Madhya Pradesh High Court
M/S S Convecranes Pvt. Ltd vs The State Of Madhya Pradesh on 20 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 20 th OF MARCH, 2024
MISC. CRIMINAL CASE No. 9976 of 2024
BETWEEN:-
1. M/S S CONVECRANES PVT. LTD THROUGH ITS
AUTHORIZED REPRESENTATIVE I.E. RAJ SINGH
BHATI REGISTERED OFFICE AT H.NO 70
PIPAARIYA MOHALLA KHAUJRI KALAN BHOPAL
(MADHYA PRADESH)
2. RAJSINGH BHATI S/O BABUSINGH BHATI, AGED
ABOUT 57 YEARS, OCCUPATION: BUSINESS,
PRESENTLY R/O FLAT NO.201, GUT NO.180, PLOT
NO.490, VIRAJ HEIGHTS GROWTH CENTRE-1,
CIDCO WALUJ MAHANAGAR - 1, TISGAON
AURANGABAD (MAHARASHTRA)
3. PRAVIN GADE S/O SARJERAO GADE, AGED
ABOUT 43 YEARS, OCCUPATION: BUSINESS
PRESENTLY R/O SURVEY NO.24/1, SOPAN NAGAR,
NEAR SHREE GYM VADGAONSHERI, PUNE
(MAHARASHTRA)
.....PETITIONERS
(SHRI SANKALP KOCHAR - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION BINA DISTRICT SAGAR
(MADHYA PRADESH)
2. VIVEK KUMAR KASHIV S/O MR. MANOHAR
KASHIV R/O RAJIV GANDHI WARD, HOUSING
BOARD COLONY, BINA SAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI AKSHAY NAMDEO - GOVERNMENT ADVOCATE FOR THE
RESPONDENT No.1/STATE AND SHRI PRAVEEN DUBEY - ADVOCATE
FOR THE RESPONDENT No.2 )
Signature Not Verified
Signed by: VINOD SHARMA
Signing time: 3/23/2024
1:14:38 PM
2
This application coming on for admission this day, the court passed the
following:
ORDER
The instant petition has been filed by the petitioners for quashing of the impugned order dated 15.02.2024 passed by the Judicial Magistrate First Class Bina, whereby the application filed by the complainant under Section 156(3) Cr.P.C has been allowed. The petitioners have also challegned resultant FIR dated 19.02.2024 and all consequential proceedings arising therefrom. Though, the parties have argued this case on merits to some extent but with the concurrence of the parties, this Court proceeds to decide the preliminary issue i.e whether the order dated 15.02.2024 passed under Section 156 (3) Cr.P.C is illegal and has been passed without mandatory compliance of Section 154(1) & (3) Cr.P.C.
2. I have heard the learned counsel for the parties. At the time of issuance of notice, the following order was passed on 07.03.2024:-
"Learned counsel for the petitioners inter alia submits that the FIR has been registered without mandatory compliance of Section 154(3) of Cr.P.C. No FIR can be registered on the basis of order passed by the Court under Section 156(3) of Cr.P.C. without mandatory compliance of the aforesaid provisions in view of Shri Subhkaran Lubharka and Anr. vs. State (Govt. of NCT of Delhi) and Anr., 2010(7) R.C.R. 595 (Delhi SB); Priyanka Srivastava and Another vs. State of Uttar Pradesh and others, (2015) 6 Supreme Court Cases 287; Babu Venkatesh and others vs. State of Karnataka and another, (2022) 5 Supreme Court Cases 639; Amit Joshi vs. State of Chhattisgarh through Superintendent of Police and others, 2021 SCC Online CHH 235; Anil Kumar and others vs. M.K. Aiyappa and another (2013) Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 3 10 Supreme Court Cases 705; Ramdev Food Products Private Limited vs. State of Gujrat, (2015) 6 Supreme Court Cases 439; Maksud Saiyed vs. State of Gujarat and others, (2008) 5 Supreme Court Cases 668; Guruduth Prabhu and others vs. M.S. Krishna Bhat and others, 1999 CrlLJ 3909 and Kheta Ram vs. State of Haryana, 2007 (3) R.C.R.(Criminal) 649. Issue notice regarding stay to the respondents on payment of process fee within one working day by RAD mode, returnable by the next date of hearing. List in the next week."
3. Learned counsel for the petitioners on the basis of aforesaid precedents submitted that the impugned order is wholly illegal and does not satisfy the mandatory requirements of Sections 154(1) and (3) and 156(3) Cr.P.C.
4. Learned counsel for the petitioner further submitted that before issuing any direction under Section 156(3) Cr.P.C., the Magistrate has to apply his mind and the said application of mind must reflect in the order. Mere observation by the Magistrate that he has gone through the complaints, documents and heard the complainant will not be sufficient and will not serve the mandatory requirement of Section 156(3) Cr.P.C. The Magistrate must reflect in clear terms in the order as to what weighed with him factually or legally to order investigation under Section 156(3) Cr.P.C.
The application of mind means that the person required to apply his mind has to come to grasp the facts and to bring into focus the law on the subject and apply the facts to the law arriving at a conclusion by a process of reasoning that all the relevant facts have been taken note of and properly analyzed in the light of law applicable to the facts of the case. The Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 4 Magistrate has to ensure before passing any order under Section 156(3) Cr.P.C. at the very outset that before coming to the Court, the complainant did approach the Police Officer-in-charge of the Police Station in terms of section 154(1) Cr.P.C. and the Court must examine as to what action was taken by the Incharge, Police Station or even by senior officer of the Police when approached by the complainant in terms of Section 156(3). There has to be proper applications under Section 154(1) and 154(3) Cr.P.C. before the Incharge, Police Station and Commissioner of Police/ Superintendent of Police respectively. Both these aspects are legally required to be clearly spelt out in the complaint along with the necessary documents.
5. Learned counsel for the petitioners further submitted that the complaint under Section 156(3) Cr.P.C. has to be supported by an affidavit of the complainant thereby disclosing ingredients of the offence alleged. In this regard reference becomes necessary to Chapter XII of the Code of Criminal Procedure which starts from Section 154 Cr.P.C. i.e. information to the Police and their power to investigate. Section 154 Cr.P.C. enables every person, who wishes to disclose information relating to commission of cognizable offence to approach the Station House Officer of the concerned Police Station who then is required to reduce such information into writing and to register an FIR, if that information discloses commission of cognizable offence as provided under Section 154(1) Cr.P.C. If the concerned officer is reluctant or refuse to register an FIR based on the information, then the complainant may approach the Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 5 senior police officer under Section 154(3) Cr.P.C. Once the FIR is registered, then the criminal law procedure shall come into play i.e. the investigation under Section 156 Cr.P.C. till filing of challan under Section 173 Cr.P.C. The procedure for investigation has been prescribed under Section 157 of the Code which enables the Investigating Officer to proceed to investigate the facts and circumstances and if necessary to take measures for discovery and even arrest of the offender even without warrant. After investigation of the case, a report has to be filed in the Court by the concerned Investigating Officer. The report can either be for prosecution or for closure of the case. If the complainant is aggrieved of inaction on the part of the police, then he can file a complaint under Section 200 of the Code of Criminal Procedure for redressal of his grievance. The complainant can do so when he is not satisfied with the police action under Chapter XII by approaching the senior police officer under Section 154(3) Cr.P.C. On fling of the complaint under Section 200 Cr.P.C., the Magistrate has an onerous duty to record evidence led by the complainant and also examine his witnesses and if necessary even to call for a police report. Thereafter the Magistrate has to decide as to whether he has to proceed under Chapter XV or has to dismiss the complaint. The question arises whether the complainant without approaching the senior police officer can approach the Magistrate directly with a complaint under Section 200 Cr.P.C. The issue is whether the Magistrate can still exercise powers under Section 156(3) Cr.P.C. instead of proceeding under Chapter XV.
Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 66. Learned counsel for the petitioners further submitted that under Section 156(3) Cr.P.C., the Magistrate is empowered to order investigation. Under Section 157(1) Cr.P.C. the officer Incharge of the Police Station having reasons to suspect commission of offence is empowered under Section 156 Cr.P.C. to investigate the offence under Section 157(1)(a) Cr.P.C. If the case is not of a serious nature and it appears that there is no sufficient ground for entering into an investigation, the Investigating Officer shall not investigate the case and he should inform the complainant in a prescribed manner. Even the police officer, who is empowered to investigate on the information received by him of the commission of cognizable offence can decide whether there is no sufficient ground for entering into an investigation and in the event of finding no sufficient ground he should not investigate the case. But once the Magistrate orders an investigation under Section 156(3) Cr.P.C., the police officer is bound to investigate the matter. In the light of aforesaid position it becomes very much important that the Magistrate should apply his mind in order to find out whether the allegations made in the complaint filed under Section 200 Cr.P.C. discloses an offence or not. If every complaint filed under Section 200 Cr.P.C. is referred to the police under Section 156(3) Cr.P.C. without application of mind in respect of disclosure of an offence, then there is every likelihood of unscrupulous complaints being filed in order to harass the accused named therein. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and should pass the order only when it is found that the Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 7 complaint discloses an offence whether the Magistrate gets jurisdiction to order an investigation by the police, if he does not take cognizance of the same. The Magistrate must exercise discretion after proper application of mind and only in the cases where the Magistrate is of the opinion that the nature of accusation/allegation is such that the complainant himself may not be in a position to collect and produce evidence before the Court and the interest of justice demands that the Police should step in to help the complainant then the police assistance can be taken by the Magistrate.
7. Learned counsel for the petitioners further submitted that under Section 202(1) Cr.P.C. even after taking cognizance and proceedings with the complaint under Chapter XV Cr.P.C., there are pre-requisites to be followed by the complainant before approaching the Magistrate under Section 156(3) Cr.P.C. which has discretionary remedy as the provision proceeds with the word 'may' which means that the person required to apply his mind has to come to grasp with the facts and has to bring into focus of law on the subject and applying the facts to the law in order to arrive at a conclusion by processing of reasoning that all relevant facts have been taken note of and properly analyzed in the light of law applicable. The truncated and gibberish reproduction of facts excluding the relevant facts from the focus of the mind would result in a decision being taken which can be classified as a decision without application of mind. The Magistrate is not expected to mechanically direct the investigation by the police without first examining whether in the facts and circumstances of the case investigation by the State machineries is required or not. If the Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 8 allegations made in the complaint are simple where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record the evidence and proceed further in the matter instead of passing the buck to the police station under Section 156(3) Cr.P.C. If the allegations are such which require complex and complicated investigation, it would be appropriate for the Magistrate to direct investigation by the Police. Therefore, the Magistrate is not supposed to act merely as a post office and needs to adopt a judicial approach while considering the application/complaint under Section 156(3) Cr.P.C. In Shri Subhkaran Lubharka and Anr.'s case (supra) the Delhi High Court has formulated the guidelines for the subordinate Courts to be followed while dealing with the application/complaint under Section 156(3) Cr.P.C. For ready reference, in para no.52A of the aforesaid judgment, the following guidelines have been formulated:-
"(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 9 his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a Complaint under Section 200 o f the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being s u m m o n e d by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 10 intends to proceed under Chapter XII instead of Chapter XV of the Code."
8. Learned counsel for the petitioners further relied upon para nos.29, 30 and 31 of the Priyanka Srivastava and Another's case (supra) in order to strengthen his arguments on the aforesaid issue. For ready reference, the aforesaid paragraphs are reproduced hereinbelow:-
"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 o f 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 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.
30. In our considered opinion, a stage has come in his country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 o f the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 11 determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
9. Learned counsel for the petitioners further submitted that the condition precedent for commencing investigation under Section 157 Cr.P.C. is that the FIR must disclose that the cognizable offence is committed. The Police has no unfettered discretion to commence the investigation under Section 157 Cr.P.C. when there is no commission of cognizable offence. The right of enquiry is a condition by the existence of reason to suspect the commission of a cognizable offence and they cannot Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 12 be reasonably have reasons so to suspect unless the FIR prima facie discloses the cognizable offence. It was the duty of the trial Court to establish the involvement of each of the accused persons individually for each offence for which they have been charged. Learned counsel referred t o Somasundaram alias Somu vs. State represented by the Deputy Commissioner of Police, (2020) 7 SCC 722.
10. Learned counsel for the petitioners further submitted that the allegations are found to be mala fide or otherwise an abuse of process of the Court, the criminal proceedings should not be encouraged rather the superior courts while exercising the power should also strive to serve the ends of justice. Learned Senior counsel referred to All Cargo Movers (India) Private Limited and others vs. Dhanesh Badarmal Jain and another, (2007) 14 SCC 776. Learned counsel with reference to Criminal Appeal Nos.1047- 1048/2021 titled 'Ravindranatha Bajpe vs. Mangalore Special Economic Zone Ltd. & other etc. decided on 27.09.2021 by the Hon'ble Apex Court further submitted that in the absence of specific allegations and the specific role attributed to the accused, the Magistrate is not justified in issuing the process. Merely because the accused are Chairman/Directors etc. they cannot be arrayed as accused in the absence of any specific role attributed to them and the role played by them in their capacity.
11. On the strength of the aforesaid legal position, learned counsel fo r the petitioners further submitted that the impugned order is wholly illegal as the same does not satisfy the ingredients of Section 156(3) Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 13 Cr.P.C. The impugned order is wholly non speaking, without mandatory compliance of Section 156(3) Cr.P.C and only deals with irrelevant material. The complaint as such could not have been entertained by the Magistrate in the absence of mandatory compliance of Section 154(1)&(3) Cr.P.C. The Magistrate was supposed to pass speaking order by giving cogent reasons as to why and how he intends to proceed Chapter -XII instead of Chapter - XV of the Code.
12. Learned counsel for the respondents could not dispute the factual and legal position of the case on the issue of mandatory compliance of Section 156(3) Cr.P.C before ordering registration of case. This Court has already decided the present issue in CRM - M No.3823 of 2021 (O&M) titled Ashok Punia alias Ashok Kumar and Others Vs. State of Haryana and another vide order dated 05.07.2023, on the basis of the legal requirements arising from the parameters as laid down in Shri Subhkaran Lubharka and Anr. Vs. State (Govt. of NCT of Delhi) and Anr. 2010(7) R.C.R 595 (Delhi SB), Priyanka Shrivastava and Another Vs. State of Uttar Pradesh and others, (2015) 6 SCC 287, Babu Venkatesh and Others Vs. State of Karnataka and another, (2022) 5 SCC 639 and Amit Joshi Vs. State of Chhattisgarh through Superintendent of Police and Others 2021 SCC Online CHH 235.
13. This Court has held that no FIR can be lodged under Section 156(3) Cr.P.C without there being mandatory compliance of Section 154(1) and 154(3) Cr.P.C. This Court does not wish to comment anything on merits of the case and all issues on merits of the case are left open and Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 14 at this stage except to quash the impugned order dated 15.02.2024 passed by Judicial Magistrate First Class, Bina, District Sagar and consequent FIR lodged as a consequence thereof. The case is remanded back to the Judicial Magistrate First Class Bina with a direction to pass fresh order in view of the mandatory requirement of law. The Judicial Magistrate First Class shall independently consider the submissions of the parties in accordance with law, without being influenced by any statement of fact recorded in this order. Needless to observe that the order of Judicial Magistrate First Class must exhibit the application of mind as required under Section 156(3) Cr.P.C in the light of the precedents as discussed in the preceding part of the order. At this stage this Court has not expressed any opinion on the merits of the case, lest it may prejudice the case of the parties at a later stage. The impugned order dated 15.02.2024 passed by the Judicial Magistrate First Class, Bina being non speaking and against the legal parameters is hereby quashed. Resultant FIR lodged in pursuance of the impugned order is also quashed. The case is remanded to the Judicial Magistrate First Class, Bina to reconsider the issue afresh strictly in accordance with law and thereafter pass a speaking order, exhibiting due application of mind after grasping the facts of the case and law on this subject with reasoned order. All other grounds are still left open for the parties to deliberate at a later stage, if need.
14. For the reasons recorded hereinabove, this petition is disposed of. All miscellaneous applications/I.As are also disposed of accordingly.
Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM 15(RAJ MOHAN SINGH) JUDGE Vin** Signature Not Verified Signed by: VINOD SHARMA Signing time: 3/23/2024 1:14:38 PM