Himachal Pradesh High Court
Date Of Decision: 02.07.2024 vs Hari Kishan And Others on 2 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:4658 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.483 of 2019 Date of Decision: 02.07.2024 ___________________________________________________________________ .
Sanjay Awasthi and Others .......Petitioners
Versus
Hari Kishan and Others ... Respondents
___________________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. N.S. Chandel, Senior Advocate, with Mr. Pranav Sharma, Advocate.
For the Respondents: Mr. Tek Chand Sharma, Advocate, for respondents No.1 & 2.
Mr. Vishal Panwar, Mr. B.C. Verma, Mr. Rajan Kahol, Additional Advocate General for respondent No.3/State.
___________________________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Section 482 Cr.P.C., challenge has been laid to order dated 20.08.2019 passed by Judicial Magistrate First Class, Arki, District Solan, H.P., whereby Court below having taken note of the averments contained in the application under Section 156(3) Cr.P.C., having been filed by the respondents/complainants, proceeded to direct SHO, Police Station Darlaghat to lodge FIR against the petitioners and conduct investigation, in accordance with law.
2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. N.S. 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 08/07/2024 20:29:52 :::CIS 2Chandel, learned Senior Counsel representing the petitioners is that bare reading of order dated 20.08.2019 passed by Court below .
nowhere suggest application of mind, rather, Court below merely on the basis of averments contained in the application, proceeded to order registration of FIR.
3. While making this Court peruse application filed under Section 156(3) Cr.P.C., Mr. N.S. Chandel, learned Senior Counsel submits that prior to filing the afore application, applicant ought to have filed complaint to the Police and in case, no action was taken by the Police, then only, he could have filed application under Section 156(3) Cr.P.C. before the Magistrate. Mr. Chandel further submits that before passing order, if any, on application under Section 156(3) Cr.P.C., Court is duty bound to go through the averments contained in the application, which should be accompanied by affidavit as well as document annexed therewith.
He states that bare reading of order impugned in the instant proceedings nowhere suggest that Court below before ordering registration of FIR, actually bothered to ascertain whether case, if any, under relevant provisions of law is made out against petitioners/accused or not.
4. In support of his aforesaid contentions, he invited attention of this Court to judgment passed by Hon'ble Apex Court in case titled as Priyanka Srivastava and Another Vs. State of ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 3 Uttar Pradesh and Others, reported as (2015) 6 SCC 287 and Babu Venkatesh and Others Vs. State of Karnataka and .
Another, reported as (2022) 5 SCC 639, wherein it has been held that in order to exercise power under Section 156(3) Cr.P.C., Magistrate is required to apply its mind. The mere statement that he has gone through the averments contained in the application along with documents, may not be sufficient, rather application of mind should reflect in the order, thereby ordering registration of FIR.
5. While r supporting the impugned order dated 20.08.2019, Mr. Vishal Panwar, learned Additional Advocate General states that bare perusal of reply filed by respondent/State clearly reveals that before instituting application under Section 156(3) Cr.P.C., respondent/complainant had approached Police Authorities, but once no action was taken, he was compelled to institute proceedings under Section 156(3) Cr.P.C. and as such, no illegality can be said to have been committed by the Court below while taking cognizance of the application filed under Section 156(3) Cr.P.C. Mr. Panwar further states that order dated 20.08.2019 is based upon the proper appreciation of the averments contained in the application as well as documents annexed therewith. He states that though contents of application as well as documents relied thereupon, have been not taken note of in the impugned order, but once learned Judge has categorically held that after perusal of ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 4 application, prima facie case exist against accused, this Court can presume that impugned order has been passed by the Court .
concerned after going through the complaint in its entirety .
6. Having heard learned counsel representing the parties and peruse material available on record, this Court finds that respondent/complainant vide complaint dated 06.08.2019, addressed to SHO, Police Station Darlaghat alleged that they have been duped and cheated by the petitioner/accused and in the complaint (Annexure P-4), as detailed hereinabove, complainant alleged that on account of cheating and forgery committed by accused named in the complaint (petitioners herein), he has suffered loss to the tune of Rs.90,00,000/-. Since, no action, if any, was taken upon the aforesaid complaint made by the respondent/complainant, he was compelled to institute complaint before the Superintendent of Police. Though, copy of complaint, if any, addressed to Superintendent of Police, has been not placed on record, but reply filed by respondent No.3 clearly reveals factum of lodging of complaint with Superintendent of Police. Reply filed by respondent No.3 reveals that after receiving complaint, certain inquiries were conducted by Constable Brij Mohan and in compliance thereof, matter was reported to office of Superintendent of Police, Solan. Since, no concrete action, if any, was being taken against the accused, named in the complaint, complainant was ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 5 compelled to institute proceedings under Section 156(3) Cr.P.C.
before the Court of Judicial Magistrate First Class, Arki, District .
Solan, who after having gone through the averments made in the application as well as documents annexed thereto, straightaway proceeded to issue directions to Police to register FIR, against the accused and conduct investigation in accordance with law.
7. Bare perusal of order dated 20.08.2019 impugned in the instant proceedings certainly compels this Court to agree with Mr. N.S. Chandel, r learned Senior Counsel representing the petitioner, that there is no application of mind. Court below, though in the impugned order has observed that from the perusal of application, it appears that prima facie accused have committed cognizable offence, but that may not be sufficient for Court to exercise power under Section 156(3) Cr.P.C., which has otherwise serious consequences. Before ordering registration of FIR, in terms of provisions contained under Section 156(3) Cr.P.C., Court concerned is required to satisfy itself that accused named in the application had actually committed cognizable offence. To ascertain prima facie case, Court concerned is required to see the averments to the application as well as documents annexed therewith. After having done aforesaid exercise, Court is expected to note down in the order that for such and such reason, he or she is compelled to exercise power under Section 156(3) Cr.P.C., thereby directing Police ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 6 Authority to register FIR. However, in the case at hand, neither there is any reference to the averments contained in the application .
nor to the documents annexed therewith and as such, this Court is persuaded to agree with Mr. Chandel, learned Senior Counsel for the petitioner that Court below in routine manner proceeded to issue direction to the Police to register the FIR against the accused.
8. In the case titled as Priyanka Srivastava and Another (supra), Hon'ble Apex Court while holding that affidavit in support of complaint r filed under Section 156(3) Cr.P.C. is mandatory, also held that power under Section 156(3) Cr.P.C. is not to be exercised in a routine manner, rather, same requires application of judicial mind. Magistrate exercising such power must remain vigilant in regard to the nature of allegations made in the application and not to issue direction without application of mind.
In appropriate case, Magistrate can verify truth as to whether allegations made, having regard to the nature thereof. Most importantly, in the aforesaid judgment, Hon'ble Apex Court has held that power under Section 156(3) Cr.P.C. cannot be invoked by litigant at his own will to harass other. Reliance in this regard is placed upon following Paras, which reads as under:
"21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, had to express thus:::: Downloaded on - 08/07/2024 20:29:52 :::CIS 7
"It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an .
investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173."
22. In Anil Kumar v. M.K. Aiyappa, the two-Judge Bench had to say this:
"The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed 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."
9. Similarly, in case titled as Babu Venkatesh and Others (supra), Hon'ble Apex Court held as under:
"19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 8 proceedings initiated and the action taken by the authorities under the Sarfaesi Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to .
state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156.Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."::: Downloaded on - 08/07/2024 20:29:52 :::CIS 9
21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 :
1976 SCC (Cri) 380] , had to express thus : (SCC p. 258, para 17) .
"17. ... It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173."
22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this : (SCC p. 711, para 11) r "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the 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 ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 10 which, in our view, has stated no reasons for ordering investigation."
23. In Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , this Court ruled thus : (SCC p. 647, para 18) .
"18. ...'11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. [(2005) 7 SCC 467 : 2005 SCC (Cri) 1697] , the Court while dealing with the power of the Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again : (Madhao v. State of Maharashtra [Madhao v. State of Maharashtra, (2013) 5 SCC 615 : (2013) 4 SCC (Cri) 141] , SCC pp. 620-21, para 18) "18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 11 the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the .
Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre- cognizance stage and avail of Section 156(3)."
25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439] , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that : (SCC p. 456, para 22) "22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine 'existence of sufficient ground to proceed'."
10. Since, in the case at hand, respondent/complainant levelled serious allegations of cheating and fraud against petitioners/accused, named in the complaint, Court below while ::: Downloaded on - 08/07/2024 20:29:52 :::CIS 12 considering prayer, if any, through application under Section156(3) Cr.P.C., was expected to go through the material and make .
reference of the same in order. However, in the instant case, bare perusal of impugned order dated 20.08.2019 nowhere suggests effort, if any, made by the Court below to ascertain the correctness and genuineness of the allegations levelled in the complaint, rather, Court below straightaway in most mechanical manner, without application of mind, proceeded to pass order dated 20.08.2019, which, if permitted to continue, may have serious consequences, especially qua petitioners/accused, named in the complaint.
11. Consequently, in view of the above, this Court finds it a fit case where power under Section 482 Cr.P.C. can be exercised to prevent the misuse of process of law and accordingly impugned order dated 20.08.2019 is quashed and set aside with the direction to Court below to decide the application filed by the respondent/complainant afresh, strictly in terms of law taken into consideration as well as observation made in this judgment.
Accordingly, present petition is disposed of, so also pending applications, if any.
(Sandeep Sharma), Judge July 02, 2024 (Rajeev Raturi) ::: Downloaded on - 08/07/2024 20:29:52 :::CIS