K. Faruque Khan vs State Of Chhattisgarh

At the outset, Mr. Sunil Sahu, Adv. would submit that he has filed Vakaltnama today itself therefore, he may be permitted to argue the matter. Permission granted and with the consent of the parties, the matter is heard finally.

Facts of the case, in brief, is that respondents No.2 and 3 – complainants have filed complaint on 21.09.2022 before the Judicial Magistrate First Class, Pandariya, District Kabirdham under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) for issuance of a direction to register the offence against the petitioners under Sections 420, 468, 470 & 471 of IPC, considering upon which, the learned Magistrate called the report from the concerned Police Station, Pandatarai on 21.10.2022. However, learned Magistrate observed that the report filed by the Station House Officer is not clear so a fresh report was called which has been filed on 25.11.2022. Thereafter, on 03.01.2023 learned Magistrate has rejected the application under Section 156 (3) Cr.P.C. in suo motu and initiated proceedings under Section 200 Cr.P.C. and thereafter, fixed the case for hearing arguments on registration. On 30.01.2023, learned Magistrate observing that the petitioners have committed the offence under Sections 420, 468, 470 and 471 of IPC, recalled its earlier order and allowed the application under Section 156 (3) Cr.P.C. and directed the concerned Station House Officer to submit a report after completion of investigation. In pursuance to such direction, Police Station Pandatarai has registered the offence on 04.02.2023 vide FIR No.23/2023. Hence, this petition has been filed to set aside the order dated 30.01.2023 and consequential FIR bearing No.23/2023 registered at Police Station Pandatarai.

Learned Senior counsel for the petitioner would submit that the trial Court has erred in law in not appreciating the matter in its right perspective. He submits that it is well settled that after receipt of a complaint, the learned Magistrate has two options i.e. (i) he can forward the complaint to the police for registration under Section 156 (3) Cr.P.C. as an alternative, or (ii) to take cognizance of the offence itself under Section 190 (1) (a) of Cr.P.C. However, if the Magistrate take the cognizance and embarks upon the procedure embodied in chapter XV, he is not competent to revert back to the earlier stage and avail Section 156 (3) Cr.P.C. He submits that the aforesaid propositions is well settled in catena of judgments passed by the Hon’ble Supreme Court.

In support of his contention, learned Senior Counsel places reliance on the matter of Madho and another Vs. State of Maharashtra and another reported in (2013) 5 SCC 615 and draws the attention of this Court to paragraph 18 which reads thus:-

“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 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).”

He also places reliance on the matter of Dharmeshbhai Vasudevbhai and Ors VS State of Gujrat and Ors reported in (2009) 6 SCC 576 and draws attention of this Court towards paragraph 10 which reads thus:-

“10. Yet again in Devarapalli Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors. [(1976) 3 SCC 252], this Court, upon comparison of the provision of the old Code and the new Code, held as under :

“17. Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say 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(l)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). 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. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”

Learned senior counsel submits that though learned Magistrate has relied upon on the matter of Priyanka Shrivastava and anr Vs. State of Uttar Pradesh and Ors, (2015) 6 SCC 287, but has exercised the power in a very mechanical manner and passed the impugned order. The learned Magistrate has not examined whether the complainant has any locus to state about the allegations and whether with regard to the offences mentioned in the complaint, necessary ingredients are attracted or not and without such examination, directly came to the conclusion that the accused has committed the alleged offences, and simultaneously issued a direction for investigation and submission of a report. He further submits that recognition of the school is still continuing and no complaint has been made by the competent authority. The only allegation in the complaint is that while seeking recognition, a rent agreement for a building situated at Khasra No.171/8 was shown, whereas, the school is running over Khasra No.191/2 including 192, which is a government land allotted to village Kotwar namely Bodhan Das. Counsel further submits that Khasra No.171/8 is surrounded by agricultural field and some minor incidents had occurred there, therefore, office bearers of the Ajaan Shikshan Avam Samaj Kalyan Samiti Pandatarai moved an application on 24.10.2019 before the District Education Officer for shifting the school over another land on which the school authority has possession. Counsel further submits that on the report made by Kotwar Bodhan Das, a complaint case has been registered against some persons and they have been convicted for the offence under Section 447 read with Section 34 of IPC but in the appeal the said persons were acquitted. He submits that there is previous enmity between the complainant and petitioner No.3 against whom the son of the complainant/respondent No.2 has moved no confidence motion, as the petitioner No.3 was holding the post of President in Nagar Panchayat Pandatarai. Therefore, the manner in which impugned order has been passed is not sustainable in the eyes of law and consequential registration of FIR is also bad in law and thus, the same deserves to be quashed/set aside.

On the other hand, learned State counsel and counsel for the complainants/respondents No.2 & 3 did not dispute the well settled propositions and submit that the Magistrate either should have directed the concerned police station for registration of offence under Section 156 (3) Cr.P.C. or ought to have taken cognizance of the offence himself, however, the Magistrate was having no power to review his own order. Therefore, the matter may be remitted back to the concerned court to proceed further the case in accordance with law.

Heard learned counsel for the parties and perused the documents annexed with the petition carefully.

Upon drawing attention of learned counsel for the complainants/respondents No.2 and 3 towards the order dated 03.01.2023, in which learned Magistrate has mentioned that he has already recorded evidence for registration, counsel submits that as per his information and in the entire order sheet it does reflect that any statement of the complainant or his witnesses have been recorded and the learned Magistrate though has proceeded under Section 200 Cr.P.C., but in the entire order sheet it has not been mentioned that the complainant has been examined. Thereafter, on 03.01.2023 in categorical terms, the Magistrate has passed the order and suo moto dismissed the application under Section 156 (3) Cr.P.C. and he himself recalled the said order by the impugned order dated 30.01.2023, which is not permissible in view of Section 362 Cr.P.C. Further, in view of principle laid down in Madho and another (Supra) it is quite vivid that if the Magistrate takes cognizance and embarks upon procedure embodied in Chapter XV of Cr.P.C., he cannot revert back to per-cognizance stage and avail Section 156(3) Cr.P.C. Furthermore, in Priyanka Shrivastava and anr (Supra) and also in catena of judgments, it has been categorically held that summon to accused is a serious business and the Magistrate has to remain vigilant while recording the statement and shall not issue a direction without proper application of mind. The Magistrate is required to examine the case prima facie to the extent that necessary ingredients are available in the complaint. As in the instant case, the Magistrate has already dismissed the application under Section 156 (3) Cr.P.C., the impugned order dated 30.01.2023 is not sustainable and its consequential registration of FIR bearing No.23/2023 at Police Station Pandatarai is also not sustainable and the same deserve to be quashed.

Accordingly, impugned order dated 30.01.2023 is set aside and FIR No.23/2023 is quashed and the complaint filed by the complainant is restored. Learned Magistrate is directed to proceed further and take appropriate steps in accordance with law. The complainant/respondents No.2 and 3 shall remain present before the concerned Court on 14.03.2023 for further proceedings in the matter.

With the aforesaid observation and direction, this petition is allowed to the extent indicated above.