Jharkhand High Court

Kunal Mehta @ Kunal M. Mehta vs The State Of Jharkhand on 20 September, 2022

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No. 1800 of 2021

Kunal Mehta @ Kunal M. Mehta                           ...... Petitioner
                      Versus

1.The State of Jharkhand
2. Syed Md. Afsar Jamal
                                                 ...... Opposite Parties

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner    : Mr. Amritansh Vats, Advocate
                        Mr. Kunal Priyam, Advocate
For the State         : Mr. Ravi Prakash, Spl. P.P.
For the O.P. No. 2    : Md. Shadab Ansari, Advocate
                   ................

10/Dated: 20/09/2022

Heard Mr. Amritansh Vats, learned counsel for the petitioner, Mr.

Ravi Prakash, learned counsel for the State and Md. Shadab Ansari, learned

counsel for the O.P. No. 2.

2. This petition has been filed for quashing of order dated

24.08.2017 passed by the learned Chief Judicial Magistrate, Bokaro in

connection with Complaint Case No. 632 of 2017, whereby and whereunder

the learned court has directed to lodge F.I.R. under section 156(3) Cr.P.C. and

further prayer has been made of quashing the F.I.R being Bokaro Steel City P.S.

Case No. 272 of 2017, corresponding to G.R. No. 1607 of 2017 including entire

criminal proceeding, pending in the Court of learned Chief Judicial Magistrate,

Bokaro.

3. Complainant has filed a complaint petition before the court of learned

Chief Judicial Magistrate, Ranchi and same has been numbered as Complaint

Case No. 632 of 2017, thereafter the said complaint was sent to the concerned

Police Station under section 156(3) Cr.P.C. for institution of First Information

Report wherein it has been alleged that O.P. no. 2 desired to purchase a

commercial vehicle of Tata Motors for which he met the agents of IndusInd

Bank and had applied for the loan from the said bank but later on the

application for loan was rejected on the ground that he does not able to

provide the guarantor for the said loan. Later on when the informant asked to

provide all his documents with respect to the applied loan, the same was

refused by the bank stating that all the relevant papers have been destroyed.

It is further alleged that on 11.12.2015 the informant received a legal

notice asking therein to pay the due amount of Rs. 3,64,176/- and through the

said notice the petitioner got the knowledge that he has been named as a

guarantor of one Bablu Singh, son of late Satya Narayan Singh. The informant

has replied to the said legal notice dated 23.12.2015 through his laywer.

It is further alleged that again on 07.03.2016 the informant has

received a legal notice from the Bank asking therein to pay the due amount of

Rs. 62,808/-. In the said legal notice the informant -O.P. No. 2 was marked as

guarantor to the said loan. The O.P. No. 2 has replied to the said legal notice

vide letter dated 18.03.2016.

It is further alleged that thereafter the petitioner has received the

entire loan papers and loan agreement from the Bank wherein it was found that

the signature of the informant/O.P. No. 2 is forged. Thereafter the petitioner

received a notice for appointment of arbitrator for resolving the said issue.

It is further alleged the complainant was called for mediation in the

Chamber of Advocate on 19.04.2017. A photocopy of loan agreement was

provided to the complainant in which in the column of co-borrower, the

signature of the petitioner has been shown which is forged signature as the

complainant has never signed the said document.

It is further alleged that in the said document the mobile number of

the complainant has been shown as 7677981547 which is not the mobile

number of the complainant. The branch manager of the IndusInd Bank

namely, Kunal Mehta has signed the document in presence of both sides

however, the complainant has never signed the said document.

It is further alleged that Kunal Mehta who is branch manager of the

IndusInd Bank, Dhanbad in pre-planned manner in absence of any application

for loan by the complainant has signed the document on behalf of guarantor

and made the complainant as guarantor.

4. Mr. Amritansh Vats, learned counsel for the petitioner submits that

the petitioner is bank official and learned court has referred the matter under

section 156(3) Cr.P.C. which is not in accordance with law and in violation of

judgement in the case of "Priyanka Srivastava & Another Vs. State of

Uttar Pradesh & Others" reported in (2015) 6 SCC 287. He further

submits that again this aspect of the matter has been considered 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. On

these grounds, he submits that this petitioner may kindly be exonerated and

entire criminal proceeding may be quashed.

5. On the other hand Md. Shadab Ansari, learned counsel for the O.P.

No. 2 by way of referring page 40 which is complaint, submits that in place of

co-borrower the signature of the complainant has been shown which is forged

signature. He further submits that the complainant was neither guarantor

nor co-borrower however, in malafidely way in collusion with the petitioner,

document has been created and loan has been granted in favour of Bablu

Singh. He further submits that the complainant and Bablu Singh are residents

of Bokaro whereas loan has been granted at Dhanbad Branch.

6. Mr. Ravi Prakash, learned counsel for the State referring to para 7 and

8 of the complaint submits that there is specific allegation against the petitioner

that in presence of petitioner signature has been obtained however, the same

has been denied. He further submits that complainant has never signed before

the petitioner. He further submits that investigation is still going on.

7. 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 role of this petitioner has been disclosed in the

complaint petition, thereafter complaint has been filed. Complaint is not

affidavited. 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.

8. 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 to be applied. In the case of

Priyanka Srivastava (supra) relied by the learned counsel for the petitioner,

in that case 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.

9. 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

whether High Court is required to quash the criminal proceeding when the

entire allegation is hazy and not reflected. The stage of cognizance would arise

only after investigation is concluded it can be safely said that this is premature

of filing of this petition. Reference may be made to 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."

10. There are allegations of inducement against the petitioner. The

learned Magistrate has sent the complaint under section 156(3) Cr.P.C. The

role of the petitioner has been disclosed in para 7, 8, 9 and 10 of the complaint

and the name of the petitioner has also been disclosed therein. Looking into

page 40 of the paper book, prima facie it appears that in the column of co-

borrower, the signature of the O.P. No.2 is not tallying with the vakalatnama

filed on behalf of O.P. No. 2. However, this is subject matter of investigation. 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 interfered 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.

11. 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.

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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."

12. In the case of Sakiri Vasu v. State of U.P. reported in (2008) 2

SCC 409 , Section 156(3) Cr.P.C. has been considered by the Hon'ble Supreme

Court in paras 12 to 18 as under:-

"12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC

p. 631, para 11) "11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."

13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

14. Section 156(3) states:

"156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. 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 vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).

17. In our opinion Section 156(3) CrPC 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 FIR 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. Section 156(3) CrPC, 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.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."

13. 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 the 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).

14. In the case in hand there is serious allegation against the petitioner

of tampering with the signature of the O.P. No. 2 and it has not happened in

presence of the petitioner. The name of the petitioner has been disclosed in

para 7, 8, 9 and 10 of the complaint. This was not duty of the petitioner. The

petitioner was expected not to grant loan in such manner. This is not a case

that petitioner has acted bonafidely and complaint has been filed maliciously

against the petitioner. However, these are subject matter of the investigation

and the things will be clear when the investigation is over. No case of

interference is made out. Investigation is still going on, only F.I.R. has been

registered, there are parameters of quashing the F.I.R.

15. In view of the above discussions, reasons and analysis, no case of

interference is made out. Accordingly, this criminal miscellaneous application is

dismissed.