Ashok Narayan Prasad vs The State Of Jharkhand
2022 Latest Caselaw 1764 Jhar

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No. 515 of 2022

Ashok Narayan Prasad, aged about 47 years, son of late Gyan Chandra
Prasad, resident of Sunita Bhawan, Bhawtarini Path, Maniatand, Dhanbad,
P.O. Dhanbad, P.S. Dhansar, District-Dhanbad
                                                       ...... Petitioner
                       Versus

The State of Jharkhand                            ...... Opposite Party

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                      ---------
For the Petitioner    : Mr. Anil Kumar Sinha, Sr. Advocate
                        Mr. Lal Vikram Nath Shahdeo, Advocate
For the State         : Mr. Shailendra Kumar Tiwari, A.P.P.
                   ................


04/Dated: 04/05/2022

This petition has been taken up through Video Conferencing in

view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard.

2. Heard Mr. Anil Kumar Sinha, learned senior assisted by Mr. Lal Vikram

Nath Shahdeo, learned counsel for the petitioner and Mr. Shailendra Kumar

Tiwari, learned counsel for the State.

3. The present petition has been filed for quashing of F.I.R. in

connection with Chas P.S. Case No. 217/2019 dated 29.07.2019 registered

under sections 406/420/323/504/506 and 120-B of the Indian Penal Code,

pending in the Court of learned Chief Judicial Magistrate, Bokaro.

4. The Complaint Case No. 447 of 2014 was filed in the Court of

learned Chief Judicial Magistrate, Bokaro on 01.08.2014 alleging therein that

all the three accused persons including petitioner who are officials of Basil

International Limited Branch, Solagdih came to his residence and put forward a

lucrative offer and assured him to invest his money in his company for better

financial growth and on their assurance, the complainant and witnesses had

invested total Rs. 29,10,000/- vide fixed deposits on different dates from

01.11.2010 to 04.12.2013 (detail given in the complaint petition) but after the

due date of maturity the accused persons could not get their money back. It is

further alleged that the accused persons have grabbed total amount of Rs.

29,10,000/-.

5. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner

submits that the petitioner is employee of the company namely, Basil

International Limited Branch-Solagdih. He submits that petitioner has been

implicated in this case only being the employee of the company. He further

submits that complaint is not affidavited and on the basis of that complaint,

learned court sent the matter to the police station under section 156(3) Cr.P.C.

for registration of F.I.R and investigation and pursuant thereto Chas P.S. Case

No. 217 of 2019 has been registered. He relied on judgment in the case of

"Babu Venkatesh and Others Vs. State of Karnataka and Another" in

Criminal Appeal No. 252 of 2022, Criminal Appeal No. 253 of 2022, Criminal

Appeal No. 254 of 2022 and Criminal Appeal No. 255 of 2022 wherein para 27,

28 and 29 the Hon'ble Supreme Court has held as under:-

"27. This Court has further held that, prior to the filing of a petition under Section 156(3) of the Cr.P.C., there have to be applications under Section 154(1) and 154(3) of the Cr.P.C. This Court emphasizes 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 Cr.P.C. In as much as if the affidavit is found to be false, the persons would be liable for prosecution in accordance with law.

28. In the present case, we find that the learned Magistrate while passing the order under Section 156(3) of the Cr.P.C., has totally failed to consider the law laid down by this Court.

29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 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) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been

enunciated by this Court in the case of Priyanka Srivastava v. State of U.P. (Supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint."

6. On these grounds, learned senior counsel for the petitioner submits

that the F.I.R. is fit to be quashed.

7. On the other hand Mr. Shailendra Kumar Tiwari, learned counsel for

the State submits that learned court has rightly referred the matter to the

police station. He submits that investigation is still going on.

8. In view of the aforesaid facts and considering the submission of the

learned counsel for the parties, the Court has gone through the complaint

petition which has been converted into F.I.R. Seeing the contents of F.I.R., it

transpires that on the ground of doubling the amount in 6 years on deposit,

several innocent persons have been cheated. The innocent people deposited

the amount in question on assurance of the petitioner who happens to be the

employee of the company and on their demand, the money has not been

returned back and the deposited amount by the innocent people has been

defalcated. The allegation against the petitioner is there. From perusal of para

10 of the complaint petition, it transpires that complainant has approached the

police station and on refusal, complaint has been filed. The learned court after

going through the nature of complaint has referred the matter under section

156(3) Cr.P.C. to the concerned police station for registration of F.I.R. and

investigation. The nature of complaint is serious. Only on the ground of

technicality that complaint is not supported with any affidavit, F.I.R. is not

required to be quashed. In the case of " Babu Venkatesh" (supra), relied by

the learned senior counsel for the petitioner, there was agreement between

the parties for sale of property situated at Banglore. The fact of the case in

hand is different from that case. In the case of "Priyanka Srivastava &

Another Vs. State of Uttar Pradesh & Others" reported in (2015) 6 SCC

287, the bank officers have been made accused and in that background, the

Hon'ble Supreme Court discussed about the affidavit and in the case in hand

there is serious allegation of taking money by the petitioner as well as by the

company. In the case of "Ramdev Food Products Limited Vs. State of

Gujrat" reported in 2015 6 SCC 439, the Hon'ble Supreme Court has

considered Section 156(3) Cr.P.C. Paragraph Nos. 22 and 25 of the said

judgement is quoted here-in-below:-

"22. Thus, we answer the first question by holding that: 22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.

22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under para 120.6 in Lalita Kumari may fall under Section 202.

22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.

............................................................................................................

25. We are of the view that the maxim does not apply for interpretation of Section 202(3) for the reasons that follow. In our view, the correct interpretation of the provision is that merely negating the power of arrest to a person other than police officer does not mean that police could exercise such power. The emphasis in the provision is to empower such person to exercise other powers of in charge of a police station than the power of arrest. As regards the power of police to arrest, there are express provisions dealing with the same and power of police to arrest is not derived from or controlled by Section 202(3). The said power is available under Section 41 or under a warrant. The power remains available subject to conditions for exercise thereof. For example, it can be exercised if cognizable offence is committed in the presence of a police officer [Section 41(1)(a)]. Under Section 202, since the Magistrate is in seisin of the matter and has yet to decide "whether or not there is sufficient ground for proceeding", there is no occasion for formation of opinion by the police about credibility of available information necessary to exercise power of arrest as the only authority of the police is to give report to Magistrate to enable him to decide whether there is sufficient ground to proceed. Power of arrest is not to be exercised mechanically."

9. In the case of "Ramdev Food Products Limited" (supra) the

Hon'ble Supreme Court has held that the Magistrate can either direct for

registration of case under section 156(3) Cr.P.C. or to take cognizance. The

guidelines issued by the Hon'ble Supreme Court in case of " Babu

Venkatesh" (supra) and "Priyanka Srivastava" (supra) have got scheme

of the Code which provide exercise of discretion by the Magistrate guided by

interest of justice from case to case as held in para 22.3 of "Ramdev Food

Products Limited" (supra).

10. In the case in hand, investigation is still going on. The Court is not

inclined to quash the F.I.R. Accordingly, this criminal miscellaneous petition is

dismissed.

(Sanjay Kumar Dwivedi, J.) Satyarthi/