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Judgment
Petitioners, in this criminal miscellaneous petition, have prayed for quashing the order dated 28.04.2016 along with the First Information Report in
connection with Mango Police Station Case No.97 of 2015 (G.R. No.785 of 2015) registered for offences punishable under Sections 420, 406, 403/34
of the Indian Penal Code.
The main contention of the petitioners is that the Court below could not have referred the complaint being C/1 Case No.2931 of 2014 under Section
156(3) of the Code of Criminal Procedure for registering a First Information Report. Counsel for the petitioners submits that registering of the First
Information Report in terms of Section 156(3) of the Code of Criminal Procedure is absolutely bad, as the complaint is not on affidavit. Counsel for the
petitioners refers to the judgment of the Hon'ble Supreme Court, in the case of Priyanka Srivastava & Another versus the State of Uttar Pradesh &
Others reported in (2015) 6 SCC 287 in support of his contention. He further submits that the order under Section 156(3) of the Code of Criminal
Procedure passed by the Court below is a one line order, which is reflected in the first page of the complaint petition. He submits that the police,
thereafter, investigated and filed a chargesheet and on the basis of that cognizance was taken on 28.04.2016 and summons were issued to the
petitioners. He submits that what are the materials to issue summons have also not been mentioned and thus the order is absolutely cryptic and non-
speaking one. He submits that when the order passed by the Court below under Section 156(3) of the Code of Criminal Procedure is bad, all the
consequential orders should be rendered bad in law and should be set aside. He further submits that the entire dispute is in respect of business
transaction and a business transaction cannot be given colour of a criminal case.
Counsel appearing on behalf of the State and the opposite party No.2 submit that the offence is made out, which is apparent from the First
Information Report itself. They submit that there is an allegation of misappropriation of fund and thus, the Court has referred the matter under Section
156(3) of the Code of Criminal Procedure. They further submits that the cheques were issued by the petitioner, but, the same got dishonoured and
thus, the offence under Section 138 of the Negotiable Instruments Act is also made out. On the issue of sending the complaint in terms of Section
156(3) of the Code of Criminal Procedure and the order taking cognizance, the counsel appearing for the opposite party No.2 admits that the orders
are absolutely cryptic.
A complaint was filed under Section 420, 403, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The said complaint
was registered as C/1 Case No.2931 of 2014. On the first page of the said complaint, the Court below endorsed for registering a First Information
Report under Section 156(3) of the Code of Criminal Procedure on 26.07.2014. The endorsement is as follows: -
156(3) Cr.P.C.
This is the only material, which has been mentioned by the Magistrate and on that basis, matter was sent to the Police Station and the First
Information Report was registered. Further, when I go through the complaint, I find that the same is not on affidavit. Merely a certificate has been
given by the lawyer that no previous complaint has been filed on the same issue.
The Hon'ble Supreme Court in the case of Priyanka Srivastava & Another versus The State of Uttar Pradesh & Others reported in (2015) 6 SCC
287 has held that an application under Section 156(3) of the Code of Criminal Procedure seeking a direction for registering an FIR must be supported
by an affidavit. The Hon'ble Supreme Court in the said judgment has further held that in a routine manner the complaint cannot be sent by exercising
jurisdiction under Section 156(3) of the Code of Criminal Procedure for registering an FIR. This exercise of power requires application of mind. The
Hon'ble Supreme Court further has held that there should be prior application of Section 154(1) and 154(3) of the Code of Criminal Procedure while
filing a petition under Section 156(3) of the Code of Criminal Procedure. In the instant case, I find that the provisions of law have not been followed by
the Magistrate. In a most mechanical manner, without application of mind the Magistrate has referred the complaint under Section 156(3) of the Code
of Criminal Procedure for registering a First Information Report. There is no compliance of Section 154(1) and Section 154(3) of the Code of Criminal
procedure in the instant case. Further, from the complaint, I find that the complainant had prayed to take cognizance of the offence under Sections
420, 403, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and to proceed against the accused persons. No where the
complainant had prayed to refer the complaint under Section 156(3) of the Code of Criminal Procedure. Thus, the order of the Court passed under
Section 156(3) of the Code of Criminal Procedure is absolutely bad and is hereby set aside. All the consequential acts including that of order taking
cognizance dated 28.04.2016 and the chargesheet are also bad and are set aside. The order taking cognizance and issuing summons is also a non-
speaking one, bad and unsustainable in view of the judgment passed by this Court in the case of Amresh Kumar Dhiraj and Others versus State of
Jharkhand & Another reported in 2020 (1) JLJR 199 (Jhr.).
Thus, while setting aside the aforesaid orders, I direct the Court below to proceed with the complaint case being C/1 Case No.2931 of 2014 in
terms of Chapter XV of the Code of Criminal Procedure.
With the aforesaid observations and directions, this criminal miscellaneous petition stands disposed of.