Chattisgarh High Court
Ramavtar Agrawal And Ors vs State Of Chhattisgarh And Ors on 7 September, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 29-07-2021
Pronounced on 07-09-2021
CRMP No. 1150 of 2015
1. Ramavtar Agrawal S/o Satyapal Agrawal Aged About 62 Years
Director Of M/s Ramavatar Agrawal, Road Construction Pvt Ltd. 13,
Chinar Complex, Link Road Bilaspur, R/o Hansha Vihar, Srikant
Verma Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev. Distt.
Bilaspur, Chhattisgarh.
2. Bajranglal Agrawal S/o Satyapal Agrawal Aged About 59 Years
Director Of M/s Ramavatar Agrawal, Road Construction Pvt Ltd. 13,
Chinar Complex, Link Road Bilaspur, R/o Hansha Vihar, Srikant
Verma Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev. Distt.
Bilaspur, Chhattisgarh.
3. Pawan Agrawal S/o Satyapal Agrawal Aged About 55 Years Director
Of M/s Ramavatar Agrawal, Road Construction Pvt Ltd. 13, Chinar
Complex, Link Road Bilaspur, R/o Hansha Vihar, Srikant Verma
Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev. Distt. Bilaspur,
Chhattisgarh.
4. Satyapal Agrawal S/o Kudamal Agrawal Aged About 82 Years Share
Holder Of M/s Ramavatar Agrawal, Road Construction Pvt Ltd. 13,
Chinar Complex, Link Road Bilaspur, R/o Hansha Vihar, Srikant
Verma Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev. Distt.
Bilaspur, Chhattisgarh.
5. Smt. Premlata Devi W/o Bajrang Agrawal Aged About 55 Years
Wrongly Typed As Kudamal Agrawal Share Holder Of M/s Ramavatar
Agrawal, Road Construction Pvt Ltd. 13, Chinar Complex, Link Road
Bilaspur, R/o Hansha Vihar, Srikant Verma Marg, Bilaspur, P.S. And
Post Bilaspur, Civil And Rev. Distt. Bilaspur, Chhattisgarh.
6. Smt. Shashi Devi W/o Pawan Kumar Agrawal Aged About 52 Years
Share Holder Of M/s Ramavatar Agrawal, Road Construction Pvt Ltd.
13, Chinar Complex, Link Road Bilaspur, R/o Hansha Vihar, Srikant
Verma Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev. Distt.
Bilaspur, Chhattisgarh.
7. Smt. Saroj Devi Agrawal W/o Ramavatar Agrawal Aged About 57
Years Share Holder Of M/s Ramavatar Agrawal, Road Construction
Pvt Ltd. 13, Chinar Complex, Link Road Bilaspur, R/o Hansha Vihar,
Srikant Verma Marg, Bilaspur, P.S. And Post Bilaspur, Civil And Rev.
Distt. Bilaspur, Chhattisgarh.
---- Petitioners
Versus
1. State Of Chhattisgarh Through In-Charge Of Police Station Surajpur,
Distt. Surajpur, Chhattisgarh.
2. Virendra Pandey S/o Brijbihari Pandey Aged About 65 Years R/o
31/666, New Shanti Nagar, Near Disha College, 4th House, 4th Lane,
2
P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh.
(Respondent/complainant)
3. U. P. Tiwari Executive Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 2)
4. B. P. Singh Executive Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 3)
5. K.S. Bhandari Executive Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 4)
6. R. D. Jain Executive Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 5)
7. D. K. Bhumerkar Executive Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 6)
8. G. R. Sakare Assistant Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 7)
9. K. K. Sahu Sub- Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 8)
10. R. C. Soni Sub-Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 9)
11. Harendra Singh Consultant, R.E. Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 10)
12. Abhiram Sharma Consultant, A. R. I. , Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 11)
13. P. C. Singh Consultant, A. R. I. , Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 12)
14. Sanjay Kumar Sah Consultant, F. E. , Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas 3 Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 13)
15. Navdeep Chandra Ghosh Consultant, F. E. , Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 14)
16. Arun Kumar Consultant, F. E. , Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 15)
17. The Then Supreintending Engineer Engineer, Surajpur, R/o Through Chief Executive Officer, Chhattisgarh Gramin Sadak Vikas Abhikaran, Vikas Bhawan, Civil Lines, Raipur, P.S. And Post Raipur, Civil And Rev. Distt. Raipur, Chhattisgarh. (Respondent No. 16)
18. Rohit Yadav The Then Collector Surajpur, District Surajpur, Chhattisgarh. (Respondent No. 17)
---- Respondents For Petitioners : Shri Manoj Paranjpe, Advocate For State : Shri G.I. Sharan, Government Advocate For Respondent No.2 : Shri Maneesh Sharma, Shri Pragalbh Sharma, Advocates For respondent No. 5 : Shri Sushil Dubey, Advocate For respondents No. 8 and 10: Shri N. Naha Roy, Advocate For respondent No. 9 and 18 : Shri Vivek Sharma, Advocate For respondent No. 18 : Shri Akhilesh Kumar, Advocate Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER
1. The petitioners have challenged the order dated 05.11.2015 passed by learned Chief Judicial Magistrate, Surajpur in Criminal Case CA No. 3479/2015 (Veerendra Pandey vs M/s Ramavatar Agrawal Road Construction Pvt. Ltd. and Others) by which the learned Chief Judicial Magistrate has allowed the application filed by the complainant/respondent No. 2 under Section 156(3) Cr.P.C. and directed the police station In-charge Surajpur to register FIR under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC against the accused M/s Ramavatar Agrawal Road Construction Pvt. Ltd. with directors 'Shri Ramavtar Agrawal, Shri Bajrang Lal Agrawal, Shri Pawan Kumar Agrawal, Shri Satyapal Agrawal, Smt. Premlata Devi, Smt. Shashi Devi and Smt. Saroj Devi,' Shri U.P. Tiwari, Executive Engineer, Shri B.P. Singh, Executive 4 Engineer, Shri K.S. Bhandari, Executive Engineer, Shri R.D. Jain, Executive Engineer, Shri D.K. Bhumerkar, Executive Engineer, Shri G.R. Sakare, Assistant Engineer, Shri K.K. Sahu, Sub-engineer, Shri R.C. Soni, Sub-engineer, Shri Harendra Singh, consultant, Shri Abhiram Sharma, consultant, Shri P.C. Singh, consultant, Shri Sanjay Kumra Sahu, consultant, Shri Navdip Chandra Ghosh, consultant, Shri Arun Kumar, consultant and unnamed then Superintendent Engineer, Surajpur, Shri Rohit Yadav, then Collector, Surajpur and directed that order be complied with within 7 days and thereafter the learned Chief Judical Magistrate has directed to fix the case on 13.11.2015 for submission of copy of FIR.
2. The brief facts projected by the petitioners are that the complainant/respondent No. 2 filed complaint on 08.07.2015 against the petitioners and other accused persons under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC mainly contenting that complainant is an Ex- President of Chattisgarh Finance Corporation and working as social activist. M/s Ramavatar Agrawal was alloted tender for construction of Pradhan Mantri Gram Sadak Yojna District Surajpur vide tender accepting order dated 26.04.2008 and thereafter agreement was executed on 14.05.2008 for the tender valued 1465.40 Lakhs. In the construction, the contractor submitted the forged bill of Bitumin Emulsion and received huge amount. He has also submitted details of the bill. As per the complaint, the contractor has not used these materials and submitted forged bills, therefore, committed offence as mentioned in the complaint. It has also been contended by the complainant that the public servants without discharging their responsibility by verifying the same have misused their post and also committed the breach of trust, involved in criminal conspiracy, therefore, they have released the payment treating the bill as true and correct. There is, prima facie, evidence available on record that the contractor and public servants have committed criminal offence and have caused loss to the exchequer. He would submit that against the applicant and other accused persons offence under sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC has been registered and 5 police were directed to investigate the matter and submit final report before the court for further trial of the case.
3. The complainant has submitted his affidavit on 31.08.2015 before the learned Chief Judaical Magistrate, on the same date, counsel for the petitioner -M/s Ramavtar Agrawal Construction company submitted reply to the complaint. Learned Chief Judicial Magistrate as per the provisions of Section 156(3) of the Cr.P.C. has observed that since the complaint has not been registered, therefore, there is no occasion for the accused to appear before the Court and to make submission. Thereafter, the case was fixed for 21.09.2015. On 21.09.2015, the matter could not be heard and adjourned to 09.10.2012. On 19.10.2015, arguments were heard and fixed the case for order on 05.11.2015. Considering the materials placed on record he has passed the following orders:-
"vr% fopkjksijkar ifjoknh dh vksj ls is'k vkosnu varxZr /kkjk 156¼3½ n0iz0la0 dk Lohdkj fd;k tkdj Fkkuk izHkkjh lwjtiqj dks Kkiu Hkstdj vkjksihx.k Jh jkekorkj vxzoky firk Jh lR;iky vxzoky] Jh ctjax yky vxzoky firk Jh lR;iky vxzoky] Jh iou vxzoky firk Jh lR;iky vxzoky] Jh lR;iky vxzoky firk Jh dqnkey vxzoky] Jherh iszeyrk nsoh ifr Jh dqnkey vxzoky] Jherh 'k'kh nsoh ifr Jh iou dqekj vxzoky] Jherh ljkst nsoh vxzoky ifr Jh jkekorkj vxzoky] Jh ;w +ih + frokjh] Jh ch-ih- flag] Jh ds-,l- HkaMkjh] Jh vkj-Mh- tSu] Jh Mh +ds +Hkqejsdj] Jh th +vkj +lkdjs] Jh ds +ds +lkgw] Jh vkj +lh +lksuh] Jh gjsUnz flag] Jh vfHkjke 'kekZ] Jh ih +lh +flag] Jh lat; dqekj lkg] Jh uonhi pUnz ?kks"k] Jh v:u dqekj] ds fo:) Hkk0na0la0 dh /kkjk 420] 467] 468] 409] 471] 477 ¼d½ lgifBr 34 ,oa /kkjk 120ch dk vijk/k izFke n`"V;k gksuk ik;s tkus ds vk/kkj ij vkjksihx.k ds fo:) vDr /kkjk dk vijk/k iathc) dj izFke lwpuk i= ys[kc) fd;k tkdj izdj.k fof/kor vUos"k.k iw.kZ dj bl U;k;ky; esa vafre izfrosnu izLrqr djus gsrq vknsf'kr fd;k tkrk gS A izdj.k esa Fkkuk izHkkjh dks bl vkns'k ds }kjk ;g Hkh Li"V :i ls funsZf'kr fd;k tkrk gS fd izdj.k dh foospuk ds nkSjku ;fn ukfer vkjksihx.k ds vfrfjDr vU; fdlh Hkh O;fDr;ksa ds fo:) dksbZ lk{; iz'uxr vijk/k ds laca/k esa izkIr gksrk gS rks os muds fo:) Hkh dk;Zokgh dj ldrs gSaA izdj.k esa Fkkuk izHkkjh lwjtiqj dks Kkiu ds lkFk ifjokn i= izfr ds lkFk Hksth tk;sA izdj.k esa lacaf/kr Fkkuk izHkkjh dks izsf"kr Kkiu esa bl ckr dk Li"V :i ls mYys[k fd;k tkos fd Fkkuk izHkkjh ds }kjk Kkiu izkfIr ds 07 fnol ds Hkhrj vko';d :i ls vkns'kkuqlkj vijk/k iathc) dj /kkjk 157 na0iz0la0 ds izko/kkuksa dk ikyu vko';d :i ls djsA izdj.k izFke lwpuk fjiksVZ dh izfrfyfi izLrqr djus gsrq fu;r fd;k 6 tkrk gSA fnukad 13@11@2015"
4. The petitioners have filed the present Cr.M.P. challenging the said order before this Court. The learned counsel for the petitioners would submit that the complainant has obtained certain information from the Joint Commissioner (Commercial Tax), Kolkata wherein it was informed to the complainant that M/s Mascot Industries did not make any sale of goods to M/s Ramavtar Agrawal Road Construction Pvt. Ltd. and would submit that dealer M/s Mascot Industries has given wrong statement just to avoid sales tax. Said statement cannot be considered to be true. On the basis of the said document, the Magistrate has passed the order considering the case on merits. The Magistrate has committed gross illegality in passing the final order under Section 156(3) of the Cr.P.C. after coming to the definite conclusion that the petitioners have committed offence. The Magistrate has no power to direct the police to register FIR under particular Section. At the most, the Magistrate while exercising his power can simply direct for investigation in the matter. It is also contended that the Magistrate while passing the impugned order has not appreciated Chapter 15 of the Cr.P.C. The allegation of the complainant is baseless and without any substance. The petitioners produced the documents which shows that the bills were made to the company after due verification. Petitioners' company purchased the material Bitumin Emulsion from the dealer M/s Mascot Industries, Kolkata. Said transaction was accepted by the said industry. M/s Mascot Industries also paid sales tax for the said transaction, therefore, he would submit that the FIR be quashed, as prima facie no case is made out against the petitioners.
5. The State has filed their return in which they have raised objection with regard to the maintainability of the petition contending that they should file criminal revision before the learned District Judge and the petition under Section 482 of the Cr.P.C. is not maintainable. It has been further contended that jurisdiction under Section 156(3) of the Cr.P.C. has neither prevented the effect of Cr.P.C. nor has committed any abuse of process of law which warrants interference by this Court. Learned counsel for the State would refer to Section 2(h) of 7 the Cr.P.C. which defines investigation which reads as under:-
"Section 2(h) in The Code Of Criminal Procedure, 1973 - investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
6. The Magistrate has only ordered for investigation of the offence by the police on the basis of evidence supplied by the complainant to surface the truth/commission of offence. At this juncture, it is not required to be interfered by this Court. They would pray for dismissal of the Cr.M.P.
7. Learned counsel for the State would further submit that registration of FIR and subsequent direction to investigate the matter is in consonance with the power conferred to the Chief Judicial Magistrate under Section 156(3) Cr.P.C., therefore, learned Judicial Magistrate First Class has not committed any illegality or irregularity which warrants interference by this Court. The petition at this juncture is pre-mature, police has to investigate the matter. If it is found that no offence is made out, closure report can be submitted before the learned Chief Judicial Magistrate, where also the petitioners will have opportunity of raising objections before framing of charge under Section 245 Cr.P.C., therefore prayed for dismissal of the Cr.M.P.
8. Respondent No. 5 also filed his return and would submit that no relief has been sought for against the petitioners. He would submit that he was performing his duty with utmost sincerity and in accordance with law. He supported the case of the petitioners and would submit that the Magistrate has committed gross illegality in passing the final order under Section 156(3) Cr.P.C. directing the police to register FIR, at most the Magistrate while exercising the power under Section 156(3) Cr.P.C. would have simply directed the police to investigate the matter, thus, committed illegality. The Magistrate has filed to appreciate the provisions of law. It is a fit case where this Court can exercise its power under Section 482 of the Cr.P.C. and should quash the FIR.
89. Respondent No. 18- Dr. Rohit Yadav, the then Collector, District - Surguja has filed return and would submit that learned Chief Judicial Magistrate has exonerated from the arena of the accused in fact in the present case no relief has been sought by respondent No. 18, therefore, would submit that petition filed by the petitioners may be dismissed.
10. I have heard learned counsel for the parties and perused the records appended with the writ petition.
11. The points required to be determined by this Court are that :-
(I) Whether, the petitioners have alternate remedy of filing Criminal Revision under Section 397 Cr.P.C. before the Sessions Judge.
(ii) Whether, the order passed by learned Chief Judicial Magistrate directing for registration of FIR under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC is in consonance with the provisions of Section 156(3) or not.
12. Before adverting to the factual matrix of the case, it is necessary for this Court to examine the relevant provisions of Cr.P.C. under Section 2(c), Section 2(d), Section 156, Section 190 and 397, which reads as under:-
"The Code Of Criminal Procedure, 1973:-
2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
156. Police officer's power to investigate cognizable 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 9 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 above-mentioned.
190. Cognizance of offences by Magistrates:-
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."10
13. The issue with regard to maintainability of the revision against registration of FIR has also been considered at length by the coordinate Bench of the Court in case of Amarnath Agrawal vs. Jaisingh Agrawal 1, the relevant part of the order is extracted below :
"16. The moot question is if a revision application against mere registration of FIR by the police is not maintainable whether such revision would be held maintainable when the Magistrate only directs registration of FIR. In the opinion of this Court, the answer is an emphatic No. Exercise of revisory power conferred by the Court under Section 397 read with Section 401 of the Code would occasion when there is an order passed by the competent court, which is not interlocutory in nature, however, the said power cannot be exercised to quash the FIR or investigation because such power can be exercised only by the High Court under section 482 of the code or under Article 226/227 of the Constitution of India. If the revision application is considered to be maintainable before the Sessions Court against an order passed by the Magistrate under Section 156 (3) and if such revision is allowed it would have effect of quashing the FIR, therefore, if the Sessions Court has no such powers otherwise, it cannot do so by entertaining a revision against an order passed by the Magistrate under Section 156 (3) of the Code.
21. The legal position which would emerge from the above referred judgments of the Supreme Court is as follows:-
Investigation into a cognizable offence by in charge of jurisdictional police station is a statutory power. Once an information is sent to the jurisdictional police regarding commission of a cognizable offence, it is the statutory duty of the said police to investigate offence. {Lalita Kumari (supra)}.
The accused has no right to have any say as regards the manner and method of investigation of an offence. {W.N. Chadha (supra), Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj (supra) and Rajesh Gandhi (supra)}.
The power of the Court to interfere with the investigation is limited. {Naresh Kavarchand Khatri (supra)}.
Under Section 156 (3) of the Cr.P.C. Magistrate is conferred limited power to ensure that the police 1 2015(2) CGLJ 261 11 investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence {Dharmeshbhai Vasudevbhai (supra)}.
Exercise of power by a Magistrate under Section 156(3) is at the pre-cognizance stage. Such exercise is done by the Magistrate when the concerned police officer fails to investigate the matter as is obligatory upon him.
To exercise revisory power under Section 397, the Court whose order is sought to be revised must have recorded some finding, order or sentence or have drawn a proceeding which is ex facie illegal or without jurisdiction. While directing the police officer to investigate the matter the Magistrate neither records any finding nor passes any order or sentence against the accused because at that stage the registration of FIR is only against the prospective accused.
If it is held that an order under Section 156 (3) of the Code is revisable, the same would amount to clothing the Sessions Court with the power of quashing the FIR or investigation. Such power is conferred only on the High Court under Section 482 of the Code or under Article 226/227 of the Constitution of India."
14. Thus, from the judgment of the coordinate Bench, it is quite vivid that revision petition under Sections 397, 401 Cr.P.C. challenging registration of FIR is not maintainable, as it would amount to quashing of the FIR, therefore, the objection raised by the State that the petitioners have alternate and efficacious remedy of filing revision before the revisional Court is not sustainable, thus, objection raised by the State is rejected.
15. Learned Judicial Magistrate after considering the materials and documents placed by the complainant has directed for registration of the FIR and investigation in the matter. Under Section 154 Cr.P.C. registration of offence is mandatory, then only investigation can be initiated. Section 154 Cr.P.C. is read as under :-
"Section 154. Information in cognizable cases.
(1) Every information relating to the commission of a 12 cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-
section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
16. As per Section 154 of the Cr.P.C. the object of registration of FIR is that every information relating to cognizance of the offence wether or given orally or otherwise the officer incharge of the police station has to be reduced in to writing by or under the direction of such officer and shall be signed by the person giving such information. The purpose of registering an FIR is to set the machinery of criminal investigation into motion which culminate with filing of the police report in term of Section 173(2) Cr.P.C., therefore, by directing to the thana-incharge to register FIR against the petitioners, learned Chief Judicial Magistrate set in motion the criminal machinery. Therefore, the direction issued by the learned Chief Judicial Magistrate to register the FIR does not suffer from any irregularity or illegality which warrants interference by this Court. The Hon'ble Suprme Court in case Anju Chaudhary vs. State of U.P. and Others 2 2013 (6) SCC 384 has held in para 14, 25 and 37 as under:-
"14. On the plain construction of the language and 2 (2013) 6 SCC 384 13 scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-
charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code.
1425. The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc. Power of the Magistrate under Section 156(3):-
35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV.
Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code. Such 15 an investigation embraces the continuity of the process which begins with collection of evidence under Section 156 and ends with the final report either under Section 159 or submission of chargesheet under Section 173 of the Code."
17. The aforesaid judgment has been followed by the Hon'ble Supreme Court in its latest judgment in case of M/s Supreme Bhiwandi Wada manor Infrastructure Pvt. Ltd. vs. The State of Maharashtra and Anr. decided on 26 th July, 2021 in Criminal Appeal No. 680 of 2021 and observed in para 18, 19 and 20 as under:-
"18 These provisions have been interpreted in a judgment of two learned judges of this Court in Suresh Chand Jain v. State of MP. After adverting to the provision of Section 156(3), Justice KT Thomas speaking for the two judge Bench observed:
"8. The investigation referred to therein is the same investigation, the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence." (emphasis supplied).
Dealing specifically with the provisions of Chapter XV, this Court observed that once the Magistrate takes cognizance of an offence, the procedure which is enunciated in Chapter XV has to be followed. The investigation which the Magistrate can direct under Section 202(1) either by a Police officer or by any other person is for a limited 16 purpose of enabling the Magistrate to decide whether or not there is sufficient ground to proceed further. The Court held:
"9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. ―or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him."
The legal position has been summarized in thus:
"10. The position is thus clear. 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 complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
19. The principle enunciated in the above decision has been followed in several decisions of this Court. In Dilawar Singh v. State of Delhi4, the decision in Suresh Chand Jain (supra) was cited with approval.
17In Tilak Nagar Industries Limited v. State of Andhra Pradesh, a two judge Bench of this Court held that:
"12...power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence."
20. In Anju Chaudhary v. State of Uttar Pradesh6, Justice Swatanter Kumar for the Bench noted that Section 156 primarily deals with the powers of the police officer to investigate cognizable cases. While passing an order under Section 156(3), the Magistrate does not take cognizance. The order of the Magistrate is in the nature of ―a pre-emptory reminder or intimation to the police‖ to exercise their primary duty and power of investigation. The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202 and observed:
40. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of (2007) 12 SCC 641 (2011) 15 SCC 571 (2013) 6 SCC 384 the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different class. This view was also taken by a Bench of this Court in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] . The 18 distinction between these two powers had also been finally stated in the judgment of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652] wherein the Court stated that : (SCC p. 218, para 23) "23.... to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code."
18. Therefore, submission of the learned counsel for the petitioners that learned Chief Judicial Magistrate while deciding the application should not pass order is not acceptable and deserves to be rejected by this Court. Learned counsel for the petitioners relied upon judgment of the Hon'ble Supreme Court in Srinivas Gundluri vs. Sepco Electric Power Construction Corporation 3, wherein the Hon'ble Supreme Court held in para 23 as under :-
"23. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the 3 (2010) 8 SCC 206 19 police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section 3 of Section 156."
19.Therefore, it cannot be said that Chief Judicial Magistrate has exceeded its jurisdiction in directing the police to register the FIR, investigate the matter and thereafter submit the final report. Thus, learned Chief Judicial Magistrate has not committed any illegality which warrants interference by this Court.
20.So far as the contention of the learned counsel for the petitioners that registration of the FIR against the contractor and its share holders is without there being specific allegation against each of the Directors and share holders or without any prima facie submission with regard to their responsibilities can be held responsible for the act of the company. He would rely upon judgment of the Hon'ble Supreme Court in case of Sushil Sethi and Another vs. State of Arunachal Pradesh and Others 4 and would refer para 7.5 and 8.2 of the judgment which are extracted below:-
"7.5 In the case of Sharad Kumar Sanghi (supra), this Court had an occasion to consider the initiation of criminal proceedings against the Managing Director or any officer of a company where company had not been arrayed as a party to the complaint. In the aforesaid decision, it is observed and held by this Court that in the absence of specific allegation against the Managing Director of vicarious liability, in the absence of company being arrayed as a party, no proceedings can be initiated against such Managing Director or any officer of a company. It is further observed and held that when a complainant intends to rope in a Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability.
8.2 It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668, it is observed and held by this Court 4 (2020) 3 SCC 240 20 that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside."
21.Learned counsel for the petitioners would submit that there is specific averment with regard to individuals regarding petitioners' liability, still all the family members have been arrayed as party to the complaint whereas Smt. Premlata Devi Smt. Shashi Devi and Smt. Saroj Devi Agrawal are neither Directors of the company nor there is any averment with regard to their involvement mentioned in the complaint. Therefore, registration of the FIR against all the directors and shareholders is illegal and the same is liable to be quashed. He would rely on judgment of Hon'ble Supreme Court in case Sushil Sethi (supra)
22. Learned counsel for the petitioners would also refer to the clause 32 of the Article of Association wherein name of directors are specifically mentioned, which is extracted below :-
"32. Following persons shall be the first Director of the Company (1) Shri Ramawtar Agrawal (2) Shri Bajrang Lal Agrawal (3) Shri Pawan Kumar Agrawal"
23. He would also refer to the list of shareholders in the capital of the company wherein Smt. Premlata Devi Smt. Shashi Devi Smt. Saroj Devi Agrawal are also shareholders of the company apart from abovementioned three directors. It has been well settled that the shareholders have no direct or vicarious liability with respect to the criminal offence. Therefore, registration of FIR against Smt. Premlata 21 Devi Smt. Shashi Devi and Smt. Saroj Devi Agrawal are nothing but abuse of process of law, therefore, the same is liable to be quashed.
24.So far as contention of the learned counsel for the petitioners reference taken in case of Sushil Sethi (supra) is concerned, it is not applicable to the facts of the presenet case. In that case, the company was not arrayed as accused, only three directors were arrayed, therefore, Hon'ble Supreme Court has quashed the proceedings. In the present case company along with directors, shareholders have been arrayed in the complaint. As such, directors of the company can be held to be responsible for the commission of the offence. However, their responsibilities and extent of liability can be examined by the Trial Court after investigation only.
25.Therefore, order dated 15.11.2015 passed in Criminal Case CA No. 3479/2015 by the learned Chief Judicial Magistrate, so far as it relates to registration of FIR against the petitioners No. 5 to 7 namely Smt. Premlata Devi Smt. Shashi Devi and Smt. Saroj Devi Agrawal, is per se illegal, and same is liable to be and is hereby quashed. Consequently, the FIR No. 457/15 dated 12.11.2015 registered at Police Station - Surajpur under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC is also quashed so far as it relates to petitioners No. 5 to 7 namely Smt. Premlata Devi Smt. Shashi Devi and Smt. Saroj Devi Agrawal. The interim stay granted by this Court on 16.12.2017 stands vacated. The police authority is directed to investigate the matter as directed by learned Chief Judicial Magistrate against petitioners No. 1 to 4 namely Ramavtar Agrawal, Bajranglal Agrawal, Pawan Agrawal and Satyapal Agrawal without being influenced by any of the observations made by this Court and shall conclude the investigation as early as possible.
26.Accordingly, the present Cr.M.P. is allowed in part.
Sd/-
(Narendra Kumar Vyas) Judge kishore