Madhya Pradesh High Court

Smt. Meera Yadav vs The State Of Madhya Pradesh on 23 March, 2022

Author: Rajeev Kumar Shrivastava

            1           MCRC Nos. 54125/21, 1996 /22 & 3547/22


    The High Court Of Madhya Pradesh
                  Bench Gwalior
                   *****************
    SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                   MCRC 54125 of 2021

       Smt. Mithlesh Yadav Vs. State of MP and Ors.

                  MCRC 1996 of 2022
        Balwan Singh Rajput vs. State of MP and Ors.

                          &
                    MCRC 3547 of 2022

      Smt. Meera Yadav & Ors. Vs. State of MP & Ors

              ========================
Shri Vivek Bhargava, counsel for petitioner Smt. Mithlesh
Yadav in MCRC 54125 of 2021 and for petitioner Balwan
Singh Yadav in MCRC 1996 of 2022.
Shri Vivek Bhargava along with Shri Sandeep Singh
Bhadoriya, counsel for petitioners in MCRC 3547 of 2022.
Shri Awadhesh Parashar, Panel Lawyer for State in all three
petitions.
                   =========================
Reserved on                                  16/03/2022
Whether approved for reporting                  ..../.......
                     =======================
                               ORDER

(Passed on 23/03/2022)

Per Rajeev Kumar Shrivastava, J:-

All these petitions filed u/S. 482 of CrPC are decided by

a common order, as they arise out of proceedings of FIR in

connection with Crime No.638/2021 registered at PS Thatipur,

District Gwalior for offences under Sections 420, 467, 468,

471 of IPC on the basis of impugned order passed by the Court

of JMFC, Gwalior on a complaint made by respondent No.3.

(2) Short facts giving rise to the controversy involved in all

these petitions are that; respondent No.3 Punjab Singh Gurjar

filed an application under Section 156(3) of CrPC before the

Court of JMFC, Gwalior against petitioners for commission of

offences punishable under Sections 420, 467, 468, 471 of IPC

and under Section 13(1)(2) of Prevention of Corruption Act

[ in short '' the PC Act''] on the ground of committing forgery

in obtaining marks in D.Ed. examination and holding post of

Primary/Assistant Teacher/ Samvida Shala Shikshak in Janpad

Panchayat concerned. On the basis of aforesaid complaint,

cognizance has been taken by the Magistrate concerned in

relation to aforesaid offences and ordered for registration of

FIR. Being dissatisfied, the petitioners are before this Court

for seeking quashment of FIR and further proceedings initiated

thereunder.

(3) It is the say of learned counsel for the petitioners that

respondent No.3 is a journalist and demanding money again

and again from the petitioners. On resistance, the aforesaid

complaint has been made before the Court of JMFC to falsely

implicate the petitioners. It is further contended that all the

petitioners are meritorious candidates, who have obtained

good marks in their D.Ed. examination and on the basis of

false allegations, they have been implicated for commission of

offence under the PC Act. The complaint so lodged by the

complainant suffers from delay and laches since it is filed after

lapse of long years and which is totally baseless and

concocted. It is further contended that the complaint presented

before the Court of JMFC by the respondent No.3 was not

maintainable as it is bad in law because it was not

accompanied by an affidavit/certificate required to be filed in

accordance with the judgment passed by Hon'ble Apex Court

in the matter of Priyanka Srivastava & Anr. vs. State of

Uttar Pradesh & Ors, (2015)6 SCC 287. It is further

contended that if the entire complaint and the documents

produced by complainant along with the complaint are

perused, it can safely inferred that they do not disclose any

offence and the complaint is nothing, but the sheer abuse of

process of law. If the material facts in the instant cases are

analyzed on the basis of the principles set out in the decision

of Hon'ble Apex Court, it is difficult to say that complaint

discloses offences alleged by complainant. It is not the case of

complainant that there is a forgery or creation of false

documents for obtaining the post in question. Therefore, the

petitioners knocked doors of this Court for exercising inherent

powers of this Court under Section 482 of CrPC for

quashment of FIR and the proceedings initiated thereunder. It

is further contended that a coordinate Bench of this Court in

the matter of Dinesh Sharma Vs. State of MP & Ors

[MCRC 10442 of 2019] has observed that in absence of

affidavit/certificate in support of complaint, no cognizance

could be taken by the Magistrate concerned and the Magistrate

concerned is not empowered to pass an order of registration of

offence or investigation in view of the law laid down by

Hon'ble Apex Court in the case of Priyanka Srivastava

(supra). Thus, learned counsel for the petitioners pray that the

impugned FIR and proceedings initiated thereunder, if any,

may be quashed.

(4) Per contra, learned counsel appearing for the State as

well as complainant submit that the conduct of petitioners

constitutes offences punishable under the aforesaid alleged

offences as there are clear allegations that the petitioners have

obtained D.Ed. mark-sheets and held the post in question by

creating forged and false documents, therefore, it cannot be

said that criminal action should not be initiated against them. It

is further contended that a complaint can be quashed where the

allegations made in complaint even if they are taken at their

face value and accepted in their entirety do not prima facie

constitute any offence or make out the case. Here is not the

case, as such. The Magistrate has applied his mind on the

allegations made in the complaint and on verification of the

documents filed with the complaint, felt apposite that there is a

prima facie case to trigger criminal prosecution, took

cognizance in the matter and thereby ordered for registration

of FIR. It is further contended on behalf of respondents that it

is a settled legal proposition of law that while considering the

case for quashing of FIR or criminal proceedings, the Court

should not kill a still-born child and appropriate prosecution

should not be stifled unless there are compelling

circumstances to do so. Hence, no interference is called for

and a prayer is made for dismissal of these petitions.

(5) Heard the learned counsel for the parties and perused

the documents available on record.

(6) The solitary contention raised by the petitioners in

support of aforesaid challenge in the present petitions is that

the application under Section 156 (3) of Cr.P.C preferred by

the respondent No.3 is not supported by an affidavit/certificate

disclosing the requisite steps taken by him of availing remedy

under Sections 154 (1), 154(3) of Cr.P.C. and thus, no

cognizance could be taken by the Magistrate concerned in

view of the law laid down by Hon'ble Apex Court in the case

of Priyanka Srivastava (supra).

(7) The case need not detain this Court any further as in a

similar case attended with similar circumstances seeking same

relief and based on same grounds, has been decided on

24/1/2019 in MCRC No. 14819/2018 & MCRC

No.3369/2017 whereby, this Court has taken a view which is

evident from the relevant paragraphs and the same are

reproduced below, for ready reference and convenience:-

''10. After having pursued the relevant extract reproduced above in the decision of Apex Court in case of Priyanka Srivastava (supra), it is vivid that filing of an affidavit in support of an application u/s 156 (3) of Cr.P.C. has been made mandatory, which is reflected from the anxiety of the Apex Court expressed in para-35 of its judgment whereby copy of its judgment is directed to be circulated to all the High Courts, who in turn have been requested to circulate the same to all the learned Magistrates functioning under their jurisdiction, so that the law laid down by the Apex Court is followed to the hilt. The judgment in Priyanka Srivastava's case was delivered on 19th March, 2015 which was much before the impugned order was passed directing the police to register offences inter alia against the petitioner on the basis of application u/s 156(3) of Cr.P.C. unsupported by an affidavit.

10.1 If any contrary view is taken than the one taken in this order, it would amount to ignoring the law laid down by the Apex Court and therefore, this Court is compelled to take the view that non-filing of an affidavit alongwith an application u/s 156(3) of Cr.P.C. renders the application not maintainable, despite the complainant having disclosed to some extent the details about exhausting remedy u/s 154 of Cr.P.C. prior to filing application u/s 156(3) of Cr.P.C.

10.2 In view of the above discussion, there is no iota of doubt that the direction of the Apex Court in Priyanka Srivastava (supra) of filing an affidavit alongwith an application u/s 156(3) of Cr.P.C. Is mandatory, noncompliance of which renders order passed u/s 156(3) of Cr.P.C.

to be null and void.''

(8) From the above analysis and the view taken by Hon'ble

Apex Court in the case of Priyanka Srivastava (supra), the

complainant had to make a specific statement in the complaint

that he is exhausting the remedy under Section 154(1) and

154(3) of CrPC before approaching the Court of JMFC under

Section 200 of CrPC and he had to file an affidavit/certificate

to that effect. While entertaining the application under Section

156(3) of CrPC, it is the duty of the Magistrate concerned to

verify the veracity of the facts of complaint made by

complainant before it. The Magistrate should not act as Post

Office otherwise, the objects and provisions of CrPC would be

futile. Therefore, the procedure adopted by the Magistrate

concerned is contrary to law in entertaining complaint/

application made by the complainant. Although the Magistrate

has applied his mind only on the basis of false allegations

made in the complaint, but he is said to have taken cognizance

of offences within the meaning of Section 190 CrPC. Neither

any opportunity was afforded to the petitioners nor their

evidence or documents in support of contention has been taken

into consideration by the Magistrate, therefore, the complaint

filed by respondent No.3 ought to have been rejected at the

threshold. It is further a well-established principle of law that

cognizance can be taken by a Magistrate unless he is

convinced that there are sufficient materials indicative of an

offence having been committed by the accused.

(9) Clear aspect regarding the scope of Section 156(3) of

CrPC has been laid down by Hon'ble Apex Court in the matter

of Ramdev Food Products Pvt. Ltd. Vs. State of Gujarat,

AIR 2015 SC 1742 which reads as under:-

''20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar vs. M.K. Aiyappa, it was observed :

"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.

(Emphasis supplied)

(10) As per provisions of Section 200 of CrPC, a Magistrate

while taking cognizance of an offence on the complaint, shall

examine upon oath the complainant and the witnesses present,

if any, and the substance of such examination, shall be

reduced to writing and shall be signed by the complainant and

the witnesses, and also by the Magistrate concerned. Section

200 of CrPC satisfies procedure of examination of the

complainant while filing of complaint, whereas Section 156(3)

CrPC satisfies provisions regarding empowerment of the

Magistrate concerned to pass an order in taking cognizance of

offences under Section 190 of CrPC.

(11) Section 190 of CrPC reads as under:-

''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;

(a) 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.''

(12) Regarding the scope of Section 200 of CrPC, the

Hon'ble Apex Court in the matter of Vijay Dhanuka & Ors

vs. Najima Mamtaj & Ors., (2014) 14 SCC 638 has held as

under:-

''9.Under Section 200 of the Code, on presentation of the complaint by an individual, other than public servant in certain contingency, the Magistrate is required to examine the complainant on solemn affirmation and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, if any, various options are available to him. If he is satisfied that the allegations made in the complaint and statements of the complainant on oath and the witnesses constitute an offence, he may direct for issuance of process as contemplated under Section 204 of the Code. In case, the Magistrate is of the opinion that there is no sufficient ground for proceeding, the option available to him is to dismiss the complaint under Section 203 of the Code. If on examination of the allegations made in the complaint and the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate is of the opinion that there is no sufficient ground for proceeding, the option available to him is to postpone the issue of process and either inquire the case himself or direct the investigation to be made by a police officer or by any other person as he thinks fit. This option is also available after the examination of the complainant only.''

(13) On perusal of provisions of Sections 190 & 200 of

CrPC, it is evident that it is the whole discretion and

jurisdiction of the Magistrate concerned to proceed either u/S.

200 of CrPC or u/S. 156(3) CrPC. From the above analysis

and law laid down by the Hon'ble Supreme Court as well as

this Court in the aforesaid cases, in absence of affidavit/

certificate in support of complaint Section 156(3) Cr.P.C.

could not have empowered the Magistrate to pass an order of

registration of alleged offences & investigation and, therefore,

the impugned passed by Court of JMFC, Gwalior is vitiated

in the eyes of law.

(14) As a sequel, all the petitions stand Allowed to the

extent indicated above. Proceedings of impugned FIR in

connection with Crime No.638/2021 registered at PS Thatipur,

District Gwalior for offences under Sections 420, 467, 468,

471 of IPC on the basis of order passed by the Court of JMFC,

Gwalior on a complaint made by respondent No.3 are hereby

Quashed.

(15) Let a copy of this order be sent to the Police Station as