Gujarat High Court
State Of Gujarat vs Narendrasingh Mohansingh Kalsi on 10 August, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.RA/336/2021 ORDER DATED: 10/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 336 of 2021
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STATE OF GUJARAT
Versus
NARENDRASINGH MOHANSINGH KALSI
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Appearance:
MR J K SHAH APP for the Applicant(s) No. 1
MR BHAVIK R SAMANI(8339) for the Respondent(s) No. 1,2,3,4,5,6
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 10/08/2021
ORAL ORDER
1. The present Criminal Revision Application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure for seeking quashment of order dated 11.01.2021 passed in Criminal Inquiry Case No. 64 of 2021 by learned Chief Metropolitan Magistrate, Ahmedabad and in the meantime, it is requested to stay the operation and implementation of the impugned order.
2. The case of the applicant is that the complainant viz. Dharmendrasingh Mahendrasingh Parmar had preferred an application before learned Chief Metropolitan Magistrate, Ahmedabad, which was registered as Criminal Inquiry Case No. 64 of 2021 inter alia with a prayer to register the FIR and investigation be ordered as per Section 156(3) of the Code of Criminal Procedure. In the said criminal inquiry case, the allegations were levelled against the office bearers as well as opponents herein about not only of malfunctioning of affairs of the society but also of manipulation of the record as well as concoction Page 1 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 of resolution of the society by utilizing bogus letter-pad of the society and by executing such conduct, a large chunk of the society land though was not salable has been sought to be alienated of by granting permission to sell and as such, by making such kind of allegations about mis-utilizing the letter-pad of the society, creating concocted resolution, a pre-planned conspiracy and economic offence is committed, a request was made by way of filing such inquiry case requesting to send the matter for investigation under Section 156(3) to the C.I.D. Crime Branch, Ahmedabad and the said application was given on 08.01.2021 on which on 11.01.2021 itself, learned Chief Metropolitan Magistrate passed an order sending the matter for investigation under Section 156(3) of the Code of Criminal Procedure to the C.I.D. Crime and Railways, Ahmedabad Zone and directed to submit a report within a period of 90 days and ordered to register a complaint. It is this order passed by learned Chief Metropolitan Magistrate, Ahmedabad is made a subject matter of present Criminal Revision Application.
2.1 On 08.06.2021, a notice was issued making it returnable on 19.07.2021 and thereafter, learned advocates for the respective opponents filed their appearance.
3. When the matter is taken up for hearing, learned advocates have jointly requested the Court to take up the matter for final hearing. Hence, Rule, returnable forthwith. Learned advocate Mr. Bhavik Samani waives service of notice of rule on behalf of respondent Nos.1 to 6, whereas learned advocate Mr. Bhunesh Rupera waives service of notice of rule on behalf of respondent No.7 - complainant.
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4. Learned Additional Public Prosecutor Mr. J. K. Shah appearing on behalf of the applicant State has submitted that a clear error is committed by the court below in exercising the discretion and sending the matter in a routine manner for investigation under Section 156(3) of the Code of Criminal Procedure and that too to the C.I.D. Crime and Railways, Ahmedabad Zone. Learned APP has submitted that even for sending the matter under Section 156(3) of the Code of Criminal Procedure, no subjective satisfaction is reflecting and apart from that, the matter has been sent for investigation to the C.I.D. Crime and Railways, Ahmedabad Zone which is a specialized agency and is run for some specific offences and not for the offence like this. According to him, no reasons of any nature are assigned while passing the impugned order and as such, the same is required to be quashed and set aside in the interest of justice.
4.1 Learned Additional Public Prosecutor Mr. Shah has relied upon the Police Manual and by tendering a xerox copy of relevant extract on record, an attention is drawn to Clause 462 of Chapter X which deals with functions and working of the C.I.D. Crime Branch and thereby, has submitted that such exercise of sending the matter to the C.I.D. Crime Branch is an irregular exercise of discretion and dehors the Police Manual as well. It has been submitted that even for sending the matter under Section 156(3) of Code of Criminal Procedure, there is no subjective satisfaction as to why process instead under Section 202 of Cr. PC., Section 156(3) of Cr. PC. has to be resorted to and as such, by drawing the attention to the impugned order passed by learned Chief Metropolitan Magistrate, Ahmedabad, learned APP Mr. Shah has submitted that in a routine and casual manner, the power has been exercised, which is thoroughly uncalled for.
Page 3 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022R/CR.RA/336/2021 ORDER DATED: 10/08/2021 4.2 To substantiate his contention, in addition to the provisions of Police Manual, learned APP Mr. Shah has relied upon few observations in the decision of Hon'ble Apex Court in case of Ramdev Food Products Private Limited vs. State of Gujarat reported in (2015) 6 SCC 439 and then, one another decision which is in case of Priyanka Srivastava vs. State of Uttar Pradesh reported in 2015(6) SCC 287 and by referring to the observations made in the aforesaid decisions, a contention is raised that the impugned order is not sustainable in the eye of law and deserves to be quashed.
4.3 Learned APP Mr. Shah has submitted that except narration, no subjective satisfaction is reflecting and no independent reasons are assigned to arrive at a conclusion for sending the matter under Section 156(3) and that too before the C.I.D. Crime and Railways, Ahmedabad Zone. From the contents of the application itself, it appears that there is some concealment of facts of filing of some previous applications. However, be that as it may, according to learned APP, the order is not sustainable in law and therefore, it is requested to set aside the same.
5. As against this, learned advocate Mr. Bhunesh Rupera appearing on behalf of respondent No.7 - complainant has submitted that since a serious fraud is committed for dealing the property of the society itself, a complaint was lodged and by referring to allegations contained in paragraph 4, learned advocate Mr. Rupera has justified the order. It has been candidly submitted that since the police authority was requested to lodge the F.I.R., but the same having been not done and there was no communication from the police authority, the criminal inquiry case was constrained to be filed with a request to send the matter for investigation. Alternatively, learned advocate Mr. Rupera has Page 4 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 submitted that in case, the C.I.D. Crime and Railways, Ahmedabad Zone is not to be ordered for inquiry, then the local police station may be directed to make an inquiry by modifying the impugned order and has reiterated that at least, local police may inquire into the episodes which have been mentioned in the complaint. Learned advocate Mr. Rupera has submitted that if the order in question is not sustainable or is not on true test of proposition of law on the issue, then the liberty be kept open for the complainant to file a private complaint and as such, has requested to observe appropriately so that the grievance can be ventilated before appropriate forum and thereby, has submitted that since the matter is serious enough and the allegations are related to economic affairs, a request is made in the aforesaid manner. No other submissions are made.
6. As against this, learned advocate Mr. Bhavik Samani appearing on behalf of respondent Nos.1 to 6 has submitted that it is not open for the complainant to just misuse the process of law by framing such offence as serious offence. It has been submitted that on the contrary, the complaint itself is not maintainable and hence, the question of order of investigation under Section 156(3) and that too to the C.I.D. Crime Branch does not arise. Learned advocate Mr. Samani has submitted that on the contrary for quashing the complaint, a substantive Criminal Misc. Application under Section 482 of the Code of Criminal Procedure is filed by the accused persons and the same is pending in the form of Criminal Misc. Application No. 4164 of 2021 and as a result of this, has requested to set aside the impugned order.
7. In response to the aforesaid submissions made by respective learned advocates as stated above, learned Additional Public Prosecutor Mr. J. K. Shah has reiterated his request that the Page 5 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 present Criminal Revision Application deserves to be allowed in view of settled proposition of law on the issue of sending the matter for investigation under Section 156(3) of the Code of Criminal Procedure to the C.I.D. Crime Branch and as such, has submitted that irrespective of aforesaid circumstances, at least the present order which is not only non-speaking but also without any subjective satisfaction deserves to be quashed so as to see that in a routine manner, such order for inquiry may not be ordered and hence, has requested to grant the relief prayed in the application.
8. Having heard learned advocates appearing for the respective parties and having gone through the aforesaid submissions and the contents of the order impugned, following circumstances are not possible to be unnoticed to arrive at a final conclusion in the present matter.
9. The contents of the complaint upon which the impugned order is passed, reflect that there is some mismanagement and unauthorized transaction related to the plot in the society. It appears that in connivance with each other as alleged by creating documents as per the allegations, illegal resolutions have been passed, by virtue of which, an attempt is made to sell away valuable plots of the society as indicated in paragraph 4 of the complaint. Out of the cluster of 10 societies, the plots related to Sundar Colony Housing Society have been transacted in connivance of each other by creating an illegal resolution and thereby, it is alleged that the valuable land of the society is squandered away inter se between the accused persons. The detailed narration of the assertion of the complaint is not required in the present order since the Court is examining the legality and validity of the order impugned, but the sum and substance is that as a part of conspiracy as alleged, some economic Page 6 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 offences have been committed by using a bogus letter-pad of the society and by passing illegal resolutions in the society and thereby, as a part of modus operandi, the land is sought to be alienated. Hence, a request was made to order an inquiry. So basically, this is appearing a case as alleged of cheating, breach of trust and unauthorized sale of land of the society by forging the documents, which has resulted into filing this application before learned Chief Metropolitan Magistrate, Ahmedabad, which is registered as Criminal Case No. 64 of 2021.
10. Now, in the background of aforesaid assertion of the complaint, learned Chief Metropolitan Magistrate by taking up the application urgently, though there is no reason assigned as to why such urgency is cropped up, straightway sent the matter for inquiry under Section 156(3) of the Cr. P. C. by entrusting it to the Police Superintendent, C.I.D. Crime and Railways, Ahmedabad Zone and directed to submit a report within a period of 90 days. A bare reading of the impugned order does not reflect an application of mind to the contents and basic features of the complaint, but at the same time, there is no subjective satisfaction reflecting as to why in such a private dispute, the matter deserves to be sent for inquiry under Section 156(3) of Cr. P. C. and that too to a specialized branch i. e. C. I. D. Crime and Railways, Ahmedabad Zone. There is no apparent satisfaction reflecting in an order as to why the local police station will not be able to properly make an inquiry and without arriving at such satisfaction, straightway a specialized agency is entrusted a duty of inquiry. It further appears that even no proper reasons cogent enough are assigned while sending the matter under Section 156(3) of Cr. P. C. and as such, prima facie, it appears that the impugned order is passed without arriving at a satisfaction or without application of mind.
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11. Learned Chief Metropolitan Magistrate is having, no doubt, jurisdiction to send the matter for inquiry, but before sending the matter for inquiry, these powers to order an inquiry under Section 156(3) of Cr. P. C. are not to be exercised in a routine and mechanical manner. A private dispute of any nature straightway cannot be sent under Section 156(3) of Cr. P. C. for inquiry without arriving at a satisfaction and this exercise be undertaken not in a mechanical manner, more particularly when the C. I. D. Crime is a specialized branch and reading of the complaint does not transpire prima facie that the local police station is unable to make a proper inquiry.
12. Apart from that, learned Chief Metropolitan Magistrate must be aware about the Police Manual wherein Chapter X deals with Special Organisations and Section-I deals with Criminal Investigation Department (C. I. D. ). In addition to other provisions of Chapter X, Section 461 deals with functions of the C. I. D. (Intelligence Branch) and Section 462 deals with functions and working of the C. I. D. (Crime Branch). For bare perusal, Section 461 and Section 462 are extracted hereunder :-
"461. Functions of the C. I. D. (Intelligence Branch).--The functions of this branch are:--
(a) The collection and collation of information regarding political, industrial and other similar developments or movements in the State;
(b) Verification of character a d antecedents, protection and security of V. I. Ps., watch over anti-national activities, movements of foreigners and all matters pertaining to internal security, etc.;
(c) Collection of intelligence regarding all types of communal activities will be an important work of this branch;
(d) To keep the Government informed of all the above activities from time to time.Page 8 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022
R/CR.RA/336/2021 ORDER DATED: 10/08/2021
462. Functions and working of the C. I. D. (Crime Branch).--(l) The functions of this branch are :--
(a) The control of specialized or professional crime through the State, and
(b) The investigation of specialized crime when of sufficient importance, and of special important cases.
(2) This branch will concern itself with the collection, Collation and dissemination of information relating to crime and criminals in accordance with such orders as the Deputy Inspector-General, C.I.D. (Crime and Railways) may issue from time to time All enquiries and orders issued in this connection will be promptly and carefully attended to by Superintendent.
(3) This branch is responsible for the publication of Parts I and II (Crime) of the Gujarat Police Gazette after compiling them on information received from the districts . or collected from the Police Gazettes of other States and also of a separate supplement reproducing notifications of Government regarding' prescribed literature.
(4) (a) This branch prepares crime' records in' inter-
State and inter-district thieves, burglars, dacoits, robbers, cheats, poisoners, forgers and coiners. Of these, the crime records of cheats, poisoners and coiners are maintained upto-date by the preparation of addenda giving details of their latest activities and convictions, which are published in the Gujarat Police Gazette. In the case of all the classes of criminals,it is necessary to prepare crime records of all and also to maintain, all records upto-date for the purpose of Data Processing Machines.
(b) Crime records of active professional. criminals whose activities are confined to their districts are prepared and maintained by the Superintendents of Police concerned and copies thereof are .supplied. to' this branch for record. The serial numbers of such district crime records are noted on the finger print slip of the individual on-the record of the Finger Print Bureau so that on receipt of intimation regarding his arrest, his antecedents, including previous convictions are supplied by this branch to the .district in which he is arrested. Similarly, records of not convicted and strongly suspected- criminals will be maintained by. the Finger Print Bureau and intimation given as shown above.
(5) The branch makes its business to study carefully the district crime reviews and the weekly diaries of Sub- Divisional Police Officers.. This enables the branch to keep in touch with serious organized crime and gang crime in districts, with a view to take up, if necessary, the Page 9 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 investigation' thereof or to collate information of such crime and disseminate it to the districts, co-ordination between which is called for.
(6) The branch also maintains crime charts, graphs and maps showing by months the variations of the more important forms of crime in the State (vide Rule 249).
(7) The branch maintains a register of for currency notes that have come to notice in the Districts and on Railways in the State and takes up, whenever necessary, enquiries about their, appearance in consultation with the Director of Intelligence Bureau attached to the Ministry of Home Affairs of the Government f India."
13. It appears that under the scheme of Cr. P. C., it is provided that how and in what manner, the inquiry is to be ordered and by analyzing the relevant provisions of Sections 154, 155, 156 and 210, the Hon'ble Apex Court has time and again guided all the courts that in a routine and mechanical manner, no order could be passed for sending the matter under Section 156(3) of the Code. After analyzing the Act at length, the Hon'ble Apex Court in the decision in case of Priyanka Srivastava Vs. State of Uttar Pradesh, reported in 2015 (0) AIJEL-SC 56373 in paragraphs 16 to 22, 26, 27 and 32 has observed as under :-
"16. 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) Cr.P.C., 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 bonafide. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is Page 10 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 another matter. Fact remains, no efforts were made.
(emphasis supplied)
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.
(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[2], 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[3], 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 Page 11 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 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."
(emphasis supplied)
20. In Dilawar Singh v. State of Delhi[4], 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 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. [5], 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.
Page 12 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022R/CR.RA/336/2021 ORDER DATED: 10/08/2021 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 [pic]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[6], 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. 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."
(emphasis supplied)
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.
Page 13 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022R/CR.RA/336/2021 ORDER DATED: 10/08/2021 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.
(emphasis supplied)
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 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.
(emphasis supplied)
32. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Page 14 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 Section 156(3) Cr.P.C."
(emphasis supplied)
14. From the foregoing observations and proposition of law, this Court is of the clear opinion that the impugned order is not sustainable in view of the fact that without arriving at a proper satisfaction on the core issue, an order of inquiry is passed which deserves to be corrected. Accordingly, a case is made out to call for interference.
15. As stated above, in the decision delivered by Delhi High Court which is attached to the petition compilation in case of Ramesh Awasthi vs. State of NCT of Delhi and another decided on 13.04.2017, the entire scheme has been analyzed and since the relevant observations are quite touching to the root controversy of case on hand, the Court would like to reproduce hereunder :-
"6. In CBI vs. State of Rajasthan (supra) the Supreme Court also noted with approval the decision of the Kerala High Court reported as 1994 CriLJ 1288 (Ker) State of Kerala vs. Kolakkacam Moosa Haji wherein the direction by the Magistrate to the Inspector General of Crimes for investigation under Section 156 (3) Cr.P.C. was challenged by the State before the High Court and the High Court held that the Magistrate cannot order any police officer, other than one who is in charge of a police station to conduct the investigation, though the government in exercise of its executive power can authorize any superior officer to investigate a case and such direction can be issued by a higher officer to his subordinate officer in the police department. This decision of the Kerala High Court was upheld by the Supreme Court in Crl. Appeal No. 410/1994 vide order dated 8th April, 1997.
10. The Division Bench of this Court in the decision reported as 2001 (1) JCC Delhi 16 Ajay Raj Sharma vs. State also considered the scope of power vested in a Magistrate under Section 156 (3) Cr.P.C. Setting aside a direction issued by the learned Metropolitan Magistrate directing the Commissioner of Police to transfer further investigation to the Deputy Commissioner of Police, Crime Branch it was held that the Metropolitan Magistrate had no Page 15 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 authority in law to transfer the further investigation to any other investigating agency. The Division Bench held that a Metropolitan Magistrate can under Section 156 Cr.P.C. get a case investigated only by the officer in-charge of a police station within its local jurisdiction and it cannot take the case out of its jurisdiction by transferring it to another authority or agency.
11. Similar view was expressed by the Division Bench of the Bombay High Court in the decision reported as 2008 CriLJ 1496 State of Maharashtra vs. Ibrahim A. Patel. It was held:
5. The Short point for consideration which arises is whether the Magistrate in exercise of the powers under Section 156(3) of Cr. P.C. can direct the investigation by State CID?
6. Section 156(1) provides that "any police 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." Sub-section (2) thereof provides that "no proceedings 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" and Sub-section (3) which is relevant for consideration provides that "Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
7. Plain reading of Sub-section (3) of Section 156 would, therefore disclose that the Magistrate who is empowered to take cognizance of an offence in terms Section 190 of Cr. P.C. can direct the investigation thereof by any police officer in charge of the police station, who is empowered to perform his duties within the local area demarcated for such police station and that such local area lies within the jurisdiction of the Court of the Magistrate.
8. Section 14(1) provides that "subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrate appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be vested under this Code. Provided that the Court of a Special Judicial magistrate may Page 16 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 hold its sitting at any place within the local area for which it is established". Sub-section (2) of Section 14 provides that "except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district". Section 173(2)(i) provides that as soon as the investigation is completed, the officer in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by giving the details specified in the said Section.
Section 177 of Chapter XIII provides that "every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed".
9. Conjoint reading of Section 14, 156(3), 173 and 177 of Cr. P.C. would reveal that the authority of the Magistrate to direct the investigation to a police officer relate to his powers to take cognizance of such offence and secondly to a police officer, who can function within the jurisdiction of the local limits of his Court and this authority or empowerment does not travel beyond those limits. Section 190 of Cr. P.C. speaks of the power of the Magistrate "to take cognizance" of an offence. The Code does not define the said expression. But, it is settled law that the cognizance tantamount to taking judicial notice of an offence. It is different from merely initiating proceedings. Commencement of criminal proceedings relating to an offence by itself does not amount to taking cognizance.
14. The provisions of law comprised under the Code of Criminal Procedure nowhere empower the Magistrate to direct the investigation to the police officer other than one attached to the police Station situated within the territorial jurisdiction of the Court of such a Magistrate. Such powers undoubtedly can be exercised by this Court in writ jurisdiction or even while exercising the powers under Section 482 of Cr. P.C. It is settled law that a Magistrate does not enjoy inherent power. His powers are those specified under the Code and has to function strictly in accordance with the provisions of law made thereunder. The provisions of law comprised under the Cr. P.C. cannot be amended otherwise than the procedure known to law. The issuance of Manual of Instructions cannot be said to cause amendment to the Code of Criminal Procedure, as rightly submitted by the learned APP. The provisions comprised under Clause 2, Chapter III of Page 17 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 the Manual would not empower a Magistrate to refer the matter for investigation by CID.
13. Needless to note that the impugned order issuing directions under Section 156 (3) Cr.P.C. has been set aside purely on the issue of lack of territorial jurisdiction and the complainant/respondent No.2 would be at liberty to pursue her remedies before the Court or the investigating agency of the competent territorial jurisdiction, if so advised."
16. The State Authority, while assailing the order, has specifically contended that the original complaint is not at all serious or complex in which local policy may not effectively investigate the case. At least, learned Chief Metropolitan Magistrate ought to have examined it before ordering an inquiry by specialized agency.
17. Further, while passing the present order, this Court is not in a position to unnotice the settled proposition of law laid down by Hon'ble Apex Court on analysis of application of mind and passing an order by assigning appropriate reasons. In case of State of Orissa vs. Dhaniram Luhar reported in 2004 (5) SCC 568, the Hon'ble Apex Court has propounded on the issue of assigning appropriate reasons. The Court would like to quote few observations contained in paragraphs 7,8,9 and 10 as under :-
"7. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152).
8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually Page 18 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
9. The above position was highlighted by us in State of Punjab v. Bhag Singh (2004 (1) SCC 547).
10. In view of the aforesaid legal position, the impugned judgment of the High Court is unsustainable and is set aside. We grant leave to the State to file the appeal. The High Court shall entertain the appeal and after formal notice to the respondents hear the appeal and dispose of it in accordance with law, uninfluenced by any observation made in the present appeal. The appeal is allowed to the extent indicated."
18. In furtherance of aforesaid circumstance, the Court is also of the opinion that the Hon'ble Apex Court has described the role of lower judiciary in preventing the abuse of court process by analyzing the situation with respect to frivolous litigation prevailing in the present days. In case of Krishna Lal Chawla vs. State of U.P. reported in (2021) 5 SCC 435, the Hon'ble Apex Court has observed that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. By describing the role of Magistrate, few observations are made, which the court would like to reproduce hereunder :-
"16. We find it imperative to observe that this is a case that should not have been allowed to reach as far as this Court. The justice dispensation machinery in India is plagued with backlogs, with 70% of the pendency before the subordinate courts being on the criminal side.1 A significant factor in this backlog is the vast mass of frivolous litigation instituted year after year by litigants with an intent to use Page 19 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022 R/CR.RA/336/2021 ORDER DATED: 10/08/2021 the courts of justice for their own mischievous ends. Curtailing such vexatious litigation is, thus, a crucial step towards a more effective justice system - a step that cannot be taken without the active involvement of the lower judiciary, especially in criminal proceedings.
17. Immediately after the criminal justice system is set in motion, its course is almost entirely dependent on the judicial application of mind by the Magistrate. When a police complaint is filed on the commission of a cognizable offence under Section 154 CrPC, the Magistrate decides if the charge against the accused person is made out before the trial begins. Separate procedure is prescribed if the complaint under Section 200 CrPC is filed. The aforesaid provisions make it abundantly clear that the Magistrate carries the stream of criminal proceeding forward after it is set in motion by the informant/complainant. Consequently, and automatically, the Magistrate also carries the responsibility for ensuring this stream does not carry forward in cases where it should not.
18. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens' life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate - and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (SCC p. 760, para 28) :
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." (emphasis supplied).Page 20 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022
R/CR.RA/336/2021 ORDER DATED: 10/08/2021 This Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.
19. From the aforesaid discussion and analysis on decision making process, the Court is also of the opinion that the revisional jurisdiction is not that much circumscribed by virtue of which even patent defect of exercise of jurisdiction can be ignored.
20. While coming to this conclusion, the Court has kept in mind few observations made by Hon'ble Apex Court in the recent decision reported in 2017(3) SCC 198 wherein it is clearly propounded that the revisional jurisdiction can be exercised if there appears to be patent defect in exercise of jurisdiction or irregularities manifestly crept in while passing an order and this eventuality is reflecting from the present impugned order. As a result of this, looking to the aforementioned circumstance which is prevailing, the impugned order dated 11.01.2021 is hereby quashed and set aside. However, it is needless to state that the original complainant would be at liberty to pursue the remedy before the court which is permissible in law.
21. Since the aforesaid observations are made in the context of the order impugned, these observations may not come in the way of the complainant to take recourse to appropriate steps permissible in law.
22. With the above observations, the present Revision Application stands allowed.
(ASHUTOSH J. SHASTRI, J) cmk Page 21 of 21 Downloaded on : Sun Jan 16 07:22:07 IST 2022