Madhya Pradesh High Court
Dharmendra Singh Tomar vs The State Of Madhya Pradesh Thr on 15 May, 2018
HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.15977-2018
(Dharmendra Singh Tomar VS. State of M.P.)
1
Gwalior, Dated : 15.05.2018
Shri Awdhesh Singh Bhadauria, learned counsel for the
petitioner.
Shri A.K.Nirankari, learned Public Prosecutor for the
respondent/State.
Petitioner has filed this petition under the provisions of Section 482 of the Code of Criminal Procedure, 1973 being aggrieved by order dated 13.4.2018 passed by the JMFC, Gwalior, rejecting an application under Section 156(3) Cr.P.C.
It is petitioner's contention that he had disclosed commission of cognizable offence and since commission of cognizable offence was reported, therefore, it was incumbent upon the JMFC to have acted on his application under Section 156(3) of Cr.P.C., especially when he had made a representation to the Superintendent of Police, Gwalior, pointing out that on 2.4.2018 at about 8.30 am several persons armed with weapons approached his house and when he closed the door of the house and called the police, such persons ran away. It is mentioned in the complaint that such mob had fired on him, his son, nephew and brother but somehow they saved their lives. They had also caused damage to their vehicles which were standing outside the house and in view of such facts, it is prayed that Court should have taken cognizance.
Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others as reported in (2008) 2 SCC 409 to point out that the ratio of this judgment is that if a person has a grievance that the police Station is not registering his FIR under Section 154 of Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) of Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either FIR is still not registered or that even after registering it no proper investigation is held, it is open to the aggrieved person to file HIGH COURT OF MADHYA PRADESH M.Cr.C. No.15977-2018 (Dharmendra Singh Tomar VS. State of M.P.) 2 an application under Section 156(3) of Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) of Cr.P.C. is filed before the Magistrate, the Magistrate can direct the FIR to be registered and can also direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
Learned counsel for the petitioner has also placed reliance on the following judgments:-
(i) Rameshchandra Nandlal Parikh vs. State of Gujarat and another, 2006(1) CCSC 55 (SC);
(ii) Lalita Kumari Vs. Govt. of U.P. and others, 2013(5) M.P.H.T. 336 (SC);
(iii) Anju Chaudhary Vs. State of Uttar Pradesh & Anr., 2013 (Suppl.) Cr.L.R. (SC) 658;
(iv) Azija Begum v. State of Maharashtra, 2012(II) MPWN 29 (SC);
(v) Suresh Chand Jain vs. State of M.P. and Anr., 2002 Cr.L.R. (SC) 221;
(vi) Ramesh Kumari vs. State (NCT of Delhi) and others, 2006(2) M.P.H.T. 308(SC); and
(vii) Ayyub Ahmad Vs. State of M.P., I.L.R. (2009) M.P., 1484.
Section 156(3) of Cr.P.C. provides that any Magistrate empowered under Section 190 may order such an investigation as can be carried out by police officer. The fact of the matter is that order of rejection of application under Section 156(3) of Cr.P.C. for registration and investigation of the case does not operate as res judicata and filing of a complaint is not barred as has been held in the case of Smt. Hema Pathak Vs. State of U.P., 2007 Cr.L.J. (NOC) 132. Even in the case of Gagadhar Janardan Mhatre Vs. State of Maharashtra and others, (2004) 7 SCC 768, it has been held that there is alternative remedy of filing private complaint under Section 200. Same is the ratio in the of Sakiri Vasu (supra).
The fact of the matter is that under Section 156(3) the only authority vested in the Magistrate is to order for investigation. In the HIGH COURT OF MADHYA PRADESH M.Cr.C. No.15977-2018 (Dharmendra Singh Tomar VS. State of M.P.) 3 present case, the fact of the matter is that concerned Magistrate has only noted a fact that neither any unknown person is to be identified nor any such investigation is to be carried out which Court cannot inquire on its own, and therefore, there was no need to direct investigation in the hands of the police authorities.
In view of such facts, in fact, the petitioner has remedy of filing a private complaint before the concerned Magistrate if FIR has already not been lodged in respect of the alleged offence. Since there exists a remedy of private complaint, this court is of the opinion that refusal of the Magistrate to direct the investigation in the matter under Section 156 (3) of the Cr.P.C. is not violative of any provision of law, inasmuch as when the accused are unknown and named and police is not registering the FIR, then even on registration of a private complaint, a Magistrate can take cognizance of an offence after examining the complainant on oath and witnesses present, if any. Thus, rejection of an application under Section 156 (3) of Cr.P.C. Is not a bar on undertaking alternate remedy of filing a private complaint. In fact, in the case of Polavarapu Jagadiswararao Vs. Kondapaturi Venkateswarlu as reported in 1991 CrLJ 1419, it has been held that both the courses under Section 154 and under Section 200, are open and available to a private citizen and therefore simply because there is a right under Section 154 consequent upon which the police would investigate, it cannot be said that right under Section 200 Cr.P.C. is not available. Thus, in view of the fact that there exists alternate remedy of filing a private complaint, no error can be attributed to the impugned order calling for any interference.
Thus, petition fails and is dismissed.
(Vivek Agarwal)
Judge
SP Digitally signed by SANJEEV
KUMAR PHANSE
Date: 2018.05.21 17:33:39
+05'30'