Madhya Pradesh High Court
Kaptan Singh vs The State Of Madhya Pradesh on 25 January, 2017
1
M.Cr.C.No.9264/2014
(Kaptan Singh & Ors. v. State of M.P. & Ano.)
25/01/2017
Shri R.K. Sharma, counsel for the applicants.
Shri R.D. Agrawal, Panel Lawyer for the
respondent No.1/State.
Shri D.R. Sharma, counsel for the respondent No.2.
With the consent of the parties, heard finally. This petition under Section 482 of CrPC has been filed against the order dated 19.08.2014 passed by Shri R.S. Kushwah, Special Judge (MPDVPK Act), Morena in unregistered complaint case of 2014, by which an order under Section 156 (3) of CrPC has been passed.
It is submitted by the counsel for the applicants that it is well settled principle of law that even before passing an order under Section 156 (3) of CrPC, the Magistrate is under an obligation to apply its mind. The order under Section 156 (3) cannot be passed in a mechanical manner. In order to show that whether any mind was applied by the Magistrate while passing the order under Section 156 (3) of CrPC, it was expected that some reasons though briefly should have been disclosed. However, except by mentioning that a complaint for offences punishable under Sections 391, 394, 395, 397, 323, 294, 506 (B) of IPC and under Section 11, 13 of MPDVPK Act has been filed, no other reason has been assigned by the Special Judge (MPDVPK Act) warranting issuance of an order under Section 156 2 M.Cr.C.No.9264/2014 (Kaptan Singh & Ors. v. State of M.P. & Ano.) (3) of CrPC. To buttress his contention, the counsel for the applicants relied upon a judgment passed by the Supreme Court in the case of Priyanka Srivastava and anr. v. State of U.P. and ors. reported in (2015) 6 SCC 287.
Per contra, the counsel for the respondents submitted that it is well established principle of law that an order under Section 156 (3) of CrPC can be passed by the Magistrate before taking cognizance of the matter. Cognizance means, the application of judicial mind for the first time. Once, the Magistrate discloses the reasons then it would amount to taking of cognizance, therefore, the Special Judge (MPDVPK Act) did not commit any mistake by not disclosing any reasons in the order.
Heard the learned counsel for the parties. It is a well established principle of law that the order under Section 156 (3) of CrPC can be passed by the Magistrate before cognizance of the offence is taken. However, at the same time, it is obligatory on the part of the Magistrate, to prima-facie come to a conclusion that whether the complaint discloses commission of cognizable offence or not?
Disclosure of reasons in the order prima-facie shows the application of mind of the Magistrate. Therefore, in order to show that the Magistrate has applied its mind, he is required to disclose the reasons though briefly for coming to a conclusion that the complaint discloses a commission of 3 M.Cr.C.No.9264/2014 (Kaptan Singh & Ors. v. State of M.P. & Ano.) cognizable offence. For the purposes of coming to such a conclusion, if the Magistrate assigns some reasons then it cannot be said that the Magistrate has taken cognizance of the offence.
My view is fortified by the judgment of the Supreme Court in the case of Priyanka Shrivastava (supra) in which it has been 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 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 4 M.Cr.C.No.9264/2014 (Kaptan Singh & Ors. v. State of M.P. & Ano.) 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 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.5 M.Cr.C.No.9264/2014
(Kaptan Singh & Ors. v. State of M.P. & Ano.)
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."
If the order dated 19.08.2014 which is under challenge is tested in the light of the judicial pronouncement of the Supreme Court in the case of Priyanka Shrivastava (supra), then it is clear that before passing the order under Section 156 (3) of CrPC, the Magistrate did not apply its mind so as to find out that whether the complaint discloses commission of cognizable offence or not?
Hence, in the considered opinion of this Court, the order dated 19.08.2014 passed by the Special Judge (MPDVPK Act) is not in accordance with law.
Accordingly, the order dated 19.8.2014 is set- aside. The matter is remanded back to the Special Judge (MPDVPK Act) for considering the application under Section 156 (3) of CrPC afresh after applying its mind. In case, if the Special Judge (MPDVPK Act) comes to the conclusion that the order under Section 156 (3) of CrPC cannot be passed then he shall proceed under Sections 202 & 203 of CrPC.
6 M.Cr.C.No.9264/2014(Kaptan Singh & Ors. v. State of M.P. & Ano.) It is submitted by the counsel for the parties at Bar that in compliance of the order dated 19.08.2014, FIR has already been registered.
Accordingly, the order dated 19.08.2014 and the FIR which has been lodged in compliance of the said order are hereby quashed.
With the aforesaid observations, the petition is allowed.
(G.S.Ahluwalia)
(ra) Judge