Jitendra Baghel and Others vs Naresh Kushwah and Another

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing the order passed by JMFC, Datia in Case No. Parivad/2011 dated 21.9.2011, whereby it was directed that application filed u/s 156(3) of Cr.P.C. criminal case be registered and on the said direction Crime No. 137/2011 under Sections 452, 323, 506-B, 294, 147, 148, 149 and 386 of IPC has been registered against the petitioners. In short facts of the case are that respondent No. 1 has filed an application u/s 156(3) of Cr.P.C. alleging that respondent No. 1 complainant was working in the shop of Contractor Anand Shivhare at Tharet. On 6.9.2011 petitioner No. 1 and 3 alongwith two unknown persons came to the shop and petitioner Jitendra introduced himself to be the brother of petitioner No. 2 MLA and demanded six boxes of plain liquor from respondent No. 1. When respondent No. 1 refused to give the boxes without payment being made Sanjay Rawat, who was armed with mouser gun and Jitendra and two others entered inside the shop and taken away six boxes of the liquor. Respondent No. 1 and Bhure chased them, they have beaten by the petitioners and petitioner Jitendra has called his brother MLA. He came to the spot and he also beaten the respondent complainant and told that he should make payment of Rs. 50,000/-, otherwise he should be implicated in the false case. When complainant has gone to the contractor Ashok Shivhare, Jitendra told the that Naresh and Bhure were in their possession. Thereafter, MLA Radhelal has also demanded Rs. 20,000/- per month. It is further alleged that Ashok said that he is sending his employees Rakesh Shivhare and Balwant Kaurav. When they reached there they have been abused and thereafter Radhelal has called the Excise Sub-Inspector Parvat Singh alleging that he has caught the persons having illicit liquor. He also called SDOP and registered the case u/s 34(2) of the M.P. Excise Act. Naresh and Bhure have been arrested. The complainant/respondent has lodged a complaint to the SHO, but he refused to take any action, then complaint was made to the Supdt. of Police, but no action has been taken. Thereafter respondent/complainant filed an application u/s 156(3) of Cr.P.C., upon which learned CJM has directed the Police Station, Kotwali to register the FIR and investigate the matter and report. Being aggrieved the petitioners have preferred this petition.

It is submitted by the learned counsel for the petitioner that the order passed by the learned CJM, Datia, is illegal, arbitrary and against the principles of natural justice. Petitioner has not caused any injury to the respondent/complainant. Prima facie case is not made out against the petitioner. It is further submitted that due to political rivalry this petition has been filed. The incident alleged to have been taken place on 06.09.11 but the private complaint has been lodged on 21.09.2011. It is submitted that the learned Magistrate has no jurisdiction to entertain the application. The respondent No. 1/complainant ought to have filed the private complaint before the Court of Sevda, but it has been filed before the Court at Datia. It is prayed that the impugned order be quashed.

Learned counsel for the respondent/complainant supported the order.

In order to appreciate the rival submission of the parties, I have perused the record.

It appears that the respondent/complainant has filed an application u/s 156(3) of Cr.P.C. cum private complaint under Sections 452, 323, 506-B, 294, 147, 148, 149 and 386 of IPC. Learned CJM by holding that police can be effective seizure etc.. Therefore, it would be appropriate to direct the police to register the FIR and investigate the matter.

On perusal of the application cum private complaint (Annexure A/2) it appears that the complainant has reported the matter to the SHO Tharet but SHO Tharet refused to take any action, thereafter application made to Superintendent of Police but no action has been taken, therefore, this application cum private complaint has been filed in the Court.

The impugned order reveals that the learned CJM has not ensured that action has been taken by the SHO Tharet and Superintendent of Police with regard to the complaint made by the complainant and straight away directed the SHO Tharet to register the FIR. The impugned order also reveals that the learned CJM has not formed any opinion whether the facts mentioned in the complaint discloses the cognizable offence by the accused persons are in the complaint. Learned CJM has also not satisfied himself about the need for investigation by the police in the matter. Thus the impugned order does not reflects that the learned CJM has applied its mind before directing the police to register the FIR. Learned CJM, simply on the basis of application u/s 156(3) of Cr.P.C. by cryptic order directed to register the FIR. Recently, this court in the case of Ramyash Tiwari Vs. State of M.P., has formulated the guidelines for dealing with the case u/s 156(3) of Cr.P.C., which are as under:-

(i) Whenever a Magistrate is called upon to pass orders u/s 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant u/s 154(3) of the Code.

(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.

(iii) The Magistrate, when approached with a complaint u/s 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report u/s 202 of the Code.

(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code, when an application u/s 156(3) of the Code is also filed along with a complaint u/s 200 of the Code, if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.

In view of the above, the FIR registered at Crime No. 137/2011 for the offences punishable under Sections 452, 323, 506-B, 294, 147, 148, 149 & 386 of IPC is hereby quashed. However, liberty is granted to the complainant to proceed with this complaint u/s 200 of Cr.P.C. and may lead evidence in support of his complaint. The Court would be free to take cognizance if evidence is led by the complainant to make out the case for proceedings further against the petitioner. With the aforesaid, petition stands disposed of. A copy of this order be sent to the concerned Court.