Jharkhand High Court
Amrit Agrawal vs The State Of Jharkhand on 13 October, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 427 of 2022
Amrit Agrawal ...... Petitioner
Versus
1.The State of Jharkhand
2. Deepak Kumar Agrawal ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Amit Kumar Sinha, Advocate
For the State : Mr. Satish Prasad, A.P.P.
For the O.P. No. 2 : Mr. Sheo Kumar Singh, Advocate
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04/Dated: 13/10/2022
Heard Mr. Amit Kumar Sinha, learned counsel for the petitioner, Mr.
Satish Prasad, learned counsel for the State and Mr. Sheo Kumar Singh,
learned counsel for the O.P. No.2.
2. This petition has been filed for quashing the F.I.R and the entire
criminal proceedings in connection with Daltonganj Town P.S. Case No. 410 of
2019, pending in the Court of learned Chief Judicial Magistrate, Palamau at
Daltonganj.
3. Learned counsel for the petitioner submits that F.I.R. has been
lodged on 18.12.2019 on the basis of complaint referred to the concerned
police station under section 156(3) Cr.P.C without application of judicial mind.
He further submits that the case of the petitioner is fully covered with
judgment of the Hon'ble Supreme Court passed in the case of Suresh Kankra
V. State of U.P. & Another in Criminal Appeal No. 52 of 2022 (SLP
(Crl) No. 852 of 2020. On these grounds, he submits that the F.I.R. is fit to
be quashed.
4. On the other hand, learned counsel for the State as well as O.P. No.
2 submit that the case is made out against the petitioner and the learned court
after applying judicial mind passed the said order. Learned counsel for the O.P.
No. 2 submits that anticipatory bail application filed by the petitioner has been
dismissed as withdrawn.
5. In the light of the submissions of the learned counsel for the parties
it appears that the learned court applied judicial mind thereafter only referred
the matter to the police for registration of F.I.R. In this petition only F.I.R. is
under challenge. The judgment relied by the learned counsel for the petitioner,
there was family dispute and respondent 2 was domestic help of Smt. Asha.
There was number of proceedings going on between the parties and in that
view of the matter the Hon'ble Supreme Court has discussed that learned
court is required to conscious of the consequences by passing order under
section 156(3) Cr.P.C. In the case in hand F.I.R. has already been registered.
The petitioner has not been able to make out his case in anticipatory bail
application and his anticipatory bail application was dismissed as withdrawn. It
appears that learned court after applying judicial mind referred the matter to
the police under section 156(3) Cr.P.C. The burden of the Magistrate has been
considered by the Hon'ble Supreme Court in the case of " HDFC Securities
Limited & Others Vs. State of Maharashtra & Another" reported in
(2017) 1 SCC 640, wherein in para 9, 10, 24 and 27 the Hon'ble Supreme
Court has been held 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."
6. In view of the above discussions, reasons and analysis, no case of
interference is made out. Accordingly, this criminal miscellaneous application is
dismissed.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
