C482/575/2020 of IDREESH Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 575 of 2020

Idreesh

State of Uttarakhand and another

....... Petitioner

…....Respondents

Present: Mr. Rajveer Singh, Advocate for the petitioner. Mr. Siddhartha Bisht, Brief Holder for the State. Mr. Siddhartha Bisht, Brief Holder for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

Petitioner has filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”) for challenging the following orders:

(i)Order dated 03.12.2018 passed in Miscellaneous Case No. 245 of 2018 Idreesh vs. Shabeer and others by the Court of Judicial Magistrate, Ist Roorkee, District Haridwar (for short “the case”). By this order, an application filed under Section 156 (3) of the Code by the petitioner has been rejected and; Case No. 245 of 2018 Idreesh vs. Shabeer and others by the Court of Judicial Magistrate, Ist Roorkee, District Haridwar (for short “the case”). By this order, an application filed under Section 156 (3) of the Code by the petitioner has been rejected and;

(ii)Judgment and order dated 02.03.2020 passed in Criminal Revision No. 487 of 2019 Idreesh vs. State of Uttarakhand by the Court of Ist Additional Sessions Judge, Roorkee, District Haridwar (for short “the revision”). By this judgment and order, the order passed in the case on 03.12.2018 has been confirmed. Criminal Revision No. 487 of 2019 Idreesh vs. State of Uttarakhand by the Court of Ist Additional Sessions Judge, Roorkee, District Haridwar (for short “the revision”). By this judgment and order, the order passed in the case on 03.12.2018 has been confirmed.

2. Heard learned counsel for the parties through video conferencing and perused the record.

3. Facts necessary for disposal of the instant petition, briefly stated are as hereunder:-

(1) Petitioner filed an application under Section 156 (3) of the Code before the Court concerned, which is basis of the case. According to the application Shabeer and others told it to the petitioner that they had brick of gold. They exhibited brick to the petitioner and asked him to get it checked by scratching. In fact, some dust of the brick was given to the petitioner. The petitioner got it examined by the goldsmith who confirmed that it was gold. The deal was settled at Rs.6 Lakh. Petitioner paid Rs. 6 Lakh to Shabeer and others and he was given brick. Surprisingly, when the petitioner took the brick to the goldsmith, it was revealed that the brick was not of gold, but, it was brick of brass.

(2) The learned Court below by the impugned order dated 03.12.2018, rejected the application, under Section 156 (3) of the Code, inter alia, on the ground that no documents of the deal were produced. This order was once challenged before the High Court, but, again, under the direction for seeking efficacious remedy, the revision was preferred. The revision was dismissed on

02.03.2020. Aggrieved by both these orders instant petition is filed.

4. Learned counsel for the petitioner would argue that the petitioner was cheated in the name of brick of gold; he was induced to deliver Rs.6 Lakh for brick of gold, but, he was delivered brick of brass. It is also argued that, in fact, when once the matter was reported to Police, Police found that the case of petitioner is genuine, but, instead of proceedings under the penal laws, the Police took preventive measures under Section 107 of the Code.

5. Learned counsel for the petitioner would argue that the petitioner has reported the matter to concerned Police Station; thereafter, report was given to the Senior Superintendent of Police and when the case was not lodged, an application under Section 156 (3) of the Code was filed. In view of Section 154 (1) of the Code, since the application discloses commission of cognizable offences, it was mandatory for the Police Officer at the first instant to lodge the FIR and thereafter, the application under Section 156 (3) of the Code ought to have been allowed. Reference has been made to the judgment in the case of Lalita Kumari vs. Government of Uttar Pradesh and others (2014) 2 SCC page 1 to argue that if an information discloses commission of cognizable offence, FIR has to be lodged.

6. On behalf of the State, it is argued that if the petitioner were cheated in the month of July, 2018 why did he wait for three months to lodge the FIR in the month of October, 2018.

7. In fact, the issue is much important. What is being argued is that if an application under Section 156 (3) of the Code discloses commission of cognizable offence, the Magistrate is duty bound to order for investigation. Is it is so? This is what is to be considered in this case.

8. In case an information discloses commission of cognizable offence, in view of Section 154 of the Code, it has to be registered. Section 154 of the Code makes provisions for recording information relating to the commission of cognizable offences. This Section is as hereunder:-

“154. Information in cognizable cases.-(1) Every information relating to the commission of cognizable offence, if given orally to an officer in charge of police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in book to be kept by such officer in such form as the State Government may prescribe in this behalf:

Provided that if the information is given by the woman whom an offence under Section 326-A, Section 326-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by woman police office or any woman officer:

Provided further that-

(a)in the event that the person against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB], Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by police officer, at the residence of the person seeking to report such offence or at convenient place of such person’s choice, in the presence of an interpreter or special educator, as the case may be; Section 354, Section 354-A, Section 354-B, Section 354-C Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB], Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by police officer, at the residence of the person seeking to report such offence or at convenient place of such person’s choice, in the presence of an interpreter or special educator, as the case may be;

(b)the recording of such information shall be videographed;

(c)the police officer shall get the statement of the person recorded by Judicial Magistrate under clause (a) of sub-section (5-A) of Section 164 as soon as possible.] by Judicial Magistrate under clause (a) of sub-section (5-A) of Section 164 as soon as possible.]

(2) copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by refusal on the part of an officer in charge of police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”

Section 154 of the Code deals with the power of Police

Officer to dealt with an information relating to commission of cognizable offence, but, Magistrate has also been given scope in the matter of ordering investigation. Section 156 (3) of the Code empowers Magistrate in this behalf. It is as hereunder: -

“156. Police Officer’s power to investigate cognizable case-

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

10. In so far as, the discretion of the officer in charge of Police Station under Section 154 of the Code is concerned, in the case of Lalita Kumar (supra), the Hon’ble Supreme Court has discussed the law in quite detail and the conclusion has been summed up at para 120 of the judgment. The Hon’ble Supreme Court authoritativelyheld that the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of cognizable offences and no preliminary enquiry is permissible in such situation. Thereafter, in paragraph 120.2 to 120.8 various other directions have also been given by the Hon’ble Supreme Court on the subject. In fact, under certain circumstances preliminary enquiry was also held permissible.

11. But, in the instant case, the issue is not squarely only within scope of Section 154 of the Code. The issue in the instant case revolves around the scope of Section 156 (3) of the Code and particularly the factors which should weigh in the mind of Magistrate, while dealing with an application under Section 156 (3) of the Code.

12. In the case of Thermax Limited and others Vs. K. M. Johny and others (2011) 13 SCC 412, an order passed under Section 156 (3) of the Code was quashed by the Hon’ble Supreme Court and what the Court held was that “entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406 and 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable and contains the flavor of civil nature and taking note of the closure of the earlier three complaints that too after thorough investigation by the Police, we are of the view that the Magistrate committed grave error in calling for report under Section 156 (3) of the Code......................

“49. The learned Senior Counsel for the appellant Mr Hansaria relied upon quite few judgments in support of his submission that the standard rent applicant in the present case was very much maintainable under the MRC Act. We will refer to some of them which lay down the principles relevant for our purpose.”

13. In the case Ram Dev Food Products Private Limited Vs.

State of Gujarat (2015) 6 SCC 439, the Hon’ble Supreme Court further considered the scope of Section 156 (3) of the Code and in para 22 categorically held that the direction under Section 156 (3) of

the Code is to be issued, but, only after application of mind by the

Magistrate. This para 22 reads as hereunder:

“22.Thus, we answer the first question by holding that: 22.1 The direction under Section 156(3) 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 issuance of process and finds 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 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". Category of cases falling under Para 120.6 in Lalita Kumari[1] may fall under Section 202. 22.3 Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.”

The Hon’ble Supreme Court had another occasion in the

case of Priyanka Srivastava and another Vs. State of Uttar Pradesh and others (2015) 6 SCC 287 to discuss the scope of Section 156 (3) of the Code. In this case the Hon’ble Supreme Court observed as hereunder:-

“22. In Anil Kumar v. M.K. Aiyappa[2], the two-Judge Bench had to say this:

11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed[3] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against public servant without 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 156(3) CrPC, should be reflected in the order, though 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."

1.LalitaKumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524

2.(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35 3.Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692 3.Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692

24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.[4], the Court while dealing with the power of Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: (Madhao v. State of Maharashtra[4a], SCC pp. 620-21, para 18)

"18. When Magistrate receives 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 reading of the complaint, he finds that the allegations therein disclose cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into 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 complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."

25. Recently, in Ramdev Food Products(P)Ltd. v. State of Gujarat[5], while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, three-Judge Bench has held that:

"22.1. The direction under Section 156(3) 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 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 direction is issued.

22.2 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."

29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. litigant at this own whim cannot invoke the authority of the Magistrate. 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 fellow citizens, efforts are to be made to scuttle and curb the same.

15. After discussing the law in the case of Priyanka

Srivastava (supra), the Hon’ble Supreme Court observed that

4.(2005) 7 SCC 467 : 2005 SCC (Cri) 1697

4a. Madhao v. State of Maharashtra, (2013) 5 SCC 615 : (2013) 4 SCC (Cri) 141

5.(2015) 6 SCC 439

generally applications under Section 156 (3) of the Code are filed in routine manner without taking any responsibility, whatsoever, only to harass the certain persons. The Hon’ble Supreme Court has observed as hereunder:-

“30. In our considered opinion, 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 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 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 criminal court as if somebody is determined to settle the scores.”

16. The principles of law as laid down above categorically directs that while considering an application Section 156 (3) of the Code the Magistrate has to consider the attending factors. In fact, what is empowered under Section 156 (3) of the Code is ordering an investigation. The aim of the investigation vis-à-vis right of an individual under Article 21 of the Constitution of India have been elaborated by the Hon’ble Supreme Court in the case of Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another 2019 SCC Online SC 1346, in para 20 of it the Hon’ble Supreme Court held as hereunder:-

“20.It is clear that fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed crime are correctly booked, and those who have not are not arraigned to stand trial. That

this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.

(emphasis supplied)

17. In fact, the Magistrate is never required to act in routine and mechanical manner. At the stage of summoning also the Magistrate is not required to issue process if two witnesses speak about cognizable offences. What the Magistrate is required at this stage is to carefully scrutinize the evidence brought on record. In the case of Pepsi Food Limited and another vs. Special Judicial Magistrate and another 1990 SCC (Criminal) 1400, the Hon’ble Supreme Court considered this aspect particularly the application of mind by the concerned Magistrate. In para 28 the Hon’ble Supreme Court has observed as hereunder:-

“28. Summoning of an accused in criminal case is serious matter. Criminal law cannot be set into motion as matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

In view of above, it is clear that merely because some

cognizable offence is exhibited in an application, the Magistrate under Section 156 (3) of the Code is not obligated to necessarily

order for an investigation. The Magistrate has discretion at this stage. He has to apply judicial mind to consider as to whether investigation has to be ordered; he has to consider the probabilities the evidence available and many other factors which may come up for consideration. Those factors cannot be confined to some straight jacket formula. Myriad situations may require varied consideration, but, undoubtedly the Magistrate has discretion, on the subject. Of course, judicial discretion guided by relevant factors and the purpose for which the provision exists.

19. In the instant case, what is being stated on behalf of the petitioner is that in the name of the gold brick brass brick was given and Rs.6 Lakh was taken by the respondent. The Magistrate rightly held that there was no document and found that based on mere assertions investigation should not be ordered. This order of the Magistrate cannot be interfered with. This Court is of the view that the learned Magistrate has rightly dismissed the application filed by the petitioner under Section 156 (3) of the Code and the revision was also rightly dismissed. There is no reason to make any interference and the instant petition deserves to be dismissed.

20. The petition is dismissed.

(Ravindra Maithani, J.)17.09.2020

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