Dr. Rajnish Neekhra vs State Of Mp And Others

This application under Section 482 of CrPC has been filed against the order dated 23/03/2018 passed by JMFC, Gwalior in unregistered Complaint

Case No ......./2018 by which the application filed by the applicant under Section 156(3) of CrPC has been rejected and the applicant has been

directed to examine his witnesses as per provisions of Sections 200 and 202 of CrPC.

Before considering the facts of the case, this Court feels it appropriate to consider the conduct of the Advocate, Shri Ravi Shankar Bansal, who

started the arguments on a high pitch and started his arguments by making a submission that when the complaint was filed and when the matter was

argued, it was verbally observed by the Judicial Magistrate First Class, Gwalior, District Gwalior that where the High Court is not interfering in the

matter, then the parties are pressurizing the Judicial Magistrate First Class to interfere in the matter. The counsel for the applicant was suggested to

concentrate on the facts and circumstances of the case and not to make any allegation against the Judicial Magistrate First Class, but the counsel for

the applicant continued with his arguments on high pitch and submitted that the applicant has filed a criminal complaint against the respondents No.3

and 4 for offence under Sections 420, 467, 468, 469, 471, 120-B read with Section 34 of IPC. It is submitted that the order under Section 156(3) of

CrPC should have been passed by the Court below so that the respondents No.3 and 4 may be arrested, otherwise, they will continue to create

problem for the applicant. The allegations against the Magistrate were once again made by the counsel for the applicant. When the Court again

requested the counsel for the applicant not to make any allegation against the Magistrate and to concentrate on the facts, then the counsel for the

applicant started reading the complaint, which has been filed before the Magistrate. Since the applicant has approached this Court, being aggrieved by

rejection of application under Section 156(3) of CrPC, therefore, this Court also started considering the submissions of the counsel for applicant on

merits, so as to find out whether the complaint discloses commission of cognizable offence or not ? During arguments, when certain queries were put

to the counsel for the applicant, then he abruptly closed his file and stated that he does not want to argue before this Court and after closing his file, he

left the Court. While leaving the Court, it was uttered by the counsel for the applicant that the Court may decide the matter after going through the

record on its own, because the queries are being put by the Court. The conduct of the counsel for the applicant cannot be appreciated and is indicative

of contemptuous attitude towards the Court. Although the conduct of the counsel for the applicant is not pardonable, but with a belief and hope that at

some point of time, good sense would prevail and the counsel may realize his mistake, the Court at this stage is refraining itself from taking any further

action against the counsel. However, the counsel must improve his behaviour in the Court.

 Since the counsel for the applicant has left the arguments in mid-way by saying that this Court may consider the merits of the case on its own,

therefore, the case is being decided on merits after going through the papers filed by the applicant.

It is once again clarified that the counsel for the applicant had argued most of his case. A specific question was put to the counsel for the applicant as

to whether it is obligatory on the part of the Magistrate to issue an order under Section 156(3) of CrPC in every case or not, then the counsel for the

applicant avoided to answer that query. After going through the complaint, when a specific question was put to the counsel for the applicant that what

are the allegations, which according to him amounts to criminal act giving rise to cognizable offence, then again that was avoided by the counsel for

the applicant. By referring to paragraph 6 of the complaint, when a question was put to the counsel for the applicant that what was the nature of the

fight between the applicant and the respondent No.3 on 11/01/2018 and 12/01/2018, then again he avoided to answer that query. It is at this stage, the

counsel for the applicant left the Court.

As the counsel for the applicant is not interested in arguing the matter as well as in replying the queries raised by this Court, then this Court is of the

considered opinion that no lawyer can be allowed to hijack the proceedings of the case by leaving the Court in mid of arguments and if the lawyer is

not interested in replying the queries raised by the Court, then it is his prerogative to maintain silence.

Be that whatever it may.

The facts of the present case in short are that the applicant filed a complaint for offence under Sections 420, 467, 468, 469, 471, 120-B read with

Section 34 of IPCÂ on the ground that the applicant is a Doctor by profession and is a tenant of the respondent No.3. The written tenancy was

created in the year 2007 at monthly rent of Rs.6,000/-. It is further alleged that the respondent No.4 is aware of the tenancy as earlier he was working

in the clinic of the applicant as his Assistant. On 11/07/2017, the respondent No.1 issued a notice to the applicant for vacating the premises, otherwise

he would file a civil suit for eviction. It is alleged that the respondent No.4 was aware of the fact that the tenancy is still in continuance and no decree

of eviction has been passed against the applicant, but in order to cause damage to the applicant, the respondent No.3 executed a forged rent note in

favour of the respondent No.4 on 06/12/2017. It was alleged that on the basis of said forged rent note dated 06/12/2017, the respondents No.3 and 4

are trying to dispossess the applicant in an illegal manner, as a result of which the applicant is not in position to run his clinic. From 12/01/2018

onwards, the premises is under the lock of applicant and the respondents are trying to take possession of the premises by breaking open the lock of

rented premises of the applicant. On 11/01/2018 and 12/01/2018, the respondent No.3 had fought with the complainant/ applicant (the nature of fight

has not been clarified). The only allegation which has been made in paragraph 6 of the complaint is reproduced in Hindi as under:-

''bl mn`ns'; ds vuqdze esa vfHk;qDr valkj [kkau }kjk fnukad 1101-2018 dks ifjoknh ls >xM+k fd;k x;k rFkk fnukad 12-01-2018 dks ifjoknh dks nksckjk

>xM+k fd;k x;k ftlds lk{kh jkedqekj xqIrk gSA''

It is further mentioned in the complaint that on 12/01/2018 with the help of anti-social elements, the signboard of the clinic of the applicant was got

damaged and an information in this regard was given by Amar Vyas. The complainant thereafter put his new signboard on the shop/clinic which was

once again removed by the respondent No.3. On 12/01/2018, the applicant got the name of his clinic painted on the shutter of the shop, however, the

respondents on 07/02/2018 got it repainted and name of the clinic was erased from the shutter. When the applicant came to know about the forged

rent note executed between the parties, therefore, he has filed a civil suit on 02/02/2018 for permanent injunction, which is pending in the Court of

Third Civil Judge,Class-II, Gwalior. In the said civil suit, the respondent No.4 filed an application under Order 1 Rule 10 of CPC for impleading him as

defendant, which has been dismissed by the trial Court on 16/02/2018. It is further mentioned that in the said civil suit, the respondent No.3 has

accepted in his reply to the application filed under Order 39 Rules 1 & 2 of CPC that he is having an amount of Rs.1,50,000/- which was deposited by

the applicant by way of security. It is further alleged that on 08/02/2018, the applicant went to the Police Station Huzrat Kotwali, Gwalior but the

police refused to accept the complaint and thereafter on 08/02/2018 itself, the complaint was sent by registered post with regard to commission of

cognizable offence, but under the pressure of the respondents No.3 and 4, the police has not registered the FIR. A written complaint was made to the

Superintendent of Police, Gwalior on 10/02/2018 and since no action is taken by the Superintendent of Police, accordingly, the complaint was filed.

Along with the complaint, an application under Section 156(3) of CrPC was filed and the contents of the said application are same. The complaint is

further supported by an affidavit of the complainant.

When a question was put to the counsel for the applicant as to whether the application filed by the applicant under Order 39 Rules 1 and 2 of CPC in

the civil suit is pending or not, then it was replied by the counsel for the applicant that the said application is still pending and it has not been decided so

far. The applicant has not placed the copy of the plaint on record, but he has filed the copy of the application filed under Order 39 Rules 1 and 2 of

CPC.

From this application, it appears that the applicant has filed a suit for permanent injunction only and prayer made in the application for grant of

temporary injunction is that the respondents No.3Â and 4 be restrained from dispossessing the applicant without following due process of law and

they should also be restrained from interfering with the peaceful possession of the applicant. Since the said application is pending, therefore, this Court

is not considering the said aspect in detail. However, one thing is clear that in respect of the same shop, the civil suit is pending between the parties.

The trial Court by order dated 23/03/2018 rejected the application filed by the applicant under Section 156(3) of CrPC and held that from the contents

of the complaint, no offence under Sections under Sections 467, 468, 469, 471, 120-B read with Section 34 of IPC is prima facie made out and

similarly, it was found that prima facie, no offence under Section 420 of IPC is made. Once the Magistrate had come to the conclusion that the

allegations made in the complaint do not prima facie make out an offence, then the Magistrate was right in rejecting the application under Section

156(3) of CrPC and was right in fixing the case for recording of statements of the complainant and his witnesses under Section 200 and 202 of CrPC.

It is well established principle of law that the order under Section 156(3) of CrPC should not be passed in a mechanical manner. There has to be due

application of mind. Once the Magistrate has applied its mind and if the Magistrate comes to a conclusion that prima facie the applicant has failed to

make out cognizable offence warranting issuance of an order under Section 156(3) of CrPC, then the Magistrate was right in rejecting the application.

Even otherwise, it is not obligatory on the Magistrate to issue an order under Section 156(3) of CrPC merely on the saying of the complainant. The

Magistrate has also done the right thing by fixing the case for recording of the statements of the complainant and his witnesses under Sections 200 and

202 of CrPC because in case, if the Magistrate is of the view that the allegations made in the complaint do not prima facie make out a cognizable

offence, then only course of action available to the Magistrate is to proceed further with the complaint and decide the question of issuance of

summons after examining the complainant and his witnesses under Sections 200 and 202 of CrPC.

The Supreme Court in the case of Priyanka Shrivastava and Another Vs. State of U.P. reported in (2015) 6 SCC 287 has held as under:-

''20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC 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 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce

the said provision:

“156. Police officer's power to investigate cognizable case:-â€"(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 anysuch 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 abovementioned.â€​

Dealing with the nature of power exercised bythe Magistrate under Section 156(3) CrPC, a threeJudge Bench in Devarapalli Lakshminarayana

Reddy v. V. Narayana Reddy (1976) 3 SCC 252Â had to express thus: (SCC p. 258, para 17)

“17. … It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to

the police to exercise their plenary powers of investigation under Section 156(1).

Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or

charge-sheet under Section 173.â€​

In Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 , the two-Judge Bench had to say this: (SCC p. 711, para 11)

“11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed (2008) 5 SCC

668 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 a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a

case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) 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 156(3) CrPC, 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.â€​

In Dilawar Singh v. State of Delhi (2007) 12 scc 641 this Court ruled thus: (SCC p. 647, para 18)

“18. …‘11. 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 complainant because that police officer could take

further steps contemplated in Chapter XII of the Code only thereafter.’'

In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. (2005) 7 SCC 467, 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 156(3) of the Code of Criminal Procedure. And again: (Madhao v. State of Maharashtra, (2013) 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 156(3) 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 a

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).''****

Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC 439 , while dealing with the exercise of power under Section 156(3)

CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p. 456, para 22)

“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 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’.â€​

At this stage, we may usefully refer to what theConstitution Bench has to say in Lalita Kumari 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.â€​

Answering the questions posed, the larger Bench opined thus: (Lalita Kumari case SCC pp. 35-36, 41 & 58-59, paras 49, 72, 111 & 115)

“49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 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 154(1), 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 154 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 154(1) of the

Code have to be given their literal meaning.

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.

… 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 157 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 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given

case, investigate the matter and then file a final report under Section 173 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.

Although, we, in unequivocal terms, hold that Section 154 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.â€​

       (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: (Lalita Kumari case, 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 ininitiating 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.â€​

We have referred to the aforesaid pronouncement for the purpose that in certain circumstances the police is also required to hold a preliminary

enquiry whether any cognizable offence is made out or not.

Regard being had to the aforesaid enunciation of law, itneeds 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 the 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) CrPC 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.

Issuing a direction stating “as per the application†tolodge an FIR creates a very unhealthy situation in society and also reflects the erroneous

approach of the learned Magistrate..........â€​

As already pointed out that in the complaint, the applicant has not pointed out that in what manner, the respondent No.3 had picked up a quarrel with

the applicant on 11/01/2018 and on 12/01/2018 coupled with the fact that the applicant himself claimed to be the tenant of the respondent No.3 and the

civil suit is also pending between the parties and the applicant can very well seek temporary injunction against the respondents No.3 and 4 for

protection of his possession, if he is found in possession by the trial Court in civil suit and further since the order under Section 156(3) of CrPC cannot

be passed in a mechanical manner, coupled with the fact that during the arguments, the counsel for the applicant had already clarified that the order

under Section 156(3) of CrPC should have been passed by the Magistrate, so that the respondents No. 3 and 4 may be arrested by the Magistrate,it is

clear that the application under Section 156(3) of CrPC was filed by the applicant with an oblique motive to get the respondents No.3 and 4 arrested,

so that he can settle his tenancy dispute with the respondents No. 3 and 4 out of the Court by putting undue pressure on the respondents. Whatever

the motive of the applicant may be, but it is clear that the trial Court has not committed any mistake in coming to prima facie conclusion that no

cognizable offence is disclosed in the complaint made by the applicant and under these circumstances, in the light of the judgment passed by the

Supreme Court in the case of Priyanka Shrivastava (supra), no fault is found in the order passed by the trial Court.

Accordingly, the order dated 23/03/2018 passed by JMFC, Gwalior in unregistered Complaint Case No....../2018 is hereby affirmed.

Consequently, this application fails and is hereby dismissed.

Let a copy of this order be sent to the Trial Court for necessary information.