cr p c
Nilesh
(Querist) 25 June 2013
This query is : Resolved
I want letus case law
Nilesh
(Querist) 25 June 2013
on Sec 156 (3) cr p c
Nadeem Qureshi
(Expert) 25 June 2013
Anju Chaudhary Vs. State of U.P. & ANR.
[Criminal Appeal No. of 2012 arising out of SLP (CRL) No.9475 of 2008]
Swatanter Kumar, J.
1. Leave granted.
2. A cardinal question of public importance and one that is likely to arise more often than not in relation to the lodging of the First Information Report (FIR) with the aid of Section 156(3) of the Code of Criminal Procedure (for short, 'the Code') or otherwise independently within the ambit of Section 154 of the Code is as to whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence.
3. The above question arises from the factual matrix which, shorn of the unnecessary details, can be stated as follows:
4. On 16th November, 2007, one Parvez Parwaz, Respondent No.2, claiming himself to be a social activist filed an application under Section 156(3)in the Court of the Chief Judicial Magistrate, Gorakhpur. According to this complaint, one Mahant Aditya Nath Yogi, Member of Parliament and leader of an unregistered organization called the Hindu Yuva Vahini had been spreading hatred amongst Hindus and Muslims for a number of years and has also been causing fear amongst the Muslim community and harming them, demolishing the properties of Muslims and carrying out other acts of harassment.
On 27th January, 2007 when the complainant, Respondent No.2herein, was returning home from the Railway Station, Gorakhpur at about8.00 p.m., Yogi Aditya Nath, Member of Parliament, Dr. Radha Mohan Dass Aggarwal, Member of the Legislative Assembly, Dr. Y. D. Singh, Member of the Legislative Council and Anju Chowdhary, Mayor of Gorakhpur, the Minister of State and BJP Leader Shiv Pratap Shukla, other office bearers and thousands of activists of Hindu Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as various other persons whom the petitioner does not know by name but can recognise, were holding a meeting as "Warning Meeting".
The meeting which was addressed by Yogi Aditya Nath who was saying that if blood of one Hindu be shed then they will not register any FIR with the administration against the bloodshed of one Hindu in the times to come, instead they will get ten persons (Muslims) killed. If damage is done to the shops and properties of Hindus, they would indulge in similar activities towards the Muslims. Anything can be done to save the glory of Hindus and all should prepare for a fight. Amongst others, it was also stated in the complaint as under: "He stated that we will not allow lifting of Tazia anywhere in the Gorakhpur City and the Gorakhpur District and we will also celebrate our Holi with these Tazias. He stated that we will have to take harsh steps for the welfare of Hindus and we do not want that the generations to come remember us with bad names.
He stated that I do not understand that we will be ready to take up those names, therefore, be ready to fight your final battle. Member of Parliament Yogi Aditya Nath stated that once you stand up then you see that Gorakhpur will remain peaceful for many years. If the administration does not take revenge of the murder of the Trader's son, then we will take ourselves, we will ourselves take revenge of that murder. Member of Parliament Yogi Aditya Nath, in his speech, termed the administration as worthless and eunuch and the incidents as Government sponsored terrorism and challenging the democratic Government he stated that they will destroy the law and order and will take law in their own hands.
He also called for bandh of Gorakhpur and Basti Divisions and directed the activists to inform about this to every place through every media. Thereafter, Member of Parliament Yogi Aditya Nath led a torch procession and hundreds of activists along with above named persons participated and raised slogans in support of Yogi Aditya Nath. In this procession, the slogan related to spreading of hatred against Muslims and sentiments of killing and harming them was being raised with primary importance, which was pronounced as "Katuye Kaate Jayenge, Ram - Ram Chillanyenge". The petitioner got afraid very much by the above incident and keeping in view the danger to his life, went to the house of a relative. The petitioner saw at many places in the way that these elements raising exciting slogans behaved improperly by passing humiliating comments on Burqa - clad women and beared Muslim passersby and beat them and fired several rounds in the air. All these incidents including the public meeting and torch procession was witnessed by a number of people apart from me, who I know by name and address, but I do not deem it proper to reveal their names in the present situation due to reason of insecurity.
5. That after the night of 26th January, 2007, due to highly sensitive condition prevailing in the town Gorakhpur, curfew was imposed on three Police Station areas of the Gorakhpur town and Section 144 was in force in entire Gorakhpur city area including the places of public meeting and the torch procession. Despite this, the aforesaid unconstitutional meeting and torch procession was organized and conducted openly violating the Section 144 in presence Police Officers and the public was provoked and directed to perform criminal acts by the activists present there and the activists of other places were provoked through them.
Aditya Nath Yogi provoked Hindus to kill Muslims and rob and set afire their houses and shops and to destruct their religious places and Tazias for the reason of the murder of Raj Kumar Agrahari (incident of 26/27th January, 2007 Gorakhpur Town) and the alleged incidents happending since 24th January, 2007 and also provoked Muslims to not to celebrate Muharram which was a conspiracy hatched by him on the basis of his maligned thought and to fulfil which, he was looking for an appropriate situation. Under this very conspiracy, criminal incidents were carried out in the Gorakhpur and Basti Divisions, which caused disruption of Law and Order.
6. That as a result of the speech given by Yogi Aditya Nath in the public meeting on 27th January, 2007, torch procession and conspiracy hatched by above named persons present with him, the shops, houses, godowns and vehicles of Muslims were robbed and set afire in Gorakhpur Police Station Areas in Gorakhpur Town by the Yogi supported Hindu Yuva Vahini, activists of BJP, Vyapar Mandal, which created an atmosphere of fear and terror. Gorakhnath temple became main centre of communal miscreant activities of the followers of this Yogi Aditya Nath and their refuge and these miscreants attacked the houses of Muslims residing in the area adjoining the temple premises, their shops and godowns and the vehicles of Muslims standing there (Trucks, Rickshaw, Scooters, Cars, etc.) and set them afire which caused which loss.
Under the criminal conspiracy and instigation of Member of Parliament Yogi and the abovenamed persons, the followers of Yogi Aditya Nath killed Rashid R/O Sahabgunj S/O Rasheed R/O Rahmat Nagar, P.S. Rajghat in the Rajghat Police Station area and such followers also tried to kill by setting afire by pouring petrol on Peshimam Tufail Ahmad S/O Munnavar Hussain R/O Singharia in Cantt. Police Station area and such followers also caused huge loss by destructing Mosque situated at Menhadia village under Police Station Gagaha and such followers also set afire the religious epic Kuran in the Mosque of Village Etkhauli and caused loss by destructing the Mosque under the Police Station Gagaha and such followers also set afire the madarsa situated in village Vasudiha under Police Station Gagaha and also set afire Tazias and such followers also set afire the shops of Abdulla S/O of Sharfuddin, Shahur, Riyaz all Muslims at Bhaluan Chouraha under Police Station Gagaha and the shops of Muslims named Fakharuddin and Islam were also set afire apart from Irshad Tent House at Jaitpur Couraha under Sahajnawan Police Station and such followers also destructed and destroyed the Eidgaah situated in village Rudlapur P.S. Khorabar and Eidgaah situated in village Dumri (Niwas) P.S. Sahajanawan, and Eidgaah situated in village Mustafabad @ Mallaur P.S. Sahjanawan and the Mosque situated in village Bhhopgarh P.S. Gola District Gorakhpur. Tazias were not allowed to be lifted at many places in Gorakhpur district and at many places where the Tazia procession were carried out, they were destructed and set afire there by doing miscreant acts there.
The shops of Salim S/O Shaukat in village Jaddupatti, Ashiq Band, Anwar barber, Hafizullah and Jabbar in village Menhdeva under Police Station Sikrigunj were also set afire under the same conspiracy. These miscreants also robbed and set afire the shop of Tajammul Hussain in village Dhabra of Police Station Sikrigunj. In the same way, the shops of Nadir, Ashiq Mukhtar were robbed and set afire in Belghat and such miscreants also attacked the mosque situated in village Bhainsa P.S. Bansgaon and destroyed it's gate and also destructed shops of two Muslims in the market.
7. That the followers of Aditya Nath Yogi and activists - miscreants of the abovenamed organization robbed and set afire the buses of the roadways by blocking the roads and the government and private other vehicles were also robbed and set afir4e. The conduction of roadways buses in Gorakhpur and Basti Division remained effected during the period from 29.01.2007 to 5th February, 2007 and other adjoining Division also remained effected. During the period from 9th January to 31st January, 2007, the followers and activists of Yogi Aditya Nath destroyed more than 22 buses of the roadways on different places under this conspiracy and also caused loss by setting them afire, in which 14 roadways buses belonged to Gorakhpur areas and 8 buses belonged to outer areas. On date 31st January, 2007 road buses in the Nichnaul depot in Maharajgunj district were also destructed and set afire by the followers of Yogi Aditya Nath.
8. That Railways was disrupted by the followers of Yogi Aditya Nath Hindu Yuva Vahini, BJP and Vyapar Mandal and about more than 14 trains were set afire causing loss and the Yogi supported miscreants of these organizations pelted stones and destructed the office of the SDM situated in Bansgaon and office of the DM at Gorakhpur under the criminal conspiracy and flamboyant speech against the government and instigation for criminal acts by the persons above named and in the same way the miscreants of these organizations robbed and set afire the shops of Muslims in other Kasbas Khajani, Kauriram, Bansgaon, etc. of the Gorakhpur district.
In Kasba Khajani, these miscreants entered the mosque and and Madarsa Arabia Ahal-e-Sunnat and robbed and destroyed the same and also robbed and set afire the shops of 15 Muslims, whose details have been mentioned in the petition dated 5th July, 2007 written by Mohammad Asad Hayat to the Senior Superintendent of Police, Gorakhpur and the vehicles of Muslims plying on the road were also made targets. In Kasba Gola, the shops of Akhtar Hussain S/O Muhhamad Umar, Gulab Hussain S/O Ismail, Abrar S/O Sarfaraz, Aftab S/O Noor Alam, Feroz and Tahir were also robbed and set afire. In Kasba Kauriram, the shops of Nabi Muhammad, Nizamuddin, Majnu and Yusuf were also set afire. In Kasba Bansgaon, the shops of Tazammul Hussain and Dr. Siraz Ansari were also robbed and burnt.
The Muslims aggrieved by these incidents were not heard by the Police. Apart from this, the shops, houses and Tazias of Muslims were robbed and burnt in many rural areas of Gorakhpur district. All these incidents have been published in Newspapers from 29th January, 2007 to 15th February, 2007. All these criminal acts were done by the follower activists of Yogi Aditya Nath connected to Hindu Yuva Vahini, BJP and Vyapar Mandal on instigation by aforesaid enraging speech by Yogi Aditya Nath and under the conspiracy hatched by Yogi Aditya Nath and other above named persons.
9. That Yogi Aditya Nath delivered a enraging speech addressing "Hindu Chetna Rally" in Kasba Kasaya District Padrauna on 28th January, 2007 and asked the Hindus that they shed fear of death from their hearts. It is necessary to mention here that in Purvanchal, Hindu Yuva Vahini under the leadership of Yogi Aditya Nath was hatching a conspiracy to disrupt communal harmony, to annoy Muslims and to harm them since earlier times and was looking for an appropriate situation for the same and it's activists were active for the same. This appropriate situation met them in the background of murder of Rajkumar Agrahari in Gorakhpur town in the night of 26/27th January, 2007.
The activists of Hindu Yuva Vahini and BJP were jointly holding public meetings at the different places since first week of January 2007 itself in Kotwali Padrauna area of Kushinagar district and were raising slogans that if you have to live in Purvanchal, then you must have to chant name of Yogi and whoever chants the name of Ali, he will be beaten in every street. The office bearers and activists of Hindu Yuva Vahini were delivering communal speeches and were canvassing that Muslims must be taught a lesson and they have to be harmed to such an extent that they do not dare raise their heads and any of their religious ceremony has not to be allowed to be completed. In this respect, all such information are recorded in the G.D. of Kotwali Padrauna town on different dates in the month of January, 2007.
10. That all the preparations to carry out such wrongful acts and spread the same in Gorakhpur Division and Basti Division had been completed by Hindu Yuva Vahini, BJP and Vyapar Mandal under the leadership of Yogi Aditya Nath and the speech delivered by Yogi Aditya Nath in the aforesaid "Warning" meeting and the torch procession conducted on Gorakhpur Railway Station in the night of dated 27th January, Gorakhpur Railway Station in the night of date 27th January, 2007 and the "Hindu Chetna Rally" conducted in Kasaya of district Kushinagar on 28th January, 2007 further provoked and directed their activists and thereafter Yogi Aditya Nath got himself arrested at the border of Gorakhpur district on 28th January, 2007 while returning from Kasaya under conspiracy and it was canvassed by the activists of Hindu Yuva Vahini, BJP and Vyapar Mandal under conspiracy only that the administration has arrested the prophet of Hindu Welfare, hence got the brawl spread in relation to this arrest the background back ground of the public provocation on account of aforesaid speech.
And robbed, burnt and destroyed and properties of Muslims, their religious places, epics, emblems, Tazias and government vehicles and buildings, offices buses of roadways and railways and in this sequence, condemnable crimes killings of Muslims and attempt to kill Muslims were carried out."5. Another very vital fact, that requires to be noticed at this stage itself, is that on 26th January, 2007, Rajkumar Agrahari, a Hindu boy was murdered in Gorakhpur, which resulted in breaking out of communal violence in the city and imposition of curfew under Section 144 of the Code. On27th January, 2007 a condolence meeting for the murder of Raj Kumar was organised which was attended by many persons including Anju Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath, Member of Parliament from that constituency.
It appears from the record that the High Court had also passed some orders in regard to the investigation of the case and finally the police had registered a case under Section 302 of the Indian Penal Code, 1860 (for short 'IPC'), and had even filed a charge sheet under Section 173 of the Code before the Court of competent jurisdiction against six unknown accused persons.6. Apart from this incident and before the public meeting attended by above-stated Anju Chaudhary, another incident took place at the shop of one Hazrat S/o Bismilla under Police Station Cantt. In this incident, the shop of Hazarat was set on fire at about 6 p.m. on 27th January, 2007 causing heavy damage to the same. In fact, as per the report lodged by him, he was working in that shop and owner of the shop was one Md. Isa Ansari. According to him, some unknown persons, claiming to be from Hindu Yuva Vahini, had set the shop on fire.
He neither knew their names nor their addresses. This report was sent by post and was, thus, received by the Police Station and registered as FIR No.145 of 2007 on 3rd February, 2007.The police had registered a case against unknown persons under Sections147, 427, 436 and 506 IPC read with Section 23 of the U.P. Gangsters and Activists Prevention Act and Section 7 of the Criminal Law Amendment Act.7. The complaint application under Section 156 IPC was filed by Parvazon 16th November, 2007, nearly 10 months after the date of occurrence. This application, which was heard by the learned Chief Judicial Magistrate, was rejected vide order dated 29th July, 2008. The learned Magistrate expressed the opinion that since Crime Case No.145 of 2007 had already been registered, as noticed above, there was no propriety to register an FIR again.
The intention of the legislature was to provide speedy criminal law and justice to all. Thus, there was no need to conduct fresh investigation by another person merely by lodging a fresh FIR. The Court held that to pass such an order was not justifiable and rejected the application. The thrust of the order of the learned Magistrate was primarily on this aspect of the case.8. Aggrieved from the order dated 29th July, 2008, Parvaz filed a revision petition before the High Court. The High Court vide its judgment dated 26th September, 2008 set aside the order of the learned Magistrate under revision and directed the Magistrate to pass a fresh order on the application of respondent No.2. While passing this order, the Court held as under :
11. "In addition to the aforesaid averments, various other allegations have also been made in the application under Section 156(3) Cr.P.C. From all these allegations, prima facie cognizable offences of very serious nature requiring police investigation are disclosed. Hence, the learned CJM Gorakhpur ought to have passed the order in present case for registration of FIR against the persons named in the application under Section 156(3) Cr.P.C. and its investigation by the police, but it is very unfortunate that due to lack of adequate legal knowledge, without going into the allegations made in that application, the learned CJM has rejected the application merely on the ground that in view of the FIR registered at case Crime No.145 of 2007 at P.S. Cantt., there is no justification to get the second FIR registered.
This view of the learned CJM is wholly erroneous. Annexure (iv) is the copy of the FIR, which was registered at Case Crime No.145 of 2007 at P.S. Cantt Gorakhpur on the basis of the application of Hazarat S/o Vismilla. On perusal of this FIR, it is revealed that the said FIR relates to the incident, which had occurred on 27.01.2007 at about 6.00 p.m., in which damage was caused to the shop of the complainant Hazarat by some named persons of Hindu Yuwa Wahini.
That FIR was lodged regarding one incident only, whereas in the application under Section 156(3) Cr.P.C. a number of incidents have been mentioned, which occurred on different places affecting different persons. Therefore, it cannot be said that the FIR registered at Case Crime No.145 of 2007 covers all the incidents mentioned in the application under Section 156(3) Cr.P.C. As such, there was no legal bar in this case to get the First Information Report registered on the basis of the application moved by the applicant revisionist under Section 156(3) Cr.P.C. and its investigation by the police, because all the allegations made in the said application and in the FIR registered at Case Crime No.145 of 2007 are not the same.
12. Although, in view of law laid down by a Division Bench of this Court in the case of Sukhwasi Vs. State of U.P. 2007 (59) ACC 739 in which Full Bench decision of the case of Ram Babu Guta & Ors. Vs. State of U.P. 2001 (43) ACC 50 has been relied upon, application under Section 156(3) Cr.P.C. can be treated as complaint, but on the basis of the allegations made in the application under Section 156(3) Cr.P.C. in the present case prima facie cognizable offences of very serious nature requiring police investigation are disclosed. Hence, treating the application under Section 156(3) Cr.P.C. as complaint in present case would not be legal and justified.
While passing order for treating the application under Section 156(3) Cr.P.C. as complaint, the following observations made by the Full Bench of this Court in the case of Ram Babu Gupta (supra) must be kept in mind by the Magistrate/Judges:- "However, it is always to be kept in mind that it is the primary duty of the police to investigate in case involving cognizable offences and aggrieved person cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost of bring home the charge to the accused. It is the duty of the state to provide safeguards to the life and property of a citizen. If any intrusion is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved."
13. Therefore,, having regard to the afore cited observations made by the Full Bench, the Magistrates/Judges should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under Section 156(3) Cr.P.C. in the cases where on the basis of the averments made therein and the material, if any, brought on record in support thereof, prima facie cognizable offence of serious nature requiring police investigation is made out and in such cases the aggrieved person should not be compelled to collect and produce the evidence at his cost to bring home the charges to the accused by passing an order to treat the application under Section 156(3) Cr.P.C. as complaint thereby forcing the aggrieved person to proceed in the manner provided by Chapter XV Cr.P.C. XXX XXX XXX 19. Consequently, the revision is allowed.
The impugned order is hereby set aside the Chief Judicial Magistrate Gorakhpur is directed to pass fresh order on the application dated 16.11.2007 moved by the applicant-revisionist Parvaz Parwaz, under Section 156(3) Cr.P.C. and it must be ensured that after registration of the FIR on the basis of that application, proper investigation is carried out."9. In the present appeal by way of special leave, the appellant Smt.Anju Chaudhary challenges the legality and correctness of the order of the High Court primarily on the following ground
(a) The order passed by learned CJM dated 29th July, 2008 did not suffer from any error of jurisdiction and, thus, the High Court could not have upset the said order in exercise of its revisional jurisdiction.
(b) While making certain observations, the High Court, in the impugned order held that prima facie cognizable offences were made out and while virtually directing the learned Magistrate to get an FIR registered, has foreclosed the exercise of judicial discretion by the learned Magistrate.
As such, the order of the High Court is not sustainable.
(c) In law, there cannot be two FIRs registered in relation to the same occurrence or different events or incidents two or more but forming part of the same transaction. The direction to register a second FIR, therefore, is contrary to law and the very spirit of Section 154 of the Code.
(d) The order of the High Court is in violation of the principles of natural justice inasmuch as the High Court neither gave any notice nor heard the appellant before passing the impugned order dated 26th September, 2008.
10. Contra to the above submissions made by the appellant, the counsel appearing for the State as well as respondent No.2 have supported the order of the High Court in law as well as with reference to the facts of the casein hand.
It is contended on their behalf that there were no two separate FIRs in relation to the same offence or occurrence, but these FIRS related to two different incidents which is permissible in law. The appellant was not entitled to any hearing in law at the stage of filing the FIR, and in any case no direction has been made to register a case particularly against the appellant for any given offence. Thus, the order of the High Court does not call for any interference.
11. Having noticed the contentions of the parties and in order to complete the factual matrix of the case, we may also notice at this stage that in furtherance to the order of the High Court dated 26th September,2008, the learned CJM, vide order dated 17th October, 2008 accepted the application of respondent No.2 and directed the Police Station Cantt., Gorakhpur to register the case under appropriate sections and to ensure the investigation in terms of the order passed by the High Court. A copy of the order was placed before this Court during the course of hearing.
12. Since all these contentions are inter-related and inter-dependant, it will be appropriate for the Court to examine them collectively. Of course, the foremost contention raised before us is as to whether it is permissible to register two different FIRs in law. We may deal with the legal aspect of this issue first and then turn to the facts.
13. Section 154 of the Code requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer in-charge of a police station, has to be reduced into writing by or under the direction of such officer and shall be signed by the person giving such information. The substance thereof shall be entered in a book to be kept by such officer in such form as may be prescribed by the State Government in this behalf.
14. A copy of the information so recorded under Section 154(1) has to be given to the informant free of cost. In the event of refusal to record such information, the complainant can take recourse to the remedy available to him under Section 154(3). Thus, there is an obligation on the part of a police officer to register the information received by him of commission of a cognizable offence. The two-fold obligation upon such officer is that (a)he should receive such information and (b) record the same as prescribed. The language of the section imposes such imperative obligation upon the officer.
An investigating officer, an officer-in-charge of a police station can be directed to conduct an investigation in the area under his jurisdiction by the order of a Magistrate under Section 156(3) of the Code who is competent to take cognizance under Section 190. Upon such order, the investigating officer shall conduct investigation in accordance with the provisions of Section 156 of the Code. The specified Magistrate, interms of Section 190 of the Code, is entitled to take cognizance upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
15. On the plain construction of the language and scheme of Sections 154,156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence.
The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code.
These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, maybe in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence.
If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. [Ref. Rita Nag v. State of West Bengal [(2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali @ Deepak & Ors.(SLP (Crl) No.9185-9186 of 2009 of the same date).
16. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case. In the case of Ram Lal Narang v. State(Delhi Administration) [(1979) 2 SCC 322], the Court was concerned with the registration of a second FIR in relation to the same facts but constituting different offences and where ambit and scope of the investigation was entirely different.
Firstly, an FIR was registered and even the charge-sheet filed was primarily concerned with the offence of conspiracy to cheat and misappropriation by the two accused. At that stage, the investigating agency was not aware of any conspiracy to send the pillars (case property)out of the country. It was also not known that some other accused persons were parties to the conspiracy to obtain possession of the pillars from the court, which subsequently surfaced in London. Earlier, it was only known to the Police that the pillars were stolen as the property within the meaning of Section 410 IPC and were in possession of the accused person(Narang brothers) in London. The Court declined to grant relief of discharge to the petitioner in that case where the contention raised was that entire investigation in the FIR subsequently instituted was illegal as the case on same facts was already pending before the courts at Ambala and courts in Delhi were acting without jurisdiction.
The fresh facts came to light and the scope of investigation broadened by the facts which came to be disclosed subsequently during the investigation of the first FIR. The comparison of the two FIRs has shown that the conspiracies were different. They were not identical and the subject matter was different. The Court observed that there was a statutory duty upon the Police to register every information relating to cognizable offence and the second FIR was not hit by the principle that it is impermissible to register a second FIR of the same offence. The Court held as under : "20.Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualize a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused.
When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all, the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him.
If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate.
That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.
21. As observed by us earlier, there was no provision in the CrPC, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence.
Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.
22. As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency.
It was submitted to us that the submission of a charge-sheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process of the court. We do not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 CrPC, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed.
17. "In the case of M. Krishna v. State of Karnataka [(1999) 3 SCC 247],this Court took the view that even where the article of charge was similar but for a different period, there was nothing in the Code to debar registration of the second FIR. The Court opined that the FIR was registered for an offence under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act related to the period 1.8.1978 to 1.4.1989 and the investigation culminated into filing of a report which was accepted by the Court. The second FIR and subsequent proceedings related to a later period which was 1st August, 1978 to 25th July, 1978 under similar charges. It was held that there was no provision which debar the filing of a subsequent FIR.
18. In the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181], the Court explained that an information given under sub-Section (1) of Section154 of the Code is commonly known as the First Information Report (FIR).Though this term is not used in the Code, it is a very important document. The Court concluded that second FIR for the same offence or occurrence giving rise to one or more cognizable offences was not permissible. In this case, the Court discussed the judgments in Ram Lal Narang (supra) and M. Krishna (supra) in some detail, and while quashing the subsequent FIR held as under :
"23. The right of the police to investigate into a cognizable offence is a statutory right over which the court does not possess any supervisory jurisdiction under CrPC. In Emperor v. Khwaja Nazir Ahmad the Privy Council spelt out the power of the investigation of the police, as follows: "In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.
"24. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. One of them, is pointed out by the Privy Council, thus: "[I]f no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.
"25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice. XXX XXX XXX 35. For the aforementioned reasons, the registration of the second FIR under Section 154 CrPC on the basis of the letter of the Director General of Police as Crime No. 268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed.
We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crimes Nos. 353 and 354 of 1994 for making further investigations and filing a further report or reports under Section 173(8) CrPC before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268 of 1997 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside.
19. "The judgment of this Court in T.T. Antony (supra) came to be further explained and clarified by a three Judge Bench of this Court in the case of Upkar Singh v. Ved Prakash [(2004) 13 SCC 292], wherein the Court stated asunder : "17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code.
This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident. 18. This Court in Kari Choudhary v. Sita Devi discussing this aspect of law held: "11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency.
Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it." (emphasis supplied) XXX XXX XXX
23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter- complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter- complaint is permissible.
25. In the instant case, it is seen in regard to the incident which took place on 20-5-1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value.
20. "Somewhat similar view was taken by a Bench of this Court in the caseof Rameshchandra Nandlal Parikh v. State of Gujarat [(2006) 1 SCC 732],wherein the Court held that the subsequent FIRs cannot be prohibited on the ground that some other FIR has been filed against the petitioner in respect of other allegations filed against the petitioner.
21. This Court also had the occasion to deal with the situation where the first FIR was a cryptic one and later on, upon receipt of a proper information, another FIR came to be recorded which was a detailed one. In this case, the court took the view that no exception could be taken to the same being treated as an FIR. In the case of Vikram v. State of Maharashtra (2007) 12 SCC 332, the Court held that it was not impermissible in law to treat the subsequent information report as the First Information Report and act thereupon. In the case of Tapinder Singh v. State of Punjab[(1970) 2 SCC 113] also, this Court examined the question as to whether cryptic, anonymous and oral messages, which do not clearly specify the cognizable offence, can be treated as FIR, and answered the question in thenegative.
22. In matters of complaints, the Court in the case of Shiv Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed the view that the law does not prohibit filing or entertaining of a second complaint even on the same facts, provided that the earlier complaint has been decided on the basis of insufficient material or has been passed without understanding the nature of the complaint or where the complete facts could not be placed before the court and the applicant came to know of certain facts after the disposal of the first complaint. The Court applied the test of full consideration of the complaints on merits.
In paragraph 18, the Court held as under: - "18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.
23. "23. The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162of the Code.
The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v.State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same in cidentetc.
24. To illustrate such a situation, one can give an example of the same group of people committing theft in a similar manner in different localities falling under different jurisdictions. Even if the incidents were committed in close proximity of time, there could be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, riots may break out because of the same event but in different areas and between different people.
The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj v. State of Andhra Pradesh[(2010) 14 SCC 444], the Court took the view that there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report.
25. Now, we should examine the facts of the present case in light of the principles stated supra. The complaint/application under Section 156(3)filed by respondent No. 2 was founded on the condolence meeting which was attended by a large number of persons including the persons named in the complaint. According to respondent No. 2, named persons had given speeches which were communal, provoking and were creating disharmony between the communities, and encouraging people to commit criminal offences rather than to follow the due process of law. The complaint of respondent No. 2 did not relate to any event prior to the holding of the meeting and participation of the stated persons. This complaint was of a general nature and related to various communal riots that occurred subsequent to and as a result of the meeting. Thus, it related to a different case, grievance and alleged commission of offences at the time and subsequent to the holding of the meeting.
26. The First Information Report 145/2007 lodged by Hazrat son of Bismillah related to burning of a shop prior to holding of a meeting. He categorically stated that he did not know the persons or names of the perpetrators who attacked the shop where he was working. This incident occurred at 6 p.m. as per the records while the meeting itself, as per respondent No. 2 was held after 8 p.m., though on the same date. His report clearly states that when he was going back to his house at about8.30 p.m., he stopped at the place where the meeting was being held. The FIR registered by Hazrat was against unknown persons and related to a particular event and commission of a particular crime. There was no question of any provocation, conspiracy or attempt by the persons premeditatedly committing the offences which they committed.
27. As per the FIR, it was an offence committed at random by some unknown persons. The registration of such FIR was neither intended to be nor was it in fact in relation to a matter of larger investigation, or commission of offences, as alleged by the respondent no.2.
28. Even the offences which are stated to have been committed, and for which the two FIRs were registered in these respective cases were different and distinct. In the complaint filed by Parvez Parwaz, which was registered as a FIR, names of the persons were mentioned and a general investigation was called for, while FIR 145/2007 registered by Hazrat, was against unknown persons for damage of his property, which was for a specific offence, without any other complaint or allegation of any communal instigation or riot.
In other words, these were two different FIRs relatable to different occurrences, investigation of one was no way dependent upon the other and they are neither inter-linked nor inter-dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case. Thus, we have no hesitation in coming to the conclusion that lodging of the subsequent FIR was not a second FIR for the same occurrence as stated in FIR 145/2007, and thus, could be treated as a First Information Report for all purposes including investigation in terms of the provisions of the Code. It was not in the form of a statement under Section 162 of the Code. Is an accused entitled to hearing pre-registration of an FIR?
29. 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 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.
30. 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 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 relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
31. 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.
32. 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.
33. Even in the cases where report under Section 173(2) of the Code is filed in the Court and investigation records the name of a person in column(2), or even does not name the person as an accused at all, the Court in exercise of its powers vested under Section 319 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.
34. Of course, situation will be different where the complaint or an application is directed against a particular person for specific offence and the Court under Section 156 dismisses such an application. In that case, the higher court may have to grant hearing to the suspect before it directs registration of a case against the suspect for a specific offence. We must hasten to clarify that there is no absolute indefeasible right vested in a suspect and this would have to be examined in the facts and circumstances of a given case. But one aspect is clear that at the stage of registration of a FIR or passing a direction under Section 156(3), the law does not contemplate grant of any hearing to a suspect. Coming to the facts of the present case, the complaint under Section 156 had named certain persons, but it had also referred to a number of other persons and the investigation prayed for was of a generic nature and not against a particular person for commission of any specified offence.
The substance and nature of the allegations made in the complaint were such that it was not possible to state with certainty as to how the offences were committed and by whom. Thus, the Court was called upon to pass an order directing general investigation of very wide scope. It was to be investigated, as to who besides the named persons gave speeches, incited the public at large, what its impact was on the violence as alleged and who were the persons who had participated in the alleged communal violence. Thus, it was not a case where one or more persons committed the murder of someone and clearly fell under Section 302 IPC. The merit of the case was not disclosed by the learned Magistrate while passing the order dated 29th July, 2008 under Section 156(3) of the Code.
The Court did not analyze at all the ingredients of an offence, participation of persons and their other effects. The court primarily proceeded on a legal issue without reference to the facts of the case stating that since one FIR had been recorded i.e .FIR No. 145/2007, it was not permissible to register second FIR and direct investigation thereof. This view, as already discussed above was, in fact and in law, not sustainable. The Court had not recorded any finding infavour of the appellant to the effect that she was not present, she had not participated or that she was in no way connected with communal violence.
We must not be understood to state that the appellant was involved in any manner in the commission of the said crime. This has to be investigated as directed by the court in accordance with law and that too without prejudice to the rights and contentions of the appellant. The grievance of non-grant of hearing in any case loses its significance as we have heard the appellant at some length and have dealt with the contentions raised before us. In the facts of the present case, thus, no prejudice is caused to the appellant. Power of the Magistrate under Section 156(3)
35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance.
It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code. Such an investigation embraces the continuity of the process which begins with collection of evidence under Section 156 and ends with the final report either under Section 159 or submission of charge sheet under Section 173 of the Code. Refer Mona Pawar v. High Court of Allahabad [2011) 3 SCC 496]. In the case of Dilawar Singh v. State of Delhi [2007) 9 SCR 695], this Court as well stated the principle that investigation begin in furtherance to an order under Section 156(3) is not anyway different from the kind of investigation commenced in terms of Section 156(1). They both terminate with filing of a report under Section 173 of the Code. The Court signified the point that when a Magistrate orders investigation under Chapter XII he does so before taking cognizance of an offence.
The court in paragraph 17 of the judgment held as under:- "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.
36. "Caution in this process had been introduced by this Court vide its judgment in the case of Tula Ram & Ors. v. Kishore Singh [1977) 4 SCC 459]where it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.
37. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other personas he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding.
This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code.
These cases would fall indifferent class. This view was also taken by a Bench of this Court in the case of Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185].The distinction between these two powers had also been finally stated in the judgment of this Court in the case of Srinivas Gundluri & Ors. v. SEPCO Electric Power Construction Corporation & Ors. [(2010) 8 SCC 206] where the Court stated that to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.
38. Thus, the Magistrate exercises a very limited power under Section156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further. This distinction has to be kept in mind by the court in different kinds of cases. In the present case, the learned Magistrate while passing the order dated 29th July, 2008, had not dealt with the case on merits, but on a legal assumption that it was not a case to direct investigation because investigation was already going on under FIR No. 45/2007. Once it is held as done by us above, there were two different and distinct offences committed by different persons and there was no commonality of transaction between the two. We do not find any error of jurisdiction in the order of the High Court requiring the learned Magistrate to deal with the cases afresh and pass an order under Section 156(3) of the Code. Once, that view is taken, the direction passed by the learned Magistrate directing further investigation under Section 156(3) can also not be complied with though there is no specific challenge to that order before us.
39. Thus, we are called upon to deal with from the point of view as to whether the investigating agency should be restrained from conducting further investigation or there should be stay of such investigation.
40. It is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [(2001) 4 SCC 350], held that the expression 'same transaction' from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction.
41. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
42. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction".
43. For the reasons afore-stated, we find no jurisdictional or other error in the judgment of the High Court and that leads us to direct the dismissal of this appeal.
........................................J. [Swatanter Kumar]
........................................J. [Madan B. Lokur]
New Delhi
December 13, 2012
Nadeem Qureshi
(Expert) 25 June 2013
Bombay High Court
jsn 1 Cr W P No.152_2011
INÂ THEÂ HIGHÂ COURTÂ OFÂ JUDICATUREÂ ATÂ BOMBAY
CRIMINALÂ APPELLATEÂ JURISDICTION
CRIMINALÂ WRITÂ PETITIONÂ NO.152Â OFÂ 2011
Amish Jayant Dharod – Petitioner
V/s.
The State of Maharashtra & Anr. – Respondents
Mr. A.H.H. Ponda, Advocate, for the Petitioner
Mrs. U.V. Kejriwal, APP for State Resp. No.1.
Mr. V.P. Patil, Adv. for Resp. No.2.
Mr. J.M. Puranik, Adv. for the Resp. No.3.
CORAM :   MRS. ROSHAN DALVI, J.
Date of reserving the Judgment : 31st January, 2013
Date of pronouncing the Judgment : 25th February, 2013
JÂ UÂ DÂ GÂ MÂ EÂ NÂ T
1. The  Petitioner  has  challenged  the  order  of  learned
additional  Metropolitan  Magistrate,  2nd Court,  Mazgaon,  Mumbai
directing the petitioner to submit his verification upon his complaint
being filed before the learned Magistrate.  The Petitioner has sought
an order U/s.156(3) of the CrPC upon his complaint.  This is upon the
premise that the learned Magistrate cannot take cognizance of the
complaint filed by the Petitioner before any report is submitted by
police officer upon his complaint for taking action against Respondent
Nos.2  and  3  in  the  complaint  who  are  the  police  officers.   The
Petitioner, therefore, claims that though the learned Magistrate can
issue  an  order  U/s.156(3)  of  CrPC,  he  cannot  issue  an  order  for
verification of the complaint U/s.200 of the CrPC.  It is argued that the
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order U/s.156(3) is pre cognizance stage and the order U/s.200 is
upon taking cognizance.
2. The Respondents claim that the Petitioner's case has been
previously seen and does not require fresh consideration. Â
3. The complaint arises upon the Petitioner's case of wrongful
detention  in  police  custody  for  7  days  pursuant  to  a  false  and
malicious complaint of Respondent No.1.
4. The Petitioner was a Director along with his brother, father
and other Directors in one M/s. Vardhaman Dystuff Industries Ltd..  A
board  meeting  was  fixed  on  30th September,  2002.  It  was  being
attended by the Directors.  Respondent No.1 and her husband came
and forced themselves into the board meeting which was to be held.
This was objected by some of the Directors including the Petitioner.
Respondent No.1 and her husband were requested to go out of the
board room.  Respondent No.1 had carried a voice recording machine.
She argued with the Petitioner.  She lodged the false and dishonest
complaint on the same day against the Petitioner.  The Petitioner was
called by the police in the police station in the evening of that day. Â
5. The initial complaint was U/s.385, 504 and 509 of the IPC.
There was, therefore, a complaint of extortion which was punishable
with two years imprisonment or fine or both which was a bailable and
compoundable  offence.   The  complaint  was  also  for  insulting  the
modesty  of  a  women  for  which  punishment  was  of  simple
imprisonment for one year and fine and which was also bailable and
compoundable.  The complaint was also for insulting the complainant
to provoke breach of peace which was non cognizable, bailable and
compoundable. Â
6. Despite the three offences levelled against the Petitioner
the police officers are stated to have added further charges.  Initially
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the charge of cheating came to be added punishable U/s.420 of the
IPC.  That is punishable with 7 years imprisonment or fine or both and
is non bailable, though compoundable.  Thereafter charges of criminal
breach of trust, forgery, forgery for cheating, using forged documents
as genuine etc. also came to be added punishable U/s.406, 467, 468 &
471 of the IPC. Under these charges the Petitioner would be liable for
punishment of 7 years and for 10 years extending to life imprisonment
along  with  fine.   All  these  charges  are  non  bailable  and  not
compoundable. Â
7. The Petitioner was produced for remand.  Upon seeing the
charges he was remanded to PC.  The Petitioner remained in police
custody for 7 days until he was released on bail.  The incident took
place and the complaint came to be filed on 30th September, 2002.
On 5th October, 2002 Cr. Case No.137 of 2002 came to be registered
for charge U/s.385, 504, 509 r/w.34 of the IPC against the Petitioner
father and brother. On 14th October, 2002 charge under Sections 406,
465, 467, 468, 471 and 420 were added.   In view of the later charges
the Petitioner taken in the custody.  The Petitioner was arrested on
27th November,  2002.   He  was  produced  for  remand  on  28th
November, 2002.  He was remanded till 2nd December, 2002.  He was
granted bail on 3rd December, 2002.
8. The initial investigation was started by one Police Officer
Rathod.   Thereafter  Respondent  No.3  and  4  got  the  Petitioner
remanded under the added sections.  In view of the added sections
petitioner was remanded to PC till 3rd December, 2002 when he was
granted bail.  Thereafter no charges were pressed against him and
offence was classified as NCÂ
9. The  Petitioner  has  claimed  that  he  was  unnecessarily
detained because of a completely false case made out by the police
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officer  by  adding  further  sections  to  the  initial  complaint.   The
Petitioner claims he was wrongfully confined for 7 days.  It is his case
that  even  the  initial  case  under  Sections  385,  504  and  509  was
followed by a vague complaint of  the Petitioner having withdrawn
large amount on the basis of certain fabricated documents constituting
criminal breach of trust.  It is clarified by the Petitioner that thereafter
without any additional material on record the charge of forgery and
fabrication also came to be filed only because he did not settle the
complaint of the complainant upon the insistence of the police officers
because  he  claimed  that  that  was  upon  illegal  demands.   The
Petitioner claimed that he was slandered by this custody.  It caused
him mental trauma.
10. The  Petitioner  wrote  several  letters  to  the  Dy.
Commissioner  of  Police,  Zone  I  for  reinvestigation  of  the  matter.
They were ignored. Â
11. The  Petitioner  filed  a  petition  before  Human  Rights
Commission.  That has been dismissed. Â
12. The Petitioner sought to make an application against the
respondent  under  Section  195  r/w.34  of  the  CrPC  before  the
Metropolitan  Magistrate  Court.   That  complaint  has  also  been
dismissed, not only upon the technicality but upon the fact that the
case  of  filing  of  a  false  and  malicious  complaint  by  any  of  the
Respondents against the Petitioner was not made out.  It is observed
by the learned Magistrate that merely because the case is treated as
“NC final” it cannot be said that the complaint was filed with malicious
and dishonest intention and therefore, the Petitioner has not been
allowed to proceed U/s. 195 r/w. 340 of IPC.  The learned Magistrate
has concluded that there  was  no material to proceed under  those
sections and  therefore  dismissed  the  complaint.   Had  the  learned
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Magistrate found substance in the malicious prosecution made by the
police officers he would have issued the complaint in writing against
the  errant  police  officers.   The  Petitioner  lodged  the  complaint
U/Sections 177, 182, 203, 211, 217, 218 & 120 B of the IPC against
the officers.  The learned Magistrate refused to file a complaint in
writing as was required U/s.177, 182 & 211 for allowing the Petitioner
to proceed under Section 195 r/w. Section 340 of the CrPC.  The
appeal  against  that  order  as  also  been  dismissed  on  merits.   The
appellate court has accepted the reasoning of the learned Magistrate
that there is no clear finding of a false and malicious complaint and
that  certain  documents produced in  evidence  are considered  upon
investigation.   Hence  Section  195  of  the  CrPC  which  comes  into
operation and when the Court intends to take cognizance  was not
involved (See State of Punjab Vs. Raj Singh 1998 CRI L.J. 1104)
13. The Petitioner has thereafter filed his private complaint in
the 2nd M.M. Court at Mazgaon, in which the aforesaid order has come
to be  passed.   The Petitioner  emphasis the  extent  of his personal
liberty and the fundamental right not to be arrested upon a flimsy
complaint  (See  Joginder  Kumar Vs. State of U.P., AIR 1994 SC
1349)
14. Mr. Ponda, counsel on behalf of Petitioner, argued that the
complaint has been filed for offences under Section 177, 182, 203,
211, 217, 218 and 120 B of IPC.  The Petitioner would not be able to
prosecute Respondent Nos.3 and 4 under the complaint himself.  The
complaint would have to be lodged by the police officer for offences
U/s.177,  182  and  211  alleged  by  the  Petitioner.  These  are  for
furnishing false information to make police officer to use his power
erroneously and for making a false charge with intent to insult the
Petitioner.  The Petitioner claims that since the complaint U/s.195 has
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been  dismissed  because  the  Petitioner  could  not  have  lodged
complaint himself against the police officers the Petitioner's private
complaint must be investigated by another independent officer who
must make a report U/s.156 (3) of the CrPC. Â
15. Mr. Ponda argued that learned Magistrate cannot himself
take cognizance of the private complaint of the Petitioner.  Another
officer must make a report in that behalf.  Consequently, he applied
for an order U/s.156(3) of the CrPC only.  That has not been granted
and  the  learned  Magistrate  has  asked  Petitioner  to  submit  his
verification. Mr. Ponda argued that directing the Petitioner to submit
his  verification  would  be  taking  cognizance  that  the  learned
Magistrate cannot do so until the police report is submitted.  That
would be only for the charge made out against the police officers.  The
learned  Magistrate  has  upon  going  through  the  facts  of  the  case
recorded his opinion that the case is not fit for directions U/s.156 (3)
of the CrPC. Â
16. The Petitioner contends that since he has been wrongfully
prosecuted,  he  is  entitled  to  have  his  complaint  investigated  and
examined and if after such investigation no case is seen to be made
out a report in that behalf would be filed.
17. Mr. Ponda on behalf of the Petitioner drew my attention to
the  case  of  Devarapalli  Lakshminarayan  Reddy  &  Ors.  Vs.  V.
Narayana Reddy & Ors., AIR 1976 Sc 1672 = 1976 SCR 524  in
which  the  distinction  between  the  concept  of  taking  cognizance
U/s.156 (3) and issuing process U/s. 202 (1) is set out.  It is held that
the power u/s.156 (3) can be invoked by the Magistrate when he has
not taken cognizance of the case, while Section 202 would come into
operation after the Magistrate started dealing with the complaint in
accordance with chapter XIV of the CrPC.  The Magistrate would be
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required to apply his mind and be satisfied of a prima facie case for
issue of process U/s.202.  The Magistrate has in this case not issued
process.  The  Magistrate  has  only  asked  for  verification  by  the
Petitioner.  The judgment also observes whether the Magistrate applies
his mind for proceeding U/s.200 he takes cognizance of the offence
within  the  meaning  of  Section  190  (1)  (a).  If  he  only  orders
investigation by the police U/s.156 (3) he cannot be said to have taken
cognizance of the offence.  Hence it is concluded in the judgment that
Section 156 (3) is the preÂcognizance stage whereas Section 202 is the
post cognizance stage. It is also observed that the Magistrate only calls
upon the police to exercise their powers of investigation U/s. 156 (1)
for collection of evidence followed by the report of the charge sheet
U/s.156(3) of the CrPC and Section 202 would come into play only
after the evidence has been collected and further evidence is required
so that Magistrate can issue process or Magistrate may postpone to
issue process until that such further evidence is collected and pass
order U/s. 202 of the CrPC.
18. Mr. Ponda also relied upon the case of Suresh Chand Jain
Vs. State of M.P. & Anr., (2001) 2 Supreme Court Cases 628  which
holds that before taking cognizance of the offence, an investigation
U/s.156(3)  CrPC  can  be  ordered.  But  the  complainant  was  not
required to be examined on oath because Magistrate would not take
cognizance  of  the  offence.  This  case  also  laid  down  that  the
investigation U/s.202, which requires postponement of the issue of
process is different from what is contemplated U/s. 156. Hence if the
Magistrate does not take cognizance and before he takes cognizance
he would order investigation U/s. 156(3) and if he proposes to take
cognizance, albeit on insufficient material or  proposes to obtain fresh
material, he would issue an order U/s.202 (1) of the CrPC.  Similarly
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see  also  Manaharibhai  Muljibhai  Kakadia  Vs.  Shaileshbhia
Mohanbhai Patel, 2012 ALL MR (Cri) 4105 (SC), Gopal Das Sindhi
Vs.  State  of  Assam,  LAWS  (SC)Â1961Â1Â33  &  Nagawwa  Vs.
Veeranna Shivalingappa Konjalgi, LAWS (SC)Â1976Â4Â47 so that the
Magistrate has to be only prima facie satisfied.
19. The  learned  Magistrate  has  found  no  case  to  order
investigation U/s.156(3) of the CrPC.  It has to be first seen whether
that order can be faulted.  Though the Petitioner has contended that
without any further material the later charges U/s.406, 465, 467, 468
& 471 of the IPC came to be added to the initial charges U/s.385, 504
& 509 of the IPC against the Petitioner; the orders on the complaint
filed U/s.195  and 340 of the  CrPC show a finding of fact by the
Magistrate  that  there  was  no  clear  case  of  a  false  and  malicious
complaint and certain documents produced by the complainant were
the basis of further charges which has been upheld by the Appellate
Court.  That finding has now attained finality.  The Petitioner seeks to
reopen that case by way of his private complaint.  This the Petitioner
cannot do.  Hence the impugned order that no case for investigation
under Section 156(3) is made out cannot be faulted. Â
20. The learned Magistrate could have dismissed the complaint
itself.   However,  he  has  called  upon  the  Petitioner  to  submit  his
verification.   That,  of  course,  would  be  upon  taking  cognizance.
Hence  the  complaint  cannot  proceed  against  the  police  officers
U/s.177, 182 & 221 of the IPC.  The complaint would only proceed
against  the  private  party  who  was  the  complainant  in  the  initial
complaint against the Petitioner herein.  The order of the learned
Magistrate calling upon the Petitioner to be examined on oath also
cannot  be  faulted.   It  may  only  be  clarified  that,  therefore,  the
Petitioner shall have to proceed only against the private party, being
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the complainant in the initial complaint filed against the Petitioner
after recording his verification and if any case of a false and malicious
complaint of the complainant against the Petitioner is made out.  The
case against the public officers being the police officers involved in the
investigation of the complaint against the Petitioner herein has rested
finally upon the order of the Sessions Court in appeal in the complaint
of the Petitioner under Section 195 and 340 of the CrPC.
21.Consequently the impugned order is confirmed accordingly
and with the above clarification the Writ Petition is dismissed.
      ( ROSHAN DALVI, J.)
Nadeem Qureshi
(Expert) 25 June 2013
Madhao & ANR. Vs. State of Maharashtra & ANR.
[Criminal Appeal No. 684 of 2013 arising out of S.L.P. (CRL.) No. 7293 of 2009]
[Criminal Appeal No. 685 of 2013 arising out of S.L.P. (CRL.) No. 7324 of 2009]
[Criminal Appeal No. 686 of 2013 arising out of S.L.P. (CRL.) No. 7332 of 2009]
[Criminal Appeal No. 687 of 2013 arising out of S.L.P. (CRL.) No. 7693 of 2009]
P.Sathasivam,J.
1. Leave granted in all the special leave petitions.78 CRIMINAL APPEAL NO. OF 2013(Arising out of S.L.P. (Crl.) No. 7293 of 2009)
2. This appeal is directed against the final judgment and order dated02.09.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Application No. 3112 of 2006 whereby the High Court dismissed the appeal filed by the appellants herein while confirming the order dated 27.09.2005, passed by the Court of Judicial Magistrate, First Class, Ghatanji in Criminal Complaint Case No. 92 of 2005.
3. Brief facts:
a. The Government of Maharashtra has published a Government Resolution on 02.06.2004 wherein it was informed to the public at large that the percentage of educated un-employed amongst the Scheduled Caste and neo-Buddhist are on the higher side and those who are below poverty line are required to work under different schemes and their standard of living is consequently adversely affected. For the said reason, it was resolved that land should be made available to such people to create a source of income for them. For the said purpose, a scheme was framed by name Karamveer Dadasaheb Gaikwad Sabalikaran and Swabhiman Yojana Samiti. As per the Scheme, a Committee was constituted in each district and the Collector of the district was to act as Head of the Committee. The said Scheme was made applicable with effect from 01.04.2004. As per the Scheme, land was to be purchased by the Government and was to be made available to the persons belonging to the Scheduled Caste and neo-Buddhist who were below poverty line.
b. Madhao Rukhmaji Vaidya-Appellant No.1 herein while working as Special District Welfare Officer and Member Secretary of the Samiti under the Scheme, did several transactions under the supervision of District Collector, Yavatmal. Sau. Sadhana Mahukar Yavalkar-appellant No.2, a Warden at Government Hostel, Ghatanji, District Yavatmal was working as Assistant of appellant No.1 in the said Scheme. She was authorized by appellant No.1 to get the Sale deeds executed in favour of the Government of Maharashtra under the Scheme.
c. On 04.04.2005, the State Government purchased agricultural land situated at village Koli-Bujruq. The said land was jointly owned by eight persons. The appellants, after perusing the revenue records of the said land purchased it from the Vendors by getting executed a registered sale deed. At the time of execution of sale deed, on 07.05.2005, an affidavit was sworn by the Vendors that they were residents of Mouza Koli-Buzruq, Tahsil Ghatanji, District Yavatmal and were the owners of Gut No. 43 of the said property.
d. On 04.06.2005, A newspaper by name "Tarun Bharat" published an article in which it was alleged that the petitioners have purchased agricultural land showing Ramesh as alive while he was dead. It was further alleged that one Ramesh Shikaji Rathod had signed the sale deed as Ramesh Shika Jadhav.
e. On coming to know about the said publication, appellant No. 1 on29.06.2005 made an enquiry and recorded the statements of the said eight Executants and on 02.07.2005 lodged a report in Ghatanji P.S. against them for an offence of impersonation and cheating.
f. On 07.07.2005, the officials of Ghatanji P.S. registered offences punishable under Sections 420, 419, 468 and 34 of the Indian Penal Code,1860 (for short 'IPC') for the acts of fraud, criminal breach of trust and impersonation against the said accused persons vide Crime No. 88 of 2005.
g. On 09.09.2005, one Rajnikant Deluram Borele, claiming himself to be a Social Worker, filed a Criminal Complaint in the court of the Judicial Magistrate, First Class, Ghatanji, which was registered as Case No. 92 of2005 against the appellants-herein, Sub-Registrar and few more persons. In the complaint it was alleged that the accused had purchased the land from a dead person, namely, Ramesh Shikaji Jadhav, while the appellants were acting in their official capacity under the said Scheme.
h. Learned Magistrate, by order dated 27.09.2005, directed the Police to investigate the matter under Section 156(3) of the Code of Criminal Procedure Code, 1973 (in short the "Code") and to submit a detailed report within one month.
i. On 15.09.2006, the appellants (Madhao Rukhmaji Vaidya and Sau. Saudhana Mahukar Yavalkar) filed an application under Section 482 of Cr.P.C. being Criminal Application No. 3112 of 2006 before the Bombay High Court seeking quashing of the prosecution of the applicants (appellant she rein) in Crime No. 92 of 2005.
j. On 02.09.2009, after hearing the parties, the High Court dismissed the Criminal Application preferred by the appellants-herein by holding that the procedure adopted and the power exercised by the Magistrate ordering investigation under Section 156(3) of Cr.P.C. is just and proper.
k. Being aggrieved, appellants herein filed SLP No. 7293 of 2009.9 CRIMINAL APPEAL NO. OF 2013(Arising out of S.L.P. (Crl.) No. 7324 of 2009)
4. On 27.09.2006, one of the accused, namely, Akash Dattatraya Marawar(A-1), business man, also filed Criminal Application No. 3242 of 2006before the High Court seeking quashing of the prosecution in Crime No. 92of 2005. The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No. 7324 of2009.10 CRIMINAL APPEAL NO. OF 2013(Arising out of S.L.P. (Crl.) No. 7332 of 2009)
5. On 24.10.2006, another accused, namely, Omprakash Hiralal Jaiswal, Sub-Registrar, also filed Criminal Application No. 3526 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005.The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No. 7332 of 2009.11 CRIMINAL APPEAL NO. OF 2013(Arising out of S.L.P. (Crl.) No. 7693 of 2009)
6. On 29.10.2006, one of the accused, namely, Aslam Shakil Julphikar Khan, employee of Akash Dattatraya Marawar (A-1), business man, also filed Criminal Application No. 3240 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005. The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No 7693 of 2009.
7. Heard Mr. Uday U. Lalit, learned senior counsel for the appellant and Mr. Shankar Chillarge, learned Additional Advocate General for the respondent-State of Maharashtra.
8. The only point for consideration in all these appeals is whether the learned Magistrate is justified in directing the Police to investigate and submit a detailed report within one month under Section 156(3) of the Code.
9. The order of the learned Magistrate shows that before passing the direction for investigation under Section 156(3), heard the counsel for the complainant, perused the allegations made against the accused in the complaint and documents annexed therewith. It also shows that taking note of the fact that some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under Section 156(3) of the Code directed the P.S.O. Ghatanji to investigate the matter and submit a detailed report within one month.
10. Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of sub-section (1) subject to the provisions of the said Chapter, any Magistrate of first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
a. upon receiving a complaint of facts which constitute such offence;
b. upon a police report of such facts; (c)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
11. Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 may order such an investigation in terms of sub-section (1) of that section.
12. In CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and Another,(2005) 7 SCC 467, while considering the power of a Magistrate taking cognizance of the offence, this Court held: "10. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out.
It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure."It is clear 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.
13. 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 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 cognizable offence, the power under Section156 (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).
14. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
a. He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
b. The Magistrate can postpone the issue of process and direct an enquiry by himself.
c. The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
15. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
16. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.
17. The above principles have been reiterated in Devarapalli Lakshminarayana Reddy and Others vs. V. Narayana Reddy and Others, (1976) 3SCC 252 and Tula Ram and Others vs. Kishore Singh, (1977) 4 SCC 459
18. Keeping the above principles, if we test the same with the direction issued by the magistrate for investigation under Section 156(3) of the Code and facts of these cases, we are satisfied that the magistrate has not exceeded his power nor violated any of the provisions contained in the Code. As observed earlier, the magistrate need not order any investigation if he pre-supposes to take cognizance of the offence and once he takes cognizance of the offence; he has to follow the procedure provided in Chapter XV of the Code. It is also settled position that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code.
19. As rightly observed by the High Court, the magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code, we are of the view that the procedure adopted and the power exercised by the magistrate in this case is acceptable and in accordance with the scheme of the Code. We are also satisfied that the High Court rightly refused to exercise its power under Section 482 of the Code.
20. In the light of the above discussion and conclusion, we find no merit in all these appeals, consequently, the same are dismissed.
J. (P. SATHASIVAM)
J. (JAGDISH SINGH KHEHAR)
NEW DELHI;
MAY 03, 2013.
Nadeem Qureshi
(Expert) 25 June 2013
Delhi High Court
Swatantar Devi & Anr vs Commissioner Of Police & Ors on 14 March, 2013
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1396/2012
SWATANTAR DEVI & ANR. ..... Petitioners
Through: Ms. Ashwati, Advocate
Versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Mr. Saleem Ahmed, ASC with Ms. Charu Dalal, Advocate for the Respondents No.1
to 3.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
ORDER
% 14.03.2013
Crl.M.A.3317/2013
1. The Petitioner wants to urge an additional ground that on the basis of the complaint dated 09.03.2013, the police has failed to register a case under Sections 420,406,468,420 IPC read with Section 34 and 120B IPC.
WP(Crl)..1396/2012 Page 1 of 6
2. The Petitioner is permitted to urge the additional ground.
3. The Application is disposed of.
W.P.(Crl) 1396/2012
4. By virtue of this Petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure(Code), the Petitioner prays for protection of his life and liberty and protection from any threat of blackmail or physical assault at the hands of the Respondents No.4 and 5. Respondents No.1 to 3 are the Commissioner of Police, S.H.O., P.S. Nangloi and Deputy Commissioner of Police, (West) respectively.
5. As per the allegations made in the Petition, the Petitioners had advanced a loan of `25,00,000/- to Respondent No.4. The Respondent No.4 issued four cheques drawn on Corporation Bank in discharge of his liability. The Respondent No.4 also gave an undertaking to repay the amount as agreed, failing which the Petitioner No.1 was entitled to take action against him as permissible under the law. It is the case of the Petitioners that the Petitioner No.1 wrote a letter dated 13.01.2012 asking the Respondent No.4 to return the money advanced. He was further informed that his brother(Respondent No.5) was also extending threat to kill him and his family members. A report dated 24.02.2012 was allegedly made to the SHO, P.S. Nangloi and a letter dated 16.04.2012 was also written to the Commissioner of Police in this regard. Thereafter, another letter dated 06.09.2012 was written to the SHO seeking
WP(Crl)..1396/2012 Page 2 of 6 protection to the life and liberty of the Petitioners and their family members. The Petitioners grievance is that the police has failed to provide necessary protection.
6. A status report has been filed by the SHO, P.S. Nangloi. It is reported that Respondent No.4(Ram Prakash Yadav) suffered losses in his business, so he failed to pay the instalment in time and requested some more time to pay the same. It has further been reported that the Respondent No.5(Shankar Yadav) is brother of the Respondent No.4. He has no concern with the transaction in question and that no threat has been extended by Respondent No.5. It has been reported that the Petitioner No.2 wants to get the money recovered through police and that is the reason for making complaints to the police. It is stated that no evidence of threat has been found and the Respondents No.4 and 5 have a clean track record. Suffice it to say that the Respondents No.1 to 3 are duty bound and under obligation to provide necessary protection with regard to the Petitioners' life and liberty and so also with regard to life and liberty of their family members.
7. As regards extending any threat by the Respondents No.4 and 5 and non-taking of any action by the SHO of the Police Station, I may say that this Court in its writ jurisdiction cannot make any inquiry as to the veracity of the threats alleged or otherwise of the same. If the Respondents No.4 and 5 have really extended any threat and the officer in-charge of the Police Station has not taken any action, the Petitioners are at liberty to approach the learned Metropolitan
WP(Crl)..1396/2012 Page 3 of 6 Magistrate concerned with an Application under Section 156(3) of the Code of Criminal Procedure or otherwise they are at liberty to make a complaint under Section 200 of the Code. In this connection a reference may be made to a report of the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh & Ors., (2008) 2 SCC 409 wherein it was laid down as under:
"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460 : JT (2006) 1 SC 10] this Court observed: (SCC p. 631, para 11)
"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
WP(Crl)..1396/2012 Page 4 of 6 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."
13.The same view was taken by this Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.
14.Section 156(3) states:
"156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned." The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.
15.Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty
WP(Crl)..1396/2012 Page 5 of 6 of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
x x x x x x
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?"
8. In this view of the matter, the Petitioner shall be at liberty to approach the concerned Metropolitan Magistrate with an Application under Section 156(3) of the Code or through a criminal complaint under Section 200 of the Code for taking appropriate action against Respondents No.4 and 5. The Petition is disposed of in above terms.
9. It goes without saying that the Petitioners and their family members shall be provided with necessary protection in respect of their life and liberty by the SHO concerned.
(G.P. MITTAL)JUDGE
MARCH 14, 2013
Nadeem Qureshi
(Expert) 25 June 2013
Gujarat High Court
Parmanand Khushaldas Kikla vs Municipal on 7 May, 2013
Bench: S.R.Brahmbhatt
PARMANAND KHUSHALDAS KIKLA....Applicant(s)V/SMUNICIPAL COMMISSIONER
R/CR.MA/7244/2013
ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO. 7244 of 2013
In
SPECIAL
CRIMINAL APPLICATION NO. 1084 of 2013
With
SPECIAL
CRIMINAL APPLICATION NO. 1084 of 2013
======================================
PARMANAND
KHUSHALDAS KIKLA....Applicant
Versus
MUNICIPAL
COMMISSIONER & 12....Respondents
======================================
Appearance:
MR
AB PANDYA, ADVOCATE for the Applicant
MR.AKASH
J PANDYA, ADVOCATE for the Applicant
MR
KAUSHAL D PANDYA, ADVOCATE for the Respondents No. 1 - 10
PUBLIC
PROSECUTOR for the Respondent No. 11
======================================
CORAM:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 07/05/2013
ORAL
ORDER
1. Heard learned advocate for the parties. The present application is taken-out by the respondent no.2, the original complainant for following prayers.
(A) Your Lordship may please to allow our civil application to vacate the interim order.
(B) Your Lordship may please to recall the interim order and vacate the stay granted in SP. CRI. APP.No.1084/2013 immediately and order to ACB. Police Station Surat to continue the investigation in CRI. Inq. No.2/2013 as per law.
(C) Any other relief deem just fit in the interest of justice be granted to protect the interest of society and public at large.
2. Learned advocate for the applicant urged for vacating the interim relief on various grounds and extensively cited decisions of the Apex Court, this Court and other High Courts in support of his submissions.
3. The controversy has arisen out of the complaint, which was presented before the Special Judge, appointed under the Prevention of Corruption Act, 1988 being Criminal Misc. Application No.2 of 2013 by the present applicant against as many as 12 accused and no.13 is those who may be found-up to be abetting and helping the commission of crime. The array of the accused indicate that the complainant has not left anyone, those who were discharging their duties under the B.P.M.C. Act qua the subject matters being presented to them right from the Municipal Commissioner to Deputy Engineer of the concerned zone have been arraigned as accused in the complaint, which is subject matter as criminal complaint under Section-156 (3) of Cr.P.C.
4. The severe punishment and fine for offence under Indian Penal Code Sections 33, 34, 114, 120 (a) (b), 383, 385, 386, 467, 468, 471, 191, 193, 199 and 200 and Prevention of Corruption Act, provisions 7, 9, 11, 12, 13, 15 and the entire complaint is in respect of allegations of adopting corrupt practice and illegal gratification for sanctioning lands for construction, which were not palatable or contrary to the objection of the complaint filed before the concerned authorities. This complaint was filed and presented on 30th January, 2013 as could be seen from the endorsement on the backside of the complaint, on which on 5th April, 2013 Special Judge issued order calling for investigation under Section-156 (3) of the Cr.P.C. and ordered A.C.B. Police Station, Surat to investigate under Section-156 (3) of the Cr.P.C.
5. Being
aggrieved and dissatisfied by this order, the applicants of Special Criminal Application No.1084 of 2013 have approached this Court with following prayers.
(A) YOUR LORDSHIPS, may be pleased to admit and allow the present petition.
(B) YOUR LORDSHIPS, may be pleased to quash and set aside the order dated 05/04/2013 passed by 6th additional Sessions Judge, Surat, in Criminal Inquiry case No.2 of 2013, and terminate the proceeding of Criminal Inquiry case No.2 of 2013 by quashing complaint presented on 30/01/2013 (Annexure-A), and further proceedings pending before the Learned 6th additional Sessions Judge, Surat.
(C) YOUR LORDSHIPS, pending hearing and final disposal of the present petition, may be pleased to stay further proceeding/inquiry initiated in pursuant to the order dated 05/04/2013 passed by 6th additional Sessions Judge, Surat, in Criminal Inquiry No.2 of 2013 (Annexure-A).
6. This Court on 22th April, 2013 passed the following order.
Shri Desai, learned counsel has relied upon the decisions reported in 1995 Cr.L.J. 918 in case of Indumati M. Shah Vs. Narendra Muljibhai Asra and 1997 (2) GLH 356 in case of Suresh Kumar Gupta Vs. State of Gujarat & Anr.
Notice for final disposal returnable on 17.06.2013. The order dated 05.04.2013 passed by the 6th Additional Sessions Judge, Surat in Criminal Inquiry Case No.2 of 2013 shall remain stayed qua present applicants only. Direct service permitted.
7. The complainant, therefore, has moved the present application for vacating the ad-interim relief.
8. Learned counsel for the applicant-original complainant made extensive submissions qua the exercise of powers under Section-482, the lack of jurisdiction to entertain application for quashment under Article-226 of Constitution of India and the scope of examination of the plea on quashment under Section-482 as well as under Article-226 of Constitution of India and the power of Special Judge in ordering investigation under Section-156 (3) of Cr.P.C. Learned counsel for the complainant thereafter, cited following decisions in support of his submissions, as under :-
(a) In case of Dimpey Gujral and Ors Vs. Union Territory Through Administrator, U.T. Chandigarh and Ors., reported in AIR 2013, S.C. pg. 518, is cited to emphasis and to support the contention of the counsel that in a case where the special statute like P.C. Act attached, the offence committed by public servants while working in their capacity, their prayer for quashing complaint may not be quashed.
(b) In case of State of Rajasthan Vs. Dr. Rajkumar Agarrwal and Anr., reported in AIR 2013 S.C. pg. 847, emphasis is laid on Head Note (C) and Para-10. This judgment also cited with a view to support the contention where subject matter of corruption and investigation is involved, Court may not quash the same as it is affecting large section of people and it is therefore not appropriate for quashing. People those holding are frequently seen accepting illegal gratification. In such serious cases Courts shall not show any mercy in quashing the complaint at this stage which will send wrong signal.
(c) In case of A.R.Antulay Vs. Sriniwas Nayak and another, reported in (1984) 2 SCC pg. 500 = AIR 1984 SC 718. This judgment is cited in support of the contention that the private complaint at the instance of private party is maintainable under Prevention of Corruption Act. Para-35.
(a) Private complaint before Special Court is maintainable.
(b)There is safeguard in the Court itself. There is no need of any action or any inquiry or investigation.
(c) Special Judge can order under 156(3) and police has to act there upon.
(d) In case of Sakiri Vasu Vs. State of U.P. and others, reported in 2008 (2) GLH pg. 269. Emphasis on Head note [B] & [C]: Sessions Court being Court of first instance equivalent to Magistrate Court so far as PC Act is concerned. It would go to indicate that all the powers vested in the Magistrate are available to the Special Court based upon this judgment.
(e) In case of Mohd. Yousuf Vs. Smt. Afaq Jahan & Anr, reported in AIR 2006 S.C. pg. 705. Emphasizing observations in para-8, 9, 10 & 11, it is submitted that the Magistrate can order investigation under 156 (3) of the Code.
(f) In case of Ramesh Kumari Vs. State (N.T.C. of Delhi) and Ors., 2006(1) GLH pg. 780 it is submitted that registration of offence is compulsory and incumbent upon the police. The veracity or genuineness of information is not to be looked into.
(g) In
case of Lallan Chaudhary & Ors. Vs. State of Bihar, reported in AIR 2006, S.C. pg. 3376, and by referring to Ramesh Kumari (supra) reiterated that genuinenesses of offence is not ground for not lodging FIR. Station House Officer has committed grave error.
(h) Referring to the judgment in case of Mahipal Vs. State of U.P. And Ors, reported in 2009 Cri.L.J. pg. 983., it is submitted that section 5 & 19 of P.C. Act, and CrPC sec. 156(3), no sanction is required for registering FIR and under 156 (3) power should be exercised by Special Court.
(i) In case of Anosh Ekka Vs. State and others (Jharkhand High Court), reported in 2010 Cri.L.J. pg. 259, it is submitted that Special Judge has power to refer complaint u/S. 156 Cr.P.C. before Vigilance for its institution and investigation.
(j) In case of Ravindra Kumar Madhanlal Goenka & Anr. Vs. M/s. Rugmini Ram Raghav Spinners P. Ltd., reported in AIR 2009 S C 2383, which is on power section 482 Cr.P.C. No material whatsoever quality can ever be looked into for exercise of power for quashment under section 482.
(k) In case of Panchabhai Popatbhai Butani andOrs Vs. State of Maharashtra and Ors., etc., reported in 2010 Cri.L.J. pg. 2723 to emphasize that Section 156 (3) order are always legal if passed by Magistrate.
(l) In case of Nilakantha Pati Vs. State of Orissa, reported in 1995 Cri.L.J. pg. 2472, this judgment asserts that FIR need not be an encyclopedia.
(m) In case of M/s Jayant Vitamins Ltd., Vs. Chaitanyakumar and another, reported in AIR 1992 S.C, pg. 1930, it is observed that investigation cannot be quashed it being statutory function imposed upon police and no stay should be granted.
(n) In case of G.P.Sinha Vs. State of Gujarat and others, reported in 2003 Cri.L.J. pg. 4538, it observes that under 156(3) Court need not give any reason and same will not be vulnerable on account of it will not be containing any reason for order under 156.
(o) Another decision cited is in respect of Kedarmal Agarwal Vs. State of A.P. And another, reported in Cr.L.J. 4670 to support that Magistrate can direct investigation under section 156 (3) without examining complainant and his witnesses on oath.
(p) In case of Bhausaheb alias Babu Vs. State of Maharashtra, reported in 1997 Cri.L.J. pg. 467, saying that Magistrate has power to pass order under 156(3) without recording verification of the complainant.
(q) In case of Ramappa Vs. State of Karnataka and others, reported in 1985 Cri.L.J. pg. 410, it discusses on Magistrates power under 156 (3) and 482.
(r) In case of Kanaksinh Hathisinh Jadeja and others Vs. Balbhadrasinh Narendrasinh Jhala and another, reported in 1988 Cri.L.J. pg. 578 (Guj). In this case High Court declined to interfere with power under 156 (3).
(s) In case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, reported in AIR 1976 SC 1947. High Court cannot go into detailed discussion of merit and demerits of the case while exercising power under 482.
(t) Another decision cited is in case of Prakash Singh Badal & Anr Vs. State of Punjab & Ors., reported in AIR 2007 SC 1274. Emphasis is laid on para. 35, 47, 74 and 75.
(u) In case of Century Spinning & Manufacturing Co. Ltd., and another Vs. The Ulhasnagar Municipal Council and another, reported AIR 1971 S.C. pg. 1021, it is observed that High Court has no power to exercise for quashing under Article 226 of the Constitution. Availability of civil remedy is no penacia afflixion in form of corruption and crime.
(v) Another citation is in respect of State of Madhya Pradesh and others Vs. M/s. M.V. Vyavsaya & Co., reported in AIR 1997 S.C. Pg 993, and submitted that the petition should be dismissed since it involved disputed question of fact.
(w) In case of Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS & Anr.,
reported in AIR 2006 SC 2872, special emphasis is laid on para- 9 to state that inherent power to High Court under section 482 need not be exercised to stifle the legitimate complaints nor are the power to be utilised if there are no sound principle available. Meaning thereby High Court can exercise power only and only if sound principle warrants exercise of power is existing. High Court should refrain from giving prima facie decision in case where facts are hasty and incomplete especially evidences has not been completed and produced before the Court. The magnitude of the offence cannot be comprehended by the Court and therefore Court is precluded from going into this aspect while exercising power under 482.
(x) Another decision cited is in respect of Giani Ajmer Singh Vs. Ranjit Singh Grewal, reported in AIR 1965 P & H 192, which is in respect of sanction for prosecution. The Court receiving complaint need not have jurisdiction on plausible defence of sanction likely to be raised on account or on behalf of the accused. Delay in inquiring into the investigation may result into evaporating evidence.
9. Learned advocate for the original applicants and opponents in this application submitted that way back in the year 1992 the Supreme Court has made observations in case of State of Haryana and others V/s. Ch. Bhajan Lal and others, Supreme Court 604 which holds the field even till date as there is no judgment yet, which can have any effect of whittling down the ratio pronounced by the Apex Court. The submissions canvassed on behalf of the complainant needs to be viewed very closely and bearing in mind the ratio of pronouncement in case of State of Haryana V/s. Ch. Bhajan Lal (Supra).
10. Learned counsel appearing for the opponent-original applicants further contended that the order under Section-156 (3) issued by the Special Judge is unfortunately silent qua any justification or ordering such a drastic steps against those, who were discharging their statutory duty cast upon them under the provision of B.P.M.C. Act. Learned counsel relying upon the decision of this Court in case of Indumati M. Shah V/s. Narendra Muljibhai Asra, reported in 1995 Criminal Law Journal, page 918, contended that the bare minimum reasoning warranting issuance of such order was sine qua non for issuing for such drastic order. One more judgment is cited in case of Suresh Kumar Gupta V/s. State of Gujarat, reported in 1997 (2) G.L.H. Page 356 para-15, to support the proposition of law that the indiscriminate exercise of power was abhorred and deprecated by this Court and disclosing reason for ordering investigation under Section 156 (3) of Cr.P.C.
11. This Court is of the considered view that the Court has heard learned advocate extensively on the merit of the main matter as well as, merit of prayer for vacating the interim relief. The Court is therefore, of the considered view that the main application is required to be considered. Hence, Rule returnable on 19th June, 2013.
12. The Court is of the view that the interim relief granted earlier is also to be confirmed and to continue till the final disposal of the main matter and Criminal Misc. Application No.7244 of 2013 is required to be rejected for the following reasons.
(i) There cannot be any dispute to the proposition canvassed on behalf of the applicant relying upon the aforesaid judgments, which have been cited at the bar, but none of them has any effect upon whittling down the ratio of the Supreme Courts observation in case of Bhajanlal (Supra). Therefore, the Court perused the complaint very closely and has come to the conclusion that the tenor of the complaint and reference to the complainants objection qua grant of sanctioning the plan clearly indicate that the complaint cannot be said to be filed with a view to put the Criminal machinery into motion. Had it been so, nothing prevented the complainant for coming forward with a clear and unambiguous allegations, which would make it incumbent for anyone including the Court of law to give it serious thought for ordering appropriate inquiry/investigation.
(ii) The entire tenor of the complaint with specific reference to the application qua passing of plan and roping the Commissioner without containing any specific allegation qua his role indicate that the complainant has filed the complaint for exercising undue pressure upon the authorities, which in my view is clear abuse of process of law, which needs to be dealt with in an appropriate manner. Suffice it to say that, at this stage, the Court is not to opine elaborately upon the complainants plea, as the main matter is only admitted and is awaiting its final disposal.
(iii) The aspect qua non-requirement of sanction is also in my view to say the least misconceived and ill-founded inasmuch as the entire complaint does not disclose any over stepping of power conferred upon the authority under the statute called B.P.M.C. Act, and if there is no allegation with regard to any illegality qua the exercise of power, which might take that out of purview of the same being official act, the same is required to be viewed as essential act and therefore, if such specious plea is accepted, then none officer would be free to carry-out his function imposed upon them by statute.
13. Therefore,the statutory safeguards cannot be whittle down on account of specious averments made without any basis whatsoever. Therefore, this Court is of the considered view that the interim relief granted earlier is required to be confirmed and is hereby confirmed. The aforesaid observations are made only with a view to examine and determine the point of continuation of interim relief only and therefore, same has no bearing on final disposal of this application as well as, outcome thereof. Therefore, this Criminal Misc. Application No.7244 of 2013 is dismissed.
(S.R.BRAHMBHATT,J.)
Rajendra K Goyal
(Expert) 25 June 2013
There are some other case laws on section 156(3) Cr PC some of which can be searched on google (Indian Kanoon) and some other sites.
Raj Kumar Makkad
(Expert) 26 June 2013
There are thousand of such judgments but none shall serve your purpose if you don't post the facts of your case. Judgments are facts based.
prabhakar singh
(Expert) 26 June 2013
No fact but case law desired latest.???????????
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 684 OF 2013
http://judis.nic.in/supremecourt/imgs1.aspx?filename=40363
