Kushalpal Singh Jadon vs The State Of Madhya Pradesh
2023 Latest Caselaw 6893 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                         BEFORE
      HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                 ON THE 27th OF APRIL, 2023
           MISC. CRIMINAL CASE No. 10821 of 2020



       BETWEEN:-

1.     KUSHALPAL SINGH JADON S/O SHRI
       SOBRAN SINGH JADON, AGED ABOUT 65
       YEARS,    OCCUPATION:    BUSINESS
       KASINARESH   KI  GALI   KILAGATE
       (MADHYA PRADESH)


2.     RAHUL    SHIVHARE     S/O    SHRI
       MADANMOHAN SHIVHARE, AGED ABOUT
       40  YEARS,   SHRIVIHAR    COLONY
       GHOSIPURA (MADHYA PRADESH)

                                                                 ........PETITIONER
       (BY SHRI B.P.S. CHAUHAN - ADVOCATE)

       AND

1.     THE STATE OF MADHYA PRADESH
       INCHARGE POLICE STATION THROUGH
       POLICE STATION GOHAD (MADHYA
       PRADESH)

2.     SMT. KAMLESH TOMAR W/O SHRI
       RAJVEER SINGH, AGED ABOUT 55 YEARS,
       SHARMA FARD ROAD CHARSEHAR KA
       NAKA POLICE THANA HAZIRA (MADHYA
       PRADESH)

                                                               ........RESPONDENT

     (BY SHRI R.S. YADAV- PUBLIC PROSECUTOR FOR STATE AND
     SHRI PRAKASH BARARU, ADVOCATE FOR RESPONDENT NO.2)
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       This petition coming on for admission this day, the Court passed
the following:
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                                      ORDER

This petition filed under Article 482 CrPC assails the order dated 18.07.2019 and subsequent FIR based on it.

The singular contention raised by learned counsel for the petitioner is that the court below has mechanically passed the order dated 18.07.2019. The necessary ingredients for invoking said power were not taken into account and in routine manner police authorities were directed to register the matter and start investigation. He relied on judgment of this Court and recent judgment of Supreme Court in (Priyanka Shrivastava Vs. State of U.P. reported in (2015) 6 SCC 287.

Learned counsel for respondent No.2 supports the impugned order and submits that this Court should not interfere in a routine manner against order passed by the Magistrate.

No other point is pressed by the learned counsel for the parties. Heard the parties and perused the record.

The Apex Court in its recent judgment in case of (Priyanka Srivastava and another vs. State of Uttar Pradesh and others) reported in (2015)6 SCC 287 held as under:-

"The duty cast on the Magistrate while exercising power under Section 156 (3) CrPC cannot be marginalised. The power under Section 156 (3) CrPC warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154CrPC. The Magistrate exercising power under Section 156(3) CrPC has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has to bear in mind that sending the matter for investigation would be conducive to justice and then he may pass the requisite order. There has to be prior applications under Section 154 (1) and 154(3) CrPC while filing a petition under Section 156 (3) CrPC. Both the aspects should be clearly spelt out in the

application and necessary documents to that effect shall be filed. A litigant at his own whim cannot invoke the authority of the Magistrate under Section 156 (3)CrPC. A principled and really aggrieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when perverted litigants take this route to harass their fellow citizens, efforts must be made to scuttle and curb the same. A number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, are being filed. Consequently, in an appropriate case, the truth and veracity of the allegations made can be verified by the Magistrate, regard being had to the nature thereof."

A plain reading of aforesaid judgment shows that Magistrate was required to apply mind whether the complainant has availed remedy available to him under Section 154 Cr.P.C? Whether he has filed the document showing that said remedy is availed? The Magistrate is further required to examine whether complainant has taken further steps before higher authorities, if his application under Section 154 Cr.P.C. is not entertained by the police station In-charge. After examining the relevant pleadings and documentary evidence only the Magistrate may exercise his power under Section 156 (3) CrPC..

The necessary and relevant consideration mentioned by the Supreme Court in Priyanka Shrivastava (supra) have not been taken into account. Resultantly, impugned order dated 18.07.2019 is set aside and FIR based on it is also set aside. The matter is remitted back to the trial court to proceed from that stage in accordance with law.

Petition is allowed to the extent indicated above.

Digitally signed
by YOGENDRA                                            (DEEPAK KUMAR AGARWAL)
OJHA
Date:                                                          JUDGE
2023.04.27
19:14:39
   ojha
+05'30'