Sunday, 18 October 2015

Whether Magistrate can order police investigation under S 156 of crpc if complaint does not disclose cognizable offence?

When the allegation made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3). In the present case, the learned Magistrate without applying his mind had directed an investigation by the police. Such an order which is passed without application of mind is clearly an order without jurisdiction. Therefore, the order passed directing the police to investigate under subsection (3) of Section 156, Cr. P.C., passed without jurisdiction is liable to be quashed by this Court either under Section 482, Cr. P.C., or under Article 226 of the Constitution of India.
(emphasis supplied)
Equivalent Citation: 2013(5)ABR86,2013 ALLMR(cri) 3060
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application No. 258 of 2013 (APL)
Decided On: 02.07.2013
Appellants: State of Maharashtra
Vs.
Respondent: Shashikant
Hon'ble Judges/Coram:B.R. Gavai and P.N. Deshmukh, JJ.




1. The State of Maharashtra has approached this Court being aggrieved by the order passed by the learned Judicial Magistrate, First Class, Nagpur in Misc. Criminal Application No. 683 of 2013, dated 30th March, 2013, thereby directing investigation to be conducted as per the provisions of Section 156(3) of the Code of Criminal Procedure on a complaint filed by respondent herein. Since during the pendency of the present application, First Information Report came to be registered by Police Station, Dhantoli Nagpur, the application has been amended so as to raise the challenge to the registration of the said First Information Report. Consequently, the State has also prayed for quashing and setting aside the First Information Report. The facts, in brief, giving rise to the present application arises as under.
The respondent, who is an Officer belonging to I.P.S. Cadre, addressed communication to the Senior Police Inspector, Dhantoli Police Station, Nagpur, contending therein that four Officers of the State Government had committed offence punishable under Section 3(1)(ix)(x) and section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act") read with Section 191, 192 and 34 of the Indian Penal Code. The complaint was lodged on 4th March, 2013. On 6th March, 2013 the Senior Police Station Officer, Dhantoli informed the petitioner that, since the matter in the complaint is concerned with the Office of the Director of Police, State of Maharashtra, Mumbai, the same has been forwarded for further inquiry to the Additional Director General of Police, Protection of Civil Rights, Mumbai. It appears that further communication was addressed by the respondent no. 1 to the Commissioner of Police Nagpur, Deputy Commissioner of Police (Zone-4) and Assistant Commissioner of Police, Ajni Division, Nagpur stating therein, that the complaint was disclosing commission of cognizable offence and in spite of lapse of 48 hours First Information Report was not registered. A request was, therefore, made to take over the investigation and direct registration of offence for cognizable offence. Since the First Information Report was not registered, the respondent no. 1 made an application before the learned Judicial Magistrate, First Class, Nagpur for directing the Police Station Officer, Dhantoli, Nagpur to conduct investigation under Section 156(3) of the Code of Criminal Procedure. In the said complaint, learned Judicial Magistrate, First Class, Nagpur passed the following order on 30th March, 2013.
Order
Heard complainant personally as well as his counsel at length. The offences so levelled are in respect of giving false information regarding complainant to other public servant, insulting and humiliating treatment, willful negligence to perform necessary duties by a person other than SC or Tribe, in respect of such SC, ST Person. On perusal of the record it reveals that it discloses the commission of cognizable offences. It requires the assistance of investigation machinery to investigate present alleged crime.
Hence, I hereby direct that the investigation be conducted as per section 156(3) of Cr. P.C. by the officer not below the rank of Dy. S.P. of said Zone or concerned Police Station.
2. Being aggrieved thereby, the State has approached this Court for invoking extra ordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Subsequently, since the First Information Report is also registered by Dhantoli Police Station, the application has been amended and the prayer for quashing the same has also been made.
3. Heard Shri D.J. Khambata, learned Advocate General for the petitioner and Shri R.R. Vyas, learned counsel for respondent.
4. Shri D.J. Khambata, learned Advocate General appearing on behalf of the State, submits that even if the allegations made in the complaint are taken to be true at its face value, the ingredients to constitute the offence under the provisions of Section 3(1)(ix)(x) and 4 of the Atrocities Act are not made out. The learned Advocate General submits that at the most the respondent complainant may have a case for approaching the learned Central Administrative Tribunal with respect to his grievance regarding non granting of promotion when he was entitled for the same. The learned Advocate General, further submits that no ingredients to constitute the offences under the provisions of the Atrocities Act are made out, even if allegations as made in the complaint are taken to be true in totality. The learned Advocate General submits that the proceedings initiated at the behest of the respondent no. 1 complainant are nothing but an abuse of process of law.
5. The learned Advocate General further submits that the order passed by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure is mechanical order, passed without giving any reasons therefor. The learned Advocate General relied upon the Judgment of the Apex Court in the case of Maksud Saiyed vs. State of Gujrat, reported in MANU/SC/7923/2007 : 2008(5) SCC 668, the judgment of the Division Bench of this Court in the case of Yogiraj Vasantrao Surve vs. State of Maharashtra and another, and the judgment of the Division Bench of Karnataka High Court in the case of Guruduth Prabhu and others vs. M.S. Krishna Bhat and others reported in MANU/KA/0702/1999 : 1999 CRI. L.J., 3909. The learned Advocate General further submits that this is a fit case wherein this Court invoking the powers under Section 482 of Code of Criminal procedure should quash and set aside the order passed by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure and subsequent registration of First Information Report.
6. Shri Vyas, the learned counsel for the respondent complainant has raised two preliminary submissions, relying on the Full Bench Judgment of the Allahabad High Court in the case of Father Thomas vs. State of U.P. and another, reported in MANU/UP/2356/2010 : 2011 Cri. L.J., 2278. The learned counsel submits that the Revision under section 397 or the application under Section 482 of the Code of Criminal Procedure against the order passed by the learned Magistrate directing investigation under section 156(3) of the Code of Criminal Procedure would not be tenable. In the alternative, he submits that since an alternative remedy by way of Revision under Section 397 of the Code of Criminal Procedure is available, the present application under section 482 of the Code of Criminal Procedure would not be tenable. The learned Counsel further submits that in the present matter the aggrieved persons could be at the most the persons who have been arrayed in the First Information Report as accused and as such the application filed at the behest of the State is not tenable on the ground of locus.
7. The learned counsel relying on the Judgment of this Court in the case of Panchabhai Popotbhai Butani and others vs. State of Maharashtra reported in MANU/MH/1459/2009 : 2010(1) Mh.L.J., 421 submits that the application under Section 156(3) of Cr. P.C. cannot be equated with the criminal complaint as provided under section 2(d) of Cr. P.C., The learned counsel further relying upon the Judgment of this Court in the case of Rajendra Ramlal Jaiswal and others vs. State of Maharashtra an another, reported in MANU/MH/1979/2011 : 2011 ALL MR (Cri.) 3107 submits that the order directing investigation is an administrative order and the challenge to the same is not tenable.
8. Shri Vyas, learned counsel, however, fairly conceded that though the case is made out by the complainant under section 3(1)(ix) of the Atrocities Act, there is no material so as to constitute the offence under section 3(1)(x) and section 4 of the Atrocities Act.
9. In that view of the matter, we would only be required to consider as to whether taking the allegations in the complaint at its face value, whether ingredients to constitute the offence punishable under Section 3(1)(ix) of the Atrocities Act are made out or not?
Section 3(1)(ix) of the Atrocities Act reads thus:-
3. Punishment for offences of atrocities;--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,---(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a scheduled caste or a Scheduled Tribe.
It thus, would be clear that for bringing an offence under the ambit of Section 3(1)(ix) of the Atrocities Act, the following ingredients would be necessary.
i) a person, who is accused of having committed the offence, gives any false or frivolous information to any public servant;
ii) thereby causes such public servant to use his lawful power;
iii) said exercise of power is to the injury or annoyance of a member of a Scheduled caste or a Scheduled Tribe.
10. Before we proceed to consider the rival submissions, it would be necessary to spell out as to what has been alleged in the complaint.
11. We are aware about the limitations while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure. Unless the allegations made in the complaint taken at its face value do not make out ingredients to constitute the offence, it would not be permissible for this court to interfere. Though the complaint is some what lengthy, we have attempted to capsulize the allegations of the complainant against the persons named in the complaint.
12. Taking the allegations in the complaint lodged by the respondent complainant under Section 156 of Cr. P.C. to be totally true and correct, let us examine what is the case sought to be made out against the four persons who, according to the complainant, have committed the offence punishable under the Atrocities Act.
i) The allegations against Shri Kailash Bilonikar, Under Secretary (Pol-1), Home Department, Mantralaya, Mumbai.
The allegation against Shri Bilonikar are that he is a Controlling Officer of POL-1 and handling subjects connected with establishment of IPS Officers and has handled all the proposals of promotions. According to the complainant, Shri Bilonikar ought to have brought to the notice of the Review Committee about inappropriate decision taken by the Committee. According to the complainant, he has failed in his responsibility and duty in not pointing the correct rules to the notice of the Government and as such committed offence punishable under Section 3(1)(ix)(x) and 4 of the Atrocities Act. It is further alleged that when the complainant's name should have been incorporated in the proposal for confirmation into IPS of the Officers of 1998 batch, deliberately his confirmation is withheld by omitting his name from the proposal of confirmation into IPS. It is the further allegation that he had not brought to the notice of the Review Committee for promotion to the rank of D.I.G. Police, that promotion cannot be withheld unless charge sheet is served under the departmental proceedings. According to the complainant, since the said Mr. Bilonikar had failed in his legal duty, he had committed the offence punishable under section 3(1)(ix)(x) and section 4 of the Atrocities Act. It is the further allegation that Shri Bilonikar had not brought to the notice of the Government about the fact that office of D.G.P. has not submitted proposal for promotion and posting only on the ground of proposed departmental inquiry. It is the further allegation that only after the complainant has made complaint to the Scheduled Caste and Scheduled Tribe Commission, Shri Bilonikar had informed the Office of the D.G.P. about the legal provisions, which he could have done earlier also. It is the further allegation that said Shri Bilonikar has not submitted the proposal to the Government to initiate action against the officers responsible for submission of illegal proposal. It is further alleged that said Shri Bilonikar has acted with criminal conspiracy with the Office of the D.G.P. and harassed and humiliated the complainant and has committed the aforesaid offence.
ii) Shri R.N. Deshmukh, Joint Secretary (Pol 0, 1 and 2), Home Department, Mantralaya, Mumbai.
The only allegation against him is that, he is a Supervising Officer of Under Secretaries in charge of Desk Pol-1 and 2 and all files are routed and submitted through him to the Government.
iii) Shri Sanjeev Dayal, Director General of Police, Maharashtra State, Mumbai.
That said Shri Dayal had submitted proposal for Departmental Inquiry against the complainant to the Government, on the basis of the news published in the Newspaper, forwarded by the Anti Corruption Bureau on 15.7.2011. That he ought to have scrutinized the report before submitting it to the Government. That the representation made by the complainant on 25th August, 2011 was deliberately filed without examining the contentions therein. That the promotions of the complainant were deliberately withheld on the ground of proposed departmental inquiry against him. That before submitting the report to the State Government by the Director General of Police on the basis of the news report, the Director General of Police ought to have obtained complainant's explanation on the news and only after receipt of the explanation, the report could have been submitted to the Government. That the proposal for conducting departmental inquiry against the complainant was sent with a prejudicial mind so as to deprive the complainant of his legal right of promotion. That deliberately the Anti Corruption Bureau was directed to inquire into the offence of malpractices by the complainant. However, no malpractice was detected by the Anti Corruption Bureau and only administrative action was proposed and on that basis the proposal for departmental inquiry was submitted to the Government. This was done by the Director General of Police with deliberate intention of misleading the Government. That the permission granted to the Anti Corruption Bureau for conducting open inquiry into the complainant's property was also illegal inasmuch as it was not according to the norms of the Government. That the Director General of Police has committed criminal conspiracy to insult and humiliate the complainant.
iv) Shri Umeshchandra Sarangi-Additional Chief Secretary (Home Department) Mantralaya, Mumbai.
The allegation against this officer is that he has entered the Indian Administrative Service, 1977 and retired in 2012 and, therefore, he is aware about the Rules of the Indian Services. That though the Director General of Police had recommended satisfactory completion of the period of probation, he had illegally taken a decision to extend the period of probation. Though it was necessary for him to intimate to the complainant the reasons for extending the probation, the same were not communicated. This was done with an intention to stall further promotions of the complainant, so that he faces humiliation and insult in the society and Police Department and as such the offence punishable under Section 3(1)(ix)(x) and section 4 of the Atrocities Act is committed. Though the extended period of probation was completed on 17.2.2011, still in the meeting dated 8th February 2011, the complainant was illegally considered unfit for promotion. In spite of being aware that the promotion cannot be withheld unless the charge sheet is served, he was denied promotion to the post of Deputy Inspector General of Police in contravention of the Judgments of the Apex Court. Though in the meeting dated 8th February, 2011 chaired by Shri Sarangi it was decided to give promotion to the post of Selection Grade Police Superintendent, in the said meeting illegally he was denied the promotion to the post of Deputy Inspector General of Police. This amounted to an offence under Section 3(1)(ix)(x) and section 4 of the Atrocities Act. It is further alleged that though the complainant had completed only 11 months at his posting, he was transferred on 26th May, 2011 which is in violation of the provisions of the Law.
13. At the end of the complaint, the complainant has stated that from the entries in his service record, the aforesaid four accused were fully aware that the complainant was an officer belonging to Scheduled Caste and that he had also brought this fact to their notice from time to time. It is further stated that these officers had deliberately humiliated the complainant in community, by not complying with the orders only of the State Government but also of the Hon'ble Supreme court. It has further been stated that the complainant has been humiliated just because he is an officer belonging to Backward Class.
14. In nutshell, it can be seen that the allegations of the complainant against the Director General of Police Shri Dayal is that he had recommended inquiry by Anti Corruption Bureau on erroneous grounds and that his case for promotion was not submitted to the State Government on untenable ground. It is the contention of the complainant that unless the charge sheet was served, the proposal for giving him promotion could not have been withheld merely on the ground of proposed departmental inquiry against him. The allegation against the Under Secretary Shri Bilonikar is that he had not brought to the notice of the Departmental Promotion Committee and Review Committee the relevant Rules governing the promotion. The only grievance against Shri R.N. Deshmukh, Joint Secretary is that he was Supervising Officer of Under Secretaries and all files were routed through him. The allegation against Shri Umeshchandra Sarangi, who was the then Additional chief Secretary (Home), is that Shri Sarangi had intentionally extended the probation of the complainant and that promotion to the post of Deputy Inspector General of Police was intentionally denied by said Shri Sarangi.
15. It could, thus, be clearly seen that the entire thrust in the complaint is that Shri Sanjeev Dayal, the Director General of Police had submitted a report for initiation of open inquiry on account of the complaints into the complainant's property, in illegal manner. It is the further allegation against Mr. Sanjeev Dayal, that though promotion could not have been denied unless the charge sheet was served, his name was not recommended on the basis of the proposed departmental inquiry. The allegation against Shri Bilonikar is that he did not place the relevant Rules before the Committee. The allegation against Shri Sarangi, who was the Additional Secretary (Home) is that he had illegally extended the probation of the complainant and denied promotion to him in the meeting dated 8.2.2011. As already stated hereinabove that one of the necessary ingredients for bringing the offence under the ambit of Section 3(1)(ix) is that a person accused to have committed an offence must give a false or frivolous information to any public servant. Another necessary ingredient is that by giving such false or frivolous information, the public servant should be caused to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe. Perusal of the entire complaint would reveal that there is no averment stating that any of the accused had given any false or frivolous information to any public servant. It is not even averred that on account of such frivolous information any of the public servants were made to use their lawful authority so as to cause injury or annoyance to the complainant.
16. It can, thus, clearly be seen that the entire grievance of the complainant is regarding denial of promotion to the post of Deputy Inspector General of Police when according to him he was due. It is the case of the complainant that same was done in breach of the various Rules, Regulations and notifications issued by the Government and the Judgments of the Apex Court. It can, thus, clearly be seen that dispute of the present complainant with the State is purely a dispute pertaining to service matter. However, the complainant has attempted to bring it under the provisions of the Atrocities Act, taking advantage of the fact that the complainant belongs to Scheduled Caste. As already discussed hereinabove, we find that the complaint addressed to the learned Magistrate even if taken at its face value and correct in entirety, does not constitute ingredients so as to make out the offences punishable under Section 3(1)(ix) of the Atrocities Act. As already stated hereinabove, the learned counsel for the respondent complainant has fairly conceded that there are no ingredients to bring the offence under the ambit of Section 3(1)(x) and section 4 of the Atrocities Act. As such we need not analyse the averments made in the complaint in that regard. However, upon perusal of the entire complaint, it would be clear that there are no averments to connect the accused even remotely with the offence punishable under Section 3(1)(ix) and Section 4 of the Atrocities Act. Perusal of section 3(1)(x) of the Atrocities Act would reveal that to constitute an offence a person must be accused of intentionally insulting or intimidating with intent to humiliate a member of a Scheduled caste or a Scheduled Tribe in any place within public view. Whereas, Section 4 provides for penalty when the public servant not being a member of the Scheduled Caste or a Scheduled Tribe willfully neglects his duties required to be performed by him under the said Act. We may state that there is not even a whisper regarding the same. No averments could be found in the entire complaint as to what are the duties which the accused were required to be performed under the Act and which are the duties neglected to be performed by them.
17. Apart from that we find that the complainant has been selective in choosing the persons against whom the accusation have been made. The main grievance of the complainant appears to be regarding the decision in the meeting of the Screening Committee/SCM held on 8.2.2011 for consideration of the promotion of IPS Officers to the post of Deputy Inspector General of Police. The complainant himself has annexed along with the complaint the minutes of the Screening Meeting held on 8.2.2012. From perusal of the said minutes, it can be seen that, the said Committee consisted of following three officers.
1. Shri Ratnakar Gaikwad, Chief Secretary.
2. Shri Umesh Chandra Sarangi, Additional Chief Secretary (Home) and also non IPS Officer in the rank of Chief Secretary.
3. Shri K. Subramanyam, IPS, Director General and Inspector General of Police, Maharashtra State.
It will be relevant to refer to the following notings in the minutes of the said meeting.
The Committee considered the available ACRS/PAR up to 2009-2010 along with service record. In case of S.E. Shinde, IPS-1998, Committee observed that there are no of complaints received against him regarding corruption and violation of All India Service (Conduct) Rule, 1969. Though as per his ACRS/PAR he has got 65 marks out of 90, it is also necessary to consider his overall service record. As Deputy Inspector General of Police is a promotional post, involves higher responsibilities. Committee considered the overall record in case of Shri S.E. Shinde, IPS."
"11. Accordingly, the Committee recommended as follows:
A) Following Officers are found fit for promote on the post in the Grade of Deputy Inspector General of Police:
1. ---
2. ---
3. ---
---
---
16. ----
B.) Following Officer is found 'Unfit' for promotion to the post in the grade of Deputy Inspector Director General of police.
1. Shri S.E. Shinde, IPS (MH: 1998)
It can, thus, clearly be seen that the Screening Committee which consisted of Chief Secretary and Director General of Police apart from Shri Sarangi, the then Additional Chief Secretary, has found that there were number of complains received against the complainant regarding corruption and violation of All India Services (Conduct) Rules, 1969. The Committee, therefore, found that though as per the ACRS he has got 65 marks out of 90, it was also necessary to consider his overall service record.
18. It can, thus, be clearly seen that in the said meeting though the Committee has found various persons to be fit to be promoted, has found the present complainant to be unfit for promotion. It is to be noted that the said decision is taken by three persons including Shri Sarangi. However, the complainant has chosen only to name Shri Sarangi and not other two persons i.e. Shri Ratnakar Gaikwad, Chief Secretary and Shri K. Subramanyam, Director General and Inspector General of Police. It may not be out of place to mention that Shri Ratnakar Gaikwad, the then Chief Secretary who has an outstanding and exemplary record, incidentally belongs to Scheduled Caste. In our considered view, the conduct of the complainant respondent in naming only one person present in the meeting dated 8.2.2011 and not naming two others, speaks volume of his conduct. In our considered view, if the allegations in the complaint are to be entertained, then every person belonging to Scheduled Caste or Scheduled Tribe who is denied promotion, will have a cause of action to file complaint under the provisions of Atrocities Act and name the persons who are the members of the Departmental Promotional Committee as accused. It is not impossible that a person with ingenious mind, if not selected in the selection process may also invoke the provisions of the Atrocities Act against the members of the Selection Committee alleging that he was not selected since he belongs to Scheduled Caste or Scheduled Tribe and as such offence is made out under the provisions of Atrocities Act. If this is to be permitted, it would amount nothing else but gross abuse of process of law.
19. We will now deal with the preliminary issue raised by the learned counsel for the respondent complainant regarding locus. No doubt that the present application under Section 482 of the Code of Criminal Procedure is filed by the State. The administration of justice is a paramount duty and function of the Sovereign State. The main aim of the administration of justice is to have just society. In the administration of criminal justice, while it is the duty of the State to make every effort to see that every person guilty of crime is penalized, at the same time, it is also its duty to ensure that innocent persons are not harassed and victimized by abuse of process of the Court, at the hands of the cantankerous complainants, by filing frivolous complaints. All the four persons, against whom allegations have been made, are or were Officers of the State. As has been discussed by us hereinabove and in the following paragraphs, there is no material to proceed against the said Officers for the offences alleged with. It is also the contentions of the learned counsel for the respondent complainant that the accused persons do not have any locus to challenge the order passed under Section 156(3) of the Code of Criminal Procedure. In such a situation, the question would be as to whether the Officers of the State should be forced to face ignominy of being accused in a crime, which, in our considered view, would not be made out even taking the allegations in the complaint to be true in entirety. In this respect, we may gainfully refer to the observations of the Full Bench of this Court in the case of Sandeep Rammilan Shukla vs. State of Maharashtra and others, reported in MANU/MH/0992/2008 : 2009(1) Mh.L.J., 97, which are thus:-
61. Rule of criminal jurisprudence make no exception to the principle that a fair investigation is the soul of proper administration of criminal justice system. Criminal justice system has two components. The role of the State and role of the judiciary. Exercise of power or authority by any of these components has to ensure due protection with dignity to the rights of a complainant as well as suspect and the society at large, while ensuring that there is no adverse impact on the social fabric of the society.
20. Insofar as the contention of the learned counsel for the respondent regarding the revision or application under Section 482 of the Code of Criminal Procedure not being tenable against the order passed by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure is concerned, the learned counsel is right in relying on the Judgment of the Full Bench of Allahabad High Court in the case of Father Thomas (supra). In the case of Father Thomas, the Allahabad High Court has taken a view that the revision as well as the application under Section 482 of the Code of Criminal Procedure would not be tenable against the order of directing investigation under Section 156(3) of the Code of Criminal Procedure. However, in the said Judgment the Allahabad High Court has taken a view that once the First Information Report is registered and if taken at its face value, does not disclose commission of an offence, the application under Section 482 of the Code of Criminal Procedure for quashing the proceedings is very much tenable. In the present case, now the First Information Report is already registered and by way of amendment the prayer for quashing the same is also made.
21. Apart from that a different view has been taken by the Division Bench of this Court in the case of Yogiraj Vasantrao Surve vs. State of Maharashtra and another (Criminal Application No. 470 of 2011 (APL) decided on 28.2.2013. The Division Bench after considering the Judgment of the Full Bench of this Court in the case of Panchabhai Popotbhai Butani and others vs. State of Maharashtra and others (supra) has held thus:-
The Full Bench held that a petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) but a petition under Section 156(3) is maintainable provided it states facts constituting ingredients of a cognizable offence. Thus, sine qua non for filing a petition under Section 156(3) of Cr. P.C. is commission of cognizable offence. In the present case, we have already held that the petition filed by non-applicant no. 2 does not disclose any cognizable offence having been committed by the applicant. It is axiomatic that once the order under Section 156(3) is passed, the Incharge in Police Station is bound to register the First Information Report and carry out further investigation in terms of Chapter XII of the Code of Criminal Procedure. Therefore, in case a petition purporting to be under Section 156(3) of Cr. P.C. is filed which does not disclose commission of cognizable offence, it is difficult to accept the submission that the person against whom First Information Report is registered, is not entitled to challenge the order passed under Section 156(3) and consequential registration of First Information Report. It would be a different matter, if the petition filed under Section 156(3) discloses cognizable offence and in such eventuality the person against whom First Information Report is lodged may not be entitled to challenge the order passed under Section 156(3) and consequential registration of First Information Report inasmuch as since the commission of cognizable offence is disclosed it is within the jurisdiction of the Magistrate to direct investigation in terms of Section 156(3) of the Code of Criminal Procedure.
(emphasis supplied).
22. It is, thus, clear that the Division Bench of this Court has taken a view that if the petition purported to be under Section 156(3) of the Code of Criminal Procedure does not disclose commission of cognizable offence, it is difficult to accept the contention that the person against whom First Information Report is registered, is not entitled to challenge the same.
23. The Division Bench of the Karnataka High Court in the case of Guruduth Prabhu (supra) had an occasion to consider the similar issue. The Division Bench after considering the scope of Section 156 of the Code of Criminal Procedure observed thus:-
When the allegation made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3). In the present case, the learned Magistrate without applying his mind had directed an investigation by the police. Such an order which is passed without application of mind is clearly an order without jurisdiction. Therefore, the order passed directing the police to investigate under subsection (3) of Section 156, Cr. P.C., passed without jurisdiction is liable to be quashed by this Court either under Section 482, Cr. P.C., or under Article 226 of the Constitution of India.
(emphasis supplied)
24. Between the larger Bench of Allahabad High Court and Division Bench of this Court, we would be bound by the view taken by this Court. In any case, we find that the view taken by Division Bench of this Court and by the Division Bench of Karnataka High Court is a correct view in law. In any case, the Allahabad High Court in the case of Father Thomas (supra) itself held that, the registration of First Information Report, if does not disclose an offence, can be challenged by way of application under Section 482 of the Code of Criminal Procedure. In that view, we find that the contention in that regard is without substance.
25. The next submission of the learned counsel for the respondent complainant is that upon receipt of the complaint under section 156(3) of Cr. P.C., the Magistrate has no other option than to direct investigation under Section 156(3) of Cr. P.C., and that the Police Authorities are bound to register the First Information Report.
26. For considering this submission of the learned counsel for the respondent, it will be necessary to refer to the Judgment of the Apex Court in the case of Maksud Saiyed (supra). In the said case criminal complaint came to be filed before the Court of Chief Judicial Magistrate, Vadodara. The allegation in the said complaint was that in prospectus published for the purpose of public issue, some false and misleading information had been given with regard to sanction limits, the dues and export bills of the Company. It was alleged that one Shri G.C. Garg with fabricated and fraudulent dishonestly and purposefully misused the documents with mala fide intention. An order came to be passed under Sub-section 3 of Section 156 of the Code of Criminal Procedure relying on or on the basis of the allegations made in the complaint. The said order was challenged before the High Court under the provisions of Section 482 of Cr. P.C., The said petition was allowed. Being aggrieved thereby, the complainant approached the Apex Court. The Apex Court observed thus:
Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. As to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputable must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
(emphasis supplied)
27. It can, thus, be seen that the Apex Court in unequivocal terms has held that where a jurisdiction is exercised on a complaint petition filed under Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind.
28. The Apex Court in the said case has referred to its earlier observations made in the case of Pepsi Foods Ltd. And another vs. Special Judicial Magistrate and others, reported in MANU/SC/1090/1998 : (1998)5 SCC 749), which reads thus:
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
29. In view of the aforesaid Judgments of the Apex Court, it can, thus, clearly be seen that when the Magistrate passes order directing investigation under Section 156(3) of Cr. P.C., it is necessary that, prior to doing so, he should apply his mind to the case before him. Least that is expected of the Magistrate, is to verify from the averments of the complaint as to whether the ingredients to constitute the offence/s complained of have been made out or not. As such the order under Section 156(3) of Cr. P.C., should depict the application of mind. No doubt the Magistrate is not expected to give elaborate Judgment at that stage. However, the least expected is that the order should depict application of mind and as to how the complaint discloses the ingredients to constitute the offence complained of.
30. It would also be appropriate to refer to the observations of the Division Bench of this Court in the case of Yogiraj Surve (supra) in para no. 13, which reads thus:-
No doubt, in view of the clear ratio laid down by the Apex Court in the aforesaid cases, at the stage of passing an order under Section 156(3) of the Code of Criminal Procedure, the learned Magistrate does not take cognizance. However, it is axiomatic that before ordering investigation under Section 156(3), the petition filed simpliciter under Section 156(3) or the complaint filed under Section 190 read with Section 200 of the Code of Criminal Procedure must disclose cognizable offence/s. If the petition or complaint does not disclose commission of cognizable offence/s, it is difficult to hold that the learned Magistrate can still pass the order under Section 156(3) of the Code of Criminal Procedure inasmuch as such an order can be passed only if at least one cognizable offence is made out either in the petition or complaint. In other words, the disclosure of commission of cognizable offence/s is a sine qua non for issuing the order under Section 156(3). In the present case, a bare reading of the petition (styled as complaint) filed under Section 156(3) of Cr. P.C. discloses that no offence even prima facie has been made out against the applicant.
(emphasis supplied)
31. It can, thus, be seen that the Division Bench of this Court has clearly held that if the petition or complaint does not disclose commission of cognizable offence, the learned Magistrate cannot pass the order under Section 156(3) of Cr. P.C., It is also held that disclosure of commission of the offence is sine quo non for issuing the order under Section 156(3) of Cr. P.C.
32. Insofar as the reliance of the learned counsel for the respondent complainant on the Full Bench Judgment of this Court in the Case of Panchabhai Butani (supra) is concerned, the questions that arose for consideration before the Full Bench were as under:
1. Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate?
2. Whether without filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable?
33. It can, thus, be clearly seen that the questions that fell for consideration before the Full Bench were; as to whether in the absence of a complaint to the police, a complaint can be made directly before the Magistrate and as to whether without filing of the complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable. It can, therefore, be seen that the question whether the learned Magistrate is required to apply his mind before passing an order under section 156(3) and required to give reasons did not fall for consideration. In any case, when the Apex Court in the case of Maksud Saiyed has held that while exercising jurisdiction under Section 156(3) of Cr. P.C., the Magistrate is required to apply his mind, it will have to be held that when the order is passed by the Magistrate without considering the material and without finding out as to whether the complaint discloses ingredients of the offence or not, the order is without jurisdiction. In this respect, we may gainfully refer to the observations of Division Bench of Karnataka High Court in the case of Guruduth Prabhu (supra), which reads thus:-
If every complaint filed, under Section 200, Cr. P.C. is referred to the police under section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complaints in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence. In the present case, the learned Magistrate without applying his mind has blindly ordered the investigation under Section 156(3) and the said order is, therefore, without jurisdiction.
(emphasis supplied)
We are in respectful agreement with the view taken by the Karnataka High Court.
34. It will, thus, have to be held that it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and only when the allegations made in the complaint make out the ingredients to constitute an offence, the learned Magistrate can pass an order of investigation under Section 156(3) of Cr. P.C., Equally, when the ingredients to constitute the offence are not made out in the complaint, the learned Magistrate cannot direct investigation under Section 156(3) of Cr. P.C. Such an order is without jurisdiction. If the contention of the learned counsel for respondent complainant that once the complaint is filed under Section 156(3) of Cr. P.C., the learned Magistrate has no option but to pass an order under Section 156(3) of Cr. P.C., is accepted, it would amount to reducing the learned Magistrate to nothing else but the postman. As such, we have no other option but to rejected the said contention.
35. In the present case we have spelled out in detail, allegations made by the complainant in his complaint. At the risk of repetition, we need to state that even taking the allegations to be true in their entirety, the ingredients to constitute offence under the Atrocities Act, are not made out. Therefore, in our considered view, the learned Magistrate was not justified in passing the order impugned.
36. Insofar as the reliance placed by the learned counsel for the respondent complainant on the Judgment of the Full Bench in the case of Sandeep Shukla (supra) is concerned, it will be appropriate to refer to the following observations of the Full Bench:-
The essence appears to be that the information should disclose commission of a cognizable offence which alone would vest power and jurisdiction in the officer-in-charge to put into motion the investigation machinery.
37. It is, thus, clear that the Full Bench has held that only when the information discloses commission of a cognizable offence would vest power and jurisdiction in the Officer-in-charge to put into motion the investigating machinery. It is to be noted that the question before the Full Bench in the said case was as to whether preliminary inquiry could be made by Police Officer In-charge of Police Station prior to the registration of First Information Report. The Full Bench has held that the preliminary inquiry is necessary prior to registration of First Information Report, to avoid undue harassment to any person at the behest of unscrupulous complainants. The Full Bench, even in the case of registration of the First Information Report, has held that only when the information discloses commission of cognizable offence, the jurisdiction would vest in the Officer-in-charge to put into motion the investigating machinery. As such the learned Magistrate, who performs judicial function, must satisfy himself that the complaint petition discloses commission of cognizable offence/s before he directs investigation under the provisions of Section 156(3) of Cr. P.C. In that view of the matter, we do not find that said Judgment would be of any assistance to the contentions made by the learned counsel for the respondent complainant.
38. Now, the only question that would be required to be considered is as to whether the facts of the present case justify warranting invoking the jurisdiction under Section 482 of Cr. P.C. or not. We may gainfully refer to the observations of the Apex Court in the case of State of Haryana and others vs. Ch. Bhajan Lal, reported in MANU/SC/0115/1992 : AIR 1992 SC, 604 which reads thus:
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a serious of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if, they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 151(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
39. We have already held hereinabove that in the present case even if the allegations taken at its face value are accepted to be true and correct, they do not prima facie constitute commission of offence. We, therefore, find that the present case would fall under clause 1 of the guidelines laid down by the Apex Court.
40. As already discussed hereinabove, the complainant has chosen only one person as accused when the Screening Committee was consisting of three persons. We find that the present complaint has been filed with an ulterior motive for wreaking the vengeance on account of the grievance of the respondent complainant that he was not given promotion when, according to him, he was entitled to. We, therefore, find that the present case would also fall under clause 7 of the aforesaid Guidelines.
41. The Apex Court in the case of Zandu Pharmaceutical Works Ld. and others vs. Mohd. Sharaful Haque and another, reported in MANU/SC/0932/2004 : (2005)1 SCC 122 had an occasion to consider similar issue arising out of service matter. The Apex Court observes thus:-
Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the high Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
42. It can, thus, be clearly seen that the Apex Court has held that inherent powers are all such powers that are necessary to do the right and to undo a wrong in the course of administration of justice. The Apex Court further held that inherent powers are to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. It has been further held that the authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It has been further held that to allow any action which would result in injustice and prevent promotion of justice could be abuse of process of the court. It has been further held that in exercise of the powers, court would be justified to quash any proceedings if it finds that initiation/continuance of it amounts to abuse of the process of court. It has been held that when a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
43. It will also be appropriate to refer to the observations of the Apex Court in the case of R. Kalyani vs. Janak C. Mehta and others MANU/SC/8183/2008 : (2009)1 SCC 516, which reads thus:
15, Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceedings and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirely, disclosed no cognizable office.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any means rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.
16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Section 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.
44. As already discussed hereinabove, the present case is nothing else but a glaring example of harassment and humiliation to the Officers of the State Government, at the instance of another employee of the State Government, so as to settle the score with them on account of his grievances of denial of promotion. As already discussed hereinabove, though the Screening Committee consisted of three senior officers viz. Chief Secretary, Additional Chief Secretary and the Director General of Police, the complainant has chosen only one of them. As we have already pointed out hereinabove that one of the members i.e. Shri Ratnakar Gaikwad who at the relevant time was Chief Secretary belongs to Scheduled Caste. The complainant, for the best reasons known to him, has not made any allegations against other two officers. If the Chief Secretary would also have been made accused by the complainant, may be the complaint under the Atrocities Act itself would not have been tenable. It, therefore, speaks volumes of the complainant's intentions.
45. It may not be out of place to mention that day in and day out we come across various cases wherein the provisions of the Atrocities Act are misused. We find that various complaints are filed immediately after the Gram Panchayat Elections, alleging offences under the Atrocities Act. We have no hesitation in saying that in many of the instances, it was found that the complaints were filed only to settle score with their opponents, after defeat in the Gram Panchayat elections. We have also come across various cases wherein private civil disputes arising out of property, monetary matters, disputes between the members and office bearers of cooperative societies; disputes between the trustees of the Charitable Trusts are given penal and complaints are being filed either under Section 190 read with Section 200 or under Section 156(3) of Cr. P.C. In many of such cases, we have come across that the learned Magistrates are passing mechanical orders directing investigation under Section 156(3) of Cr. P.C., without recording any reasons and without verifying as to whether the complaint discloses the ingredients to constitute the offence or not. It is needless to say that least that is expected of the learned Magistrate before passing the order under Section 156(3) of Cr. P.C., is to satisfy himself, that taking the allegations to be true in entirety, as to whether the ingredients to constitute the offence alleged have been made out or not. The least that is expected of the learned Magistrate while passing an order, directing investigation is to at least give some reasons, as to why he finds substance in the complaint and as to how the complaint discloses ingredients to constitute the offence alleged. The learned Magistrates ought to take into consideration, that passing such mechanical orders in complaints which do not have any criminal element causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons, the reputation of the citizens is put to stake as immediately after said orders are passed, innocent citizens are termed as accused.
46. In the present matter, as has already been held by us that the complaint does not disclose the ingredients to constitute the offence under the provisions of the Atrocities Act. We have no hesitation to say that the complaint and the order passed by the learned Magistrate under Section 156(3) of Cr. P.C., are nothing else but an abuse of process of the court. We have no hesitation to hold that continuance of the proceedings would amount to humiliation, harassment and persecution of the officers of the State against whom allegations have been made in the complaint and would perpetuate injustice. May be the respondent complainant has a case, insofar as his grievance of denial of promotion is concerned, but the forum, he has chosen, is not one wherein he can seek redressal. We have no hesitation in observing that the respondent complainant if has genuine grievance, he could have very well approached the Central Administrative Tribunal. If his contention that he was denied promotion when he was entitled was found to be justified by the learned Tribunal, the learned Tribunal is always empowered to grant him all the reliefs including deemed date of promotion. However, the course that has been chosen by the respondent complainant is not the one, which is permissible in law. Having come to the considered conclusion that the complaint so also the order passed under Section 156(3) of Cr. P.C., and subsequent registration of First Information Report by police is nothing, but an abuse of process of law, the application deserves to be allowed. In that view of the matter, the order dated 30th March, 2013 passed by the learned Judicial Magistrate First Class in Miscellaneous Criminal Application No. 683/2013 and the subsequent registration of F.I.R. by the Police Station, Dhantoli Nagpur are hereby quashed and set aside.
Rule made absolute in aforesaid terms. No order as to costs.
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