Madhya Pradesh High Court
Dinesh Kumar Gupta vs The State Of Madhya Pradesh on 14 February, 2017
1 MCRC 3508/2014
(Dinesh Kumar Gupta vs. State of M.P. & Ors.)
14.2.2017
Shri Prashant Sharma, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondents No.1 and 2/State.
None for the respondent No.3.
This petition under Section 482 of Cr.P.C. has been filed challenging the order dated 28.11.2008 passed by JMFC, Morena in Criminal Complaint No. unregistered/2008 as well as for quashing the FIR in Crime No.344/2009 registered by Police Station Kotwali, Morena for offences punishable under Sections 420, 467, 468, 471 and 120-B of IPC.
The necessary facts for the disposal of this application are that the respondent No.3 had filed a criminal complaint for offences under Sections 420, 467, 468, 471, 120-B and 149 of IPC on the ground that applications were invited for appointment on the post of Aanganwadi Worker/Assistant in newly constituted Aanganwadi Centre, Suhel Ka Pura. The accused No.1 Raj Kumari with an intention to fraudulently obtain appointment on the post of Aanganwadi Worker filed forged mark sheets before the accused Nos.2 to 5 who were the member of the Selection Committee. An objection was raised by the complainant with regard to the fact that the documents filed by the accused Raj Kumari are forged document but inspite of the said objection, the co-accused Raj Kumari was selected by the Selection Committee. It was further stated that the complainant as well as Smt. Mamta filed two different appeals against the selection of co- accused Raj Kumari on the post of Aanganwadi Worker but Smt. Mamta withdrew her appeal. The appeal filed by the 2 MCRC 3508/2014 complainant was allowed by the Collector and it was held that the co-accused Raj Kumari has obtained appointment on the basis of forged documents and, therefore, her appointment was quashed and now the complainant is working on the post of Aanganwadi Worker.
By order dated 28.11.2008, the JMFC, Morena passed an order under Section 156(3) of Cr.P.C. mentioning that on the basis of the complaint as well as the documents annexed along with it, investigation by the police appears to be necessary and accordingly directed the police to file its report.
In compliance of the said order passed under Section 156(3) of Cr.P.C. by the JMFC, Morena, the police registered the FIR No. 344/2009.
Challenging the correctness and propriety of order dated 28.11.2008 it was submitted by the counsel for the applicant that it is a well established principle of law that before passing an order under Section 156(3) of Cr.P.C. the Magistrate has to apply its mind to come to a conclusion that whether any cognizable offence is made out or not. From the plain reading of the order dated 28.11.2008, it is clear that without assigning any reason though briefly the Magistrate has in a mechanical manner passed the order under Section 156(3) of Cr.P.C. It was further submitted that the applicant was the member of the Selection Committee and, therefore, if somebody has produced forged documents then that by itself would not be sufficient to hold that the applicant was also hand in glove with the co- accused candidate and, therefore, whether the complaint filed by the respondent No.3 discloses any cognizable offence or not was to be decided by the Magistrate.
3 MCRC 3508/2014Per contra, it is submitted by the counsel for the respondents that the cognizance is taken of an offence and not of an offender. Once the co-accused Raj Kumari had filed the forged document which was found proved by the Collector and accordingly her selection was set aside, it is submitted that the Magistrate did not commit any mistake by passing an order under Section 156(3) of Cr.P.C.
Heard the learned counsel for the parties. From the plain reading of the order dated 28.11.2008 passed by JMFC, Morena it is clear that the Magistrate has merely mentioned that investigation appears to be necessary in the light of the complaint and the documents annexed with the same. This reasoning given by Magistrate does not show the application of mind.
The Supreme Court in the case of Anil Kumar & Ors. vs. M.K. Aiyappa & Anr. reported in (2013) 10 SCC 705 has held as under:-
"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (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 Cr.P.C., 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, 4 MCRC 3508/2014 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."
The Supreme Court in the case of Priyanka Srivastava and anr. v. State of U.P. and Ors. reported in (2015) 6 SCC 287 has held as under:-
"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the 5 MCRC 3508/2014 unscrupulous and unprincipled litigants, like respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must 6 MCRC 3508/2014 have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."
Thus, it is clear that before passing an order under Section 156(3) of Cr.P.C the Magistrate is under obligation to apply its mind by taking note of the allegations in entirety as well as that whether any cognizable offence is made out or not. Disclosure of reasons though briefly is indicative of application of mind. Therefore, before passing an order under Section 156(3) of Cr.P.C. the Magistrate is under obligation to disclose certain reasons to find out that whether the complaint discloses the commission of cognizable offence or not. Disclosure of reasons for the limited purposes cannot be said that the Magistrate has taken cognizance of the offence.
Consequently, if the order dated 28.11.2008 is tested in the light of well established principle of law then it is clear that merely by mentioning the necessity of investigation by the police in the light of the complaint as well as the document filed along with the complaint nothing has been mentioned by the Magistrate which may indicate that he had applied his mind to the allegations in entirety and whether any cognizable offence appears to be made out or not. In the considered opinion of this Court, the observation made by the Magistrate does not appear to be an application of mind to the facts of the case.
Accordingly, the order dated 28.11.2008 as well as FIR in Crime No.344/2009 registered by Police Station Kotwali, District Morena for offences punishable under 7 MCRC 3508/2014 Sections 420, 467, 468, 471 and 120-B of IPC are hereby quashed. The matter is remanded back to the court of JMFC, Morena with a direction to decide the application under Section 156(3) of Cr.P.C. afresh, keeping in mind the direction given by the Supreme Court in the case of Priyanka Shrivastava (supra). If after considering the allegations, Magistrate comes to a conclusion that no case is made out for passing an order under Section 156(3) of Cr.P.C., then he is required to proceed further in accordance with the provisions of Sections 200 and 203 of Cr.P.C.
With aforesaid observation, this petition is allowed.
(G.S. Ahluwalia) Judge (alok)