Manjuben @ Manjulaben D/O. ... vs State Of Gujarat
2021 Latest Caselaw 2049 Guj

       R/CR.RA/1134/2019                                CAV JUDGMENT




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL REVISION APPLICATION NO. 1134 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                          Sd/-

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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2     To be referred to the Reporter or not ?                       NO

3     Whether their Lordships wish to see the fair copy             NO
      of the judgment ?

4     Whether this case involves a substantial question             NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MANJUBEN @ MANJULABEN D/O. NATHUBHAI NARANBHAI PATEL Versus STATE OF GUJARAT ========================================================== Appearance:

MR PERCY KAVINA, SENIOR ADVOCATE with MR.DIPAK B PATEL(3744) for the Applicant(s) No. 1 MS CM SHAH APP (2) for the Respondents ==========================================================

CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 11/02/2021

CAV JUDGMENT

1. Present Criminal Revision Application under section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the petitioner - original complainant challenging the order dated

31.10.2019 passed by the learned 10th Additional Senior Civil Judge and ACJM, Surat in Criminal Misc. Application No.1074 of 2017 preferred by the petitioner under section 156(3) of the Code of Criminal Procedure, by which the trial court rejected the application preferred by the petitioner observing that no complaint filed before the Court for committal of offence for which the Court take cognizance or issue a direction for investigation to the police and it is misinterpretation on the part of the petitioner regrading principles established by the Hon'ble Apex Court and the prayer prayed by the petitioner is not according to law and hence the same cannot be granted and so the present the is not maintainable and it is rejected.

2. The case of the petitioner, in nutshell, is as under :

Land bearing Survey Nos.179, 80 and 229 of village Katargam, Surat were owned and occupied by the father of the petitioner. After death of her father, accused persons got revenue entry No.8219 mutated in the revenue record by creating forged documents and specifically an agreement dated 18.03.1993 in the name of the petitioner by putting forged signatures of the petitioner, to show that the petitioner has waived her right from such lands and also made a bogus statement before the revenue authority and thereby the name of the petitioner came to be deleted from the revenue record of such lands and thereby the accused have committed serious and cognizable offence punishable under sections 406, 409, 420, 465, 467, 468, 471 and 120B of Indian Penal Code.

2.1. That the petitioner filed a written complaint dated

17.10.2014 to the Police Commissioner as well as Katargam Police Station which was numbered as C.A. No.375 of 2014.

2.2. According to the petitioner, despite the abovereferred clear written complaint filed by the petitioner disclosing the commission of a cognizable offence of forgery and cheating, police authorities did not register offence as an FIR and rejected the complaint of the petitioner by holding that nothing to be done as a Civil Suit is going on. Even no details of investigation was provided to the petitioner and the petitioner obtained the details of investigation under RTI where she came to know that the forged document created by the accused persons has not been recovered by the police. That in a case of forgery, non-recovery of the disputed document cannot be tolerated and in absence of recovery of such forged document, no investigation can be completed by saying that the dispute is of civil nature because a suit is pending.

2.3. As per the case of the petitioner, statement of one of the accused namely Mheshbhai Chhaganbhai was recorded by the police on 15.03.2015 wherein he has specifically stated that he will produce the copy of disputed document, but thereafter, neither he produced such document nor the police has demanded such document from Maheshbhai. Even in the Rojkam of the investigation, the police has noted that the disputed documents were demanded from Maheshbhai on 21.03.2015, who had told to the police that he will produce the same after getting it from his advocate, but police has not given the statement of Maheshbhai dated 21.03.2015 to the petitioner.

2.4. According to the petitioner, the investigating agency by letter dated 04.04.2015 demanded the relevant documents of Revenue Entry No.8219 from Mamlatdar, Choryasi, Surat and after completion of such formality of writing letter, police has not taken pain to obtain such record which clearly appears from the final report.

2.5. According to the petitioner, the investigating officer has recorded in his report dated 25.10.2015 that the petitioner has executed another document dated 18.03.2009 on a stamp paper of Rs.20/- to waive her right from the lands of her father. The petitioner has never executed any such document in the year 2009 on a stamp paper of Rs.20/-. The police has merely recorded such details but not recovered any such document during the investigation which throw light on mischief played by the accused as well as the investigating agency.

2.6. The petitioner, therefore, made an application under section 156(3) of the Cr.P.C., however, the same came to be rejected by the trial court by the impugned order by holding that no complaint filed before the Court for committal of offence and hence no cognizance can be taken or no directions can be issued and the application is not according to law and accordingly rejected the application.

3. Mr.Percy Kavina, learned senior advocate appearing for the petitioner has submitted that merely because the petitioner has initiated civil proceedings, the police has not entertained the complaint of the petitioner which is highly improbable and not

sustainable in the eye of law. It is contended that police has not even recovered the forged document or its copy from the accused persons. The accused persons have also not produced such documents before the police or before the Civil Court in the suit proceedings and a copy is not given to the petitioner despite the notices issued by the petitioner. Not only that, the accused persons have not even replied to the notices issued by the petitioner. It is contended that the court below erred in not considering the vital issue of non-recovery of the disputed document by the investigating agency despite undertaking given by the accused to produce the same. The court below erred in not considering the fact that the investigating agency has not tried to obtain revenue record of revenue entry No.8219 from the office of the Mamlatdar except writing of a letter. It is contended that the court below failed to appreciate the fact that in a case of forgery, the bare minimum requirement is to recover the disputed document from the accused persons and to get the signatures on such document be verified, while here in the present case, the investigating officer has not taken pain to recover the disputed document, which cannot be permitted.

3.1. It is further by Mr.Percy Kavina, learned senior advocate appearing for the petitioner that the petitioner has not signed any document dated 18.03.1993 on a stamp paper of Rs.10 and document dated 18.03.2009 on a stamp paper of Rs.20/- waiving her rights from the ancestral lands.

3.2. It is further contended by Mr.Percy Kavina, learned senior advocate appearing for the petitioner that the court below failed to

consider provisions of section 156(3) and section 190 of the Cr.P.C. which clearly provides power to direct the concerned police officer to register the offence under section 156(3) of the Cr.P.C. and to investigate the same as an FIR. It is further contended that the court below has wrongly interlinked provisions of section 156(3) and section 190 of the Cr.P.C. It is further contended that the court below has erred in holding that the prayer prayed by the petitioner is not according to law and so the application is not maintainable. It is further contended that the impugned order and the observations made therein are nothing but non-application of mind and contrary to the settled legal position. It is further contended that the learned Magistrate has wide power to direct registration of an FIR and to ensure proper investigation. It is further contended that if the FIR for the cognizable offence is not registered by police, the remedy lies under section 156(3) of the Cr.P.C. before the Magistrate by filing a criminal complaint under section 200 of the Cr.P.C.

3.3. In support of his above contentions, Mr.Percy Kavina, learned senior advocate for the petitioner has relied on the following decisions :-

[1] Saikiri Vasu Vs. State of Uttar Pradesh, reported in 2008(2) SCC

409. [2] Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dange, 2016(6) SCC 277.

[3] Telangana Vs. Habib Abdullah Jeelani, 2017(2) SCC 779.

4. Learned APP has requested to pass appropriate order in the facts and circumstances of the case.

5. Heard Mr.Percy Kavina, learned senior advocate appearing for petitioner and Mr.C.M. Shah, learned APP appearing for the State. Considered the impugned order and the material placed on record. I have also considered the relevant provisions and also considered the law laid down by the Hon'ble Apex Court in the decisions relied upon by the learned counsel for the petitioner.

6. The relevant Section 156 is reproduced hereinbelow :-

Section 156: Police officer's power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIll.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.

7. Section 190 of the Cr.P.C. is reproduced hereinbelow :-

Section 190: Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in

this behalf under sub-section (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

8. The Hon'ble Apex Court in the case of Sakiri Vasu (supra) has held in paragraphs 11, 17 and 24 as under;

"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Sec. 154 Cr.P.C., then he can approach the Superintendent of Police under Sec. 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Sec. 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec. 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

17. In our opinion Sec. 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Sec. 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

24. In view of the above-mentioned legal position, we are of the view that although Sec. 156(3) is very briefly worded, there is an implied power in the Magistrate under Sec. 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Sec. 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision."

9. The Hon'ble Apex Court in the case of Sudhir Bhaskarrao Tambe (supra) has held in paragraphs 5 and 6 as under;

"5. This Court has held in Sakiri Vasu v. State of U.P. & Others, reported in AIR 2008 SC 907, that if a person has a grievance that his F.I.R. has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the concerned Magistrate under Section

156(3), Cr.P.C. If such an application under Section 156(3), Cr.P.C. is made and the Magistrate is, prima facie, satisfied, he can direct the F.I.R. to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the Investigating Officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu's case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

6. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate under Section 156(3), Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."

10. The law laid down in paragraph Nos. 11, 17 and 24 of the case of Sakiri Vasu, as referred to hereinabove, is reiterated by the Hon'ble Supreme Court in case of Sudhir Tambe as referred to hereinabove.

11. The Hon'ble Supreme Court, in the case of Habib Abdullah Jeelani (Supra) has held in paragraph Nos. 6 and 7 as under;

"6. Having stated what lies within the domain of the investigating agency, it is essential to refer to the Constitution Bench decision in Lalita Kumari v. Government of Uttar Pradesh and Ors., (2014) 2 SCC 1. The question that arose for consideration before the Constitution Bench was whether "a police officer is bound to register a first information report upon receiving any information relating to commission of a cognizable offence under Section 154 Cr.P.C. or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same"? While interpreting Section 154 Cr.P.C., the Court addressing itself to various facets opined that Section 154(1) Cr.P.C. admits of no other construction but the literal construction. Thereafter it referred to the legislative intent of Section 154 which has been elaborated in State of Haryana and Ors. v. Bhajan Lal and Ors., AIR 1992 SC 604 and various other authorities. Eventually the larger Bench opined that reasonableness or credibility of the information is not a condition precedent for the registration of a case. Thereafter there was advertence to the concept of preliminary inquiry. In that context, the Court opined thus:

"103. It means that the number of FIRs not registered is approximately equivalent to the number of FIRs actually registered. Keeping in view the NCRB figures that show that about 60 lakh cognizable offences were registered in India during the year 2012, the burking of crime may itself be in the range of about 60 lakhs every year. Thus, it is seen that such a large number of FIRs are not registered every year, which is a clear violation of the rights of the victims of such a large number of crimes.

104. Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the rule of law in the long run since people stop having respect for the rule of law. Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society.

105. Therefore, reading Section 154 in any other form would not only be detrimental to the scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence."

7. While dealing with the likelihood of misuse of the provision, the Court ruled thus:

"114. It is true that a delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. As already discussed above, there are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel."

12. In view of the facts of the case and the law laid down by the Apex Court in the aforesaid decisions, the impugned order dated 31.10.2019 passed by the learned 10th Additional Senior Civil Judge and ACJM, Surat in Criminal Misc. Application No.1074 of 2017 preferred by the petitioner under section 156(3) of the Code of Criminal Procedure, is required to be considered. By the impugned order, the trial court rejected the application preferred by the petitioner observing that no complaint filed before the Court for committal of offence for which this Court taking a cognizance or issue a direction for investigation to the police but prayer prayed in this application is not according to law and it is misinterpretation on the part of the applicant regrading principles established by the Hon'ble Apex Court and the prayer prayed by the petitioner is not according to law and hence the same cannot be granted and so the the application is not maintainable and accordingly it is rejected.

13. The Hon'ble Apex Court in the case of Sakiri Vasu (supra) in para 11 has held that if a person has a grievance that the police station is not registering his FIR under Sec. 154 Cr.P.C., then he can approach the Superintendent of Police under Sec. 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Sec. 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec. 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case

where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

14. The Hon'ble Apex Court in the case of Sakiri Vasu (supra) in para 17 has further held that, Sec. 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Sec. 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

15. The Hon'ble Apex Court in the case of Sakiri Vasu (supra) in para 24 has further held that, we are of the view that although Sec. 156(3) is very briefly worded, there is an implied power in the Magistrate under Sec. 156(3) Cr.P.C. to order registration of a criminal offence and / or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Sec. 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

16. The Hon'ble Apex Court in the case of Sudhir Bhaskarrao Tambe (supra) has held in para 5 that, this Court has held in

Sakiri Vasu v. State of U.P. & Others, reported in AIR 2008 SC 907, that if a person has a grievance that his F.I.R. has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the concerned Magistrate under Section 156(3), Cr.P.C. If such an application under Section 156(3), Cr.P.C. is made and the Magistrate is, prima facie, satisfied, he can direct the F.I.R. to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the Investigating Officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu's case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

17. The Hon'ble Apex Court in the case of Sudhir Bhaskarrao Tambe (supra) has held in para 6 that, we are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate under Section 156(3), Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

18. As stated above the laid down in the case of Sakiri Vasu (supra), is reiterated by the Hon'ble Supreme Court in case of Sudhir Tambe, as referred to hereinabove.

19. Thus, from the aforesaid decisions, more particularly in the case of Sakiri Vasu (supra), it is crystal clear that if a person has a grievance that the police station is not registering his FIR under Sec. 154 Cr.P.C., then he can approach the Superintendent of Police under Sec. 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Sec. 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec. 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered. Thus, it is clear that the trial court has committed an error in rejecting the application preferred by the petitioner under Sec. 156 (3) Cr.P.C praying for direction for registration of FIR, after the police did not registered the FIR though the petitioner made written complaint to the police authorities. The trial court has wide powers under section 156(3) of the Cr.P.C. for issuing directions for registration of FIR. Under the circumstances, the impugned order is illegal and against the settled legal position and cannot sustain and the same deserves to be quashed and set aside and the matter is required to be remanded to the trial court.

20. In the result, present Revision Application is allowed. The impugned order dated 31.10.2019 passed by the learned 10th

Additional Senior Civil Judge and ACJM, Surat in Criminal Misc. Application No.1074 of 2017 preferred by the petitioner under section 156(3) of the Code of Criminal Procedure, is hereby quashed and set aside and the matter is remanded to the trial court to consider the matter afresh, after giving reasonable opportunities an opportunity to all the parties, in light of the observations made in this order and the decisions of the Apex Court, referred to hereinabove. The trial court is directed to decide and dispose of the matter on remand, as aforesaid, within a period of three months from the date of writ of this order. Rule is made absolute to the aforesaid extent.

The registry is directed to issue writ of this order to the trial court by FAX or e-mail at the earliest.

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR