Jharkhand High Court

Arandam Adhikari @ Arindam ... vs The State Of Jharkhand on 11 October, 2022

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 2283 of 2020

     1. Arandam Adhikari @ Arindam Adhikari
     2. Ashish Adhikary
                                                        ...... Petitioners
                         Versus

1.The State of Jharkhand
2. Satish Kumar Singh
                                                 ...... Opposite Parties

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners   : Mr. Arwind Kumar, Advocate
For the State         : Ms. Sushma Aind, A.P.P.
For the O.P. No. 2    : Mr. Lakhan Chandra Roy, Advocate
                   ................

06/Dated: 11/10/2022

Heard Mr. Arwind Kumar, learned counsel for the petitioners, Ms.

Sushma Aind, learned counsel for the State and Mr. Lakhan Chandra Roy,

learned counsel for the O.P. No.2.

2. This petition has been filed for quashing the F.I.R and entire

criminal proceeding in connection with Chitra/Sarath P.S. Case No. 69/2015,

corresponding to G.R. No. 230 /2015 arising out of P.C.R. Case No. 393/2014,

pending in the Court of learned S.D.J.M., Madhupur, (Deoghar).

3. Mr. Arwind Kumar, learned counsel for the petitioners submits that

the learned court has sent the complaint for registration of F.I.R. under section

156(3) Cr.P.C. He submits that the said complaint was not affidavited. He

submits that the case of the petitioner is fully covered with judgement in the

case of "Priyanka Srivastava & Another Vs. State of Uttar Pradesh &

Others" reported in (2015) 6 SCC 287. On the same point, he further relied

on judgment in the case of " Babu Venkatesh & Others Vs. State of

Karnataka & Another" (Criminal Appeal No. 252 of 2022) reported in

2022 (2) JLJR SC 1. He further submits that the cheque issued by the

petitioner has bounced that is why the case has been lodged. He submits that

there is no criminality made out against the petitioner. He submits that even

after submission of chargesheet if the criminality is not made out, the Court can

quash the entire proceeding. On these grounds, he submits that the F.I.R. is

fit to be quashed.

4. Per contra, Mr. Lakhan Chandra Roy, learned counsel for the O.P. No.

2 submits that police has investigated the matter and submitted charge sheet

and accordingly, cognizance has been taken on 22.06.2021. He further submits

that in this petition only F.I.R. is under challenge, this Court sitting under

section 482 Cr.P.C. may not interfere with the matter.

5. Learned counsel for the State submits that only F.I.R. is under

challenge in this petition, chargesheet has been submitted and chargesheet is

not before this Court in that view of the matter this Court may not exercise its

power under section 482 Cr.P.C.

6. In the light of the submissions of the learned counsel for the

parties the Court has gone through the materials on record. Seeing the

complaint, it transpires that the cheque of Rs. 7,51,000/- has bounced. The

complaint was referred by the learned court under section 156(3) Cr.P.C.

pursuant to that F.I.R. was registered and the case was investigated and

chargehseet has been submitted and cognizance has been taken on

22.06.2021. Once the complaint is filed, the Magistrate is empowered to

proceed in terms of section 200 Cr.P.C. and he is having three options;(i) to

examine the complaint himself by way of solemn affirmation and proceed. (ii)

he may in such a situation refer the matter to the police under section 156(3)

Cr.P.C. and (iii) by such other person as in terms of sub section 1 of section

202 Cr.P.C.

7. In the case in hand admittedly the learned court has not examined

the complaint that is why the complainant has not been called upon to make

his statement on Solemn Affirmation. The learned court referred the matter to

the police under section 156(3) Cr.P.C. Referring the matter under section

156(3) Cr.P.C. judicial mind of the court is required. In the case of Priyanka

Srivastava (supra) the Hon'ble Supreme Court has held that there should be

application of mind while passing an order under section 156(3) Cr.P.C. In that

case the Hon'ble Supreme Court has dealt with several judgments and law has

been laid down in para 27, 29, 30 and 31. In para 27 of the said judgment, the

Hon'ble Supreme Court has held that the learned Magistrate has to remain

vigilant with regard to allegations made and the nature of allegations and not

to issue directions without proper application of mind. It has been held that

the application which has been filed under section 156(3) Cr.P.C. must be

affidavited to show that the person who has filed the complaint may be

responsible. There was no prior invocation in terms of section 154 Cr.P.C.

8. The another aspect of the matter is that once the complaint has

been referred under section 156 (3) Cr.P.C. and the same has been registered

whether the High Court sitting under Article 226 of the Constitution of India or

under section 482 Cr.P.C. can quash the entire proceeding or not. Seeing the

burden upon the Magistrate, if on a reading of complaint he finds the

allegations therein disclose a cognizable offence and that the forwarding of the

complaint to the police station for investigation under section 156(3) Cr.P.C.

will be conducive and save the valuable time of the Magistrate from being

wasted in enquiring into the matter and considering this aspect of the matter

the Hon'ble Supreme Court in the case of " HDFC Securities Limited &

Others Vs. State of Maharashtra & Another" reported in (2017) 1 SCC

640, in which section 156(3) Cr.P.C. has been considered by the Hon'ble

Supreme Court and it has been held in para 9, 10, 24 and 27 as under:-

"9. On the contrary, before the High Court it was submitted on behalf of Respondent 2 that an order under Section 156(3) of the Criminal Procedure Code requiring investigation by the police does not cause any injury of irreparable nature which requires quashing

of the investigation. It is further stated that the stage of cognizance would arise after the investigation report is filed. Therefore, the application filed by the appellants before the High Court is nothing but premature and thus there is no need for exercising the powers of the High Court either under Article 227 of the Constitution of India or under Section 482 of the Code. Further contention of the respondent before the High Court was that the inherent powers under Section 482 of the Code should be sparingly used.

10. The High Court held that the direction given to the police by the Magistrate under Section 156(3) of the Code for carrying out the investigation into the complaint and to submit a report, cannot give a right to the appellants for quashing the same since such an order would be based absolutely on speculations upon the report not filed. Further, it would result in prejudging the complaint. In these circumstances, the High Court dismissed the said application.

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24. Per contra, the learned counsel for Respondent submitted that the complaint has disclosed the commission of an offence which is cognizable in nature and in the light of Lalita Kumari case, registration of FIR becomes mandatory. We observe that it is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and that the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. It is settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, do not disclose the commission of an offence.

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27. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 4-1-2011 passed by the learned Magistrate under Section 156(3) CrPC. The learned counsel appearing on behalf of the appellants after summarising their arguments in the matter have emphasised also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) CrPC requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 CrPC, at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 CrPC should be sparingly used."

9. There are allegations of inducement. The learned Magistrate has

sent the complaint under section 156(3) Cr.P.C. In the case of Priyanka

Srivastava (supra) there was complaint on the allegation of inducement and

in absence of affidavit, bank officers were called upon to face the trial in that

scenario the Hon'ble Supreme Court interefered in the case of Priyanka

Srivastava(supra). Identical was the situation in the case of " Babu

Venkatesh" (supra) as in that case civil proceeding was going on and

complaint was filed. In the case in hand complaint has been filed and no prayer

was made to send the same under Section 156(3). The learned Magistrate

applying his mind sent the same to police. Once the complaint filed the learned

Magistrate is required to follow Section 200 Cr.P.C. and he has done so as

discussed herein above. Moreover chargesheet has been submitted and