Dev Narayan vs State Of M.P.

(1) The applicant has preferred this application under Section 482 of Cr.P.C. for quashment of enquiry report filed by the Police Station Chandan Nagar, Indore under Section 156(3) of Code of Criminal Procedure.

(2). The necessary facts for the disposal of this petition are that the respondent No.2 filed an application under Section 156(3) of Cr.P.C. against the applicant and respondent No.3 for offence punishable under Section 406, 409, 420, 467, 468, 478 and 120-B of I.P.C. It was alleged that on 08.07.1986, the respondent No.2 entered into an agreement with the respondent No.3 for purchase of his land bearing survey No.92,93 and 96 situated at Village Bak, District Indore for consideration amount of Rs.1,90,000/-. At the time of execution of agreement, he paid Rs. 60,000/- to the respondent as earnest money. He also paid Rs. 70,000/-and Rs. 57,000/- to the respondent No.3 on 29.10.1986 and 01.12.1986 respectively. The possession of land was also handed over to the respondent No.2. Inspite of that the respondent No.3 did not execute the sale deed in his favour and now he is intent to grab the said land executed a forge document in favour of the respondent No.4. It is also alleged that the present applicant by making forged document took the possession of the disputed land. On these allegation, it was alleged by the respondent No.2 that the applicant has committed offence under Section 406, 409,420, 467, 468, 471 of I.P.C.

(3). The order sheets disclosed that the aforesaid application under Section 156(3) of Cr.P.C. was filed on 01.05.2018 before the court of Judicial Magistrate First Class, Indore. However, on the said date the presiding officer was on leave. It is mentioned in the order sheet that time was sought for submitting the enquiry report. On the next date of hearing i.e. 08.05.2018 also the presiding officer was on leave and again a prayer was made for submission of enquiry report. On 28.06.2018 enquiry report was submitted by station house officer, Police Station Chandannagar with respect to the application filed by the respondent No.2 under Section 156(3) of Cr.P.C. This order is subject matter of challenge before this Court in the present petition.

(4). Learned counsel for the applicant has submitted that without the order of concerned magistrate enquiry report has been filed by the police station Chandannagar, therefore, the aforesaid report has no value and hence he prays for quashment of the aforesaid report.

(5). I have heard learned counsel for the parties and perused the proceedings of the trial court as well as the report submitted by the station house officer, Police Station Chandannagar with respect to the application filed by the respondent No.2 under Section 156(3) of Cr.P.C.

(6). From the reading of the order sheets, it is clear that when the application under Section 156(3) of Cr.P.C. was filed at that time the concerned Judicial Magistrate was on leave and there was no order passed by the incharge magistrate to send the aforesaid application to the station house officer, Police Station Chandannagar for enquiry. The order sheet disclosed that a prayer was made for time to submit the enquiry report but it does not reflect that who has made this prayer for submission of the enquiry report. From the plain reading of the order sheets, it is clear that the magistrate having jurisdiction, has not passed any order under Section 156(3) of Cr.P.C. for sending the application to the Station House Officer, Police Station Chandannagar for conducting the enquiry regarding the allegation made in the application and submission of the enquiry report.

(7). Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, the Hon'ble Apex Court in the case of Anil Kumar v. M.K. Aiyappa,(2013) 10 SCC 705 , has held as under:

"The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

(8).  In the case of CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd .,2005 (7) SCC 467 , the Court while dealing with the power of Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.

(9). If the proceedings of the trial court is considered in light of the judgment passed by the Hon'ble Supreme Court in the case of Anil (Supra), it is clear that application of mind to the facts of the case is required which is missing in the present case and no such order has been passed by the magistrate for calling the enquiry report from the Police Station Chandannagar. Under these circumstances, it is clear that the magistrate has not applied his mind and accordingly for that reason the report dated 28.06.2018 submitted by the police station, Chandannagar is not acceptable because it has been filed without any order passed by the magistrate, thus this report cannot be allowed to be sustained, hence present petition filed under Section 482 of Cr.P.C. is allowed and the matter is remitted back to the concerned magistrate to pass fresh order in the matter.

C.C. as per rules.