Madhya Pradesh High Court
Somesh vs Home Department on 7 October, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
-1- WP No.12872/2020
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
W.P NO.12872/2020
Somesh s/o Charanjeet Khatri vs. State of M.P & others
07.10.2020: (INDORE):
Ms.Nidhi Bohra, learned counsel for the petitioner.
Ms.Geetanjali Chaurasia, learned Panel Advocate for the
respondents/State.
Heard learned counsel for the parties through video
conferencing.
ORDER
Petitioner has filed the present petition seeking the following reliefs:
It is, therefore, most respectfully prayed by the petitioner that this Hon'ble Court may kindly be pleased to exercise the writ jurisdiction of this Hon'ble Court by issuance of appropriate writ, order or direction to the respondents No.4 & 3.
(a) That the respondent Crime Branch directed to not take any coercive action against present applicant without holding a proper inquiry and without giving petitioner to opportunity of hearing in the false complaint made by any person including respondent No.6 Kewal Singh and Respondent No.7 Pankaj Jaiswal.
(b) That the respondent police and crime branch may kindly directed to inquire the case against the persons who are making false complaint against present petitioner and his family.
(c) All other consequential relief incidental there to, that this Hon'ble Court deems fit in the interest of justice.-2- WP No.12872/2020
2. Petitioner is claiming himself to be a property broker and permanent resident of Indore. According to him respondent No.7 lodged an FIR against him under section 3(1)(2) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act in the year 2016 which was registered as Crime No.02/2016 and the trial is pending. Thereafter, he again lodged a report in the police station Palasia under sections 420 & 120-B of the IPC under Crime No.538/2016 and the trial is pending. According to the petitioner, respondents No.6 & 7 both are in the habit of filing false complaints in the police station as well as civil suit against him. The respondent No.6 filed one complaint in the police station (AJAK), Indore in which after due enquiry the police have filed the closure report on 10.03.2016. It is further alleged that at the behest of respondent No.6 one Mohd.Mukim also lodged a complaint under section 420 IPC against him before the A.S.P (Crime Branch) in which also the enquiry report has been filed that the dispute is of civil nature. Thereafter, Rajiya Sultan, Ajay Verma, Ajay Kadiley and Vandana Jaiswal also lodged a complaint against him at the behest of respondents No.6 & 7 in which he has been acquitted. It is also alleged that the FIR under Crime No.441/16 has also been registered against him on a complaint made by one Naveen Harshane and at the instance of Kewal Singh he filed an objection in the bail petition, however, this Court has granted bail to the petitioner. The petitioner has approached this Court after facing so much harassment made by respondents No.6 &
7. The petitioner is seeking direction to the Crime Branch that before registering an FIR against him an opportunity of hearing -3- WP No.12872/2020 be given to him and the false complaints on behalf of respondents No.6 & 7 be not entertained. Vide order dated 30.09.2020 this Court directed the Panel Lawyer to obtain instructions.
3. Ms.Geetanjali Chaurasia, learned Panel Advocate appearing for the respondent/State submits that number of complaints are pending against the petitioner. He is facing trial in number of cases. It is further submitted by her that if any complaint is made in the police station disclosing the commission of cognizable offence, the police is bound to register an FIR in view of the law laid down by the Apex Court in the case of Lalita Kumari vs. Government of U.P & others reported in (2014) 2 SCC 1. No blanket protection can be given to the petitioner and there is no provision under the Cr.P.C for giving any opportunity of hearing before registration of the FIR to the proposed accused, hence the present petition is misconceived and liable to be dismissed. In support of her contention, she has placed reliance over the judgment passed by this Court in the case of Ritesh Ajmera vs. The State of M.P & others in Writ Petition No.8471/2020 dated 07.07.2020.
4. It is correct that the number of FIRs have been registered against the petitioner by respondent no 6,7 and several others. The petitioner is apprehending that respondents No.6 & 7 are behind all these FIRs registered against him, therefore, he seeking appropriate writ(s) /order(s) from this court to the Crime Branch that before conducting investigation and an opportunity of hearing be given to him and before registration of the FIR, genuineness of the allegations be got verified. In -4- WP No.12872/2020 the case of Lalita Kumari (supra) the Apex Court has held that if the police receive any complaint disclosing the commission of any offence the SHO must register an FIR and conduct the investigation. Section 154 Cr.P.C is reproduced below:
154. Information in cognizable cases.--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
1[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that--
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-
section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred -5- WP No.12872/2020 to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
5. In view of section 154 (1) Cr.P.C every information relating to the commission of a cognizable offence given to the officer In-charge of a police station he shall reduce it in writing in a book to be kept by such officer in the police station. If he refuses to register an FIR then such informant may make a complaint to the Superintendent of Police under subsection (3) of section 154 Cr.P.C. The word "shall" used in section 154 leaves no discretion to the police officer to hold preliminary enquiry before recording the FIR. In the case of Lalita Kumari (supra) only in five types of cases, the Apex Court has given liberty to the SHO to conduct a preliminary enquiry before taking cognizance. The relevant portion of the judgment is reproduced below:
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.-6- WP No.12872/2020
6. After registration of FIR the procedure of investigation is provided under section 157 of the Cr.P.C. Section 160 gives power to the police officer to require the attendance of a witness and under section 161 he may examine orally any person who is supposed to be acquainted with the facts and circumstances of the case. After completing the investigation the final report is liable to be filed under section 173 Cr.P.C, therefore, in the entire Chapter-XII of the Cr.P.C there is no such provision for giving any opportunity of hearing to the accused against whom the complaint has been received and there is no provision for holding any enquiry before registration of the case except in aforesaid cases as held by the Apex Court in the case of Lalita Kumari (supra).
7. So far the relief No.7 (b) is concerned by which the petitioner is seeking enquiry against such persons who are making false complaints against him and his family members. There is no such order by any Court of law against the respondents No.6 & 7 that they have made a false complaint against the petitioner and in the Cr.P.C also there is no such provision for conducting an enquiry against the informant who allegedly have made a false complaint. If the complaint is found to be baseless the police may file closer report and if police find substance and incriminating material against the accused then police shall file the Final report. If the prosecution fails to establish the charges than the trail shall acquit the accused, hence no such direction as sought by the petitioner can be given in this petition. If any complaint is received against the petitioner the same may be dealt with as per the -7- WP No.12872/2020 law laid down by the Apex Court in the case of Lalita Kumari (supra).
In view of the above, the petition is disposed of.
(VIVEK RUSIA) JUDGE Digitally signed by Hari Kumar hk/ Nair Date: 2020.10.12 15:59:31 +05'30'