Mohd Sajid vs State Of Madhya Pradesh & Others

The petitioner has filed the present writ petition alleging that the respondents no. 1 to 3 are not taking any action against respondent no. 4 in light of the

report dated 06/03/2016 submitted by the CSP, Juni Indore, Indore.

2 According to the petitioner, respondent no. 4 has falsely implicated his brother Abdul Majid Khogar in criminal case no. 167/2015 for the offence

under section 376(2)(n) and 506 of IPC. Now, she is illegally demanding Rs. 5 lacs from him in order to compromise in criminal case with his brother.

The petitioner submitted a complaint to the Superintendent of Police that the respondent no. 4 is demanding Rs. 5 lacs for compromise with his brother

in the criminal case. On the basis of the complaint made by the petitioner, an inquiry was conducted by CSP, Juni Indore, and submitted his report that

the allegations made by the petitioner are correct and it is found that respondent no. 4 was demanding money for compromise, but thereafter no action

has been taken. After notice, the respondent filed return by submitting that on the basis of the preliminary inquiry, a report dated- 06/03/2016 has been

submitted. Verification of audio recording is yet to be made and final decision has not been taken by the D.I.G so far. The aforesaid report was filed

on 02nd February, 2016. By order dated 22/01/2018, this Court directed the respondent nos 1 to 3 to file a final conclusion of the DIG  as

mentioned in para 2 of the reply, thereafter on 20/02/2018, eight weeks was granted to learned counsel for the respondent, but

till today, the said order has not been complied with.

3 Shri M.A. Mansoori, counsel for the petitioner vehemently argued that respondent nos. 1 to 3 are bound to take final decision on the complaint made

by the petitioner and on the report dated 06/03/2016. It is settled law that if on the complaint, no action is taken by the police, then the complainant is

having remedy to approach the concerned Magistrate under section 200 of Cr.P.C. According to him, the respondent no. 4 has illegally demanded

money for compromise. If the police is not taking any action, the petitioner is free to approach the concerned Magistrate under section 200 of Cr.P.C.

If such complaint is filed, the Magistrate may issue direction to the respondent nos 1 to 3 under section 156 of Cr.P.C for investigation / inquiry. In the

said complaint, the petitioner may file a copy of the report dated 06/03/2016 and the police may submit response to the said letter before the

Magistrate concerned.

4 That in case of Priyanka Shrivastava and Another Vs. State of U.P. and Ors., reported in (2015) 6 SCC 287, the Hon'ble Supreme Court has

considered the scope of Section 156(3) of Cr.P.C. and also decided the duty of the Magistrate while exercising power under Section 156(3) Para 27,

29, 30 and 31 of the aforesaid judgment are reproduced as under:

“27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to

the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that

sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are

serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned

Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be

noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and

also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institution Act, 1993, an attitude of more care, caution

and circumspection has to be adhered to.

At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the

police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and

really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this

route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly

sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would

be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are

compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain

persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision

which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue

advantage in a criminal court as if somebody is determined to settle the scores.

We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both

the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that

an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour

to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This

will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same

can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of

cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases

where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned

Magistrate would also be aware of the delay in lodging of the FIR.â€​

In view of the above case, Hon'ble Supreme Court has noted that now a days litigants are invoking the provision of Cr.P.C. and the writ petitions are

being filed in a routine manner to harass certain persons.

5 Therefore, instead of giving the direction in a writ petition under Article 226 of the Constitution of India, the petitioner can be directed to approach

the concerned Magistrate under the provisions of Cr.P.C., who is competent to entertain the complaint and if he finds it appropriate, he can direct

Police Authorities for investigation. The complete procedure is given in Chapter XV of the Cr.P.C. The petitioner may resort remedy available under

the law. Accordingly, the preliminary objections taken by the State Government is upheld.

6 In case of Mohd. Yousuf Vs. Afaq Jahan, reported in (2006) 1 SCC 627, the apex Court has considered the scope of Section 156 Para 5 to 11 of

the aforesaid judgment is reproduced as under:

“In order to appreciate rival submissions Section 156 of the Code needs to be quoted; the same reads as follows:

Police officer's power to investigate cognizable cases. - (1) Any officer in charge of a police station may, without the order of a Magistrate,

investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into

or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer

was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

Section 156 falling within Chapter XI, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202

contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code.

Chapter XII of the Code contains provisions relating to ""information to the police and their powers to investigate"", whereas Chapter XV, which

contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a

complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed

by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202,

which falls under Chapter XV, also refers to the power of a Magistrate to ""direct an investigation by a police officer"". But the investigation envisaged

in Section 202 is different from the investigation contemplated in Section 156 of the Code.

The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such

investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information

relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated

in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate.

But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such

investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a

Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence

he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Sectopm 202(1) of the Code makes the position clear that the

investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any

other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This

can be discerned from the culminating words in Section 202(1) i.e.

or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is

sufficient ground for proceeding"".

This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with

him.

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 complaint because that police officer could take further steps

contemplated in Chapter XII of the Code only thereafter.

7 The case of Sudhir Bhaksar Rao Tambe again came up for consideration before the Supreme Court in the case of Hemant Yashwant Dhage Vs.

State of Maharashtra and Others, reported in (2016) 6 SCC 273 in second round and the Hon'ble Supreme Court considered the scope of Section

156(3) and 154 of the Cr.P.C. and it was held that the learned Magistrate can direct Police Authority to register the FIR. The direction given in the

case of Mohd Yusuf (Supra) has been followed. Para 8 of the judgment is reproduced as under:

“In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue

of law as to whether the earlier order of this Court dated April 12,2010 warranted registering of F.I.R. by the police before commencing investigation.

But we would like to only indicate in brief the law on this subject expressly stated by this Court in the case of Mohd. Yousuf versus Afaq Jahan

(Smt.) and another, (2006) 1 SCC 627. This Court explained that registration of an F.I.R. involves only the process of recording the substance of

information relating to commision of any cognizable offence in a book kept by the officer incharge of the concerned police station. In paragraph 11 of

the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to

direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of

the Code, the police should register an F.I.R. Because Section 156 falls within chapter XII of the Code which deals with powers of the police officers

to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII

once F.I.R. Is registered in respect of the concerned cognizable offenceâ€​

8 In view of the above law laid down by the Hon'ble Supreme Court, the writ is not maintainable. The petitioner is having remedy to approach

Magistrate under the provision of Cr.P.C Hence the present writ petition is disposed of with above liberty.

C c as per rules.