Md. Nejam Ansari vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with the prayer to quash the entire criminal proceeding in connection with Sadar P.S. Case No. 317 of 2021 as well as the order dated 13.08.2021 by which the FIR has been registered upon the Complaint  Case  No. 1640  of  2021  filed by  the  informant  having been referred to police under Section 156(3) of Cr.P.C. by the learned Chief Judicial Magistrate, Hazaribagh.

The  brief  fact  of  the  case  is  that  the  informant  filed  Complaint Case No. 1640 of 2021 in the court of learned Chief Judicial Magistrate, Hazaribagh and the learned Chief Judicial Magistrate, Hazaribagh suo moto referred the said complaint to the Officer-in- Charge  of  Sadar  Police  Station,  Hazaribagh  under  Section  156(3) Cr.P.C. even though the complaint was not supported by any affidavit. No order sheet was drawn up by the learned Chief Judicial  Magistrate,  Hazaribagh  and  following  endorsement  was only made in the complaint:-

“Copy forwarded to the O/c Sadar P.S. under Section 156 (3) Cr.P.C. for institute FIR and investigation.

Sd/- CJM 13.08.2021”

Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Anil Kumar & Ors. vs. M.K. Aiyappa & Anr. reported  (2013)  10  SCC  705, paragraph  no.  11  of  which  reads  as under:-

“11. The scope of Section 156(3) CrPC came up for consideration  before  this  Court  in  several  cases.  This  Court in  Maksud  Saiyed  case  [(2008)  5  SCC  668  : (2008)  2  SCC (Cri) 692] 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.” (Emphasis supplied)

it is submitted by the learned counsel for the petitioner that therein, it has categorically been held by the Hon’ble Supreme Court  of  India  relying  upon  its  judgment  in  the  case  of  Maksud Saiyed vs. State of  Gujarat & Ors.  reported in  (2008) 5  SCC  668 that the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is required to apply his judicial mind and in such a case the application of judicial mind by the Magistrate should be reflected  in  the  order  concerned.  The  mere  statement  that  he  has gone through the complaint, documents and heard the complainant as such willnot be sufficient.

It is next submitted by the learned counsel for the petitioner that in this case,  the Magistrate  has not  even mentioned  that  he has gone through the complaint, documents and heard the complainant before making the endorsement on the complaint referring the complaint to police under Section 156(3) Cr.P.C. and expect the said endorsement made on the complaint, did not pass any separate order in the order sheet.

Learned counsel for the petitioner next relied upon the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Ors. vs. State of Karnataka & Anr. reported in 2025 INSC 917 and submits that in paragraph no. 45, the Hon’ble Supreme Court of India has summed up the conclusions by holding as follows :-

(i) Directions  issued  in  Priyanka  Srivastava  vs.  State  of Uttar Pradesh reported in (2015) 6 SCC 287 are mandatory;

(ii) Guidelines laid down in Priyanka Srivastava (supra) operate prospectively,

(iii) Non-filing of the supporting affidavit is a curable defect, but must be cured before the Magistrate passes any substantive order on the complaint/application and

(iv) If the Magistrate proceeds without the requirement affidavit, such order/consequential orders/ proceedings can  be  quashed  on  the  sole  ground  of  non-compliance with Priyanka Srivastava (supra).

It is then submitted by the learned counsel for the petitioner that the investigation of the case is still going on and Final Report has not yet been submitted. Hence it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand opposes the prayer.

Having  heard  the  submissions  made  at  the  Bar  and  after  going through the materials in the record, it is pertinent to mention here that it is a  settled principle of law that a  Magistrate while passing order for directing an investigation under Section 156(3) of Cr.P.C. by the police, has to apply his judicial mind and the application of judicial mind must be reflected in the order concerned.

Now coming to the facts of the case, this Court from the fact that no separate order has been drawn up by the learned Chief Judicial Magistrate, Hazaribagh for referring the complaint  to  the police for  investigation  in  exercise  of  its  power  under  section  156  (3)  of the Code of Criminal Procedure and as the learned Chief Judicial Magistrate, Hazaribagh has only made an endorsement on the complaint itself, which has been quoted in the foregoing paragraphs of this Judgment, this Court has no hesitation in holding  that  the  same  miserably  fails  to  show  any  application  of judicial mind on the part of the learned Chief Judicial Magistrate, Hazaribagh for referring the complaint  to police in exercise of its power under Section 156(3) of Cr.P.C.

Accordingly, the registration of the FIR of Hazaribagh Sadar P.S. Case No. 317 of 2021 on the basis of the endorsement made by the learned Chief Judicial Magistrate, Hazaribagh on the complaint of Complaint Case No. 1640 of 2021 is quashed and set aside.

The learned Chief Judicial Magistrate, Hazaribagh is directed to pass fresh appropriate orders in respect of the Complaint Case No. 1640 of 2021 in accordance withlaw.

In  the  result,  this  criminal  miscellaneous  petition  is  allowed  to the aforesaid extent only..