1 MCRC No. 2330/2015 ([PRECEDENT].) 10.1.2017 Shri [ENTITY], counsel for the applicants. Shri [ENTITY], Panel Lawyer for the respondent
No.1/State.
Shri [ENTITY], counsel for the respondent No.2. This petition under [SECTION] of [ACT] has been filed against the order dated 27.6.20[SECTION] passed by Special Judge ([ACT]), Morena by which an application filed by the respondent No.2 under [SECTION] of [ACT] has been allowed and consequently FIR in [CASE NUMBER] has been registered by Police Station Saraychola, District Morena for offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] and under [SECTION], [SECTION] of [ACT].
The facts necessary for the disposal of this application are that the respondent No.2 had filed a private complaint before the Special Judge ([ACT]), Morena alleging therein that on 7.6.20[SECTION] at about 5:00 PM the applicants along with two unknown persons came to the house of the complainant and they were armed with pistol and finding that nobody is there, broke open the lock and took all the household utensils and the clothes. At that time while they were trying to take away belongings, the complainant and his father and aunt reached on the spot and they tried to stop the applicants but the applicants assaulted the complainant and his family members and extended a threat that the complainant will not be allowed to stay in the village and they will forcibly take the possession of the house and fields belonging to the complainant. A similar incident was committed by the applicants on 16.5.20[SECTION] also. When the applicants went to the police station for lodging a FIR, the SHO of Police Station Saraychola, although accepted the application but did not take any action. Subsequently, the complaint was sent by registered post on 12.6.20[SECTION] to SHO Police Station Saraychola, Superintendent of Police, Morena, Director General of Police, Bhopal, Inspector General of Police, Chambal Range, Chief Minister, State of Madhya Pradesh, Home Minister, State of Madhya Pradesh etc., but no action was taken, therefore, complaint was filed.
The Trial Magistrate by order dated 27.6.20[SECTION] observed as under:-
Qfj;knh@djrkjflag lfgr Jh /kesUnz tSu vf/koDrk us mifLFkr gksdj iwjuflag] ujs'k] jkevkSrkj o nkuohj ds fo:) /kkjk&392] [SECTION]] [SECTION]] [SECTION]] 506&ch Hkkjrh; n.M lafgrk ,oa 11] [SECTION] e0iz0MdSrh ,oa O;igj.k izHkkfor {ks= vf/kfu;e ds rgr ifjokn izLrqr fd;kA ,MoksdsV eseks o lk{; lwph izLrqr dh gSA jhMj nLrkostksa dk feyku djsA ifjokn o lk{; lwph dh izfrfyfi Fkkuk izHkkjh ljk;Nksyk dks bl funsZ'k lfgr izsf"kr dh tkos fd og /kkjk&1563 n.M izfdz;k lafgrk ds rgr fof/kor vUos"k.k dj izfrosnu bl U;k;ky; dks is'k djsaA izdj.k izfrosnu gsrq fnukad 23-9-[SECTION] dks is'k gksA Accordingly, the FIR bearing [CASE NUMBER] has been registered by Police Station Saraychola, District Morena against the applicants for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] and under [SECTION], [SECTION] of [ACT].
The Supreme Court in the case of [PRECEDENT] has held as under:-
"20. The learned Magistrate, as we find, while exercising the power under [SECTION] [ACT] has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under [SECTION] [ACT], cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate congnizable case. -(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 [SECTION]. (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] may order such an investigation as above-mentioned."
21. Dealing with the nature of power exercised by the Magistrate under [SECTION] [ACT], a three-Judge Bench in [PRECEDENT], had to express thus:
"17 It may be noted further that an order made under [SECTION], is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under [SECTION]. Such an investigation embraces the entire continuous process which begins with the collection of evidence under [SECTION] and ends with a report or charge- sheet under [SECTION]."
22. In Anil Kumar v. M.K. Aiyappa (20[SECTION]) 10 SCC 705, the two-Judge Bench had to say this:
"11. The scope of [SECTION] [ACT] came up for consideration before this Court in several cases. This Court in [PRECEDENT] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under [SECTION] and held that where jurisdiction is exercised on a complaint filed in terms of [SECTION] or [SECTION] [ACT], the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under [SECTION] against a public servant without a valid sanction order. 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] [ACT], 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."
23. In [PRECEDENT], this Court ruled thus:
"18. '11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under [SECTION] 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] of the Code. Even if a Magistrate does not say in so many words while directing investigation under [SECTION] 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 is closed by the complainant because that police officer could take further steps contemplated in [SECTION] of the Code only thereafter.'*"
24. In [PRECEDENT], the Court while dealing with the power of the 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] of the [ACT]. And again: (Madhao v. State of Maharashtra (20[SECTION]) 5 SCC 615, SCC pp.620-21, para 18) "18.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] 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 [SECTION] can be invoked by the Magistrate before he takes cognizance of the offence under [SECTION]. However, if he once takes such cognizance and embarks upon the procedure embodied in [SECTION], he is not competent to revert back to the pre- cognizance stage and avail of [SECTION]."
25. Recently, in [PRECEDENT], while dealing with the exercise of power under [SECTION] [ACT] by the learned Magistrate, a three-Judge Bench has held that: (SCC p.456, para 22) "22.1. The direction under [SECTION] is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed."
26. At this stage, we may usefully refer to what the Constitution Bench has to say in [ENTITY] v. State of U.P. (2014) 2 SCC 1, in this regard. The larger Bench had posed the following two questions:
(SCC p.28, para 30) "(i) Whether the immediate non-
registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused."
Answering the questions posed, the larger Bench opined thus: ([ENTITY] case reported in [PRECEDENT] "49. Consequently, the condition that is sine qua non for recording an FIR under [SECTION] of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of [SECTION], the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of [SECTION] of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of [SECTION] of the Code have to be given their literal meaning.
72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.
111. the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under [SECTION] of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has "reason to suspect the commission of an offence". Therefore, the requirements of launching an investigation under [SECTION] of the Code are higher than the requirement under [SECTION] of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under [SECTION] of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
115. Although, we, in unequivocal terms, hold that [SECTION] of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
(emphasis in original) After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:
([ENTITY] v. State of U.P., (2014) 2 SCC 1), SCC p.61, para 120) "120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry."
We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.
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 [ACT], invokes the jurisdiction under [SECTION] [ACT] and also there is a separate procedure under the Recovery of Debts due to [ACT], an attitude of more care, caution and circumspection has to be adhered to.
29. At this stage it is seemly to state that power under [SECTION] warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of [SECTION] 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.
30. In our considered opinion, a stage has come in this country where [SECTION] [ACT] 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 [SECTION] of the [ACT]. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under [SECTION] and [SECTION] while filing a petition under [SECTION]. 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] 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]. 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 [ENTITY] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
If the order passed by the Trial Magistrate is considered in the light of the judgment passed by the Supreme Court in the case of [ENTITY] (supra), then it is clear that while passing the order under [SECTION] of [ACT] the Special Judge did not apply its mind to the allegations made in the complaint and even did not mention that whether any cognizable offence is made out or not. Thus, this Court is of the considered view that the order dated 27.6.20[SECTION] is not accordance with law and has been passed without applying its mind to the allegations as contained in the complaint. Accordingly, the order dated 27.6.20[SECTION] passed by Special Judge ([ACT]), Morena is quashed. Consequently, the FIR registered in [CASE NUMBER] by Police Station Saraychola, District Morena is also quashed. The matter is remanded back to the court below with a direction to decide the application filed under [SECTION] of [ACT] afresh in the light of the judgment passed by the Supreme Court in the case of [ENTITY] (supra).
With aforesaid observations, the petition is allowed.
([ENTITY]) Judge (alok)