Madhya Pradesh High Court
Dr. Madhu vs The State Of Madhya Pradesh on 22 January, 2018
HIGH COURT OF MADHYA PRADESH
Page no 1
M.Cr.C. No. 5869/2017
( Dr. Madhu W/o Shri Sudhir Sakksena Vs. State of M.P. )
Indore, dated 22/01 /2018
Shri Vishal Baheti, learned counsel for the
applicants.
Shri Piyush Jain, learned GA for the
respondent/State.
The applicants have filed this petition under section 482 of Cr.P.C challenging the order dated 11/05/2017 passed by the Additional Judge to the Court of First Additional Session Judge, Rajgarh in Sessions Trial no. 311/2012, by which the Court has allowed the application filed by the Prosecution under section 319 of Cr.P.C and taken cognizance of the offence punishable under sections 467, 468, 420, 471, 474, 120-B of IPC against the petitioner and has also issued non- bailable warrant to secure their presence before the Court. 2 The short fact leading to filing of the present petition is that on 14/06/2012, the complainant Mangilal made a written complaint to the Superintendent of Police, Rajgarh alleging that the land about 26.23 hectors situated in Village - Rakhliya, Tehsil & District - Rajgarh is belonging to his joint family property. The joint holder of the property, Shaligram and her wife Radhibai are already dead and they have no issue. Other co-owner of the property was Balla and Gangabai is the second wife of Balla. Balla and Gangabai are also dead. Jatanbai is the daughter of Gangabai from his first husband. The aforesaid land was in the possession of the complainant Mangilal and his family. It is alleged that Mangilal inquired the status of the aforesaid land, then it came to his knowledge that Jatanbai fraduently impersonated herselve as Radhibai and HIGH COURT OF MADHYA PRADESH Page no 2 executed the sale deed in favour of the present petitioners. On the basis of the aforesaid complaint, FIR was registered at Crime no. 295/2012 dated 29/06/2012 against Jatanbai, Sorambai, lalsingh, Dhuliji Tawar, Pappu Tawar, Prem Singh and Jagdish Tawar. After completion of the investigation, the charge sheet was filed against the aforesaid persons. 3 The trial Court has framed the charges against the aforesaid accused persons and recorded the statements of the ten prosecution witnesses. Thereafter, Additional Public Prosecutor moved an application dated 28/01/2017 under section 319 of Cr.P.C by contending that the petitioner no. 1 Dr. Madhu Sakksena has purchased the land through his power of attorney Sumit Sakksena and as per the evidence in the case, the petitioners are also to be prosecuted and may be arrayed as accused in the case. The trial Court, by order dated 11/05/2017, allowed the said application holding that on persual of the records, it is clear that the petitioners have also presented one lady in place of Radhibai and by whom, they have made execution of the said sale deed, which also corroborated with the statement of the complainant, therefore, prima-facie, it is found that the petitioners have also committed the offences, therefore, the cognizance was taken against them and non-bailable arrest warrants were issued against the petitioners.
4 Learned counsel for the petitioners submitted that in the FIR, there is no allegation against the petitioners pertaining to the offence committed by the other accused persons. They were named as witnesses in the charge-sheet and before exercising the power conferred under section 319 of Cr.P.C, no opportunity of hearing was granted to them. It was further submitted that before invoking the jurisdiction under section 319 of Cr.P.C, the trial Court should have issued a HIGH COURT OF MADHYA PRADESH Page no 3 notice to the petitioners and only after considering their reply, should have decided the application filed under section 319 of Cr.P.C. There is no evidence available on record, which shows that the petitioners have fraudulently impersonated any person in place of Radhibai for execution of the sale deed in their favour. Thus, no case is made out against the petitioners. 5 Per-contra, learned counsel for the respondent / State submitted that there is no provision in Cr.P.C, which necessities giving of opportunity of hearing to a person before deciding the application under section 319 of Cr.P.C. The trial Court has passed the impugned order after considering the charge-sheet as well as the evidence of the complainant. 6 Heard learned counsel for the petitioners as well as learned counsel for the respondent / State. 7 It was contended by learned counsel for the petitioners that before exercising the powers under section 319 of Cr.P.C, the trial Court ought to have issued show-cause notice to the petitioners giving them an opportunity of hearing. To buttress, he has placed reliance on the judgment of Hon'ble Supreme Court delivered in the case of Jogendra Yadav & others Vs. State of Bihar and another reported in (2015) 9 SCC 244, in which it is held as under :
13 We are not unmindful of the fact that the interpretation placed by us on the scheme of Sections 319 and 227 makes Section 227 unavailable to an accused who has been added under Section 319 of the Cr.P.C. We are of the view, for the reasons given above that this must necessarily be so since a view to the contrary would render the exercise undertaken by a Court under Section 319 of the Cr.P.C., for summoning an accused, on the basis of a higher standard of proof totally infructuous and futile if the same HIGH COURT OF MADHYA PRADESH Page no 4 court were to subsequently discharge the same accused by exercise of the power under Section 227 of the Cr.P.C., on the basis of a mere prima facie view. The exercise of the power under Section 319 of the Cr.P.C., must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 of the Cr.P.C., are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 of the Cr.P.C. If allowed to, such an action of discharge would not be in accordance with the purpose of the Cr.P.C in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence.
Further in the case of Anju Choudhary Vs. State of U.P reported in (2013) 6 SCC 384, Hon'ble Supreme Court has concluded as under :
30 Section 154 of the Code places an unequivocal duty upon the police officer in charge of a police station to register FIR upon receipt of the information that a cognizable offence has been committed. It hardly gives any discretion to the said police officer. The genesis of this provision in our country in this regard is that he must register the FIR and proceed with the investigation forthwith. While the position of law cannot be dispelled in view of the three Judge Bench Judgment of this Court in State of Uttar Pradesh v. Bhagwant Kishore Joshi [AIR 1964 SC 221], a limited discretion is vested in the investigating officer HIGH COURT OF MADHYA PRADESH Page no 5 to conduct a preliminary inquiry pre-registration of a FIR as there is absence of any specific prohibition in the Code, express or implied. The subsequent judgments of this Court have clearly stated the proposition that such discretion hardly exists. In fact the view taken is that he is duty bound to register an FIR. Then the question that arises is whether a suspect is entitled to any pre-registration hearing or any such right is vested in the suspect.
31 The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall with stand judicial scrutiny. The purpose of the Criminal Procedure Code and the Indian Penal Code is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has at win purpose; firstly to adequately punish the offender in accordance with law and secondly to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the First Information Report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer in charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the HIGH COURT OF MADHYA PRADESH Page no 6 liberty of an individual is being taken away or is being adversely affected, except by the due process of law.
Where the Officer In-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be the pre- dominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audialteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons. Firstly, the Code does not provide for any such right at that stage. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in the case of Union of India v. W.N. Chadha (1993) Suppl. (4) SCC 260 clearly spelled out this principle in paragraph 98 of the judgment that reads as under:
"98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions HIGH COURT OF MADHYA PRADESH Page no 7 relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
32 In the case of Samaj Parivartan Samuday v. State of Karnataka(2012) 7 SCC 407, a three-Judge Bench of this Court while dealing with theright of hearing to a person termed as 'suspect' or 'likely offender' in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under :
"50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.
HIGH COURT OF MADHYA PRADESH Page no 8
33 While examining the above-stated principles in conjunction with the scheme of the Code, particularly Section 154 and 156(3) of the Code, it is clear that the law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when a case is registered for committing a particular offence or the report under Section 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage.
8 Thus, it is evident that against the order invoking jurisdiction under section 319 of Cr.P.C, since the aggrieved person has remedy under the law, contention of learned counsel for the petitioners that the petitioners were entitled for hearing at the stage of invoking the jurisdiction under section 319 of Cr.P.C cannot be accepted in light of the judgment passed by Hon'ble Supreme Court delivered in the case of Anju Choudhary ( supra ), hence this contention of learned counsel for the petitioners is rejected. 9 It is contended by learned counsel for the petitioners that there is no evidence available to invoke the powers under section 319 of Cr.P.C against the petitioners for trying together with the other co- accused persons. In light of this contention, and from perusal of the record, it is evident that though the petitioners were named in the FIR, but there is no allegation made against the petitioners that they have fraudulently impersonated Sorambai as Radhibai for execution of the sale deed of the disputed land in their favour. On the contrary, it is the case of the complainant that Jatanbai impersonated Sorambai as Radhibai and executed the sale deed in favour of the petitioners.
HIGH COURT OF MADHYA PRADESH Page no 9 10 From the statement of Patwari Kailash Narayan Bhilala PW-7 recorded before the Court, it is revealed that the name of the co-accused Jatanbai has been named in the revenue record as co- owner of the disputed land. There is no evidence on record, which indicates that the petitioners were having any knowledge that there was any dispute in respect of the aforesaid land. In these circumstances, it appears that the petitioners are the bonafide purchasers of the land and by purchasing the aforesaid land, they have not prepared any forged documents or committed any cheating with the complainant Mangilal. In the statement of the Mangilal, nowhere it has come that the petitioners fraudulently impersonated Sorambai as Radhibai and got the sale deed executed in their favour.. 11 In the case of Anil Mahajan Vs. Bhor Industries Ltd and others reported in (2005) 10 SCC 228, it is held that for making out the offence of cheating, fraudulent and dishonest intention, must be shown to be existing from the very beginning of the transaction. In the present case, there is no dishonest intention reflected on the part of the petitioners / purchaser from the initial stage itself. None of the witnesses were examined by the trial Court making any allegation against the petitioners about the role played by them in the offences. There is no evidence that the petitioners have made any misrepresentation for gaining themselves. On the contrary, they have purchased the aforesaid land for valuable consideration. 12 In view aforesaid, present petition is allowed and the impugned order dated 11/05/2017 passed by the Additional Judge to the Court of First Additional Session Judge, Rajgarh is hereby quashed with respect of the petitioners Dr. Madhu W/o Sudhir Sakksena and Sumit S/o Shri Sudhir Sakksena.
C c as per rules.
(S.K. AWASTHI) JUDGE AMOL N Digitally signed by AMOL N MAHANAG DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Maharashtra, 2.5.4.20=a64027030d65b93b096992ab3ea781122c6d MAHANAG 471bcf7cdec79e89d7581dfbe928, serialNumber=0bc8bb7f1eff7c1663b2a5d18d6efe7ca 91b51399456278d4ff54a676d8104d6, cn=AMOL N MAHANAG Date: 2018.01.30 16:00:45 +05'30'