Nikhil Pateriya vs The State Of Madhya Pradesh
2023 Latest Caselaw 977 MP

                                                            1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
                                              ON THE 17 th OF JANUARY, 2023
                                        MISC. CRIMINAL CASE No. 61643 of 2022

                          BETWEEN:-
                          NIKHIL PATERIYA S/O LATE SHRI SURENDRA KUMAR
                          PATERIYA, AGED ABOUT 41 YEARS, OCCUPATION:
                          PRIVATE CONTRACTOR R/O H.N. 1795, RANI
                          DURGAWATI WARD, NEAR ANAND KUNJ, PURVA,
                          GARHA, JABALPUR (MADHYA PRADESH)

                                                                                        .....PETITIONER
                          (BY SHRI SHAILESH TIWARI -ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                SUPERINTENDENT   OF   POLICE  JABALPUR
                                (MADHYA PRADESH) POLICE STATION GARHA,
                                JABALPUR M.P.

                          2.    RAKESH KUMAR TELUGU S/O SHRI KHEMRAJ
                                TELUGU R/O H.NO. 1147, NEAR FREE CHURCH,
                                PREM NAGAR GARHA, JABALPUR (MADHYA
                                PRADESH)

                          3.    SMT. SHANKUNTALA TELUGU W/O SHRI
                                KHEMRAJ TELUGU R/O H.NO. 1147, NEAR FREE
                                CHURCH, PREM NAGAR GARHA, JABALPUR
                                (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                          (BY SHRI ANAND SHUKLA - PANEL LAWYER)
                          (NONE FOR RESPONDENTS NO. 2 AND 3)

                                This application coming on for admission this day, the court passed the
                          following:
                                                             ORDER

This petition under Section 482 of Cr.P.C. has been filed being aggrieved

Signature Not Verified by the order dated 13.09.2022 passed by Additional Sessions Judge Jabalpur in Signed by: ARVIND KUMAR MISHRA Signing time: 1/24/2023 6:01:34 PM

Cr.R. No. 253/2022 arising out of order dated 02.05.2022 passed by JMFC, Jabalpur in case No. UNCR-415/ 2021.

2. Learned counsel for the petitioner submits that the provisions contained in Sec. 154 & 156 (3) of the CR.P.C. are not discretionary but mandatory. There is no need to collect any further evidences either under under the provisions of Sec. 154 or Sec. 200 of the CR.P.C. since the Respondent No.1 has completed investigation and found commission of offence, as is evident from the report dated 30.11.2021. It is also submitted that all the parameters of investigation have been meet out in the report dated 30.11.2021 produced by concerned police and no further investigation or evidence are

required to produce against respondents no. 2 and 3 for the offence of cheating and misappropriation of funds. Therefore, there is no need for the petitioner to adduce evidences as per Section 202 of Cr.P.C. Learned trial court as well as revisional court failed to understand the mandatory provision of Cr.P.C. Hence, learned counsel for the petitioner prays that the impugned orders dated 02.05.2022 & 13.09.2022 may kindly be set aside and please to direct the Respondent No.1 to register case against the Respondents No. 2 & 3 for the offence punishable U/S 420, 467, 468, 471, 406 of the IPC.

3. I have heard learned counsel for the petitioner and perused the impugned orders.

4. On perusal of the impugned orders, reveals that learned JMFC found that the applicant/ complainants may produce the evidence before the Court and there is no need to direct the police to inquire the matter. Learned Additional Sessions Judge has rightly found that Magistrate has discretion in directing the Police to investigate or proceeding with the case as a complaint Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/24/2023 6:01:34 PM

case, which cannot be arbitrary and against any reasoning.

5. The Apex Court in Sakiri Vasu v. State of U.P. (2008) 2 SCC 409 expounded upon the power of Magistrate under Section 156(3) of the CrPC. In this decision, the Court noted:

"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

13. The same view was taken by this Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (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.

.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 Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/24/2023 6:01:34 PM

it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

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.

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

(emphasis supplied)

6. In the present case, it is clear that evidence including documentary evidence is in possession of the petitioner and he can produce it before the trial court and in the light of judgment passed in the case of Gulab Chand Upadhyay Vs. State of U.P. 2002 All. LJ 1225 when the petitioner is in possession of the evidence and no recovery is needed, the procedure of complaint should be adopted. In the Gulab Chand (supra) held as under:

Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/24/2023 6:01:34 PM

"when the applicant is in possession of complete details of accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required, the procedure of complaint case should be adopted rather than direction to police for registering First Information Report."

7. Looking to the peculiar facts and circumstances of the case, it is found that learned courts below have not caused any illegality in directing the petitioner to adduce evidence before JMFC under Section 202 of Cr.P.C.

8. Accordingly, M.Cr.C. is dismissed.

(RAJENDRA KUMAR (VERMA)) JUDGE MISHRA

Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/24/2023 6:01:34 PM