Madhya Pradesh High Court
Rajesh @ Raju Sharma vs Jayesh on 25 April, 2017
1
Miscellaneous Criminal Case No.2602/2016
Miscellaneous Criminal Case No.2603/2016
25.04.2017
Shri A.K. Sethi, learned Senior Counsel with Shri
Prateek Maheshwari, learned counsel for the
petitioners.
Shri Shailendra Shrivastava, learned counsel for
the respondent.
Heard on the question of admission.
ORDER
This order shall govern disposal of two miscellaneous criminal cases (1) Miscellaneous
Criminal Case No.2602/2016 and (2) Miscellaneous Criminal Case No.2603/2016. For the sake of convenience, facts are taken from Miscellaneous Criminal Case No.2602/2016.
2. By these two petitions under Section 482 of the Code of Criminal Procedure, 1973, the petitioners are praying for quashment of order dated 10.02.2016 (Annexure P/1) passed by 16th Additional Sessions Judge, Indore in Criminal Revision No.504/2014, whereby the learned Revisional Court set aside the order passed by the learned Judicial Magistrate First Class dismissing the complaint case filed by the respondent and directed for registration of the case against the petitioners under Section 156 (3) of the 2 Code of Criminal Procedure, 1973.
3. Facts of the case are that upon a private criminal complaint case filed by the respondent along with an application under Section 156 (3) of the Code of Criminal Procedure, 1973, on 21.12.2013 (Annexure P/4) learned Judicial Magistrate First Class, Indore dismissed the application and directed the complainant to produce evidence under Section 200 and Section 202 of the Code of Criminal Procedure, 1973. The respondent / complainant challenged the said order by filing Criminal Revision No.88/2014 on 24.01.2014. The learned Revisional Court by order dated 01.05.2014 (Annexure P/5) set aside the impugned order by allowing the criminal revision and directed the Judicial Magistrate First Class to take further proceedings on an application under Section 156 (3) of the Code of Criminal Procedure.
4. Against this order, no further petition under Section 482 of the Code of Criminal Procedure, 1973 was filed by the present petitioners, and therefore, order dated 01.05.2014 (Annexure P/5) has attained finality.
5. Upon remand in compliance to order dated 01.05.2014, the private criminal complaint was again heard and dismissed the same by learned Judicial 3 Magistrate First Class, Indore vide order dated 09.05.2014. The respondent / complainant again challenged the said order by filing Criminal Revision No.504/2014, stating therein that once order dated 01.05.2014 passed by the learned Revisionial Court has attained finality, the learned Judicial Magistrate First Class, Indore is bound to act according to the directions made by the Revisional Court.
6. The Revisional Court again on 10.02.2016 in Criminal Revision No.504/2014 set aside order dated 09.05.2014 and directed the learned Judicial Magistrate First Class, Indore to initiate appropriate proceedings as per application under Section 156 (3) of the Code of Criminal Procedure, 1973; relevant paragraphs No.5 and 6 of the order read, as under: -
"5- tSlk fd bl U;k;ky; }kjk iwoZ vkns'k fnukad 01-05- 2014 esa /kkjk&156¼3½ vaos{k.k dh dk;Zokgh dh tkuk pkfg, tks vf/kuLFk U;k;ky; }kjk vkosnu fujLr djus esa =qfV dh gSA ;g ckr vyx gS fd ifjoknh dks viuh lk{; izLrqr dj fl) djuk vko';d gksrk gS] ysfdu /kkjk&156¼3½ dk vkosnu ifjoknh }kjk izLrqr fd;k x;k gS rks vijk/k dh xaHkhjrk dks ns[krs gq, U;k;ky; dk drZO; gS fd vkosnu ij xaHkhjrkiwoZd fopkj djuk pkfg,A ysfdu vf/kUkLFk U;k;ky; }kjk fnukad 09-05-2014 esa ;g vkns'k fd;k fd mDr vkosnu foxr is'kh ij ifjoknh vf/koDrk ds }kjk fd, x, rdksZ ij fopkj fd;k vkSj iqujh{k.k U;k;ky; ds }kjk fn, x, vkns'k ls Li"V gS fd bl U;k;ky; ds }kjk fnukad 21-12-2013 dks ikfjr vkns'k dks vikLr djk;k x;kA ml fLFkfr esa U;k;ky; dks pkfg, Fkk fd 156¼3½ ij dk;Zokgh dh tkus dh vko';drk Fkh] ysfdu U;k;ky; }kjk iqujh{k.k vkns'k esa ;g vFkZ fudkyk x;k fd iqujh{k.k U;k;ky; }kjk ,slk vkns'k ugha fn;k x;k tSlk vuqrks'k mijksDr vkosnu dh vuqrks'k dafMdk esa pkgk gSA cfYd U;k;ky; ds }kjk 156¼3½ ds rgr fof/k lEer dk;Zokgh gsrq Hkstk x;kA bldk vk'k;4
;g gS fd /kkjk&156¼3½ ds rgr tks Hkh izfdz;k gS mldks viukrs gq, U;k;ky; dks vxzlj gksuk pkfg, Fkk] ysfdu mDr vkns'k ds rgr fn, x, funsZ'kksa ds rgr dk;Zokgh ugha djrs gq, fnukad 156 ¼3½ ds vkosnu ds leFkZu esa vU; dksbZ Hkh nLrkost ;k lkexzh izLrqr djuk gS rks izLrqr djs] tcfd vkosnd }kjk laiw.kZ nLrkost izLrqr fd, tk pqds Fks vkSj vf/kuLFk U;k;ky; dks iqujh{k.k vkns'k ds ikyu esa vkxs vxzlj gksus dh vis{kk Fkh tks ugha dh tkdj iqu% fopkj gsrq fu;r fd;k x;k tks fd ,slk izfrr gksrk gS fd vf/kuLFk U;k;ky; us vkns'k dh ea'kk dks ugha le>rs gq, dk;Zokgh dh xbZ gSA ,slh fLFkfr esa vf/kuLFk U;k;ky; dk vkns'k fnukad 09-05-2014 dk fof/k lEer ugha gksus ls gLr{ksi ;ksX; gSA 6- vr% vf/kUkLFk U;k;ky; dk vkns'k gLr{ksi ;ksX; gksus ls iqujh{k.k ;kfpdk Lohdkj dh tkrh gS vkSj ;g vkns'k fn;k tkrk gS fd /kkjk&156¼3½ ds rgr izkFkhZ }kjk tks lgk;rk pkgh xbZ gS mlij dk;Zokgh djsA v/khuLFk U;k;ky; dk vkns'k fnukad 09-05-2014 fujLr fd;k tkrk gSA vkns'k dh izfr lacaf/kr U;k;ky; dks ewy fjdkMZ ds lkFk Hksth tk;A"
7. The petitioners again challenged the said order and submitted that after receipt of the notice from the learned Revisional Court on 17.07.2014 the petitioners had to appear before him and an application for providing copy of documents filed along with revision memo was filed, but the learned Revisional Court before deciding the said application, decided the criminal revision of the respondent. Criminal revision was neither heard nor considered on merit. The learned Revisional Court has committed illegality and material irregularity by allowing the criminal revision and prays that the present miscellaneous criminal case be allowed and impugned order be quashed.
8. Per contra, Shri Shailendra Shrivastava, learned counsel for the respondent, in support of the 5 impugned order dated 10.02.2016, has submitted that once order dated 01.05.2014 has attained finality, then the learned Judicial Magistrate First Class is bound to take appropriate steps on an application under Section 156 (3) of the Code of Criminal Procedure, 1973, without recording evidence under Section 200 and Section 202 of the Code of Criminal Procedure, 1973. There is no bar of law and no case to interfere with impugned order dated 10.02.2016 (Annexure P/1), as prayed for, is made out; and prays for rejection of the miscellaneous criminal case.
9. As per the private complaint, allegation against the petitioners is that they with an intent to obtain respondent's property played fraud and prepared forged agreement. A written compliant was lodged at Police Station Khajrana, Indore against them, but no action was taken, and therefore, he filed a private complaint against the petitioners for the offence punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 along with an application under Section 156 (3) of the Code of Criminal Procedure, 1973 to direct the Competent Police Authorities to make an investigation into the matter. In compliance to order dated 01.05.2014 passed in Criminal Revision No.88/2014 by the 6 learned 16th Additional Sessions Judge, Indore, the learned Judicial Magistrate First Class is bound to proceed with the matter, in accordance with appropriate action under Section 156 (3) of the Code of Criminal Procedure, 1973. He, without following the directions given on 01.05.2014, again rejected the application on 09.05.2014, and therefore, the learned Revisional Court has rightly allowed Criminal Revision No.504/2014 on 10.02.2016.
10. Power of Magistrate under Section 156 (3) of the Cr.P.C. to direct Police to register an FIR before commencing investigation in the matter.
11. It is also pointed out that vide Crime No.161/2016 on 10.03.2016 a criminal case for offence punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 has been registered against the petitioners, and therefore, the present miscellaneous criminal case has become infructuous and liable to be dismissed.
12. The alleged offence committed by the petitioners is grievous in nature and triable by Sessions Court, and therefore, the learned Revisional Court rightly allowed the criminal revision filed by the respondent. As per averments made in the criminal complaint, allegation against the petitioners is that they have 7 committed offence of fraud, cheating and forgery.
13. Considering the aforesaid, I am of the view that no case for interference with impugned order dated
10.02.2016 passed in Criminal Revision No.504/2014 by the learned 16th Additional Sessions Judge, Indore, as prayed for, is made out.
14. Accordingly, Miscellaneous Criminal Case No.2602/2016 and Miscellaneous Criminal case No.2603/2016 have no merit and are dismissed.
(P.K. Jaiswal) Judge Pithawe RC