Madhya Pradesh High Court
Gagan vs Neeraj Jain on 18 October, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 18th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 19299 of 2023
BETWEEN:-
GAGAN S/O PAWAN KUMAR BAGLA, AGED ABOUT 30 YEARS,
OCCUPATION: BUSINESS R/O 1502, G BLOCK, OCEAN PARK, NIPANIYA,
INDORE (MADHYA PRADESH)
.....APPLICANT
(SHRI HITESH SHARMA, ADVOCATE.)
AND
NEERAJ JAIN S/O JAY KUMAR JAIN, AGED ABOUT 35 YEARS,
1. OCCUPATION: BUSINESS R/O 19, GOURAV NAGAR, AIRPORT ROAD
INDORE (MADHYA PRADESH)
NILESH JAIN S/O JAY KUMAR JAIN, AGED ABOUT 40 YEARS,
2. OCCUPATION: BUSINESS 19, GAURAV NAGAR, AIRPORT ROAD
INDORE (MADHYA PRADESH)
STATE OF M.P. THROUGH POLICE STATION P.S. M.G. ROAD INDORE,
3.
DIST. INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DEEPAK KUMAR RAWAL, ADVOCATE FOR THE RESPONDENT NO.2.
SHRI TARUN KUSHWAH, ADVOCATE FOR THE RESPONDENT NO.3.)
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This application coming on for orders this day, the court passed the
following:
ORDER
The petitioner has filed the present petition under Section
482 of Code of Criminal Procedure, 1973 challenging the order dated
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Signed by: DIVYANSH
SHUKLA
Signing time: 20-10-2023
17:13:28
09.04.2022 passed by Judicial Magistrate First Class Indore in
complaint case No.UNCR/2410/2021 and order dated 31.03.2023 in
whereby the Additional Sessions Judge has dismissed the Criminal
Revision No.15033/2022.
02. The petitioner has filed complaint case under Section 200 of
Cr.P.C. in the Court of Judicial Magistrate First Class seeking
cognizance under Section 420, 409, 406, 467, 471, 468, 506 of IPC
against respondents No.1 and 2 alongwith an application under Section
156(3) of Cr.P.C. After hearing the arguments, vide order dated
30.06.2021, the learned Magistrate directed police station M.G. Road to
conduct an enquiry and if it is found that the respondents No.1 and 2
have committed any offence then FIR be registered and file a charge-
sheet on the next date. The petitioner filed an application for urgent
hearing that in view of the judgment passed by the Apex Court in case
of Mohd. Yousuf v/s Afaq Jahan (Smt) and another (2006) 1 Supreme
Court Cases 627 and Lalita Kumari v/s Government of Uttar Pradesh
and others (2008) 7 SCC 164, the police be directed to register an FIR
and conduct the investigation.
03. The Learned Magistrate vide order dated 17.08.2021
rejected the said application and maintained the direction given on
30.06.2021. Thereafter, the petitioner filed a revision before the Sessions
Court and vide order dated 31.03.2023 same was dismissed on merit as
not maintainable. Thereafter, the police conducted an enquiry and did
not find any commission of cognizable offence and submitted a closure
report before the Court. The police found that this is a dispute of mutual
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SHUKLA
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transaction between applicant and respondents. The respondents have
already filed a civil suit.
04. The counsel for the complainant raised an objection that the
police conducted an enquiry without registration of FIR, therefore, such
an enquiry report is not liable to be considered. Learned JMFC, vide
order dated 30.06.2021 has rejected the aforesaid objection and fixed the
case for preliminary evidence of the complaint.
05. Learned counsel for the applicant submits that when this
applicant had reported a commission of cognizable offence then it was a
duty of the police to register an FIR before undertaking investigation.
The Learned Magistrate under Section 156(3) of Cr.P.C. also wrongly
directed for the enquiry without registration of FIR. The police cannot
conduct any enquiry without registration of FIR, therefore, the
procedure adopted by Learned Magistrate as well as police both are
contrary to the provisions of Cr.P.C. hence, the direction be issued to the
police to register an FIR and conduct an investigation. In support of his
contention he has placed reliance on a judgment passed by the Apex
Court in case of Mohd. Yousuf (supra) in which it has been held that it is
the duty of Officer-In-Charge of the police station to register an FIR
when investigation under Section 156(3) of Cr.P.C. is directed by the
Magistrate even when the Magistrate explicitly did not say so.
06. Shri Deepak Kumar Rawal, learned counsel for the
respondent No.2 submits that this present application under Section 482
of Cr.P.C. is not maintainable as this petitioner has already availed the
provisions of Section 397 of Cr.P.C. i.e. by way of criminal revision
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SHUKLA
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before the Sessions Court. The second revision is barred and cannot be
entertained by High Court in exercise of inherent power under Section
482 of Cr.P.C. To support his submission, learned counsel is relying on a
judgment passed by the Apex Court in case of Dharampal and others
v/s Ramshri (Smt) and others (1993) 1 Supreme Court Cases 435.
07. The law in respect of registration of FIR on reporting of
cognizable offence has been considered epitomized by 5 Judges' Bench
of the Apex Court in the case of Lalita Kumari (supra). The conclusion
and directions are recorded in paragraph No.120 of the said judgment
which is reproduced below:
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible in
such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of
such closure must be supplied to the first informant forthwith
and not later than one week. It must disclose reasons in brief
for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be
taken against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
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SHUKLA
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ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases preliminary inquiry
is to be conducted will depend on the facts and circumstances
of each case. The category of cases in which preliminary
inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months' delay in
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused
and the complainant, a preliminary inquiry should be made
time-bound and in any case it should not exceed 7 days. The
fact of such delay and the causes of it must be reflected in the
General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is
the record of all information received in a police station, we
direct that all information relating to cognizable offences,
whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in the
said diary and the decision to conduct a preliminary inquiry
must also be reflected, as mentioned above.
08. In paragraph No.120.6, the Apex Court has concluded that
as to what type and in which case preliminary enquiry is to be conducted
depends on the facts and circumstances of each case. There are certain
categories in which the preliminary enquiry may be made i.e.
matrimonial dispute, commercial offence, medical negligence,
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SHUKLA
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corruption and cases where there is an abnormal delay and latches or
three months' delay in reporting the matter without satisfactory
explanation.
09. The Apex Court has also observed that the aforesaid are
only illustrative and not exhaustive of all condition which may warrant
preliminary enquiry. In this case, as per the contents of the complaint,
the petitioners and respondents were known to each other and formed a
partnership firm to do the business. A partnership deed dated 15.07.2012
was executed between them. According to the petitioner, he invested
Rs.30,00,000/- and the accused person invested Rs.2,00,000/- and
thereafter certain dispute arose between them in respect of sharing of
profits as per their investment, therefore, it is purely a commercial and
civil dispute between them hence, instead of directing for registration of
an FIR, the Learned Magistrate has rightly directed to first enquire that
whether any cognizable offence is made out or not.
10. After enquiry, the police has reported that no cognizable
offence is found and it is purely a civil dispute between them, therefore,
the Learned Magistrate has rightly called upon applicant to give
evidence under Section 200 of Cr.P.C.
11. In view of the above, no case for interference is made out.
Accordingly, present M.Cr.C. is dismissed.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 20-10-2023
17:13:28
