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Madhya Pradesh High Court

Rewaram Byare vs The State Of Madhya Pradesh on 6 March, 2012

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                                                         M.Cr.C. No.6472 of 2011




       HIGH COURT OF JUDICATURE MADHYA
              PRADESH, JABALPUR

                 SB: HON. SHRI N.K.GUPTA,J

             Misc. Criminal Case No.6472/2011
                     Rewaram Byare & another.
                                      -Vs-
                         State of MP & others.
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Shri Anuvad Shrivastava, Advocate for the applicants.

Shri Prakash Gupta, Panel Lawyer for the respondent-
State.
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                                  ORDER

(Passed on 6th day of March, 2012) By the instant application under Section 482 of Cr.P.C., the applicants have challenged the proceeding relating to Crime No.169/2011 registered by the Police Station Deori District Sagar for commission of offence punishable under Sections 224, 225, 353 read with Section 34 of IPC.

2. The brief facts of the case are that a complaint was filed before the JMFC, Deori (Shri D.K. Notiya) against the applicant No.1 Rewaram Byare and another. The learned JMFC passed an order under Section 156(3) of Cr.P.C. and directed to the concerned police for investigation. On 18.5.2011 counsel for the complainant filed a complaint before the concerned Magistrate that the accused Rewaram Byare was sitting in the house of Dr. B.C.Jain, which was outside of the Court, and therefore since the police Maharajpur was not arresting the accused Rewaram Byare, he may be arrested. The learned JMFC called a 2 M.Cr.C. No.6472 of 2011 report from the concerned Police Station but later on it was directed orally to the Court Moharrir Ramkumar to arrest the accused Rewaram Byare. Ramkumar went to the house of Dr. Jain and held the hand of accused Rewaram Byare, but in the meantime due to intervention of applicant No.2 Kamla Bai, wife of applicant No.1, Rewaram Byare went inside the house of Dr. Jain. Court Moharrir Ramkumar tried to enter into the house of Dr. B.C.Jain, but he was stopped by accused Munna and children of Dr. B.C.Jain. Court Moharrir Ramkumar informed the concerned Magistrate that accused Rewaram Byare could not be arrested, and therefore learned JMFC directed him to lodge an FIR and thereafter the FIR was lodged vide Crime No.169/2011 for commission of offence punishable under Sections 353, 224, 225 read with Section 34 of IPC.

3. Learned counsel for the applicants submits that no appropriate procedure was adopted by the learned JMFC concerned, and therefore Court Moharrir was not authorized to arrest the accused Rewaram Byare, hence no offence under Section 353, 224 or 225 read with Section 34 of IPC is made out. The applicants are unnecessarily harassed by registration of the alleged crime, and therefore the FIR lodged against the applicants may be quashed.

4. On the other hand, learned counsel for the respondent-State has refuted the contentions raised by learned counsel for the applicants by supporting the impugned order of the Court below.

5. After considering the submissions made by learned counsel for the parties and looking to the documents placed before this Court, it is apparent that the complaint filed by the complainant was sent to the police for investigation under Section 156(3) of Cr.P.C. and therefore the learned JMFC had to do nothing with that matter relating to arrest of accused person unless final report under Section 173 of Cr.P.C. was submitted. The application moved by the learned counsel for the complainant was of no basis. Secondly, if the Court has directed to get report from Police Station Maharajpur, then the Magistrate was not competent to direct the Court Moharrir to arrest the applicant No.1 Rewaram Byare. Thirdly, no arrest warrant was issued by the Court in writing according to the provisions of Cr.P.C. If any policeman does not have any warrant of arrest, then he could not arrest to anyone. He has no authority to arrest any person in such a manner, and therefore if he could not arrest the applicant No.1, then no offence under Sections 224 and 225 of IPC is made out. Similarly, the Court Moharrir was competent to comply with the order of JMFC concerned within the Court room. He could not be sent to arrest a person without any arrest warrant. Under such circumstances, it cannot be said that he was doing any public duty as a public servant at the time of arrest of applicant No.1, and therefore if some criminal force was used against Court Moharrir Ramkumar, no offence under Section 353 of IPC is made out against the applicants. It appears that the learned counsel for the complainant misled the concerned JMFC for arrest of applicant No.1 without any basis.

6. When a complaint case was not registered and the complaint was sent under Section 156(3) of Cr.P.C. then it could not be considered by the trial Court as to whether any offence was made out or not, and if no offence was made out, then certainly no order could be passed for arrest of the proposed accused. It is highly objectionable that the learned JMFC obtained an intimation from the Court Moharrir that a criminal case has been registered against the applicant No.1 Rewaram Byare by the Police Station Maharajpur, but before obtaining any report as to whether that crime was made out or not, arrest of applicant No.1 was unwarranted.

7. On the basis of aforesaid discussion, it appears that the FIR lodged by the Court Moharrir was baseless. He complied the oral order of the Magistrate concerned whereas the learned JMFC could not pass any oral order in such a manner. Under such circumstances, it appears that the applicants are unnecessarily being harassed by registration of criminal case. Therefore, in light of the judgment of the Hon'ble Apex in the case of "State of Haryana & others Vs. Bhajan Lal and others", (AIR 1992 SC

604) the FIR lodged by the Court Moharrir Ramkumar is liable to be quashed. Hence, it is a fit case in which inherent jurisdiction under Section 482 of Cr.P.C. of this Court may be invoked.

8. Consequently, the present application filed by the applicants under Section 482 of Cr.P.C. is hereby allowed. The FIR lodged vide Crime No.169/ 2011 at Police Station Deori is hereby quashed. If any 5 M.Cr.C. No.6472 of 2011 challan has been filed against the applicants, then the proceeding of that criminal case is also quashed.

9. A copy of this order be sent to the JMFC Deori for information and compliance.

C.c. as per rules.

(N.K.Gupta) Judge 06.03.2012 Ansari.