Srilekha Basu vs State Of West Bengal & Ors

Subhasis Dasgupta, J

The impugned judgment and order dated 19.06.2018 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Alipore in

Criminal Motion No. 170 of 2018 dismissing the criminal revision thereby affirming the order dated 26.03.2018 rejecting application under Section

156(3) of the Code of Criminal Procedure is a subject of challenge in this revisional application under Section 401/482 of the Code of Criminal

Procedure.

Learned advocate for the petitioner submitted that the learned court below ought to have allowed the application under Section 156(3) Cr.P.C.

directing police to register the same as FIR for undertaking investigation keeping in view that provisions of Section 154(1) Cr.P.C. was not only

mandatory in nature, but also independent in its application. Reliance was accordingly placed by petitioner on a decision reported in AIR 2014 (1) SC

187 delivered in the case of Lalita Kumari vs. Government of U.P. & Ors. while making submission candidly that the registration of FIR was

mandatory under Section 154 of the Code of Criminal Procedure. Adverting to the copy of the petition under Section 156(3) Cr. P.C., learned

advocate for the petitioner further submitted that the averment contained therein conspicuously revealed information as to the commission of

cognizable offence, for which no preliminary enquiry was permissible, and the court below failed to understand the real purport of the provisions,

enunciated in Section 154 Cr.P.C., and illegally rejected the prayer for investigation under Section 156(3) Cr.P.C. holding that the dispute involved

between the parties was civil in nature.

Reliance was further placed by the petitioner on an unreported decision, rendered by the Apex Court in SLP (Criminal) No. 5791 of 2005 in the case

Syed Askari Hadi Ali Augustine Imam & Anr. vs. State (Delhi Admn.) & Anr. wherein it was held that ordinarily a criminal proceeding will have a

primacy over the civil proceeding. Precedence to a criminal proceeding ought to have been given by the learned court below, keeping in mind that the

disposal of a civil proceeding ordinarily would take a long time, and in the interest of justice a criminal proceeding could be disposed of expeditiously as

possible.

Non appears on behalf of the opposite party Nos. 1 to 6, except opposite party No.7, what is evident form the affidavit-of-service furnished by the

petitioner.

Learned advocate for the private opposite party No.7 submitted that learned court below committed no illegality in rejecting the petition under Section

156(3) Cr.P.C, upon due exercise of his discretion, vested to learned Magistrate, what could be ordinarily fond from the words used in Section 156(3)

Cr.P.C. wherein ‘May’ had been used by the legislator in revealing legislative intent, compared to ‘shall’.

Learned advocate for the private opposite party No.7 further submitted that without previous adherence to Section 154(1) and 154(3), the provisions

of Section 156(3) Cr.P.C. could not be permitted to be resorted to. It was thus proposed by learned advocate for O.P. No.7 that in the petition under

Section 156(3) Cr.P.C. an averment demonstrating clearly and most conspicuously about previous adherence to Section 154(1) and 154(3) Cr.P.C.

must be there, while initiating a prayer under Section 156(3) Cr.P.C, without which the prayer under Section 156(3) Cr.P.C. would be against the spirit

of the law. It was further submitted by the learned advocate for the O.P. No.7 that when the petitioner felt aggrieved with the order rejecting the

prayer under Section 156(3) Cr.P.C., and challenged the same in revisional application, which was ultimately dismissed, the same could not be allowed

to be enforced in application of the authority, available under Section 482 Cr.P.C.

Learned advocate for the private O.P No.7 had countered the decision, relied upon by the petitioner, relying upon decision reported in AIR 2015 SC

1758 delivered in the case of Priyanka Srivastava and ors vs. State of U.P and Ors. wherein it was held that without making prior adherence to

Section 154(1) and 154(3) Cr.P.C. the exercise of authority under Section 156(3) Cr.P.C., was not permissible and a decision reported in AIR 2008

SC 907, delivered in the case of Sakiri Vasu vs. State of U.P. and Ors. wherein it was held that power under Section 482 could not be allowed to be

exercised against the approach to a Magistrate under Section 156(3) Cr.P.C., when apparently there was alternative provisions providing adequate

remedy available under Section 154(3) and Section 36 Cr.P.C., apart from filing a separate complaint under Section 200 Cr.P.C. before the learned

Magistrate, and a decision delivered by Co-ordinate Bench of this court reported in (2018) 3 Cal Lt 482 (HC) in the case of Mukul Roy vs. State of

West Bengal and Ors. wherein certain guidelines were laid down for due exercise of judicial authority in connection with a prayer under Section

156(3) Cr.P.C. after having considered the decision of the Apex Court delivered in the case of Priyanka Srivastava (supra). The guidelines so

formulated, according to learned advocate for the petitioner, were followed by the learned Magistrate upon due exercise of his authority and

proceeded to reject the prayer under Section 156(3) Cr.P.C. without committing any apparent illegality.

Learned advocate for the State/O.P No.1 supported the stand taken by the private O.P No.7 and proposed that there had been no illegality committed

by the learned court below, while making rejection of the prayer under Section 156(3) Cr.P.C., in the instant case for previous non-adherence to the

conspicuous provisions, mentioned in 154(3) Cr.P.C.

Before addressing the point as raised by the petitioner some salient facts need mentioning which would be helpful in appropriately addressing the

issue. Admittedly an ex parte decree was obtained by the petitioner/decree holder in connection with an eviction suit. The ex parte eviction decree

was recorded on 23.09.16. In connection with an execution proceeding instituted subsequent to passing of ex parte decree, bailiff of the court handed

over the vacant possession of the suit property to petitioner/decree holder evicting the judgment debtor from the suit property at about 2 PM on

22.03.2018. On a subsequent date i.e. on 23.03.2018 at about 4.45 PM, the opposite parties allegedly dispossessed the petitioner/decree holder from

the suit property, which having been resisted, the private opposite parties abused the petitioner with filthy languages, threatened her and assaulted her

further, when there was an order passed in connection with proceeding under Section 144(2) Cr.P.C.. Thus in violation of the order passed under

Section 144(2) Cr.P.C., the opposite parties recovered possession of the suit premises after dispossessing the decree holder therefrom by breaking

upon the padlock committing criminal trespass therein.

In the case referred above by petitioner, delivered in the case of Lalita Kumari (supra) the Constituent Bench of Apex Court held that registration of

the FIR was mandatory under Section 154 Cr.P.C. subject to disclosure of information revealing commission of cognizable offence, when no

preliminary enquiry is permissible in such a situation. While deciding the ratio in the case of Lalita Kumari(supra) by the Apex Court, the provisions of

Section 154(3) contained in Cr.P.C. remained unconsidered in its real perspective. The Apex Court while deciding the applicability of the authority,

provided under Section 156(3) Cr.P.C., in the case of Priyanka Srivastava (supra) had taken conscious notice of the ratio decided in the Lalita Kumari

(Supra). There is no apparent conflict in between the two decisions rendered by the Apex Court in the case of Lalita Kumari (supra), and

subsequently in the case of Priyanka Srivastava (supra), with regard to mandatory registration of the FIR under Section 154(1) Cr.P.C. upon

disclosure of commission of cognizable offence, where preliminary enquiry might not be required.

It would be useful to refer paragraphs 24 and 26 of such decision, delviered by Apex Court in the case of Priyanka Srivastava (supra), which may be

mentioned as hereunder:

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 Institutions Act, 1993, an attitude of more care, caution and

circumspection has to be adhered to.

“26. 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.â€​

In the case of Priyanka Srivastava (supra), it was held that in the absence of previous adherence to Sections 154(1) Cr.P.C. and 154(3) Cr.P.C., the

authority available under Section 156(3) Cr.P.C. would not be permissible to be exercised. It was also decided therein that in the petition under Section

156(3) Cr.P.C. an averment must be there demonstrating conspicuously and most clearly, supported by the documents to that effect, revealing strict

adherence to Section 154(1) and 154(3) Cr.P.C.. Application of the judicial mind while exercising power under Section 156(3) Cr.P.C. is an essence

of the order passed under Section 156(3) Cr.P.C.

Upon perusal of the copy of the petition under Section 156(3) Cr.P.C, it appears that there left nothing revealing previous adherence to Section 154(3)

Cr.P.C. having felt aggrieved with non-registration of the FIR by the police under Section 154(1) Cr.P.C. No document in support thereof was there

revealing fulfillment of requirement envisaged in section 154(3) Cr.P.C.

Upon perusal of the impugned order it appears that though the petition under Section 156(3) Cr.P.C. contained several allegations of committing

assault and other offences against the opposite parties, but in support thereof no medical document was produced in order to establish prima facie

proof of such assault. Admittedly no action was taken by complainant in application of the provision under Section 154(3) Cr.P.C. by referring the

matter to higher police officials for redressing the grievance. Apart from the relief provided under Section 154(3), Section 36 and Section 200 Cr.P.C.,

the petitioner had not approached the civil court for adequate remedy including restoration of the possession. Learned court below considered all such

aspects in the perspective of civil dispute of the parties. The learned court below, while making rejection of the prayer under Section 156(3) Cr.P.C.

considered previous non-adherence to Section 154(3) Cr.P.C., non-production of the medical document, supportive of commission of alleged assault

upon the petitioner and as such the impugned order cannot be described to be an out come of non-application of judicial mind. Upon consideration of

such materials, it was thus presumed to be not conducive to justice.

Learned advocate for the petitioner submitted that in the decision rendered by the Apex Court in the case of Priyanka Srivastava (supra) there was

neither any ratio, nor any obiter in strict sense decided, but it was mere observation not pertaining to the text, which would not be operative over the

factual matrix of this case.

The court most respectfully begs to differ the submission on this issue, as raised by the learned advocate for the petitioner, when the Apex Court in

the case of Priyanka Srivastava (supra) decided the ratio after having taken conscious notice of the decision, rendered in the case of Lalita Kumari

(supra). This court is of the view that such decision of the Apex Court in the case of Priyanka Srivastava (supra) having decided the ratio, would be

uniformly followed by all the courts’ in the country administering justice in application of Article 141 of the Constitution of India.

The guidelines formulated by Co-ordinate Bench of this Court rendered in the case of Mukul Roy(supra) as such may be pertinently mentioned as

hereunder:

“1. The learned Magistrate would be well advised to verify the truth and the veracity of the allegations, regard being had to the nature of

allegations of the case.

There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) of the Code of Criminal Procedure.

Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed which are the sine qua non for

application under Section 156(3) of the Code.

An application under Section 156(3) of the Code should 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.

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.

Learned Magistrate would also be aware of the abnormal delay in lodging of the FIR in initiating criminal prosecution.â€​

The guidelines so formulated in the case of Mukul Roy (supra) being based on the decisions of the Apex Court pertaining to the application of 154(3)

Cr.P.C., while making exercise of authority available under Section 156(3) Cr.P.C. would be squarely applied over the facts and circumstances

involved in this case.

Regarding the scope of exercise of authority available under Section 482 Cr.P.C., it would be profitable her to refer paragraph 26 of the judgment

delivered in the case of Sakiri Vasu (supra) which may be mentioned as herein:

“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) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. 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) Cr.P.C. instead of rushing to the

High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under

Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?â€​

Thus whenever a person feels aggrieved with the non-registration of the FIR under Section 154(1) Cr.P.C., even after disclosure of the commission of

the cognizable offence, the party feeling aggrieved has to take recourse to Section 154(3) Cr.P.C. by reporting the matter to higher police official, or

other police officer referred to in Section 36 Cr.P.C. Despite the approach being made under Section 154 (3) Cr.P.C. previously, if the same turned to

be an inabortive exercise, in that event, the party feeling aggrieved can take recourse to Section 156(3) Cr.P.c. The exercise of authority under

Section 482 Cr.P.c. for non-registration of FIR by the police was discouraged by the Apex Court, as decided in the case of Sakiri Vasu (supra).

Learned advocate for the petitioner in the case at hand sought to be establish that criminal proceeding will have a primacy over the civil proceedings,

though the relief, if there be any, could not be resorted to invoking the jurisdiction of the civil court for restoration of the possession together with other

reliefs. In the case referred above by the petitioner, wherein primacy of the criminal proceeding over the civil proceeding came up for addressing by

the Apex Court, when effect of pendency of a probate proceeding vis-Ã -vis a criminal case involving allegations of forgery of a Will was a question

to be answered by the Apex Court, and in connection therewith, the Apex Court considered the primacy of the criminal proceeding over the civil

proceeding. The factual matrix involved therein is distinguishable patently from the facts involved in the present case.

There are circumstances when criminal cases are allowed to proceed irrespective of the pendency of the civil case, but it does not mean that exercise

of authority, available under Section 156(3) Cr.P.C. would be automatically there without fulfillment of requirements of law, as has exactly happened

in this case.

The revisional application fails, being without any merits and accordingly stands disposed of.

The impugned order as such must go unaltered.

Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary

formalities.