in the complaint filed by the petitioner, no fault can be found in the orders passed by the Courts below. Accordingly, the order dated 07/01/2019 passed by Judicial Magistrate First Class, Gwalior in unregistered case number batch of 2018 and order dated 22/10/2019 passed in criminal revision No. 140/2019 by 7th Additional Sessions Judge, Gwalior are hereby affirmed. 11. C onsequently, this petition fails and is hereby dismissed. 12. L et a copy of this order be sent to the trial court for information and necessary action.