Madhya Pradesh High Court
Dilip Kumar Puri vs The State Of Madhya Pradesh on 1 March, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 1 st OF MARCH, 2023
MISC. CRIMINAL CASE No. 9922 of 2023
BETWEEN:-
DILIP KUMAR PURI S/O SHRI O.P. PURI, AGED ABOUT 42
YEARS, OCCUPATION: SERVICE R/O 265, OMAXE CITY I
INDORE (MADHYA PRADESH)
.....APPLICANT
(BY SHRI AJAY BAGADIA - LEARNED SENIOR COUNSEL WITH
MS. ANURADHA BAGADIYA - LEARNED COUNSEL)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
AERODRUM DISTT. INDORE (MADHYA PRADESH)
2. VIKAS BADIA S/O MANAKCHAND BADIA, AGED
ABOUT 35 YEARS, OCCUPATION: SERVICE 279,
VIJAYSHREE NAGAR INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RAGHVENDRA SINGH BAIS - GOVT. ADVOCATE)
MISC. CRIMINAL CASE No. 10075 of 2023
BETWEEN:-
VIKAS SHARMA S/O PATIRAM SHARMA, AGED ABOUT
42 YEARS, OCCUPATION: GOVT. SERVANT R/O N 2/5
JHOOMAR GHAT RAU DISTT. INDORE (MADHYA
PRADESH)
.....APPLICANT
Signature Not VerifiedDigitally signed by
(BY SHRI VIVEK SINGH - LEARNED COUNSEL)
SAN SOUMYA RANJAN
DALAI
AND
Date: 2023.03.02
17:10:20 IST
VIKAS BADIYA S/O MANAKCHAND BADIYA, AGED
2
ABOUT 35 YEARS, OCCUPATION: SERVICE R/O 279,
VIJAYSHRI NAGAR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAGHVENDRA SINGH BAIS - GOVT. ADVOCATE)
This applications coming on for admission this day, the court passed
the following:
ORDER
Both the petitions under Section 482 of the Code of Criminal Procedure
seeking quashment of the common order dated 16.02.2023 and, therefore, they
are being decided by this common order.
2) These are the petitions under Section 482 of the Code of Criminal
Procedure seeking quashment of the common order dated 16.02.2023 passed in
Case No. 526/2023 by the Special Judge directing for registering case for
investigation against the present applicants and to submit final report under
Section 173 Cr.P.C.
3) An application under Section 156(3) Cr.P.C. was filed by respondent
No.2 brother of the deceased seeking registering case for investigation for
commission of offences under Section 306, 120-B, 294, 323, 506, 34, 341, 342,
166 r/w Section 3 & 4 of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989.
4) The background of the case is that the brother of the complainant
Akash Badia was having an affair with a girl Jhanvi Sharma. Since both of them
came from a different caste and sections of the society, a missing report
21/2022 was lodged on 09.02.2022 by the father of Jhanvi Sharma at Police
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Station Aerodrum, Indore. The accused persons are police officers in the police
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department. It is further stated that co-accused Vikas Sharma, who was
working as Sub-Inspector came to the house on 09.02.2022 and used some
caste indicative words against Akash Badia's father stating therein that they
should stay in their limits or else the family shall suffer the consequences. The
missing persons viz. Akash and Jhanvi were found on 10.02.2022 by the mother
of Akash and the mother informed Sub-Inspector, Vikas Sharma that he has
both these persons present in front of her and that she will produce them at
Police Station. It is stated that on the statement of the mother, Sub-Inspector
Vikas Sharma told the mother of Akash Badia that they should be brought to
the Police Station Chandan Nagar instead. It is alleged in the application under
Section 156(3) Cr.P.C. that when Akash and Jhanvi were brought to the Police
Station Chandan Nagar by Akash's mother, Vikas Sharma (who was then
posted at Tejaji Nagar, Police Station) administered some beating to Akash and
also used some caste indicative words against Akash's mother.
5) It is alleged that Akash due to the beating administered by both
accused persons Vikash Sharma and Dilip Kumar Puri, committed suicide on
16.02.2022. One note written by deceased Akash on his mobile has been found
stating that the applicants are responsible for his death. The complaints were
made to the Police Station and also to the Commissioner of Police, but no
action was taken on the same. Thereafter the application under Section 156(3)
Cr.P.C. was filed before the Magistrate on which direction for registering case,
investigation and to submit final report under Section 173 Cr.P.C. has been
issued by the impugned order. The learned Magistrate has allowed the
application under Section 156(3) of Cr.P.C. directing for registering of case and
investigation and thereafter to submit final report under Section 173 of Cr.P.C.
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SAN SOUMYA RANJAN
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Date: 2023.03.02
17:10:20 IST after considering the allegations contained in the application.
6) Counsel for the applicant submits that the Magistrate has passed the
order under Section 156(3) of Cr.P.C. without there being a private complaint
and, therefore, the order is contrary to the law. In support of his submission, he
has placed reliance on a judgment passed by coordinate Bench in the case of
Sureshchandra Gondal vs. Vishnu Dixit reported in 2009 Cr.L.R. (MP) 518.
7) The sole question arises for consideration is that whether the
Magistrate could have entertained an application under Section 156(3) Cr.P.C.
and could have passed an order for registration of case for investigation without
filing complaint under Section 190 Cr.P.C..
8) In the case of Sakiri Vasu vs State Of U.P. And Others ((2008)2
SCC 409), the Apex Court has held as under:-
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 Cr.P.C., then he can approach the
Superintendent of Police under Section 154(3) Cr.P.C. 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) Cr.P.C. 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
vs. State of Delhi JT 2007 (10) SC 585 (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) Cr.P.C., and if the Magistrate is satisfied he
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can order a proper investigation and take other suitable steps
and pass such order orders as he thinks necessary for ensuring
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a proper investigation. All these powers a Magistrate enjoys
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under Section 156(3) Cr.P.C. 14. Section 156 (3) states:
Any Magistrate empowered under Section 190 may order
such an investigation as above-mentioned.
The words as above-mentioned obviously refer to Section 156
(1), which contemplates investigation by the officer in charge
of the Police Station.
15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII Cr.P.C. In
cases where the Magistrate finds that the police has not done
its duty of investigating the case at all, or has not done it
satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation
under Section 156(3) is an independent power, and does not
affect the power of the investigating officer to further
investigate the case even after submission of his report vide
Section 173(8). Hence the Magistrate can order re-opening of
the investigation even after the police submits the final report,
vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para
19).
17. In our opinion Section 156(3) Cr.P.C. 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 F.I.R. 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) Cr.P.C., 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.
24. In view of the above-mentioned legal position, we are of
the view that although Section 156(3) is very briefly worded,
there is an implied power in the Magistrate under Section
156(3) Cr.P.C. to order registration of a criminal offence and
/or to direct the officer in charge of the concerned police
station to hold a proper investigation and take all such
necessary steps that may be necessary for ensuring a proper
investigation including monitoring the same. Even though
these powers have not been expressly mentioned in Section
156(3) Cr.P.C., we are of the opinion that they are implied in
the above provision.
2 7 . As we have already observed above, the Magistrate has
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very wide powers to direct registration of an FIR and to
ensure a proper investigation, and for this purpose he can
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monitor the investigation to ensure that the investigation is
done properly (though he cannot investigate himself). The
High Court should discourage the practice of filing a writ
petition or petition under Section 482 Cr.P.C. simply because
a person has a grievance that his FIR has not been registered
by the police, or after being registered, proper investigation
has not been done by the police. For this grievance, the
remedy lies under Sections 36 and 154(3) before the
concerned police officers, and if that is of no avail, under
Section 156(3) Cr.P.C. before the Magistrate or by filing a
criminal complaint under Section 200 Cr.P.C. and not by
filing a writ petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a
writ petition, but it is equally well settled that if there is an
alternative remedy the High Court should not ordinarily
interfere.
(Emphasis supplied)
9) Recently the Apex Court in the case of M.Subramaniam Vs. S.
Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020, has held as under:-
6. The said ratio has been followed in Sudhir Bhaskarrao
Tambe v. Hent Dhage mant Yashwaand Others ((2016)6
SCC 277), in which it is observed.
2. This Court has held in Sakiri Vasu v. State of U.P., that if a
person has a grievance that his FIR has not been registered by
the police, or having been registered, proper investigation is
not being done, then the remedy of the aggrieved person is not
to go to the High Court under Article 226 of the Constitution
of India, but to approach the Magistrate concerned under
Section 156(3) CrPC. If such an application under Section
156(3) CrPC is made and the Magistrate is, prima facie,
satisfied, he can direct the FIR to be registered, or if it has
already been registered, he can direct proper investigation to
be done which includes in his discretion, if he deems it
necessary, recommending change of the investigating officer,
so that a proper investigation is done in the matter. We have
said this in Sakiri Vasu case because what we have found in
this country is that the High Courts have been flooded with
writ petitions praying for registration of the first information
report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such
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writ petitions, then they will be flooded with such writ
petitions and will not be able to do any other work except
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dealing with such writ petitions. Hence, we have held that the
complainant must avail of his alternate remedy to approach
the Magistrate concerned under Section 156(3) CrPC and if
he does so, the Magistrate will ensure, if prima facie he is
satisfied, registration of the first information report and also
ensure a proper investigation in the matter, and he can also
monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the
impugned judgment of the High Court cannot be sustained and
is hereby set aside. The Magistrate concerned is directed to
ensure proper investigation into the alleged offence under
Section 156(3) CrPC and if he deems it necessary, he can
also recommend to the SSP/SP concerned a change of the
investigating officer, so that a proper investigation is done.
The Magistrate can also monitor the investigation, though he
cannot himself investigate (as investigation is the job of the
police). Parties may produce any material they wish before
the Magistrate concerned. The learned Magistrate shall be
uninfluenced by any observation in the impugned order of the
High Court.
(Emphasis Supplied)
10) Following the aforesaid judgments passed by the Apex Court,
similar view has been taken by the Division Bench of this Court in the case of
Shweta Bhadoriya vs. State of M.P. & Ors. 2017 (1) MPLJ (Cri) 338. It has
been held that there are 4 different remedies available under Criminal Procedure
Code for the informant/victim to initiate prosecution in respect of the
cognizable/non-cognizable offence which is alleged in the first information
furnished which fails to invoke response from the police. The relevant paras of
the said judgment reads as under:-
3.2 The Code of Criminal Procedure provides various avenues
before the informant / victim to initiate criminal prosecution.
The first avenue is of lodging of FIR under Section
154(1)/154(3) which can be availed by the victim and as well
as a stranger to the offence, provided the first information
discloses commission of cognizable offence. The lodging of
FIR under Section 154 Cr.P.C. sets the investigative
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SAN SOUMYA RANJAN machinery into motion without prior permission of the
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17:10:20 IST Magistrate as is otherwise required for non- cognizable
offences.
3.3 The second avenue available to the victim and as well as a
stranger to the cognizable offence, is under section 156(3) by
approaching the concerned Magistrate by informing
commission of cognizable offence. The Magistrate can then
conduct an enquiry himself or direct the concerned police
station to register the offence alleged, thereby triggering the
investigation.
3.4 The third avenue available is under Section 190 Cr.P.C
empowering the competent Magistrate to take cognizance of
any offence upon receipt of complaint of facts containing
allegation constituting the offence, or upon a police report of
such facts or upon information received from any person
other than a police officer, or upon his own knowledge of
commission of cognizable and as well as non-cognizable
offence, except offences punishable under Chapter XX of
IPC, for which procedure prescribed u/s 198 Cr.P.C. is to be
adhered to.
3.5 The fourth avenue is under Section 200 Cr.P.C where a
complaint, oral or in writing if made before the competent
Magistrate leads to hearing by the Magistrate on the question
of taking cognizance of offence or not and if it is found that
complaint discloses commission of any offence punishable in
law then the Magistrate issues summons to the
proposed WA.247/2016 Shweta Bhadauria Vs. State of M.P.
& Ors. accused on appearance of whom statements of rival
parties are recorded and the Magistrate decides on the
question of framing of charge or discharging the accused. If
charges are framed then trial proceeds.
(Emphasis Supplied)
10) In view of the aforesaid, I do not find any merit in the contention of
the counsel for the applicants that the application under Section 156(3) Cr.P.C.
was not maintainable without filing a complaint before the Magistrate. All the
remedies available to the complainant are independent remedies and, therefore, the
application under Section 156(3) could have been directly filed before the
Magistrate without filing criminal complaint under Section 190 Cr.P.C. There is no
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SAN SOUMYA RANJAN illegality in the impugned order, hence, both the petitions under Section 482
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Cr.P.C. are dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
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