Chattisgarh High Court
Parshant Vashishta vs State Of Chhattisgarh on 30 January, 2023
W.P.(Cr.)No.177/2017
Page 1 of 15
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.177 of 2017
Order reserved on: 13-1-2023
Order delivered on: 30-1-2023
1. Parshant Vashishta, S/o Shri Banarsi Das Vashishta, aged about
53 years, Occupation Service, Principal of Delhi Public School,
Risali Sector, Bhilai, District Durg (C.G.)
2. Soju Samuel, S/o Shri Samuel A.O., aged about 36 years,
Occupation Service Teacher, Delhi Public School, Risali Sector,
Bhilai, District Durg (C.G.)
3. Smt. Mousami Roy, W/o Shri Himasis Roy, aged about 52 years,
Occupation Service, Teacher, Delhi Public School, Risali Sector,
Bhilai, District Durg (C.G.)
4. Smt. Durga Banerjee, W/o Dr. A.K. Banerjee, aged about 57
years, Occupation Service, Teacher, Delhi Public School, Risali
Sector, Bhilai, District Durg (C.G.)
5. Binod Kumar, S/o Late Shri S. Mehato, aged about 59 years,
Occupation Service, Teacher, Delhi Public School, Risali Sector,
Bhilai, District Durg (C.G.)
6. Dr. Komal L Saxena, W/o Shri Rajesh Saxena, aged about 49
years, Occupation Service, Teacher, Delhi Public School, Risali
Sector, Bhilai, District Durg (C.G.)
7. Suman Kumar Tripathi, S/o Shri H.L. Tripathi, aged about 50
years, Occupation Service, Teacher, Delhi Public School, Risali
Sector, Bhilai, District Durg (C.G.)
8. Smt. Neelam Pandey, W/o Shri Laxmikant Pandey, aged about
50 years, Occupation Service, Teacher, Delhi Public School,
Risali Sector, Bhilai, District Durg (C.G.)
9. Smt. Hancy Pothen, W/o Shri Santosh Pothen, aged about 47
years, Occupation Service, Teacher, Delhi Public School, Risali
Sector, Bhilai, District Durg (C.G.)
10. Dr. Snehlata Agrawal, W/o Dr. Rajkumar Agrawal, aged about 55
years, Agrawal Pathology Lab, Nandini Road, Bhilai, District
Durg (C.G.)
11. Smt. Neelima Desai, W/o Shri Hemant Desai, aged about 55
W.P.(Cr.)No.177/2017
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years, Occupation Service, Teacher, Delhi Public School, Risali
Sector, Bhilai, District Durg (C.G.)
12. Anant Shivappa, S/o Shri R. Shivappa, aged about 47 years,
Occupation Service, Teacher, Delhi Public School, Risali Sector,
Bhilai, District Durg (C.G.)
---- Petitioners
Versus
1. State of Chhattisgarh, through the Secretary, Department of
Home, Mahanadi Bhawan, Naya Raipur, District Raipur (C.G.)
2. The Station House Officer, Police Station Newai, District Durg
(C.G.)
3. Ashok Kumar Dwivedi, S/o Dr. Ramesh Prasad Dwivedi, R/o Plot
No.627/43, Awadhpuri, Risail, Bhilai, Tahsil & District Durg (C.G.)
---- Respondents
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For Petitioners: Mr. Rajeev Shrivastava, Senior Advocate with
Mr. Sourabh Sahu, Advocate.
For Respondents No.1 and 2 / State: -
Ms. Ruchi Nagar, Deputy Government Advocate.
For Respondent No.3: -
Mr. T.K. Jha, Advocate.
----------------------------------------------------------------------------------------------
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Rakesh Mohan Pandey
C.A.V. Order
Sanjay K. Agrawal, J.
1. The short point involved in the instant writ petition is, whether the
learned Additional Sessions Judge (FTC), Durg, is justified in
invoking power and jurisdiction under Section 156(3) of the CrPC
in directing registration of first information report (FIR) and
consequent investigation against the petitioners and to submit
final report / closure report after finding compliance with the
provisions contained in sub-sections (1) & (3) of Section 154 of
the CrPC?
W.P.(Cr.)No.177/2017
2. The aforesaid question arises in the following backdrop: -
3. Petitioner No.1 is the Principal of Delhi Public School, Risali
Sector, Bhilai, whereas, other petitioners are Teachers / Lab
Assistant working in the said school. It is the case of the
petitioners that a complaint was received from the students of the
school against the father of respondent No.3 namely Dr. Ramesh
Prasad Dwivedi, Teacher (presently suspended) working in the
school, alleging award of corporal punishment to the students
whom he detained. On receipt of the said complaint, the matter
was enquired by a committee and after due enquiry, though
preliminary, the fact of award of corporal punishment was found
proved and ultimately, in the interest of the students, the matter
was referred to Police Station Newai, District Durg where Dr.
Ramesh Prasad Dwivedi - father of respondent No.3 was
charge-sheeted for offences punishable under Sections 354 &
354A of the IPC and Sections 11(1) & 12 of the Protection of
Children from Sexual Offences Act, 2012 (for short, 'the POCSO
Act') in which petitioners No.1 to 3 stood as witnesses. But
during the course of trial, respondent No.3 filed an application
under Section 156(3) of the CrPC alleging that the petitioners
have committed the offence punishable under Section 23(1) & (2)
of the POCSO Act and Section 67 of the Information Technology
Act, 2000 (for short, 'the IT Act'), as they have subjected the
victim / students to videography disclosing the identity of the
victim(s) which is barred under Sections 23 (1) & (2) of the
W.P.(Cr.)No.177/2017
POCSO Act and Section 67 of the IT Act. It was also submitted
in the application that the matter was reported to the press and
complaint was also made to Police Station Newai, Durg and to
the Inspector General of Police, Durg by memo dated 4-12-2016
and to the Superintendent of Police on 6-12-2016, but no action
has been taken leading to the filing of application before the
Court. The learned Additional Sessions Judge (FTC) by order
dated 20-3-2017 considered the application and granted the
same by directing registration of FIR against the petitioners and
consequent investigation and to file final report / closure report
before the Court. Feeling aggrieved against that order, this
instant writ petition has been filed stating that there is no
compliance of Section 154(1) & (3) of the CrPC and that without
applying its judicial mind in a most casual and cavalier manner,
the order directing registration of FIR has been passed which
runs contrary to law. As such, the impugned order is liable to be
set aside.
4. Return has been filed on behalf of respondents No.1 & 2 / State
stating inter alia that since the petitioners have committed the
offences punishable under Section 23(1) & (2) of the POCSO Act
and Section 67 of the IT Act, the writ petition deserves to be
dismissed as only registration of FIR and enquiry has been
directed against the petitioners.
5. Detailed return has also been filed on behalf of respondent No.3.
6. Mr. Rajeev Shrivastava, learned Senior Counsel appearing on
W.P.(Cr.)No.177/2017
behalf of the petitioners, would submit that the learned Additional
Sessions Judge (FTC), without ensuring the compliance of the
provisions contained in Section 154(1) & (3) of the CrPC, has
directed for registration of FIR by a most unreasoned and non-
speaking order and there is total non-compliance of the provision
contained in Section 154(3) of the CrPC. Therefore, in view of
the judgment rendered by the Supreme Court in the matter of
Priyanka Srivastava and another v. State of Uttar Pradesh
and others1, application under Section 156(3) of the CrPC was
not at all maintainable and on that ground, the impugned order
deserves to be set aside by granting this writ petition.
7. Mr. T.K. Jha, learned counsel appearing for respondent No.3,
would support the impugned order and submit that since the
complaint made to the Station House Officer - respondent No.2
did not yield any result, therefore, compliance of Section 154(3)
of the CrPC by reporting the matter to the Superintendent of
Police, has made which is strictly in accordance with law and it
has been clearly averred in the application filed under Section
156(3) of the CrPC, as such, the writ petition deserves to be
dismissed.
8. We have heard learned counsel for the parties and considered
their rival submissions made herein-above and also went through
the record with utmost circumspection.
9. Section 156(3) of the CrPC provides that "any Magistrate
1 (2015) 6 SCC 287
W.P.(Cr.)No.177/2017
empowered under Section 190 may order such an investigation
as abovementioned". The words "as abovementioned" refer to
Section 156(1), which contemplates investigation by the officer in
charge of the police station. The power in the Magistrate to order
further investigation under Section 156(3) is an independent
power and does not affect the power of the investigating officer to
further investigate the case even after submission of his report
under Section 173(8). The Magistrate can order reopening of the
investigation even after the police submits the final report. (See
Sakiri Vasu v. State of Uttar Pradesh and others 2.)
10. The Supreme Court in Sakiri Vasu (supra) has held that "if a
person has a grievance that his FIR has not been registered by
the police station his first remedy is to approach the
Superintendent of Police under Section 154(3) CrPC or other
police officer referred to in Section 36 CrPC. If despite
approaching the Superintendent of Police or the officer referred
to in Section 36 his grievance still persists, then he can approach
a Magistrate under Section 156(3) CrPC instead of rushing to the
High Court by way of a writ petition or a petition under Section
482 CrPC. Moreover, he has a further remedy of filing a criminal
complaint under Section 200 CrPC. It was also held, why then
should writ petitions or Section 482 petitions be entertained when
there are so many alternative remedies?"
11. It is well settled that in order to make a duly constituted
2 (2008) 2 SCC 409
W.P.(Cr.)No.177/2017
application for invoking the jurisdiction of the learned Special
Judge under Section 156(3) of the CrPC, compliance of sub-
sections (1) & (3) of Section 154 of the CrPC would be absolutely
necessary and it is sine qua non for making the application
maintainable under Section 156(1) of the CrPC.
12. Sub-section (1) of Section 154 of the CrPC provides as under:-
"154. Information in cognizable cases.-(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced
to writing as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be entered in
a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.
Provided that if the information is given by the
woman against whom an offence under section 326A,
section 326B, section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section
376A, section 376B, section 376C, section 376D,
section 376E or section 509 of the Indian Penal Code
is alleged to have been committed or attempted, then
such information shall be recorded, by a woman police
officer or any woman officer;
Provided further that--
(a) in the event that the person against whom an
offence under section 354, section 354A, section
354B, section 354C, section 354D, section 376,
section 376A, section1 376AB, section 376B,
section 376C, section 376D, section 376E or
section 509 of the Indian Penal Code is alleged to
have been committed or attempted, is temporarily
or permanently mentally or physically disabled, then
such information shall be recorded by a police
officer, at the residence of the person seeking to
report such offence or at a convenient place of such
W.P.(Cr.)No.177/2017
person's choice, in the presence of an interpreter or
a special educator, as the case may be;
(b) the recording of such information shall be video
graphed;
(c) the police officer shall get the statement of the
person recorded by a Judicial Magistrate under
clause (a) of sub-section (5A) of section 164 as
soon as possible.
From a focused perusal of Section 154(1) of the CrPC, it is quite
vivid that every information relating to commission of cognizable
offence, if given orally to in charge of a police station, shall be
reduced to writing by him or under his direction, and be read over
to the informant and every such information given in writing or
reduced in writing as above-said shall be signed by person giving
it and substance thereof shall be entered into book kept by such
officer.
13. Section (3) of Section 154 of the CrPC provides as under:-
"(3) Any person, aggrieved by a refusal on the
part of an officer in charge of a police station to record
the information referred to in sub-Section (1) may send
the substance of such information, in writing and by
post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall either
investigate the case himself or direct an investigation
to be made by any police officer subordinate to him, in
the manner provided by this Code, and such officer
shall have all the powers of an officer in charge of the
police station in relation to that offence."
14. Sub-section (3) of Section 154 of the CrPC provides the
procedure to be followed by informant. A careful perusal of sub-
section (3) of Section 154 would show that on refusal on the part
W.P.(Cr.)No.177/2017
of an officer in charge of a police station to record the information
referred to Section 154(1) of the CrPC, the person aggrieved
may send the substance of such information in writing by post, to
the Superintendent of Police concerned, who if satisfied that
such information discloses commission of cognizable offence
either investigate himself or direct an officer sub-ordinate to him
to investigate in the manner provided by the CrPC. What is
required is refusal on the part of the Station House Officer to
record the information referred to in sub-section (1) which will
enable the person aggrieved to send the substance of such
information, in writing and by post, to the Superintendent of
Police. Unless there is express or implied refusal on the part of
the SHO to register FIR in case of cognizable offence, the person
aggrieved may not be justified in filing application under Section
156(3) of the CrPC, as the object is that if the SHO refuses to
record the information referred to in sub-section (1) of Section
154 of the CrPC, then he may approach the higher authority
which is the Superintendent of Police of the district by way of an
independent / separate application under Section 156(3) of the
CrPC, who in case of refusal to record the information disclosing
commission of cognizable offence, shall investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by the CrPC and such
officer shall have all the powers of Station House Officer, as
such, the refusal on the part of the SHO to register FIR in
W.P.(Cr.)No.177/2017
cognizable offence is mandatory for making an application under
Section 156(3) of the CrPC.
15. Their Lordships of the Supreme Court in Priyanka Srivastava
(supra) laid down duty and approach of Magistrate while
exercising power under Section 156(3) of the CrPC and
highlighted preconditions to be satisfied to maintain the
application under Section 156(3). It has also been held that
power under Section 156(3) warrants application of judicial mind
and there has to be prior application under Section 154(1) and
154(3) of the CrPC. It has been held as under: -
"29. At this stage it is seemly to state that power
under Section 156(3) warrants application of judicial
mind. A court of law is involved. It is not the police
taking steps at the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the authority of
the Magistrate. A principled and really grieved citizen
with clean hands must have free access to invoke the
said power. It protects the citizens but when pervert
litigations takes this route to harass their fellows
citizens, efforts are to be made to scuttle and curb the
same.
30. In our considered opinion, a stage has come in
this country where Section 156(3) CrPC applications
are to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction of
the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the
truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible.
We are compelled to say so as such kind of
applications are being filed in a routine manner without
taking any responsibility whatsoever only to harass
certain persons. That apart, it becomes more
disturbing and alarming when one tries to pick up
people who are passing orders under a statutory
W.P.(Cr.)No.177/2017
provision which can be challenged under the
framework of the said Act or under Article 226 of the
Constitution of India. But it cannot be done to take
undue advantage in a criminal court as if somebody is
determined to settle the scores.
31. We have already indicated that there has to be
prior applications under Section 154(1) and 154(3)
while filing a petition under Section 156(3). Both the
aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed.
The warrant for giving a direction that an application
under Section 156(3) be supported by an affidavit is so
that the person making the application should be
conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is
found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the
veracity of the same can also be verified by the learned
Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as
a number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases
and the cases where there is abnormal delay/laches in
initiating criminal prosecution, as are illustrated in
Lalita Kumari (supra) are being filed. That apart, the
learned Magistrate would also be aware of the delay in
lodging of the FIR."
16. The principle of law laid down by their Lordships of the Supreme
Court in Priyanka Srivastava (supra) has been followed with
approval in the matter of Vikram Johar v. State of Uttar
Pradesh3 in which their Lordships have noticed the potentiality of
misuse of Section 156(3) of the CrPC to harass those, who are
entrusted with various statutory functions and emphasized the
need that application under Section 156(3) has to be supported
3 AIR 2019 SC 2109
W.P.(Cr.)No.177/2017
by an affidavit so that the person making allegation should take
responsibility of what they have said in the complaint.
17. Recently, in the matter of Babu Venkatesh and others v. State
of Karnataka and another4, their Lordships of the Supreme
Court again while upholding the decision in Priyanka Srivastava
(supra) analyzed the law as to how the power under Section
156(3) of the CrPC has to be exercised and laid down the
prerequisites for exercise of power of Magistrate under Section
156(3) and the manner in which it has to be exercised.
Paragraphs 24 to 28 of the report state as under: -
"24. This Court has clearly held that, a stage has
come where applications under Section 156(3) CrPC
are to be supported by an affidavit duly sworn by the
complainant who seeks the invocation of the
jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate
case, the learned Magistrate would be well advised to
verify the truth and also verify the veracity of the
allegations. The Court has noted that, applications
under Section 156(3) of the CrPC are filed in a routine
manner without taking any responsibility only to harass
certain persons.
26. This Court has further held that, prior to the filing
of a petition under Section 156(3) of the CrPC, there
have to be applications under Sections 154(1) and
154(3) of the CrPC. This Court emphasises the
necessity to file an affidavit so that the persons making
the application should be conscious and not make
false affidavit. With such a requirement, the persons
would be deterred from causally invoking authority of
the Magistrate, under Section 156(3) of the CrPC.
Inasmuch as if the affidavit is found to be false, the
person would be liable for prosecution in accordance
4 (2022) 5 SCC 639
W.P.(Cr.)No.177/2017
with law.
27. In the present case, we find that the learned
Magistrate while passing the order under Section
156(3) of the CrPC, has totally failed to consider the
law laid down by this court.
28. From the perusal of the complaint it can be seen
that, the complainant Respondent 2 himself has made
averments with regard to the filing of the original suit.
In any case, when the complaint was not supported by
an affidavit, the Magistrate ought not to have
entertained the application under Section 156(3) CrPC.
The High Court has also failed to take into
consideration the legal position as has been
enunciated by this Court in Priyanka Srivastava v.
State of U.P.1, and has dismissed the petitions by
merely observing that serious allegations are made in
the complaint."
18. Reverting to the facts of the case in light of the aforesaid
principles of law laid down by the Supreme Court in Priyanka
Srivastava (supra) followed in Vikram Johar (supra) and further
followed in Babu Venkatesh (supra), it is quite vivid that
respondent No.3 made a complaint under Section 154(1) of the
CrPC before the Station House Officer, Police Station Nevai,
District Durg on 4-12-2016. However, on being scanned the
original record, no application under Section 154(3) of the CrPC
is said to have been made by respondent No.3 except the
endorsement of the said application under Section 154(1) on 6-
12-2016 to S.P. Durg which in our considered opinion cannot be
said to be the compliance of Section 154(3) of the CrPC. Their
Lordships of the Supreme Court in Priyanka Srivastava (supra)
followed in Vikram Johar (supra) and further followed in Babu
W.P.(Cr.)No.177/2017
Venkatesh (supra) have clearly held that applications under
Section 154(1) & (3) are required to be made separately and
both aspects should be clearly spelt out in the application and
necessary documents to that effect shall be filed, but in the
instant case, though the application under Section 154(1) has
been filed, but no application under Section 154(3) is said to
have been filed clearly stating that on refusal by the Station
House Officer such application is being made. Refusal is sine
qua non for making application maintainable under Section
154(3) of the CrPC. Respondent No.3 got the application under
Section 154(1) of the CrPC endorsed to the Office of the
Suiperintendent of Police two days after making application on 4-
12-2016 which cannot be said to be the sufficieint compliance of
Section 154(3) of the CrPC. Registration of FIR involves serious
and devastating consequences on life and liberty of a person
against whom the FIR is directed to be made, therefore, strict
compliance of Section 154(3) of the CrPC is required to be made
which is sine qua non for maintaining an application under
Section 156(3) of the CrPC and merely endorsing a copy of
application under Section 154(1) of the CrPC to the
Superintendent of Police cannot be said to be the strict
compliance of Section 154(3) of the CrPC, there has to be a
separate and independent application under Section 154(3) of
the CrPC after refusal by the SHO to register FIR. Thus, there is
total non-compliance of Section 154(3) of the CrPC, as no
W.P.(Cr.)No.177/2017
documents have been filed by the complainant in support of the
averments made in paragraph 8 of the application under Section
156(3) of the CrPC.
19. As a fallout and consequence of the aforesaid discussion, the
impugned order passed by the learned Additional Sessions
Judge invoking power under Section 156(3) of the CrPC is totally
without jurisdiction and without authority of law apart from being
in teeth of the judgment rendered by the Supreme Court in
Priyanka Srivastava (supra) followed in Vikram Johar (supra)
and further followed in Babu Venkatesh (supra). As such, the
impugned order dated 20-3-2017 passed by the Additional
Sessions Judge (FTC), Durg is hereby quashed.
20. The petition is allowed to the extent indicated herein-above. No
order as to cost(s).
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
