Smt. Anusha Deepak Tyagi vs The State Of Madhya Pradesh
2022 Latest Caselaw 297 MP

                              1
          THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.63392/2021
           Smt. Anusha Deepak Tyagi Vs. State of M.P.

Gwalior, Dated:06-01-2022

      Shri Yogesh Chaturvedi, Advocate for applicant.

      Shri R.K. Awasthy, Public Prosecutor for respondent/State.

This application under Section 482 of Cr.P.C. has been filed

seeking the following relief:-

"It is therefore humbly prayed that the petition may kindly be allowed and the impugned order Anx-A dated 27-11-21 may kindly be set aside and the FIR may kindly be directed to be lodged against the named person as mentioned in the compliant under section 156(3) as in Anx-E and the independent superior police authority may kindly be directed to conduct the investigation without being influenced with the report submitted by the Police in early occasions."

2. It is submitted by the counsel for the applicant that the

applicant was being sexually assaulted / humiliated by the accused

persons and despite the fact that the applicant had approached the

police authorities for registration of offence on number of occasions,

the police did not register the FIR. Under these circumstances, the

applicant was compelled to file an application under Section 156 (3)

of Cr.P.C. It is submitted that by impugned order dated 27/11/2021

passed by JMFC, Gwalior in an unregistered Criminal Case

No...../2021 has rejected the application filed under Section 156 (3)

of Cr.P.C. with a direction to the applicant to examine her witnesses

under Sections 200, 202 of Cr.P.C.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.63392/2021 Smt. Anusha Deepak Tyagi Vs. State of M.P.

3. It is submitted by the counsel for the applicant that the

Supreme Court in the case of Lalita Kumari Vs. Government of

U.P. and others reported in (2014) 2 SCC 1 has held that where the

complaint discloses commission of cognizable offence, then the

police is under an obligation to register the FIR. It is submitted that

in the present case the applicant had made allegations of sexual

assault by the persons, but still the police did not register the FIR as

it was in hand in cloves with the accused persons, who are influential

persons. It is further submitted that the Magistrate has a power to

direct for registration of FIR and in the present case, the Magistrate

should have exercised its power instead of directing the applicant to

examine her witnesses under Sections 200, 202 of Cr.P.C. To buttress

his contentions, the counsel for the applicant has relied upon the

judgment passed by the Supreme Court in the cases of Jayant and

others Vs. State of M.P. reported in (2021) 2 SCC 670 and Sakiri

Vasu vs. State of U.P. reported in (2008) 2 SCC 409.

4. Heard learned counsel for the applicant.

5. The moot question for consideration in the present case is as to

whether the Magistrate is under obligation to direct the police to

register the FIR and investigate the matter or can proceed further

after examining the witnesses under Sections 200, 202 of Cr.P.C. The

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.63392/2021 Smt. Anusha Deepak Tyagi Vs. State of M.P.

judgments on which the applicant has placed reliance does not deal

with the above-mentioned question. In the case of Jayant (supra) as

well as in the case of Sakiri Vasu (supra) the Supreme Court has

held that the Magistrate can direct for investigation. Section 156 (3)

and Section 190 of Cr.P.C. read as under:-

"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 XIII.

(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.

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; 83

(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."

6. The use of word "may" clearly indicates that the discretion lies

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.63392/2021 Smt. Anusha Deepak Tyagi Vs. State of M.P.

with the Magistrate. If the Magistrate is of the view that the police

investigation is necessary, then he can direct for the same, but it

cannot be said that the Magistrate is under obligation to direct for

police investigation under Section 156(3) of Cr.P.C. After going

through the allegations, if the Magistrate is of the view that instead of

directing for investigation by the police under Section 156(3) of

Cr.P.C. he should proceed himself with the case, then he can direct

the complainant to examine his witnesses under Sections 200, 202 of

Cr.P.C. Furthermore, if the Magistrate decides to proceed by

examining witnesses under Sections 200, 202 of Cr.P.C., then still he

would not be helpless in taking help of police. After examining the

witnesses, if the Magistrate is of the view that he still requires the

assistance of police, then he can direct for an enquiry under Section

202 of Cr.P.C. In the present case, the allegations are that the accused

persons were assaulting the applicant sexually.

7. In the present case, the persons against whom the allegations

have been made have not been impleaded as respondents. It is true

that unless and until the summons are issued, the persons arrayed as

an accused have no right to participate, but once an application under

Section 156 (3) of Cr.P.C. is rejected and if the complainant decides

to challenge the said order, then on account of dismissal of

application filed under Section 156(3) of Cr.P.C. the persons arrayed

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.63392/2021 Smt. Anusha Deepak Tyagi Vs. State of M.P.

as accused will get a right to be heard. The Supreme Court in the case

of Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai

Patel reported in (2012) 10 SCC 517 has held that after the dismissal

of the complaint if the complainant files a revision or challenges

before the superior Court, then the persons suspected to have

committed the offence are legally entitled to be heard by the

Revisional Court. The Allahabad High Court in the case of Atul

Prandey Alias Param Pragyan Pandey Vs. State of U.P. and

Another by order dated 8/1/2021 passed in application under

Section 482 No.18108/2020 has held as under:-

14. Finally the following conclusions were recorded by the learned Full Bench;

"(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and

(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision."

8. In the present case, the persons who were suspected to have

committed the offence have also not been made respondents. Under

these circumstances, this Court is of the considered opinion that, no

good ground has been made out warranting interference.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.63392/2021 Smt. Anusha Deepak Tyagi Vs. State of M.P.

Accordingly, the order dated 27/11/2021 passed by JMFC, Gwalior is

hereby affirmed.

9. The application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.01.07 16:40:24 +05'30'