Himachal Pradesh High Court
Date Of Decision: 18.09.2024 vs Daljeet Singh & Others on 18 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8858 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.941 of 2023 .
Date of Decision: 18.09.2024 _______________________________________________________ Tilak Raj & Others .......Petitioners Versus Daljeet Singh & Others ... Respondents ______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. P.K. Bhatti and Mr. Raju Ram
r Rahi, Advocate.
For the Respondents: Mr. Munish Datwalia, Advocate, for
respondent No.1 to 3.
Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C.Verma, Additional
Advocate Generals, with Mr. Ravi
Chauhan, Deputy Advocate General,
for respondent No.4/State.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated 28.07.2023 passed by Judicial Magistrate, First Class, Barsar, District Hamirpur, Himachal Pradesh, whereby Court below, having taken note of the averments contained in the application under Section 156(3) Cr.P.C. filed by the respondents/complainants, proceeded to direct police station concerned to lodge FIR against the petitioners-
accused in the complaint, petitioners-accused have approached this 1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/09/2024 20:38:19 :::CIS 22024:HHC:8858 Court in the instant proceedings filed under Section 482 Cr.P.C., praying therein to quash and set-aside the afore order on the ground .
that there is no application of mind, if any, by the Court concerned, while accepting the application filed under Section 156(3) Cr.P.C., at the behest of the respondents/complainant, seeking therein direction to the police to lodge the FIR against the petitioners-accused.
2. Pursuant to the notices issued in the instant proceedings, respondents have filed reply. It is averred in the reply that bare perusal of the order impugned in the instant proceedings, clearly reveals that Court below proceeded to allow the application filed under Section 156(3) Cr.P.C. after being satisfied that accused named in the complaint are required to be dealt with in accordance with law.
3. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the impugned order, this Court has no hesitation to conclude that order impugned in the instant proceedings appears to have been passed by the Court concerned in host haste manner. Court below after having perused the complaint arrived at a conclusion that offence alleged to have been committed by the accused named in the complaint are cognizable and as such, FIR is required to be registered against them.
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4. Though, Mr. Munish Datwalia, learned counsel representing the respondents/complainant, vehemently argued that .
order dated 28.07.2023 passed by Court concerned cannot be said to be without application of mind because learned Judge, while passing the impugned order, has categorically recorded in the order that he after having perused the entire case file, is of the view that prima-
facie complaint discloses cognizable offence and as such, FIR is required to be registered against the accused named in the complaint.
5. An application under Section 156(3) Cr.P.C. can only be filed after exhausting the remedy available to the complainant under Sections 154(1) and 154(3)Cr.P.C, which provides that at first instance complainant would approach the officer in-charge of police station concerned for redressal of his grievance and in case, grievance of the complainant is not redressed by the officer in-charge of police Station concerned, he can thereafter approach Superintendent of Police of the District concerned under Section 154(3)Cr.P.C, but in case, he still remains unsatisfied and complains that no action is being taken up by the competent Officer on the complaint, he can file application under Section 156(3) Cr.P.C. in the competent Court of law, seeking therein direction to police Station concerned to register the FIR against the accused named in the ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 4 2024:HHC:8858 complaint, especially when complaint discloses commission of cognizable offence.
.
6. Before passing order under Section 156(3) Cr.P.C, Court at first instance, is required to satisfy itself that complainant before filing complaint under Section 156(3) had availed remedy available to him under Section 154 Cr.P.C., it is also expected to go through the order, if any, passed by authorities under Sections 154(1) and 154 (3) Cr.P.C. Once Court is convinced that though complainant discloses commission of cognizable offence, but yet authorities as defined under Section 154 (1) and 154(3) have failed to take appropriate action, it can proceed to order registration of the FIR.
Before ordering registration of FIR, Court is expected to record satisfaction that allegations levelled in the complaint discloses commission of cognizable offence and as such, FIR is required to be lodged against the accused named in the complaint. Mere writing that bare perusal of the averments contained in the complaint as well as documents annexed therewith discloses commission of cognizable offence may not be sufficient to pass order under Section 156(3) Cr.P.C, rather there has to be due application of mind at the behest of Magistrate before whom application under Section 156(3) Cr.P.C is filed for lodging of the FIR. Magistrate is not only expected to remain vigilant with regard to allegation made and nature of the allegation, ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 5 2024:HHC:8858 but before issuing direction, if any, to lodge FIR, application of mind should reflect in the order. Since consequences of ordering .
registration of FIR are grave, duty of Magistrate ordering registration of FIR becomes more onerous and he/she is not expected to pass order casually. Since application under Section 156(3) Cr.P.C. is supported by an affidavit of the complainant, who seeks invocation of jurisdiction of Magistrate, learned Magistrate is expected to verify the truth and veracity of allegation, so that no prejudice, if any, is caused to the accused, who admittedly at that time shall not be afforded an opportunity of being heard.
7. In the case titled Priyanka Srivastava and Another Vs. State of Uttar Pradesh and Others, reported as (2015) 6 SCC 287 Hon'ble Apex Court while holding that affidavit in support of complaint filed under Section 156(3) Cr.P.C. is mandatory, also held that power under Section 156(3) Cr.P.C. is not to be exercised in a routine manner, rather, same requires application of judicial mind. Magistrate exercising such power must remain vigilant in regard to the nature of allegations made in the application and not to issue direction without application of mind. In appropriate case, Magistrate can verify truth as to whether allegations made, having regard to the nature thereof.
Most importantly, in the aforesaid judgment, Hon'ble Apex Court has held that power under Section 156(3) Cr.P.C. cannot be invoked by ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 6 2024:HHC:8858 litigant at his own will to harass other. Reliance in this regard is placed upon following Paras, which reads as under:
.
"21. 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."
22. 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 ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 7 2024:HHC:8858 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."
8. Similarly, in case titled as Babu Venkatesh and Others (supra), Hon'ble Apex Court held as under:
"19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the Sarfaesi Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude.
Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC 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) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156.Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 8 2024:HHC:8858 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.
(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 not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri) 380] , had to express thus : (SCC p. 258, para 17) "17. ... 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 charge-sheet under Section 173."
22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this : (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] 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 ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 9 2024:HHC:8858 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."
23. In Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , this Court ruled thus : (SCC p. 647, para 18) "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 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 ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 10 2024:HHC:8858 further steps contemplated in Chapter XII of the Code only thereafter."
24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. [(2005) 7 .
SCC 467 : 2005 SCC (Cri) 1697] , the Court while dealing with the power of the 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 : (Madhao v. State of Maharashtra [Madhao v. State of Maharashtra, (2013) 5 SCC 615 : (2013) 4 SCC (Cri) 141] , SCC pp. 620-21, para 18) "18. 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 rMagistrate 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 a 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)."
25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439] , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that : (SCC p. 456, para 22) ::: Downloaded on - 20/09/2024 20:38:19 :::CIS 11 2024:HHC:8858 "22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. 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. 22.2. The 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'."
9. Since, in the case at hand, respondents/complainants levelled serious allegations of beatings, if any, given by the petitioners-accused, coupled with the fact that there was cross FIR at the behest of the petitioners-accused, Court below, while considering prayer, if any, through application under Section 156(3) Cr.P.C., was expected to go through the material and make reference of the same in order. However, in the instant case, bare perusal of impugned order dated 28.07.2023 nowhere suggests effort, if any, made by the Court below to ascertain the correctness and genuineness of the allegations levelled in the complaint, rather, Court below straightaway in most mechanical manner, without application of mind, proceeded to pass order dated 28.07.2023, which, if permitted to continue, may have serious consequences, especially qua petitioners/ accused, named in the complaint.
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10. Consequently, in view of the above, this Court finds it a fit case where power under Section 482 Cr.P.C. can be exercised to .
prevent the misuse of process of law and accordingly impugned order dated 28.07.2023 is quashed and set aside with the direction to Court below to decide the application filed by the respondents/complainant afresh, strictly in terms of law taken into consideration as well as observation made in this judgment.
11. Learned counsel representing the respondents/ complainants undertakes to cause of the respondents/complainants before the Court below on 4.10.2024, enabling Court below to do the needful expeditiously.
Accordingly, present petition is disposed of, so also pending applications, if any.
(Sandeep Sharma), Judge September 18,2024 (shankar) ::: Downloaded on - 20/09/2024 20:38:19 :::CIS