Madhya Pradesh High Court
Abhinav Chakradhar vs The State Of Madhya Pradesh on 8 March, 2013
M.Cr.C. No. 2621 of 2013
08.03.2013
Shri Manish Datt learned Sr. Adv assisted by Shri P.S.
Chouhan, learned counsel for the applicant.
Shri Umesh Pandey, learned Govt. Adv. for the respondent
no.1-State, on advance copy.
The presence of the respondent nos. 2 and 3 at this stage is
not required because before passing the impugned order they
were not noticed by the trial court as the same was not necessary.
My such approach is based on the decision of the Apex Court in
the matter of Chandra Deo Singh Vs. Prakash Chandra Bose
@ Chabi Bose and another decided by the Hon'ble Five Judges
Bench of the Apex Court reported in AIR 1963, SC 397.
I am apprised by the applicant's counsel that he has filed
the certified copies of all necessary documents and papers
submitted before the trial court in the impugned private complaint
and prayed to hear this petition on merits instead to hear the
same only on admission.
Considering such prayer, in the available circumstances, the
matter is taken up for final adjudication.
The petitioner's counsel is heard at length on merits.
O R D E R (Oral)
The applicant- complainant has filed this petition under Section 482 of Cr.P.C. being aggrieved by the order dated 4.2.2013 passed by the Chief Judicial Magistrate, Bhopal in unregistered Criminal Complaint Case No. 0/2013, whereby his complaint filed by mentioning Section 156 (3) of Cr.P. C. on the cause title for taking the cognizance of the offence of Sections 153, 153 (a), 153
(b), 121, 121 (a) 124 (a) and Section 120 (b) of the IPC and Sections 13, 16, 18, 20 of the Prevention of Unlawful Activities Act 1967 against the respondent nos. 2 and 3 with a further prayer for appropriate direction to some Police Station to register such offence against such respondents has been dismissed.
Shri Manish Datt, learned Sr. Adv assisted by Shri P.S. Chouhan, counsel for the applicant, after taking me through the copies of the report in writing (Annexure 2) and of the complaint (Annexure 3) filed in the aforesaid court of CJM, Bhopal alongwith the impugned order argued that although such complaint was filed in the court of CJM, Bhopal by the applicant under Section 156 (3) of the Cr.P.C. In such complaint the prayer for taking cognizance of the above mentioned offence against the respondent nos. 1 and 2 with a further prayer for giving appropriate direction to the Police Station, T.T. Nagar, Bhopal to register the offence against the respondent nos. 2 and 3 for above mentioned offences was made. In addition to it, the prayer for appropriate direction to the authorities to remove the objectionable version from the Internet site was also made.
If the aforesaid subordinate court, on consideration was not inclined to direct the aforesaid Police Station to register the offence, even then such court was duty bound to proceed with the matter in accordance with the provision of Chapter XV from Section 200 to 203 of Cr.P.C., r/w Section 190 of the same Code. In such premises, after refusing such prayer treating the impugned complaint to be a complaint defined under Section 2 (d), r/w Section 200 of Cr.P.C. the evidence of the applicant and his witnesses should have been recorded by such court under Section 200 and 202 of Cr.P.C and thereafter on appreciation and evaluation of such evidence, the trial court should have passed the order either for dismissal of the complaint or for taking the cognizance of any of the offences in the matter against respondent nos. 1 and 2. In continuation, he said that it is apparent fact that such procedure has neither been adopted nor followed. He also said that in the available facts and circumstances in the light of decision of the Apex Court in the matter of Surech Chand Jain Vs. State of Madhya Pradesh reported in AIR 2001, SC 571, the subordinate court should have directed the aforesaid Police Station to register the offence against the respondent nos. 2 and 3 and prayed for taking the cognizance of the aforesaid offence against the respondent nos. 2 and 3 by setting aside the impugned order or in any case to direct the aforesaid Police to register the offence and investigate the same or in any case, the case be remitted back to the aforesaid court to decide afresh by adopting the procedure provided in the above mentioned Chapter XV, r/w Section 190 of Cr.P.C by allowing this petition.
Having heard, keeping in view the arguments advanced by the counsel, I have carefully gone through the papers alongwith the record and averments of the petition so also the impugned order. True it is the impugned complaint (Annexure 3) was filed on the basis of report in writing (Annexure 2) by mentioning the Section 156 (3) of Cr.P.C. on its cause title. In such complaint categorical three prayers were made by the applicant; one is for taking the cognizance of the above mentioned offence against the respondent nos. 2 and 3. Second is for appropriate direction to the P.S. T.T. Nagar, Bhopal to register such offence against respondent nos. 2 and 3; and thirdly for appropriate direction to remove the objectionable speech of respondent no. 2 from the Internet site.
In the available circumstances as appeared from the papers available on record, without touching any merits or demerits of the matter, if the impugned order is examined, then it is apparent that after refusing the prayer of the applicant to direct the Police authority to register the offence, the case was not considered by the court according to the provision of Chapter XV under Section 200 to 203, r/w Section 190, of Cr.P.C. As such after refusing the prayer to direct the Police to register the offence, the trial court ought to have extended an opportunity to the applicant to record his statements as well as of his witnesses under Section 200 and 202 of Cr.P.C. and in the light of such evidence, the court had to consider the question for taking the cognizance in the matter, but such process has neither been adopted nor complied with by the Court of CJM.
If the case is examined in the light of principle laid down by the Apex Court in the Case of Surech Chand Jain (supra), then it is apparent that the provision of Section 156 (1) and (3) have also not been considered by the subordinate court with proper approach.
In view of the aforesaid discussion, the case is remitted back to the aforesaid subordinate court with a direction to decide afresh keeping in view the law laid down by the Apex Court in the matter of Surech Chand Jain (supra) and in case if such court again comes to conclusion that the direction to register the offence to the Police is not required, then in that position such court is directed to consider the complaint (Annexure -3) as complaint defined under Section 2 (d), r/w Section 200 of Cr.P.C. and consider the matter by adopting the procedure provided under Chapter XV, i.e. from Section 200 to 203 and Section 190, of Cr.P.C.
The petition stands allowed, as indicated above. C c as per rules.
(U. C. Maheshwari) Judge bks