Madhya Pradesh High Court
Smt Tulsa Devi Vishwakarma vs The State Of Madhya Pradesh on 30 March, 2022
Author: Atul Sreedharan
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
ON THE 30th OF MARCH, 2022
MISC. CRIMINAL CASE No. 10519 of 2017
Between:-
1. SMT TULSA DEVI VISHWAKARMA W/O HARISH
VISHWAKARMA , AGED ABOUT 48 YEARS,
MANPUR THANA THE. MANPUR (MADHYA
PRADESH)
2. HARISH VISHWAKARMA S/O BODHI PRASAD ,
AGED ABOUT 50 YEARS, MANPUR THANA TEH.
MANPUR DISTT. UMARIYA (MADHYA PRADESH)
3. SANTOSH DUBEY S/O JAGDISH PRASAD PAROUHA
, AGED ABOUT 32 YEARS, KAROUDI TOLA POST
VBIJOURI TEH. MANPUR DISTT. UMARIYA
(MADHYA PRADESH)
4. MOHD ALI S/O SHEIKH CHAND , AGED ABOUT 55
YEARS, MANPUR THANA TEH. MANPUR DISTT.
UMARIYA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SUSHIL KUMAR TIWARI, LEARNED COUNSEL)
AND
1. THE STATE OF MADHYA PRADESH THROUGH P.S
MANPUR P.S MANPUR,DIST. UMARIYA (MADHYA
PRADESH)
2. BHAGIRATHI BHATT S/O SITA PRASAD BHATT ,
AGED ABOUT 54 YEARS, GRAM MANPUR TEH.
MANPUR DISTT. UMARIYA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH BHATNAGAR, LEARNED PANEL LAWYER FOR
THE RESPONDENT/STATE AND SHRI ANIL DWIVEDI, LEARNED
COUNSEL FOR THE RESPONDENT NO.2)
T h is appeal coming on for admission this day, the court passed the
following:
ORDER
The case is of the year 2017. This is a quash petition that has been filed by
the petitioners herein who are the accused persons in an FIR registered by the
police, which is Crime No.108/2015 registered at Police Station-Manpur, District-
Signature Not Verified
SAN
Umariya for offence under sections 420, 467, 468, 471, 161 and 167/34 of IPC on
19.04.2015.
Digitally signed by RAVIKANT KEWAT
Date: 2022.03.31 10:39:17 IST
The said FIR was registered pursuant to an order passed by the Judicial
Magistrate First Class dated 09.10.2014. The respondent no.2 who is the de-facto
complainant before the learned Judicial Magistrate First Class had filed a complaint
case in respect of an incident which took place between 2008 and 2009 at Gram
Panchayat Manpur, wherein it was alleged that the complainant who was a resident
of the said Gram Panchayat and the petitioner no.1 is a Sarpanch, the petitioner
no.2 is the husband of the Sarpanch, petitioner no.3 is the Secretary of the Gram
Panchayat Manpur and the petitioner no.4 was a beneficiary of public welfare
scheme of the State Government named Indira Awas Yojna and Kapildhara. The
allegation is that all the petitioners with common intention conspired and made non-
eligible persons as beneficiary under the said scheme and had misutilized the funds
and thereby gave undue advantages to those who were not eligible and committed
cheating and thereby caused loss to the State Exchequer.
Learned counsel for the petitioners has submitted that the impugned order
dated 09.10.2014 is perfunctory and smacks of non-application of mind. Having
gone through the impugned order, it appears that the learned Magistrate has
directed the registration of the FIR only on account of that he was of the opinion
that the allegations are of serious nature and therefore the FIR be registered. There
is no discussion with regard to even the basic facts of what the case is and why the
learned Magistrate considers essential to direct the police to register an FIR and
investigate the same. Learned counsel for the petitioners has also relied upon the
recent judgment of the Supreme Court passed in Criminal Appeal No.252/2022
(Parties Babu Vyankatesh and Others Vs. State of karnataka and another) on
18.02.2022. A similar situation had arisen before the Supreme Court where a
complaint case was filed without any affidavit in support thereof. In this regard, it
would be essential to mention here that the complaint case filed by the respondent
no.2 on 09.10.2014 was not supported by an affidavit. The Supreme Court while
quashing the complaint case has referred to a judgment of the Supreme Court itself
in the case of Priyanka Shrivastava and another Vs. State of Utter Pradesh
Signature Not Verified
SAN and Others reported in (2015) 6 SCC 287 with specific reference to paragraph-30
Digitally signed by RAVIKANT KEWAT
Date: 2022.03.31 10:39:17 IST
of the judgment, wherein the Supreme Court taking a grave view of the
indiscriminate resort to section 156(3) Cr.P.C. held that it would be essential for
applications invoking jurisdiction under 156(3) to be supported by an affidavit. The
reasons given in the said judgment are that the indiscriminate use of the provision
has turned out to be a tool of harassment at the hands of citizens and that there is
no accountability of the complainant as it is not supported by an affidavit. It further
held that if the said application is supported by an affidavit, the complainant can be
held accountable and proceeded against under the relevant provisions of the law, if
the allegations are found to be false. In paragraph-25, the Supreme Court held that
it would be necessary and essential for the application filed under section 156 (3)
Cr.P.C. to be supported by an affidavit sworn by the complainant and that, if
necessary, the Magistrate may also make such inquiry essential to ascertain the
veracity of the allegations in the said application. The Supreme Court also held that
prior to the filing of an application under section 156 (3) Cr.P.C., the complainant
must exhaust his options of moving applications under section 154(1) and 154(3)
Cr.P.C. to the superior authority of the police itself where after an initial attempt to
get an FIR registered fails, the same is brought to the notice of the senior officer
(Superintendent of Police), who also has the authority to get the FIR registered, if
the FIR is not registered at the level of the Police Station.
In this case, the complaint under section 156(3) Cr.P.C. is not supported by
an affidavit. In fact, section 156(3) Cr.P.C. does not provide for the filing of a
complaint. 156(3) is only the authority of the Magistrate to refer a complaint which
is filed before him under section 200 of Cr.P.C. to be investigated first by the
police.
Under the circumstances, the appropriate procedure would be to file a
complaint case under section 200 Cr.P.C. and 156(3) application must accompany
the same as interlocutory application which relying upon the facts stated in the
complaint under section 200 Cr.P.C. must seek the reference of the complaint itself
to the police for the registration of an FIR. It did occur in the mind of this court
that the judgment of the Supreme Court which laid down the essentiality of an
Signature Not Verified
affidavit in support of the compliant is of the year 2015. The complaint has been
SAN
Digitally signed by RAVIKANT KEWAT
registered in the year 2014, a year before the judgment of the Supreme Court.
Date: 2022.03.31 10:39:17 IST
However, the judgment of the Supreme Court are only an elucidation of the law
that already exits. It is not legislation that it would not apply retrospective. Besides
the fact that the complaint is not supported by an affidavit, the impugned order
suffers from a serious lacuna as it does not disclose the application of the mind on
the part of the Magistrate while passing the order dated 09.10.2014. It is grossly
perfunctory and does not reflect as to what weighed in the mind of the Magistrate
that it would be essential in the nature of the case to refer the matter to the police
for the registration of the FIR. There are no observations on facts except for
stating that the complaint discloses a case of grave magnitude. As to what are
those facts are that constitutes "grave magnitude", the order is totally silent.
Under the circumstances, in view of the fact that the complaint was not
supported by an affidavit and more importantly as the impugned order itself is
perfunctory and non-speaking and smacks of non-application of mind on the part
of the Magistrate, the impugned order dated 09.10.2014 is quashed and all
proceedings arising therefrom, as a consequence including Crime No.108/2015
registered at Police Station-Manpur, District-Umariya and other proceedings arising
therefrom stand quashed.
With the above, the petition is finally disposed of.
(ATUL SREEDHARAN)
JUDGE
rk.
Signature Not Verified
SAN
Digitally signed by RAVIKANT KEWAT
Date: 2022.03.31 10:39:17 IST
