Madhya Pradesh High Court
Udaynarayan Mishra vs The State Of Madhya Pradesh on 23 February, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.53567/2021
Udaynarayan Mishra Vs. State of M.P. and another
Gwalior, Dated:23/02/2022
Shri Sushil Goswami, Advocate for applicant.
Shri C.P. Singh, Panel Lawyer for respondents/State.
This application under Section 482 of Cr.P.C. has been filed seeking the following reliefs:-
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2. It is submitted by the counsel for the applicant that the applicant has filed an application under Section 156(3) of Cr.P.C. on certain allegations. The said application was taken up for consideration by JMFC, Lahar, District Bhind in case No.165/2020 (UNCR). By order dated 4/3/2021 the copy of the application filed under Section 156(3) of Cr.P.C. was forwarded to the SHO, Police Station Lahar, District Bhind and the police authorities were directed to submit the report. It is further submitted that by order dated 5/6/2021 the SHO, Police Station Lahar, District Bhind has also been directed to register the FIR, but still the matter is pending awaiting the final report.
3. The coordinate Bench of this Court in the case of Om Prakash Sharma Vs. State of M.P. and another by order dated 25/3/2021 passed in M.Cr.C. No.44485/2020 has held as under:-
16. It is matter of common knowledge that applications u/S.156(3) Cr.P.C. are kept pending for long awaiting report of Police. There are occasions, as 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another is the case herein, where Sec.156(3) application is filed along with Sec.200 Cr.P.C. complaint but due to delay in processing Sec.156(3) application, the complaint u/S.200 Cr.P.C. is kept pending for an unreasonably long time. To brook this delay, it is further appropriate to lay down certain guidelines which are though not exhaustive in character but are enough to show the right path to be treaded.
16.1 The Magistrates while dealing with application ought to keep in mind certain relevant factors which are as under :-
1. The requirement of laying down a timeline, for deciding proceedings where application u/S.156(3) is filed along with complaint u/S.200 Cr.P.C., would arise only in those cases where 156(3) application complains of improper and/or delayed investigation but not in cases where application u/S.156(3) relates exclusively to grievance of non-registration of FIR.
This is because the grievance of non-registration of offence raised in application u/S.156(3) can be disposed of within a few days of its receipt by directing the Police to lodge FIR.
2. Turning to the grievance of improper and/or delayed investigation raised in application u/S.156(3), it is seen that:-
(a) As and when report from Police is requisitioned by Magistrate on application u/S.156(3) Cr.P.C.
complaining about improper and/or delayed investigation, it is presumed that the case being dealt with by the Magistrate is one where FIR has already been lodged and process of investigation is pending. Thus, the bar contained in Sec.210(1) Cr.P.C. comes into operation, compelling the Magistrate to put on hold the enquiry/trial if commenced pursuant to complaint u/S.200 Cr.P.C.
(b) In this manner, the complaint u/S.200 Cr.P.C. suffers a state of suspended animation.
(c) It is, at this stage, that delays take place, not only due to laxity on the part of Police to submit report requisitioned by Magistrate u/S.156(3) in a pending investigation, but also due to leniency shown by the Magistrate in liberally granting time to the Police, resulting into the complaint u/S.200 Cr.P.C. suffering stalemate.
(d) Pertinently, the bar contained in Sec.210 Cr.P.C. is based on following foundational assumptions:-
3THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another
1. That, primacy and preference is to be given to police case [originating from FIR lodged u/S.154 Cr.P.C.], over proceedings originating from a complaint u/S.200 Cr.P.C.
2. The preference and primacy given to a police case is in turn based on the assumption that police being part and parcel of State performs the sovereign function of crime investigation in a fair, reasonable & expeditious manner.
3. The police while performing this sovereign function is presumed to act honestly.
(e) The presumption of police being honest and diligent during crime investigation, is rebuttable. The falling standards of morality in society have rendered the all important elements of probity either missing or suffering a considerable value- erosion. As such the presumptive element in Sec.210 Cr.P.C. of police case getting primacy and preference over complaint case, needs re-visit.
(f) The mandate of Sec.210 Cr.P.C. is such, that it prohibits complaint u/S.200 Cr.P.C. to be proceeded with, during pending investigation by police qua the same offence and accused.
(g) The problem arises when investigation is kept pending for unreasonably long time and is not completed even on expiry of 60 / 90 days as prescribed in Sec.167 Cr.P.C. or for any other longer period as prescribed under certain special penal statutes.
(h) This indefinite delay, in investigation, paralyses the complaint u/S.200 Cr.P.C. dissuading the Magistrate from taking steps under Chapter XV & XVI of Cr.P.C. for cognizance. This problem deserves scrutiny from another view-point. The remedy in shape of "Complaint" under Chapter XV & XVI of Cr.P.C. is available exclusively to a victim. The concept of victim came to be statutorily recognized in Cr.P.C. since 31.12.2009. Whereas Sec.210 is part of Cr.P.C. since inception i.e. 1973. Thus, the lawmakers, while engrafting Sec.210, had no occasion to take into account it's repercussions qua "Victims".
(i) Moreso, the remedy of complaint in Chapter XV & XVI of Cr.P.C. is a statutory avenue made available to a victim/complainant. This avenue may not have primacy or preference over police case but the same cannot be allowed to be rendered 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another infructuous at the alter of Sec.210 Cr.P.C. specially in cases where police fails to conclude investigation within a reasonable time.
16.2(a) At this juncture, another issue that needs addressing is as to what should be deemed to be the "reasonable time" for conclusion of investigation. Indisputably, Cr.P.C. does not lay down any time-frame for conclusion of investigation except stipulating in Sec.173(1) that every investigation under Chapter XII shall be completed without unnecessary delay. Non- prescription of a time-frame for conclusion of investigation is understandable. With innumerable variable factors involved in the process of investigation which is complex in nature the law has left the field open for police to initiate, conduct and conclude investigation in an unfettered environment with the ultimate object of reaching the truth without fear, favour, affection or ill-will.
(b) Pertinently, there are very few investigations which are conducted & concluded without fear, favour, affection or ill-will. Therefore, this Court cannot turn a blind-eye towards this stark reality by conveniently hiding behind technicalities of law.
(c) This Court is thus impelled to tread on an unchartered path to secure the ends of justice for protecting the interests of the complainant/victim.
17. Crime investigation is one of the primary duties of police. Though, in recent times, energy and time of police officers appear to be diverted more towards the ancillary duty of maintainance of law & order and VIP duty. Since crime investigation is more arduous than the said ancillary duties, the police tends to tread the convenient path. This dangerous tendency developing in the police is at the cost of quality of crime investigation. More so, the police reforms as directed by the Apex Court in the case of "Prakash Singh & Ors. Vs. Union of India & Ors. [(2006) 8 SCC 1]"
decided fifteen (15) years back are still to see the light of the day.
18. The law-makers while enacting Cr.P.C. appear to be aware of the possibility of omission/commission committed by the Police during investigation. Therefore, the provision of Section 167 Cr.P.C. was engrafted where bail can be claimed as of right in case of failure of police to complete investigation and submit charge-sheet within 60/90 days or any longer period prescribed. The law-makers realizing the importance of 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another personal liberty guaranteed as fundamental right u/Art.21 of the Constitution, incorporated Section 167 Cr.P.C.
18.1 Section 167 Cr.P.C. further gives an indication that law-makers were of the view that investigation in cognizable offences attracting punishment of seven years' imprisonment or more would in normal course be completed by the police within an outer limit of 60 / 90 days or any longer period of time statutorily provided. 18.2 Thus, if not in express terms but impliedly, it can be gathered that the law-makers prescribed a maximum period of 60 / 90 days within which the police is expected to complete the investigation, starting from the stage of Sec.154 to Sec.169 or Sec.173 Cr.P.C.
19. This Court, thus, needs to visualize that for how long the Magistrate can keep the complaint u/S.200 Cr.P.C. in a state of suspended animation, when the investigation is getting delayed and charge-sheet is not filed even on expiry of the period of 60 / 90 days or any longer period statutorily provided.
19.1 The answer to this question lies in meaningful interpretation of Section 210 Cr.P.C.
19.2 Sub-section (1) of Section 210 Cr.P.C. obliges the Magistrate to stay the proceedings of enquiry/trial initiated pursuant to complaint u/S.200 Cr.PC., whenever the Magistrate comes to know that police investigation qua the same offence and the same accused is pending. The provision also makes it obligatory on the Magistrate to call for a report from the police in such a situation.
19.3 Sub-section (2) of Section 210 Cr.P.C. deals with the contingency that pursuant to the situation contemplated by Section 210(1) if chargesheet is filed u/S.173 by the Police and cognizance of offence alleged is taken by the Magistrate against the person who is also accused in the complaint u/S.200 Cr.P.C., then both the cases i.e. complaint u/S.200 and the charge-sheet filed by Police shall be adjudicated simultaneously by treating both as cases instituted on police report. 19.4 Sub-section (3) of Section 210 Cr.P.C. lastly provides that in case the charge-sheet filed u/S.173 Cr.P.C. is not against a person who is an accused in the complaint case or if the Magistrate does not take cognizance of the offence in charge-sheet filed by the police, then the Magistrate shall proceed with the enquiry/trial originating from complaint filed u/S.200 Cr.P.C.
6THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another 19.5 The common thread which runs through all the three sub-sections of Section 210 is the foundational presumption that the investigation shall be conducted expeditiously without any unnecessary delay, so that the fate of the proceedings originating from complaint u/S.200 do not hang fire for indefinite period of time. Though this common thread is not expressly provided but can be presumed to exist in the minds of the law- makers from conjunctive reading of Section 210 and Section 167 Cr.P.C.
19.6 Thus, if a complaint u/S.200 Cr.P.C. is kept pending in a state of suspended animation awaiting the police to file charge-sheet but the police fails to complete investigation expeditiously and keeps it pending for months or years together then the said presumption lying at the foundation of Sec.210 is shaken. Leading to the complainant u/S.200 Cr.P.C., being relegated to a state of uncertainty and procrastination with justice nowhere in sight for victim. 19.7 The complainant who has filed the complaint u/S.200 Cr.P.C. is often the victim of the crime. Pursuant to the amendment in the Cr.P.C. with effect from 2009 (vide Act No. 5 of 2009) victim is conferred with statutory recognition as one of the important stakeholders in the process of criminal justice system. Victim has been given precious rights under amended Cr.P.C. and therefore these rights cannot be made to suffer due to uncertainty and arbitrariness stemming from inaction of the police to complete investigation within reasonable period of time. The right of a victim to seek justice cannot be sacrificed at the alter of omissions, commissions and inaction of the investigating agency. The victim has an independent precious right under the Cr.P.C. not only to prefer a complaint u/S.200 Cr.P.C. but also to insist expeditious enquiry and trial pursuant to said complaint u/S.200 Cr.P.C.
19.8 This avenue u/S.200 Cr.P.C. available to the victim/complainant to seek justice gets blocked and frustrated due to indolence of the police.
20. To resolve this situation, following guiding principles are laid down in cases of simultaneous filing of Sec.156(3) application and Sec.200 complaint:-
(i) As regards Sec.156(3) Cr.P.C. application (alleging only non-registration of FIR), the procedure as per para 15.(4)(A) be followed.
(ii) The Police qua Sec.156(3) Cr.P.C. application 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another (alleging improper/delayed investigation simpliciter or along with nonregistration of FIR) should not be granted more than 60/90 days or any longer period of time statutorily prescribed.
(iii) If the Police submits the report within 60/90 days or any longer period of time statutorily prescribed, then the Magistrate may pass appropriate directions in accordance with law to either dismiss/dispose of 156(3) application with/without directions by passing a speaking order or to supervise and monitor the investigating process if need arises.
(iv) However, in case the Police fails to submit report within 60/90 days or any longer period of time statutorily prescribed, then the Magistrate shall proceed with the complaint u/S.200 Cr.P.C. in accordance with Chapter XV & XVI Cr.P.C., notwithstanding the bar in Sec.210 Cr.P.C.
(v) While so proceeding under Chapter XV & XVI Cr.P.C., the Magistrate shall keep in mind that as and when police report u/S.173 Cr.P.C. is filed [even after 60/90 days or any longer period of time statutorily prescribed] and cognizance of offence in police report is taken, then the Magistrate shall club the complaint case with the charge-sheet (final report) filed by police and proceed to adjudicate both the cases together treating them to have arisen from police report.
4. Accordingly, this petition is also disposed of in the light of directions given by the coordinate Bench of this Court in the case of Om Prakash Sharma (supra). It is directed that in case if the SHO, Police Station Lahar, District Bhind fails to submit its final report (closure or charge-sheet) within a period of two months from today, then the SHO, Police Station Lahar, District Bhind shall deposit a cost of Rs.10,000/- (Rs. Ten Thousand Only) payable to the complainant/applicant through digital transfer in his bank account within 30 days of applicant's furnishing necessary bank details to the 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.53567/2021 Udaynarayan Mishra Vs. State of M.P. and another Superintendent of Police, District Bhind.
5. With aforesaid observations, the application is finally disposed of.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.02.24 17:36:48 +05'30'