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Judgment
N. Kotiswar Singh, J.—Heard Mr. L. Sevananda Sharma, learned counsel appearing for the petitioner and Mr. R.S. Reisang, learned P.P. appearing for the State. The present petition has been filed u/S. 438 , Cr.P.C. for grant of anticipatory bail.
The petitioner had earlier approached the Court of Sessions Judge, Manipur West seeking the relief u/S. 483 , Cr.P.C., by filing Cril. Misc. (B) Case No. 90/2013 which was subsequently transferred to and was disposed of by the Court of Addl. Sessions Judge (Fast Track Court) at Lamphelpat by his order dated 8.8.2013 by declining the prayer of the petitioner for grant of anticipatory bail u/s 438 , Cr.P.C. and directing the petitioner to approach the concerned Magistrate to seek regular bail.
The genesis of the present legal entanglement of the petitioner lies in the FIR case registered against the petitioner arising out of a complaint filed by one Irom Kesho Singh on 4.6.2013 before the Court of Chief Judicial Magistrate, Thoubal alleging that the petitioner had taken a sum of Rs. 6,75,000/- for selling a piece of agricultural land and the petitioner had subsequently refused to refund the money. According to the petitioner, the said complaint was totally false and fabricated with an intention to harass the petitioner. Since the said complaint is short and forms the core of the dispute which set the criminal process set into motion against the petitioner, this Court considered it appropriate to reproduce the same as it is. The said complaint reads as follows.
In the Court of Chief Judicial Magistrate, Thoubal
Cril. (C) Case No...........of 2013
Shri Irom Kesho, aged about 57 years, S/o late I. Khelendro Singh, a resident of Khongman Zone V, P.O. Singjamei, P.S. Irilbung, Imphal East District, Manipur. ... Complainant.
-Versus
Shri Khunungmayum Dhana Singh, aged about 53 years, S/o Kh. Tolen Singh, a resident of Andro Machengpat, P.O. & P.S. Yairipok, Imphal East District, Manipur. .... Accused Person.
In the matter of:
A complaint petition on behalf of the above named complainant praying for taking up necessary legal action against the accused person above named for criminal offence punishable under Sections 406 /420 , IPC.
Place of occurrence:
At the residence of the accused person at Andro Machengpat under Yairipok Police station.
Date & time of occurrence:
On 20.05.2013 at about 9:00 a.m.:
Most respectfully sheweth:
That the present complainant is a bona fide and law abiding citizen of India having a permanent resident of Khongman Zone V, P.O. Singjamei, P.S. Irilbung Imphal East District, Manipur and as such he is entitled to all the privileges and protections are enshrined in the Constitution of India and other laws for the time being in force in the State of Manipur.
That the brief facts of the case in a short are given below:
(a) The complainant is the absolute owner and possessor of a agricultural land under Patta No. 1082 (old) 598 (new) covered by C.S. Dag No. 32 measuring an area of 2.10000/- (0.84986) Hactre, village No. 86 Andro on payment of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only.
That the accused person have received a sum of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only from the Irom Kesho Singh (complainant) of Khongman Zone V under Irilbung P.S. Imphal East District. The sale of agricultural land above mentioned patta Nos.
That after around 11/12 months i.e. in the last week of September, 2011 the complainant went to the (sic) of the accused person and asked the accused person to repay the said amount of 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only as to the complainant needed the said amount. But the accused person asked the complainant to wait till the month of December, 2011. That complainant also agreed to wait till the month of Dec., 2011 for repayment by the accused person.
That on 2nd day of Jan., 2012 the complainant again went to the house of the accused person for asking the money but the accused person was not in his house and could not meet.
That on 3rd day of Feb., 2012 the complainant again went to the house of the accused person and met the same. But the accused person again requested the complainant to wait till the month of July, 2012 for repayment of the said amount. There are some exchange of hot words between the complainant and the accused person. But finally a settlement was brought between the complainant and the accused person that the accused person shall repay the said amount on or before 15th day of December, 2012.
That on 15.12.2012 the complainant again went to the house of the accused person and asked the accused person to repay the said amount. In this time also the accused person surely repayment on 25.03.2013 of the said amount. The complainant felt angry but returned at his home saying without any words.
That on 20.05.2013 at about 9.00 a.m. the complainant along with one friend went to the house of the accused person for collecting the said amount. But to the utter surprise, the accused person scolded to the complainant for accompanying one man and tried to beat the complainant by holding a stick at his hand. But the accused person was intervened by the one person of the complainant. Then the complainant returned at his home. The complainant have no alternative except to file this complaint petition.
That the acts of the accused person is illegal and punishable according to law.
That the complainant desires to take up necessary legal actions against the above named accused person at an early date with possible.
That there shall be a great loss and prejudice on the part of the complainant if the prayer be not allowed. In view of the above facts and circumstances, it is, therefore, prayed that your honour be pleased:
(i) to take cognizance of the case;
(ii) to issue warrant of arrest against the accused person;
(iii) to punish him according to law, in the interest of justice.
Dated the 4 June, 2013
Signature of complainant
Sd/- (from Kesho Singh)
The said complaint was filed before the learned Chief Judicial Magistrate, Thoubal on 04.6.2013. On the same day, the learned Chief Judicial Magistrate, Thoubal, directed the Officer-in-Charge, Yairipok P.S. for investigation of the case, with the cryptic remark on the side column of the 1st page of the complaint petition as follows:
To the O.C./YPK P.S. for investigation of the case.
Sd/- CJM. Thoubal
Accordingly, a case was registered under FIR No. 47(6)2013-YPK-PS u/S. 406 /420 , IPC. The petitioner apprehensive of being arrested in connection with the said FIR case, approached the Court of learned Sessions Judge, Manipur West as mentioned above and the learned Sessions Judge, Manipur West passed an order on 12.6.2013 granting interim protection to the petitioner. The said case was transferred to the Court of Addl. Sessions Judge, (FTC) at Lamphelpat which disposed of the application of the petitioner vide judgment and order dated 8.8.2013 denying the relief claimed. The learned Addl. Sessions Judge (FTC), Manipur West while disposing of the said application of the petitioner observed as follows:
The bail objection report with CD is examined. The report strongly speaks of the commission of the alleged offence. The I.O. of the case is also present and heard. The case is under active investigation. The offences alleged to have been committed by the accused petitioner are offences non-bailable though triable by the Magistrate.
Since the case is under active investigation and arose out of the complaint filed by the complainant before the Court of learned CJM, Thoubal, justice shall be met if the accused petitioner seeks a regular bail application in the concerned Magistrate. Hence, the accused petitioner is directed to approach the concerned Magistrate''s Court for his bail. With this direction, this application is disposed of. Send a copy of this order to the O.C., Yairipok P.S. for information.
Being aggrieved by the denial of relief sought for u/s 438 of Cr.P.C., the petitioner has approached this Court by filing the present petition.
As mentioned above, the FIR case registered against the petitioner arose out of a complaint filed before the Court of learned Chief Judicial Magistrate, Thoubal. Perusal of the said complaint would reveal that the main allegation against the petitioner is that the petitioner had received a sum of Rs. 6,75,000/- from the complainant, Irom Kesho Singh as the sale price of the land under patta No. 86/1082 covered by C.S. Dag No. 32 measuring an area of 2.10000 acre situated at 86 Andro which the complainant claimed to have purchased from the petitioner and the said money was not returned to the complainant when demanded by the complainant. Though the complainant claimed, as mentioned in para No. 2 of the complaint petition, that he is the absolute owner and possessor of the said land, no particulars of the sale deed or when the sale deed was executed are given in the complaint petition. Surprisingly, even though the complainant claimed to be absolute owner and possessor of the said land on having paid the aforesaid amount, the complainant states that when the complainant asked the petitioner to repay the said amount of Rs. 6,75,000/- it was not returned. The complaint does not disclose the reason for demanding repayment of the said amount after the complainant had become the owner of the said land on payment of the sale price. The stand taken by the complainant does not seem to be consistent, for, how could a purchaser of land ask for return of the money if the sale had already taken place? On the other hand, how could the complainant claim to be the absolute owner in possession of the land if he had not purchased it? But no reason has been assigned in the complaint for the complainant to demand repayment of the amount.
No other allegation has been made against the petitioner of any wrong doing or commission of any other illegal act. It was a stand alone allegation against the petitioner by the said Irom Kesho Singh for not returning a sum of Rs. 6,75,000/- which was allegedly paid to the petitioner as the sale price of the land in issue.
The Investigating Officer (I.O.) of the case while investigating the case, examined the complainant and some other persons. Without adverting to the detail depositions made in course of the investigation as recorded in the Case Diary which is produced at the time of hearing of this application, it would be sufficient to refer to the bail objection report submitted before the learned Sessions Judge, Manipur West as well as before this Court to get the gist of the findings based on statements recorded so far. According to the I.O. as stated in the bail objection report, the petitioner sold the land in question to Irom Kesho Singh, the complainant and later on, the petitioner transferred the land to another person without the consent of the complainant and that there are sufficient evidences to show that the petitioner had received the said amount of Rs. 6,75,000/- in installments. The bail objection report also stated that on further investigation, it was found the ownership of the land in question was found to be in the name of the "Kharam Leikai Primary Sericulture Co-operative Society Limited" and on examination of the Chairman of the said Society, it was revealed that the petitioner had also taken a sum of Rs. 6,75,000/- from the said Society and transferred the land in question to the said Society. Accordingly, it was stated that investigation made so far revealed that the petitioner had cheated the complainant. The bail objection report also stated that hectic efforts were made to arrest the petitioner for recording his statement but he had been avoiding police arrest and since it is at the initial stage of investigation it is most likely to hamper the investigation. The said bail objection report submitted before this Court which is similar to the one submitted to the Court below is reproduced hereinunder for understanding the nature of the allegation and finding against the petitioner.
The brief fact of the case is that on 10/06/2013 at 11:30 a.m. OC/Ypk-PS have received a complaint petition forwarded from Hon''ble CJM/TBL filed by one Shri Irom Kesho Singh (57) yrs. S/o I. Khelendro Singh of Khongman Zone V stating that he is the absolute owner and possessor of a agricultural land under Patta No. 1082(OId) 598 (New) covered by CS Dag No. 32 measuring an area of 2.10000/- (0.884986) Hectre Village No. 86 Andro on payment of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only. The accused person has received the said amount from the complainant for the sale of agricultural land above mentioned Patta Nos. After around 11/12 months i.e. in the last week of September, 2011, the complainant went to the house of the accused person and asked to repay the said amount of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only as to the complainant needed the said amount. But the accused person asked the complainant to wait till month of December 2011 for repayment by the accused person. Thus the complainant had went to the accused house asking for money on various dates i.e. 2/1/2012, 3/2/2012, 15/12/2012 in each of the complainant visited at accused house, the accused have postponed the date of repayment of the complainant money and also sometime they had exchanged of some hot words. For the last time on 20/05/2013 at 9:00 a.m. the complainant along with one friend went to the house of the accused person for collecting the said amount. But to the surprise the accused person scolded to the complainant for accompanying one man and tried to beat the complainant by holding a stick at his hand, but the accused person was intervened by one person of the complainant. Hence the case.
During the course of the investigation of the case, examined the complainant very carefully and minutely who fully corroborated with the OE lodge by him. Visited and inspected the spot, prepared a rough sketch map of the PO with its relevant index.
During further investigation it is revealed that the accused sold the land in question to one Irom Kesho Singh (57) yrs S/o Khelendro Singh of Khongman Zone V (complainant) and later on transfer the land in question to another individual without the consent of the complainant. On further investigation examined two PWs namely (1) Yumkhaibam Tamar Singh (53) yrs S/o Y. Chandrashyam Singh of Andro Machengpat and (2) Yumkhaibam Mohon Singh (43) yrs S/o Y. Chandramani Singh of Andro Machengpat. On their examination they stated that the complainant has bought the land in question (under Patta No. 1082 (Old), 598 (New) covered by C.S. Dag No. 32 measuring an area 2,10000 (0.84986) Hectre Village No. 83 Andro) by paying an amount of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only. Further they have stated that they have witness at the time of payment to the accused by the complainant. Shri Y. Tamar Singh stated that the complainant is working for development of Seri Farm at the area of Andro Machengpat. The complainant has planned to establish Chawki Rearing Centre at Andro Machengpat, accordingly, he had bought the above noted land from the accused person by paying a sum of Rs. 6,75,000/- (Rupees Six Lakh Seventy Five thousand) only and the same has been paid into installment basis. During the month of July, 2007 he had handed over a sum of Rs. 2,00,000/- Two Lakh) to the accused as an first installment in favour of the complainant. After first installment Shri Y. Mohon Singh also handed over a sum of Rs. 2,30,000/- (Two Lakhs Thirty Thousand) to the accused as an second installment in favour of the complainant. The rest due amount i.e. Rs. 2,45,000/- (Two Lakhs Forty-five Thousand) was also taken away from the complainant by the accused person.
On further course of investigation, inquiry has been made over the land in question from SDC/Tulihal and found that ownership of the land in question was in the name of "The Kharam Leikai Primary Sericulture Co-operative Society." Examined the Chairman of the Society namely Khunumayum Chute Singh (55) yrs S/o (L) Kh. Motono Singh of Andro Kharam Leikai and Secretary of the Society namely Yumkhaibam Nabachandra Singh (34) yrs S/o Y. Lala Singh of Andro Machengpat. From their examination it is revealed that the accused person had also taken away a sum of Rs. 6.75 Lacs (Rupees Six Lacs Seventy Five thousand) only from the said society and transferred the land in question to the above mentioned Society.
From the investigation so far carried out reveals that the present accused person namely Khunumayum Dhana Singh have cheated the complainant.
In the course of the further investigation of the case, the accused person of the present case, namely, Khunumayum Dhana Singh (53) yrs. S/o Kh. Tolen Singh of Andro Machengpat filed a petition to the Hon''ble Court Session Judge, Manipur West. Thereby, Hon''ble Court Sessions Judge, Manipur West called for submission of the "Bail Objection Report" in this regard. Accordingly, required bail objection report in r/o of the above noted accused person has been submitted to the Hon''ble Court Sessions Judge, Manipur West on 15/7/2013. Whereas the hearing bail matter had been done at Additional Sessions Judge (F/T) Court, Manipur West being transferred by Hon''ble Court Sessions Judge, Manipur West on 8.8.2013. In that Hon''ble Judge Additional Sessions Judge (F/T) Court, Manipur West cancelled the bail matter moved by the accused person on the ground that "The report strongly speaks of the commission of the alleged offence. The I.O. of the case is also present and heard. The case is under active investigation. The offences alleged to have been committed by the accused petitioner are offences non-bailable though triable by the Magistrate. Since the case is under active investigation and arose out of the complaint filed by the complainant before the Court of learned CJM, TBL, justice shall be met if the accused petitioner seeks a regular bail application in the concerned Magistrate. Hence, the accused petitioner is directed to approach the concerned Magistrate''s Court for his bail.
In course of the further investigation of the case hectic efforts have been made to cause arrest the undernoted accused person for recording his interrogation statement in c/w the present case by raiding his house and many other suspected areas in different occasions where the accused person seems to be loitering. Whereas he is avoiding from police arrest till date.
In the light of the above fact and circumstances prima facie evidence is well established against the accused person to have committed the alleged offences of the present case. He is highly required to cause arrest in the case. If he be released on bail during this initial stage of the investigation, there is most likely to hamper and tamper in the present case. So, Hon''ble High Court is therefore prayed to kindly reject the bail matter of the accused person so as to enable to prosecute him under the charges of the offences.
Consideration of the said bail objection report would show that the only charge against the petitioner is that of cheating the complainant by the petitioner of an amount of Rs. 6,75,000/- which was earlier paid to the petitioner as the sale price of the land in issue.
However, it is not the case of the State that the petitioner is a habitual offender who has cheated a large number of persons through dubious means or that he had committed forgery or indulged in other manipulations. The only charge against the petitioner is that he had duped the complainant of Rs. 6,75,000/- by taking the said money as the consideration for sale of the land which was subsequently surreptitiously sold to another person. The allegation against the petitioner is of a simple nature of cheating the complainant, though this Court is not able to discern the ingredients of cheating either in the complaint petition or the records of the exhaustive investigation made so far by the I.O. as disclosed in the Case Diary.
Section 438 of the Cr.P.C., 1973 itself lays down certain guidelines and mentions the factors to be considered by the Court at the time of consideration of an application made under the section. As mentioned therein, the nature and gravity of the accusation is one of the factors to be taken into consideration by the Court. Even though the IPC sections invoked against the petitioner are Sections 406 and 420 , which are cognisable and non-bailable offences, it cannot be said that the allegations against the petitioner as disclosed in the complaint petition as well as in Case Diary are of such serious or grave nature that these would warrant custodial interrogation of the petitioner.
Both these offences of criminal breach of trust (Sec. 406 , IPC) and cheating (Section 420 , IPC) have specific ingredients. In order to constitute a criminal breach of trust (Sec. 406 ),
1) there must be entrustment with a person with property or dominion over the property, and
2) the person entrusted:
(a) dishonestly misappropriated or converted that property to his own use, or
(b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation of--
(i) any direction of law prescribing the method in which the trust is discharged and
(ii) of legal contract touching the discharge of trust. (See:
S.W. Palanitkar v. State of Bihar (2002) 1 SCC 241) (AIR 2001 SC 2960)
.
Similarly, in respect of an offence for cheating u/s 420 , IPC, the essential ingredients are:
1) deception of any person, either by making a false or misleading representation or by other action or omission,
2) fraudulently or dishonestly inducing any person to deliver any property, or
3) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. (See:
Harmanpreet Singh Ahluwalia v. State of Punjab (2009) 7 SCC 712) (2009 Cri LJ 3462 (SC)
).
Further, in both sections, mens rea i.e. intention to defraud or the dishonest intention must be present from the very beginning or inception without which either of these sections cannot be invoked.
Unfortunately, in the present case, the aforesaid ingredients are not evident in the complaint petition nor do these come out loud and clear in course of the investigation as reflected in the Case Diary. The nature of the complaint and the gravity of the charge against the petitioner do not seem to be serious enough in the light of the materials so far disclosed to disentitle the petitioner the relief claimed u/s 438 , Cr.P.C.
Considering the facts of the case based on the complaint petition as well as the Case Diary and the bail objection report as discussed above, this Court is of the view that the petitioner has been able to make out a prima facie case for grant of the relief claimed u/S. 438 , Cr.P.C. Accordingly, it is ordered that in the event of arrest of the petitioner in connection with FIR No. 47(6)2013-YPK-PS u/S. 406 /420 , IPC, the petitioner namely, Shri Khunungmayum Dhana Singh, aged about 52 yrs. s/o late Kh. Tolen Singh of Andro Machengpat Leikai, P.O. & P.S. Yairipok, Imphal East District, Manipur, shall be released on bail on his furnishing a PR Bond of Rs. 1,000/- (Rupees one thousand only) to the satisfaction of the arresting authority.
However, before parting with this case, considering the peculiar facts and circum stances of the case and the nature of the orders passed by the Courts below, this Court is constrained to make certain observations. To underscore this concern of the Court, the Court had reproduced the complaint petition and the bail objection report.
The role of the Courts in maintaining the fine balance between safeguarding individual liberties and the demand of the State for preservation of law is delicate, which has to be discharged with utmost care. As a necessary concomitant of this unique role assigned to the Courts, it is the prerequisite of law that any order passed by the Court must be after proper and due application of mind, which, however, unfortunately seems not to have been done in the present case. Application of mind is sine qua non for any order that may be passed by the Court.
In the present case, a complaint was filed before the Court of learned Chief Judicial Magistrate, Thoubal for taking cognisance of the case, issue of warrant of arrest against the petitioner, etc. by invoking the provisions of Sections 406 and 420 of IPC, though the said complaint did not mention whether it was a complaint filed under Chapter XV of the Cr.P.C. or an application for causing enquiry u/s 156(3) under Chapter XII of the Cr.P.C. Certain facts were pleaded in the said complaint but no materials were mentioned in the said complaint which would constitute the ingredients for making out any of the cognizable offences under Sections 406 and 420 , IPC. The facts pleaded in the complaint do not disclose the ingredients of any offence u/s 406 or 420 , IPC. The complainant claimed to be the absolute owner and possessor of a piece of land on payment of certain amount of Rs. 6,75,000/- to the petitioner. No particulars have been given about the date of sale or the execution of any sale deed. However, if the complainant had become the absolute owner and possessor of the said land on payment of the said amount, there could not have been any basis for claiming back the said amount of Rs. 6,75,000/- from the petitioner unless the land in question was found to be not belonging to the petitioner or non-existent or the title in respect of the said land was clouded. However, no such pleading or allegation has been made in the complaint petition. The complaint petition merely states that after about 11-12 months, the complainant asked the petitioner to repay the said, amount without disclosing the reason why such a demand for repayment of the said amount was made after so many months, when such amount was meant to be the price of the land purchased by me complainant and who had taken possession of the land. The subsequent pleading in the complaint petition that the petitioner had assured the complainant of returning the amount, which was not done, cannot be, in absence of any other materials, the basis for any offence within the purview of Sections 406 and 420 , IPC. In other words, the ingredients of the offences under Sections 406 or 420 , IPC do not seem to exist in the said complaint petition. Yet, the learned 12 Chief Judicial Magistrate, Thoubal directed the police for investigation of the case.
While directing the police to investigate the case, no reason has been assigned or given. This Court is not able to fathom any reason which persuaded the learned Chief Judicial Magistrate, Thoubal to direct the police for investigation of the case of a complaint which does not prima facie disclose any ingredients for offences under Sections 406 and 420 IPC. Therefore, in absence of any reason given by the learned CJM, Thoubal, this Court has no other option but to draw the conclusion that the learned Chief Judicial Magistrate, Thoubal had passed the order for investigation of the case by the police perfunctorily, mechanically and without proper application of mind.
In this regard, one may refer to the decision of the Calcutta High Court rendered in the case of
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (3), reported in : AIR (37) 1950 Cal 437
in which the Calcutta High Court observed as follows:
What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence u/s 190(1)(a) , Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter--proceeding u/s 200 and thereafter sending it for inquiry and report u/s 202 . When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation ..........under section 156(3) , or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
The above observation of the Calcutta High Court was approved by the Hon''ble Supreme Court in
R.R. Chari v. State of Uttar Pradesh, : AIR 1951 SC 207
.
The aforesaid observation makes it clear that even for ordering an investigation u/S. 156(3) , Cr.P.C., there has to be application of mind by the Magistrate.
The Court, while directing the police for investigation in exercise of powers u/s 156(3) , Cr.P.C., cannot mechanically and without proper application of mind pass such an order as, by making an application to the Court by the complainant, the complainant is seeking to invoke the power of the Court for initiating the criminal process against another person. Therefore, if any person approaches the Court and seeks to initiate any criminal proceeding through the Court, the Court has to apply its mind on such application, as otherwise the role of the Court would be reduced to that of a Post Office merely to transmit certain complaint filed by any individual against another person. It is not an administrative act by the Magistrate in directing investigation by the police but a judicial act, and application of mind is the prerequisite for any judicial order passed by any Court. Therefore, if the Court passes such an order for investigation, it must be preceded by proper application of mind, which must be reflected in the order. There must be some indication in the order to show application of mind by the Magistrate. Though nothing is provided under Code of Criminal Procedure requiring recording of reasons for directing investigation by the police u/s 156(3) , Cr.P.C., there must be some indication howsoever brief it may be in the order while directing investigation so as to indicate application of mind by the Magistrate. This is for the reason that direction issued by the Court to the police for enquiry u/s 156(3) , Cr.P.C. could not be ignored by the police. Therefore, the Magistrate before invoking the power u/s 156(3) , Cr.P.C. directing the police to investigate any matter against any person, must properly apply its mind, which can be indicated by the reasons given in the order, howsoever, brief it may be while issuing such a direction. Though non-assigning of reasons may not render such direction illegal, yet assigning reasons would indicate that there has been application of mind. This safeguard by way of assigning reasons in the order I while directing investigation by the police is necessary in order to prevent abuse of the process of Court at the instance of interested parties against any person who may be confronted with the powerful investigative machinery of the State with coercive power which could inhibit and restrict the personal freedom of the individual.
It may be noted that generally, criminal process can be set into motion against any person only in the manner provided in the Code of Criminal Procedure, 1973. Whenever a person approaches a Court with a written complaint, it has to be dealt with in the manner provided under Chapter-XV of the Code of Criminal Procedure, 1973. As provided u/s 202 of the Cr.P.C. under Chapter XV, on receipt of any complaint of an offence of which the Magistrate is authorised to take cognisance, the Magistrate, if he thinks fit, may postpone the issue of process against the accused and either, inquire into the case himself or direct the investigation to be made by a Police Officer or by such other persons as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
It is not clear as to whether the learned Chief Judicial Magistrate, Thoubal when directing the police to investigate the case, was passing the order u/s 202 of the Cr.P.C.
There is another provision under the Code of Criminal Procedure, 1973 i.e. Section 156(3) in Chapter XII under which any Magistrate empowered u/s 190 , Cr.P.C. may order any Officer-in-Charge of a police station for investigation. It is also not clear from the order of the learned Chief Judicial Magistrate, Thoubal dated 4.6.2013 whether such an order was passed by invoking the powers u/S. 156(3) of the Cr.P.C.
Law relating to power of the Magistrate to direct investigation under sections 202 as well as 156(3) of Cr.P.C. are more or less well settled. A direction for enquiry by the police, if ordered u/S. 202 of Cr.P.C. is to enable the Magistrate to find out the truth or otherwise of the allegations made in the complaint petition in order to determine whether process should be issued or not u/s 204 , Cr.P.C. Therefore, if the Magistrate orders for enquiry by the police u/s 202 , it is for the purpose of satisfaction of the Magistrate to see if any prima facie case has been made out against the accused or not. (See
Dilawar Singh v. State of Delhi, : AIR 2007 SC 3234
).
In the present case, from the nature of the order passed by the learned Chief Judicial Magistrate, Thoubal, it does not seem that the direction to investigate the case by the police was for the purpose of satisfying as to whether there is sufficient ground to proceed further as provided under Chapter XV of the Cr.P.C. It may be also noted that the direction for investigation by a police officer cannot be made, as provided under the proviso to sub-section (1) of Section 202 , Cr.P.C., unless the complainant and witness present have been examined on oath u/s 200 , Cr.P.C. There is nothing on record to show that the Magistrate had examined the complainant and the witness before directing the police to investigate the matter. The complaint was filed on 4.6.2013 and the learned Chief Judicial Magistrate, Thoubal directed for investigation of the case by the police on the same day by noting on the complaint petition itself as mentioned above. As such, in absence of examination of the complainant and witness present on oath u/s 200 , Cr.P.C., no direction could have been issued for investigation of the case by the police u/s 202(1) , Cr.P.C.
If that is so, this Court has to examine whether this direction of the learned Chief Judicial Magistrate, Thoubal for investigation of the case could be deemed to have been passed u/s 156(3) of the Cr.P.C.
Sub-section (3) of Section 156 of Cr.P.C. empowers the Magistrate to order a police enquiry. However, before directing the police to investigate the case, the Magistrate has to apply his mind to the allegations contained in the complaint upon which he could either take cognisance or order the police to investigate the matter. It may be mentioned that the power to direct investigation by the police u/s 156(3) , Cr.P.C. by the Magistrate can be done by a Magistrate which is empowered u/s 190 of the Cr.P.C. Section 190 of the Cr.P.C. provides that a Magistrate may take cognisance of any offence upon receiving a complaint of facts which constitute such offences. Therefore, reading Section 190 with Section 156(3) , Cr.P.C. would indicate that such an investigation could be directed by the Magistrate only upon receiving a complaint containing facts which constitute such offences. Therefore, in order to invoke the provisions of Section 156(3) of Cr.P.C. for causing an investigation by the police in any complaint, such complaint must disclose facts which constitute such offences. As a corollary, if the complaint does not disclose facts which constitute the offences under Sections 406 or 420 , IPC, no direction could have been issued for investigation by the police. The Hon''ble Supreme Court in
Tilaknagar Industries Ltd. & Ors. v. State of A.P. & Anr., reported in : AIR 2012 SC 521
held that power u/S. 156(3) , Cr.P.C. can be exercised by a Magistrate even before he takes cognisance provided the complaint discloses the commission of cognisable offences and if the complaint does not disclose commission of cognisable offences, such an order directing investigation is liable to be quashed. In para No. 14 of the aforesaid case, the Hon''ble Supreme Court held as follows:
After considering the rival submissions, we are of the view that the contentions of Mr. Luthra are correct in view of Section 155(2) of the Code as explained in Bhajan Lal. We are of the opinion that the statutory safeguard which is given u/s 155(2) of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexatious investigation. The order of the Magistrate dated 21.06.2010 does not disclose that he has taken cognizance. However power u/s 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. Since in the instant case the complaint does not do so, the order of Magistrate stated above cannot be sustained in law and is accordingly quashed.
In the case at hand, as discussed above, the complaint filed before the learned Chief Judicial Magistrate, Thoubal on 14.6.2013 does not disclose materials to show commission of such cognisable offences under Sections 406 or 420 , IPC and hence, the direction given by the learned Chief Judicial Magistrate, Thoubal for investigation of the case cannot be said to be proper in the light of the judgment of the Hon''ble Supreme Court in
Tilaknagar Industries Ltd. ( : AIR 2012 SC 521) (supra)
.
It may be also mentioned that where a complaint filed before a Magistrate contains simple allegations, it is the duty of the Magistrate to investigate the allegation itself and the Magistrate, should not mechanically pass order directing the police to investigate the case. (See
Arvindbhai Ravjibhai Patel v. State of Gujarat, : 1998 Cri LJ 463
). Similarly, the Magistrate is not always bound to pass an order for registration of the case and investigation after receipt of the application u/s 156(3) , Cr.P.C. disclosing a cognisable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case it will be proper to treat the application as a complaint case, then he may proceed according to the procedure provided under Chapter XV of Cr.P.C. The use of the word ''shall'' in Section 154(3) , Cr.P.C. and the use of the word ''may'' in Section 156(3) makes the intention of the legislature clear. If the legislature had intended to close options for the Magistrate, they could have used the word ''shall'' as has been done in Section 154(3) , Cr.P.C. Instead, use of word ''may'' is, therefore, very significant, and gives a very clear indication that the Magistrate has the discretion in the matter and can, in appropriate case, refuse to order registration of case. (See:
Sukhwasi v. State of U.P., : 2008 Cri LJ 472
)
Having considered the facts of the case as mentioned in the complaint petition, this Court is of the view that the present case is a simple case with an allegation of cheating and not a complicated and complex one which require the help of the police. The learned Chief Judicial Magistrate, Thoubal could have itself examined the matter to see whether any of the offences alleged was involved, rather than direct the police to investigate.
Another aspect which has also caused concern to this Court is the manner in which the learned Addl. Sessions Judge (Fast Track Court), considered and disposed of the application filed by the petitioner seeking relief u/s 438 , Cr.P.C. As mentioned and quoted above in Para No. 3 of the judgment and order dated 8.8.2013 of the learned Addl. Sessions Judge (FTC), the basis for denial of the relief to the petitioner by the Court below was that the bail objection report speaks of commission of the alleged offence and the case is under active investigation and the offences alleged to have been committed are non-bailable offences. This Court is at a loss to find out the ingredients of the offences of Sections 406 or 420 of IPC against the petitioner either in the complaint petition or in the Case Diary. Though the case is said to be under active investigation and the offences are cognisable and non-bailable, the Addl. Sessions Judge (Fast Track Court) ought to have considered whether any prima facie materials or ingredients for the offences charged have been disclosed in the complaint petition or have emerged in the investigation as shown in the Case Diary. It seems the Addl. Sessions Judge (Fast Track Court) also did not properly consider the nature and gravity of the accusation against the petitioner which is a very relevant factor to be considered by the Court while dealing with an application u/s 438 , Cr.P.C. as specifically mentioned in the said section. There is no discussion by the learned Court below as to the nature and gravity of the accusation against the petitioner while considering and disposing the application filed by the petitioner. The learned Court below seems to have been swayed by the fact that the investigation is in full progress and the offences are non-bailable. Though elaborate discussion of evidence may not be necessary at the time of consideration of anticipatory bail application, nonetheless, the Court ought to be satisfied and record whether any prima facie case exists for allowing the investigation to proceed unrestrained by refusing anticipatory bail application. On the other hand, if no prima facie case is made out to show existence of materials to constitute any cognisable offence, the Court ought not hesitate to grant appropriate relief, including grant of anticipatory bail which does not seem to have been done in the present case. Therefore, there seems to have been non application of mind by the Court below at the time of consideration of the application of the petitioner seeking relief u/s 438 , Cr.P.C. In the result, the application is allowed with the observation indicated above. The Registry is directed to circulate copy of this order to all the members of the Manipur Judicial Service.