Madhya Pradesh High Court
Madhuraj Singh Tomar vs Babulal Kushwah on 1 February, 2017
1 MCRC 864/2015
(Madhuraj Singh Tomar & Anr. vs. Babulal Kushwah & Anr.)
1.2.2017
Shri Prashant Sharma, counsel for the applicants.
Shri Vijay Sundaram, counsel for the respondent No.1.
Shri Girdhari Singh Chauhan, Public Prosecutor for the respondent No.2/State.
This petition has been filed under Section 482 of Cr.P.C. calling in question the order dated 9.10.2014 passed by Special Judge (MPDVPK Act), Morena in Criminal Complaint Case unregistered/2014 by which a direction under Section 156 (3) of Cr.P.C. was issued to the police to investigate the matter.
It is submitted by the counsel for the applicant that although it is not specifically mentioned in the order dated 9.10.2014 that the police must register the FIR but once a direction is given under Section 156 (3) of Cr.P.C. to investigate the matter then unless and until the FIR is lodged investigation cannot start.
It is further submitted by the counsel for the applicant that it is well established principle of law that the Magistrate while passing an order under Section 156 (3) of Cr.P.C. has to apply its mind to the effect that whether the allegations as contained in the complaint discloses commission of a cognizable offence or not .
Per contra, the counsel for the respondent No.1 submitted that an order under Section 156 (3) of Cr.P.C. can be passed at pre-cognizance stage. "Cognizance" has not been defined but the moment Magistrate applies its judicial mind to the allegation made in the complaint then it amounts to taking "cognizance". Once the cognizance is taken then a court cannot pass an order under Section 2 MCRC 864/2015 156(3) of Cr.P.C. Thus, it is submitted that the Special Judge did not commit any mistake in not reflecting any reasons in the order otherwise it could have been argued by the counsel for the applicant that once the cognizance has been taken then the order under Section 156 (3) of Cr.P.C. was not maintainable.
Heard the learned counsel for the parties. The Supreme Court in the cases of Mohd. Yousuf vs. Afaq Jahan (Smt.) & Anr. reported in (2006) 1 SCC 627 and Hemant Yashwant Dhage vs. State of Maharashtra & Ors., reported in (2016) 6 SCC 273 has held that even if the Magistrate has not mentioned in so many words to register the FIR but if an order under Section 156 (3) of Cr.P.C. is passed then the police authorities are required to investigate the matter and the investigation starts from the recording of FIR under Section 154 of Cr.P.C. Thus, it was held that whether it is directed or not, it is obligatory on the part of the police to register the FIR before starting investigation as directed by the Special Court by passing an order under Section 156 (3) of Cr.P.C.
The Supreme Court in the case of Priyanka Srivastava and anr. v. State of U.P. and Ors. reported in (2015) 6 SCC 287 has held as under:-
"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 3 MCRC 864/2015 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) Cr.P.C. 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 the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like 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, Respondent 3 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 Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant 1. We are only stating about the devilish design of Respondent 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 4 MCRC 864/2015 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) Cr.P.C. 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.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."
Thus, it is clear that before passing an order under Section 156(3) of Cr.P.C the Magistrate/Special Judge is under obligation to apply its mind to find out that whether the complaint discloses the commission of cognizance offence or not. Disclosure of reasons though briefly is indicative of application of mind. Therefore, before passing an order under Section 156(3) of Cr.P.C. the Magistrate/Special Judge is under obligation to disclose certain reasons to find out that whether the complaint discloses the commission of cognizance offence or not. Disclosure of reasons for the limited purposes cannot be said that the Magistrate/Special Judge has taken cognizance of the offence.
5 MCRC 864/2015Consequently, if the order dated 9.10.2014 is tested in the light of well established principle of law it is clear that it is merely directed by the Special Judge that the allegations as contained in the complaint are in relation to cognizable offence and in the opinion of the Court looking to the nature of the offences, collection of evidence by the police by doing investigation is required.
In the considered opinion of this Court, this observation made by the Special Judge does not appear to be an application of mind to the facts of the case.
It is submitted that in compliance of the order dated 9.10.2014 FIR No.28/2015 has been registered by the police Station Ambah, District Morena.
Consequently, the order dated 9.10.2014 as well as the FIR in Crime No.28/2015 registered by Police Station Ambah, District Morena are quashed. The matter is remanded back to the Court of Special Judge (MPDVPK Act), Morena with a direction to decide the application under Section 156(3) of Cr.P.C. afresh keeping in mind the directions given by the Supreme Court in the case of Priyanka Shrivastava (supra). If after considering the allegations the Special Judge comes to a conclusion that no case is made out for passing an order under Section 156(3) of Cr.P.C. then he is required to proceed further in accordance with the provisions of Sections 200 and 203 of Cr.P.C.
With the aforesaid observations, this petition is allowed.
(G.S. Ahluwalia) Judge (alok)