Rajendra Mathur vs State of Madhya Pradesh Another

G.D. Saxena, J.—Being aggrieved by the order dated 15th November 2010, passed on an unregistered Complaint Case No. 00/2010, preferred by the Respondent No. 2-Lokendra, by the Chief Judicial Magistrate, Shivpuri (M.P.), thereby directing the In-charge Inspector of the Police Station Shivpuri, u/s 156(3) of the Code of Criminal Procedure, 1973 to lodge the FIR and after investigation in the matter submit the report.

Facts ,in brief, as appear from the petition, are that the Petitioner, r/o Village Berad, Tahsil Pohari was working as Panchayat Karmi/Panchayat Secretary in the Grampanchayat Goverdhan, Tahsil Pohari District Shivpuri (M.P.). For his long absence due to his involvement in some other criminal case, by Resolution dated 14th November 2004, passed by the Village Panchayat Gowardhan, the Petitioner was removed from services of Panchayat-karmi/Panchayat Secy. and in his place Respondent No. 2-Lokendra was appointed. The said Resolution was challenged by filing an appeal before the Sub Divisional Officer Pohari and by allowing the appeal of the Petitioner vide order dated 21st August 2006, the impugned resolution was put to an end by the appellate court. Consequently, the Petitioner was reinstated in service. The order of Sub Divisional Officer was challenged by the Respondent No. 2 before this Court in several rounds, i.e., Writ Petition No. 4536/2006, Writ Appeal No. 211/2009, RP No. 244/2009 and lastly again in Writ Petition No. 1334/2010. All the proceedings as said above, were proved fruitless. Consequently, the Respondent No. 2 filed the complaint u/s 190 of Code of Criminal Procedure before the Chief Judicial Magistrate Shivpuri alleging that during the period of absence we.f. 2nd October 2004 to 2nd November 2004, the Petitioner was in jail and the false and fictitious medical certificates including of fitness for the aforesaid dates were prepared by the Petitioner and produced to prove his bonafide absence. The Respondent No. 2 alongwith the complaint before the Magistrate filed all those documents. The learned Magistrate by passing the impugned order directed the In-charge Inspector of the Police Station to register the FIR against Petitioner and after investigation submit the report before the court concerned.

The Petitioner challenged the said impugned order on the grounds that the offences complained in the complaint u/s 420, 467, 468, 471 and 474 of I.P.C. were exclusively triable by the Court of Sessions, so the learned Magistrate committed the gross negligence by over-ridding the provisions u/s 202(1)(a) Code of Criminal Procedure and directed the Station House Officer of the Police Station, Shivpuri to lodge the FIR and investigate and then submit the report. The Petitioner is in fear that the Investigating Officer shall cause his arrest for the alleged offence on account of which his services shall be affected adversely. He placed reliance on the decisions of the Apex court in the cases of Smt. Mona Panwar Vs. The Hon''ble High Court of Judicature at Allahabad and Others, , Neelu Chopra and Another Vs. Bharti, , Fakhruddin Ahmad v. State of Uttanchal and Ors. (2008) 17 SCC 157 , Gorige Pentaiah Vs. State of A.P. and Others, Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, , Ashim K. Roy Vs. Bipinbhai Vadilal Mehta and others, , Maksud Saiyed Vs. State of Gujarat and Others, and Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, .

Thus, on the above grounds, it is contended that the impugned order is contrary to law and is liable to be set aside.

The Respondent No. 2, by filling reply to the petition submitted that the petition is premature. It is submitted that the learned Magistrate is competent to direct the police concerned to make an investigation u/s 156(3) of Code of Criminal Procedure and submit the final report. It is stated that the matter is under investigation and on receipt of the report from the concerning police station, it is for the Magistrate to decide whether the cognizance is to be taken of not. Hence, it is submitted that the interference by this Court at this juncture as to whether the offence is made out or not is not warranted. Placing reliance on the decisions of the Apex court in the cases of T. Vengama Naidu v. T. Dora Swami Naidu (2007) 12 SCC 93 , State of Karnataka and Another Vs. Pastor P. Raju, , Suresh Chand Jain v. State of Madhya Pradesh and Anr. (2001) 2 SCC 628 , State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, , Central Bureau of Investigation v. Laxmi Dhaul (2007) 14 SCC 497 , Ravindra Kumar Madhanlal Goenka and Another Vs. Rugmini Ram Raghav Spinners P. Ltd., , it is prayed to dismiss the petition.

Heard the learned Counsel for both parties and perused the respective documents filed.

In Mona Pawar''s case (Supra) the Apex court held in paras 18:

When the complaint was presented before the Appellant, the Appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the code and the second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. An order made under Sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of the evidence u/s 156 and ends with the final report either u/s 169 or submission of the charge-sheet u/s 173 of the Code. A Magistrate can u/s 190 of the Code before taking cognizance ask for investigation by the police u/s 156(3) the Code. The Magistrate can also issue warrant for production, before taking cognizance, it will be u/s 202 of the Code.

It was further observed in paras 19, 23:

... Before the Magistrate can be said to have taken cognizance of an offence u/s 190(1)(b) of the code ,he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding u/s 200 and the provisions following that Section. however, when the Magistrate had applied his mind only for ordering an investigation u/s 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.

Normally an order u/s 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. The examination of complainant and his witnesses u/s 200 of the Code would be directed by the Magistrate only when a case is found to be serious one and not as a matter of routine course.

In the case of Rameshbhai Pandurao Hedau Vs. State of Gujarat, , the scope of Sections 156(3) and 202 of Code of Criminal Procedure was considered and while considering it was held in para 13:

the settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. The Courts are ad idem on the question that the powers u/s 156(3) can be invoked by a learned Magistrate at a pre-cognizance stage, whereas powers u/s 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process....

In paras 15 and 18 it is further observed:

It is now well-settled that in ordering an investigation u/s 156(3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, u/s 190 of the Code. Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by a police officer before issuing process.

The power to direct an investigation to the police authorities is available to the Magistrate both u/s 156(3) Code of Criminal Procedure and u/s 202 Code of Criminal Procedure The only difference is the stage at which the said powers may be invoked. As indicated here-in-before, the power u/s 156(3) Code of Criminal Procedure to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation u/s 202 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint u/s 200 of the Code and has thereafter proceeded u/s 202 Code of Criminal Procedure and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint u/s 200 of the Code and has thereafter proceeded u/s 202 Code of Criminal Procedure and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint u/s 203 or proceed in terms of Section 193 and commit the case to the Court of Session. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint u/s 203 or proceed in terms of Section 193 and commit the case to the Court of Session.

The point in question was further dealt with in the case of Babubhai Vs. State of Gujarat and Others, , and it was observed:

Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 21 and 21 of the Constitution of India. Therefore, the investigation must be fair transparent and judicious as it is the minimum requirement of rule of law. The investigation agency can not be permitted to conduct an investigation in a tainted and biased manner. The investigation into a criminal offence must be free from objectionable features of infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with the ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigation officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel ant suspension as to its genuineness. The investigation officer is not merely to bolster-up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.

Under the peculiar facts of the case, it emerges that the Petitioner was involved in a criminal case and an offence u/s 302 IPC was registered against him. He was in jail from 16th October 2004 to 22nd October 2004 and for that reason he remained absent from duty. Considering his absence, the Gram Panchayat passed the Resolution to remove him from services and after removal the Respondent No. 2 was appointed as Panchayat Secretary in his place. The appeal preferred against the Resolution passed by Gram Panchayat Goverdhan was allowed by Sub Divisional Officer. Consequently, the Petitioner was reinstated and the Respondent No. 2 was removed from the services of Panchayat Karmi. As mentioned above, the Respondent No. 2 then filed the writ-petitions, writ appeal and Review Petition before this court, but all were dismissed. Both the parties have come up with long legal battle and their valuable rights of employment are on stake. The medical certificate dated 2nd April 2004 and fitness certificate are relating to the absence of the Petitioner on the ground of illness whereas during that period he was said be in prison in connection with some other offence. This being so, the matter appears to be serious one and needs to be thoroughly investigated. Hence, it is a case warranting an impartial and fair investigation.

Looking to the seriousness of the matter and offence, it will be in the ends of justice to inquire/investigate the matter very cautiously and under vigil of the trial Magistrate.

Accordingly, it is directed that the Investigating Agency before making arrest of the Petitioner will submit the report of fact finding before the trial Magistrate, then on considering the report of the Investigating Officer and the evidence collected during investigation/inquiry, the trial Magistrate may direct Investigating Officer to proceed further and to submit the charge-sheet/final report or the Magistrate may proceed and if at the stage of Sub-section (2) of Section 202, the learned Magistrate deems it fit, he may either dismiss the complaint u/s 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions.

With the above directions but without interfering in the FIR or inquiry/investigation by the Investigating Officer under the order/direction issued by the Judicial Magistrate, this petition u/s 482 Code of Criminal Procedure stands disposed off.