Madhya Pradesh High Court
Shankarlal Khambra vs Smt.Malti Verma on 27 October, 2015
Author: S. K. Gangele
Bench: S. K. Gangele
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
M.Cr.C. No.12735/2012
Shankarlal Khambra
Vs.
Smt. Malti Verma & others
For petitioner : Shri Avinash Zargar Advocate.
For respondents No.1 & 3 : Shri Anuj Agrawal, Advocate.
For respondent/State : Smt. Jhanvi Pandit, Public Prosecutor
ORDER
(Passed on 27.10.2015) Per S. K. Gangele J.
Petitioner has filed this petition for quashment of the order dated 08.08.2011 passed by Judicial Magistrate First Class, Bhopal in a private complaint case.
2. The respondents no. 1 and 2 filed a private complaint under Section 200 of the Cr.P.C. for commission of offence punishable under Section 415, 417, 420, 423, 467 & 468 of the IPC against the petitioner.
3. The Trial Court vide order dated 08/08/2011 on first day directed the Station House Officer to register an FIR and submit a report to the Court. The court passed the following order:-
ifjoknh lfgr Jh fot; frokjh] vf/koDrk us mifLFkr gksdj vkjksihx.k Jherh vydk [kkEcjk ,oa 'kadjyky [kkEcjk ds fo:) ifjokn i= varxZr /kkjk 415] 417] 420] 423] 467 ,oa 468 Hkkjrh; n.M lafgrk ds rgr iLrqr fd;k A ifjokn i= ds voyksdu ij izFke n`"V;k laKs; izd`fr dk vijk/k gksuk ik;s tkus ls ifjokn i= ewyr% Fkkuk izHkkjh deyk uxj dks /kkjk 156¼3½ n-iz-la-2
dh 'kfDr;ksa dks iz;ksx djrs gq, bl funsZ'k ds lkFk izsf "kr fd;k tk;s fd mDr ifjokn i= ij ls fof/kor izFke lwpuk fjiksVZ ntZ dj foospuk miajkr vfUre izfrosnu U;k;ky; es izLrqr djs A ifjokn i= rFkk nLrkostksa dh Nk;k izfr;ka i=koyh ds lkFk layXu fd;k dh tkos A izdj.k Fkkuk izHkkjh deyk usg: uxj }kjk izFke lwpuk fjiksVZ izLrqr fd;s tkus gsrq fnukad 30-08-2011 dks izLrqr gksA"
4. The petitioner challenged the order on the ground that the order passed by the Magistrate in exercise of powers under Section 156(3) of the Code of Criminal Procedure is against the law. The Magistrate has not considered the merits of the case. The order is non-speaking one and passed in a mechanical manner, hence, the Court has exercised its jurisdiction arbitrarily against the law.
5. Exercise of power by the Magistrate under Section 156(3) of Cr.P.C. and issuance of direction by the Court in exercise of power has been considered by the Supreme Court in recent judgment in the matter of Mrs. Priyanka Srivastava and another v. State of U.P. and others reported in 2015 AIR SCW 2075. The Supreme Court has also considered the earlier judgments on the of point and held as under :
"17. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate congnizable case. -(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.3
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned."
18. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, had to express thus:
"It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173."
19. In Anil Kumar v. M.K. Aiyappa, the two- Judge Bench had to say this:
"The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
20. In Dilawar Singh v. State of Delhi, this Court ruled thus:
"18. ...11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking 4 cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
21. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., the Court while dealing with the power of Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.
And again:
"When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."
22. Recently, in Ramdev Food Products Private Limited v. State of Gujarat, while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that:
".... the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate.5
When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed."
23. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. Govt. of U.P in this regard. The larger Bench had posed the following two questions:-
"(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused."
Answering the questions posed, the larger Bench opined thus:
"49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.
"Shall"
xxx xxx xxx xxx
72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.6
"Information"
xxx xxx xxx xxx
111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has "reason to suspect the commission of an offence". Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
xxx xxx xxx xxx
115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:-
"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.7
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry."
We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.
24. 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 issued irections 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 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.
25. 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 the 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, he 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 the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are 8 only stating about the devilish design of the respondent No.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.
26. 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 fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no 9 false affidavit is made. It is because once an affidavit is found to be false,he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
6. The Supreme Court has specifically held that exercise of power by the Magistrate under Section 156(3) of Cr.P.C. warrants application of judicial mind. The Supreme Court further held that the application under Section 156(3) of Cr.P.C. must be supported by an affidavit duly sworn by the applicant who seeks invocation of jurisdiction of the Magistrate and the Magistrate has to verify the veracity of allegations in view of the allegations made in the complaint.
7. In the aforesaid judgment, the Hon'ble Supreme Court considered the Constitution Bench judgment of the Supreme Court passed in the matter of Lalita Kumari v. Govt. of U.P reported in AIR 2014 Supreme Court 187. In this view of the matter, the controversy raised in the case has already been covered by the judgment passed by the Hon'ble Supreme Court, quoted above.
8. The petition is disposed of with the following directions :
10i. The impugned order dated 08.08.2011 passed by J.M.F.C., Bhopal is hereby quashed.
ii. The application filed by the respondents No.1 & 2 before the Magistrate for issuance of direction under Section 156 (3) of the Cr.P.C. is hereby quashed.
iii. It is further observed that the respondents No.1 & 2 are at liberty to file appropriate application alongwith an affidavit, as observed by the Supreme Court in the Matter of Mrs. Priyanka Srivastava and another vs. State of U.P. and others reported in 2015 AIR SCW 2075 and if any such application be filed, the Magistrate is at liberty to pass an order in accordance with the directions issued by the Supreme Court in the aforesaid case.
iv. The FIR registered at the Police Station Kamla Nehru Nagar, Bhopal in pursuance to the impugned direction issued by the Magistrate is also quashed.
(S. K. Gangele) Judge MISHRA 11 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.Cr.C. No.12735/2012 Shankarlal Khambra Vs. Smt. Malti Verma & others For petitioner : Shri Avinash Zargar Advocate.
For respondents No.1 & 3 : Shri Anuj Agrawal, Advocate.
For respondent/State : Smt. Jhanvi Pandit, Public Prosecutor ORDER Post for : 27 .10.2015 (S.K. Gangele) Judge 27.10.2015