Madhya Pradesh High Court
Lakhiram Ramchandani vs The State Of Madhya Pradesh on 31 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C. No.31459/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 31st OF MAY, 2024
MISC. CRIMINAL CASE No. 31459 of 2023
BETWEEN:-
1. LAKHIRAM RAMCHANDANI S/O LATE
THAVARDAS, AGED ABOUT 65 YEARS,
OCCUPATION: PRESIENT, SINDHI SAMAJ
KALYAN SAMITI WARASEONI, R/O WARD
NO 05 INFRONT OF VETERINARY HOSPITAL,
WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
2. RAJESH PARIYANI S/O LATE SHRI
NANDKISHORE PARIYANI, AGED ABOUT 58
YEARS, OCCUPATION: SECRETARY AND
BUSINESS, R/O BEHIND GRAIN SHOP,
WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
3. KANHAIYA BUDHRANI, S/O SHRI
GIDDHUMAL BUDHRANI, AGED ABOUT 70
YEARS, OCCUPATION: TREASURER, SINDHI
SAMAJ KALYAN SAMITI WARASEONI, R/O
WARD NO.06, WARASEONI, DISTRICT
BALAGHAT (MADHYA PRADESH)
4. MOHANLAL CHIMNANI, S/O SHRI
BHAVANDAS CHIMNANI, AGED ABOUT 70
YEARS, OCCUPATION: VICE PRESIDENT,
SINDHI SAMAJ KALYAN SAMITI,
WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
5. GHANSHYAM DAS ATLANI, S/O SHRI
LADHARAM ATLANI, AGED ABOUT 65
YEARS, OCCUPATION: JOINT SECRETARY,
SINDHI SAMAJ KALYAN SAMITI
WARASEONI, R/O WARD NO.3, WARASEONI,
DISTRICT BALAGHAT (MADHYA PRADESH)
6. GOVINDRAM CHIMNANI S/O SHRI
2 M.Cr.C. No.31459/2023
SEVAKRAM CHIMNANI, AGED ABOUT 58
YEARS, OCCUPATION: BUSINESS, R/O SHOP
NO.1, GURUNANAK DHARMSHALA,
WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
7. SURESH DALVANI, S/O SHRI SHANKAR
DALVANI, AGED ABOUT 35 YEARS,
OCCUPATION: BUSINESS, R/O SHOP NO.3,
GURUNANAK DHARMSHALA, WARASEONI,
DISTRICT BALAGHAT (MADHYA PRADESH)
8. VINOD PARIYANI S/O SHRI NANDKISHORE
PARIYANI, AGED ABOUT 55 YEARS,
OCCUPATION: BUSINESS, R/O SHOP NO.4,
GURUNANAK DHARMSHALA, WARASEONI,
DISTRICT BALAGHAT (MADHYA PRADESH)
9. RAMESH CHIMNANI, S/O BARANDMAL
CHIMNANI, AGED ABOUT 53 YEARS,
OCCUPATION: BUSINESS, R/O GURUNANAK
DHARMSHALA, WARASEONI, DISTRICT
BALAGHAT (MADHYA PRADESH)
10. SANTOSH SAHAJVANI, S/O SHRI
KISHANCHAND SAHAJVANI, AGED ABOUT 45
YEARS, OCCUPATION: BUSINESS, R/O SHOP
NO.5, GURUNANAK DHARMSHALA,
WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI SANJAY SHARMA- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
P.S. WARASEONI, DISTRICT BALAGHAT
(MADHYA PRADESH)
2. VINOD SAJDEV S/O SHRI KIRODIMAL
SAJDEV, AGED ABOUT 52 YEARS, R/O WARD
NO.07, WARASEONI, TEHSIL WARASEONI,
DISTRICT BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAJENDRA PARASHAR- PANEL LAWYER FOR RESPONDENT
3 M.Cr.C. No.31459/2023
NO.1/STATE AND SHRI UTKARSH AGRAWAL- ADVOCATE FOR
RESPONDENT NO. 2 )
---------------------------------------------------------------------------------------------------------
"Reserved on : 28.05.2024"
"Pronounced on : 31.05.2024"
This application having been heard and reserved for orders, coming
on for pronouncement this day, the Court passed the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed
seeking the following reliefs:-
"It is therefore prayed that this Hon'ble
Court be kind enough to quash the order dated
30.01.2023 passed in Criminal Revision No.
75/2022 by Second ASJ Waraseoni District
Balaghat and further quash consequential order of
taking cognizance dated 21.06.2023 passed in
Case No.UNCR/49/2022 by JMFC, Waraseoni
District Balaghat (M.P.) and further dismiss the
application filed by the respondent no. 2 U/s
156(3) R/w 200 Cr.P.C. against the applicants."
2. It is submitted by counsel for applicants that respondent No. 2 had
filed W.P. No. 7765/2021 seeking a direction to consider his complaint
and accordingly, the Coordinate Bench of this Court by order dated
06.04.2021 disposed of the petition with a direction to the Town
Inspector, Police Station Waraseoni, District Balaghat that if the
respondent No. 2 files a complaint within 7 days along with a certified
copy of the order passed in W.P. No.7765/2021, then the same shall be
considered and decided in accordance with law, as mentioned in the
order dated 24.12.2020 passed in W.P. No. 18878/2020. Accordingly,
the respondent No. 2 filed an application on 12.04.2021 before the SHO,
Police Station Waraseoni, District Balaghat thereby making general
allegations against all the applicants. The SHO, Police Station
Waraseoni, District Balaghat after inquiry found that no cognizable
offence is made out and accordingly, submitted his expunge report dated
05.06.2021 to the SDO, Waraseoni, District Balaghat. Thereafter, the
respondent No. 2 filed Conc. No. 1643/2021, which was dismissed by
the Co-ordinate Bench of this Court by order dated 01.09.2021 by
holding that there is no disobedience of the order and Town Inspector
has considered the complaint and after due application of mind has
taken a decision that no offence is made out. Thereafter, the
complainant/respondent No. 2 filed an application under Section 156(3)/
200 of Cr.P.C. before JMFC, Waraseoni, District Balaghat. The Learned
Magistrate proceeded with the case and after recording the statements of
the witnesses, dismissed the application filed by the complainant under
Section 156(3)/200 of Cr.P.C. by order dated 06.08.2022 and recorded
the finding that from perusal of complaint and the documents, the
commission of cognizable offence is not made out.
2. The respondent No. 2 challenged the order passed by Magistrate
by filing Criminal Revision No. 75/2022, which was allowed by order
dated 30.01.2023 passed by 2nd Additional Sessions Judge, Waraseoni,
District Balaghat and the order dated 06.08.2022 passed by the JMFC,
Waraseoni, District Balaghat was set aside and the matter was remanded
back to the trial Magistrate to re-consider the complaint afresh.
Thereafter, JMFC, Waraseoni, District Balaghat by order dated
21.06.2023 passed in UNCR 49/2022 passed an order under Section
156(3) of Cr.P.C. thereby directing the police to investigate the matter.
3. Challenging the order passed by JMFC, Waraseoni, District
Balaghat on 21.06.2023, it is submitted by counsel for applicants that
the JMFC, Waraseoni, District Balaghat has taken cognizance of the
complaint and has passed an order under Section 156(3) of Cr.P.C. In
fact once the SHO, Police Station Waraseoni, District Balaghat had
found that no cognizable offence is made out, then there was no reason
for the Magistrate to pass an order under Section 156(3) of Cr.P.C.
Although, the Revisional Court had remanded the matter back to
reconsider the case but the Trial Magistrate has acted in a mechanical
manner and without collecting any further evidence has passed an order
under Section 156(3) of Cr.P.C.
4. It is submitted by counsel for applicants that with the help of
donation by the members of the Society, building was constructed and it
was decided that the persons, who had given the maximum donation
will be inducted as a tenant. The allegation of misappropriation of funds
is false. It is further submitted that the complaint was not supported by
an affidavit, as directed by Supreme Court in the case of Priyanka
Srivastava and Another Vs. State of Uttar Pradesh and Others,
reported in (2015) 6 SCC 287.
5. Per contra, the application is vehemently opposed by counsel for
the respondents. It is submitted by counsel for the
complainant/respondent No. 2 that once the Magistrate has come to a
conclusion that the allegations made in the complaint warrants
investigation, then it has not committed any mistake by passing an order
under Section 156(3) of Cr.P.C. It is further conceded by counsel for the
respondent No. 2 that cognizance has not been taken as alleged by the
applicants. Furthermore, it is submitted that a huge amount has been
misappropriated by the applicants. Even the Bank Account was not
opened. The entire money in cash was being kept by the applicants. The
fund donated from the M.P. Discretionary Quota was also
misappropriated. Audit was not got done. No register of minutes of
meeting was prepared. Initially one Atul Agrawal, C.A. had submitted a
joint audit report of the year, 2012 to 2018 and, thereafter, he himself
cancelled that audit report on the ground that the society had suppressed
the fact that its registration has been cancelled. No permission was taken
by the Society from the Registrar before alienating the property. The
price of every shop was approximately Rs. 20,00,000/- and, therefore,
the amount of Rs.1,20,00,000/- has not been mentioned in any Cash
Book, Audit Report or the minutes of the General Body Meeting. No
Income Tax Return was ever submitted by the Society. Although the
Society is registered in the name of Sindhi Samaj Kalyan Samiti but the
applicants were issuing the receipts in the name of Pujya Sindhi
Panchayat, Shri Gurunanak Dharmashala, Waraseoni.
6. Heard learned counsel for the parties.
7. So far as the report submitted by SHO, Police Station Waraseoni,
District Balaghat to SDO (P), Waraseoni, District Balaghat on
05.06.2021 is concerned, the counsel for applicants was directed to
clarify that if an Investigating Officer decides to conduct a preliminary
inquiry before registration of FIR and after conducting a preliminary
inquiry if he comes to a conclusion that no cognizable offence is made
out, then whether he is required to file the said report before the
concerning Magistrate or he can sit over the same.
8. It was fairly conceded by counsel for applicants that in such a
situation where a preliminary inquiry was conducted and if Inquiry
Officer comes to a conclusion that no cognizable offence is made out,
then he has to submit a report to the Magistrate under Section 157 of
Cr.P.C. The aforesaid submission made by counsel for the applicants is
in conformity with the law laid down by the Supreme Court in the case
of Kailash Vijayvargiya Vs. Rajlakshmi Chaudhari and Others,
reported in 2023 SCC OnLine SC 569, which reads as under:-
"59. Further there is a distinction between Section
154 and 157 as the latter provision postulates a
higher requirement than under Section 154 of the
Code. Under Section 157(1) of the Code, a Police
officer can foreclose the investigation if it appears to
him that there is no sufficient ground to investigate.
The requirement of Section 157(1) for the Police
officer to start investigation is that he has "reason to
suspect the commission of an offence". Therefore,
the Police officer is not liable to launch investigation
in every FIR which is mandatorily registered on
receiving information relating to commission of a
cognizable offence. When the Police officer
forecloses investigation in terms of clauses (a) and
(b) of the proviso to Section 157(1), he must submit a
report to the Magistrate. Here, the Magistrate can
direct the Police to investigate, or if he thinks fit,
hold an inquiry. Where a Police officer, in a given
case, proceeds to investigate the matter, then he files
the final report under Section 173 of the Code. The
noticeable feature of the scheme is that the
Magistrate is kept in the picture at all stages of
investigation, but he is not authorised to interfere
with the actual investigation or to direct the Police
how the investigation should be conducted.
9. Admittedly in this case, the police sat over its preliminary inquiry
report and did not submit the report to the concerning Magistrate. This
act of the Investigating Officer is unknown to law and gives unfettered
powers to Inquiry Officer to sit over the report without getting it
judicially approved from the concerning Magistrate. This Court is again
and again realizing that after conducting the preliminary inquiry, police
is not filing its report before the concerning Magistrate.
10. Accordingly, the Director General of Police, State of Madhya
Pradesh is directed to circulate a copy of order passed by Supreme Court
in the case of Kailash Vijayvargiya (supra) as well as copy of this
order to all the Superintendents of Police with a direction to the
Superintendents of Police to circulate the orders to the SHOs of all the
Police Stations so that they are made aware of the legal provisions of
law.
11. It is made clear that any deviation from henceforth shall be
considered with all seriousness and it may be presumed that the SHO
had deliberately sat over the matter in order to give undue advantage to
the accused.
12. It is next contended by counsel for applicants that once the
Magistrate had dismissed the complaint filed by respondent No. 2 by
holding that no offence is made out, then it does not have any authority
to change its view and then to issue an order under Section 156(3) of
Cr.P.C.
13. Considered the submission made by counsel for the applicants.
14. The Supreme Court in the case of Adalat Prasad Vs. Roopal
Jindal and others, reported in (2004) 7 SCC 338 has held that after the
summons have been issued by the Magistrate, then the only remedy
available to the aggrieved accused is not by invoking section 203 of
CrPC because section 203 of CrPC does not contemplate a review of an
order and the remedy lies in invoking section 482 of CrPC.
Accordingly, the judgment passed by Supreme Court in the case of
K.M.Mathew Vs. State of Kerala, reported in (1992) 1 SCC 217 was
overruled.
15. However, that is not the facts and circumstances of the case in
hand. In the present case after the dismissal of complaint under section
203 of CrPC, the respondent no.2 preferred a revision before the
revisional court and the revision filed by the respondent no.2 was
allowed and the matter was remanded back by the revisional court to the
trial court to reconsider the matter afresh. After the order passed by the
trial court was set aside by the revisional court, then by no stretch of
imagination it can be said that the fresh appreciation of material would
amount to review because after the order was passed by the revisional
court, the first order passed by the Magistrate had merged in the order
passed by the revisional court. Therefore, after the remand if the
revisional court had directed the Magistrate to reconsider the complaint,
then in absence of challenge to the order passed by the revisional court,
this Court cannot hold that the impugned order dated 21.6.2023 passed
by Magistrate; thereby allowing an application under section 156(3) of
CrPC is hit by provisions of section 362 of CrPC.
16. It is next contended by counsel for the applicant that after having
dismissed the complaint, the Magistrate should not have passed an order
under section 156(3) of CrPC on the basis of the same material and
should have collected an additional material to pass an order before
deciding the application filed under section 156(3) of CrPC.
17. Re-appreciation of material was sufficient to comply the order
passed by the revisional court.
18. There is also another hurdle in the argument of the applicants.
Order under section 156(3) of CrPC can be issued by the Magistrate
before taking cognizance. Cognizance means application of judicial
mind. If the Magistrate had tried to collect some more material, then the
stage where the Magistrate could have passed an order under section
156(3) of CrPC would have been over leaving the Magistrate with no
other option but to proceed under section 200 of CrPC. Therefore, re-
appreciation of material was sufficient to draw an adverse inference
whether the offence under section 156(3) of CrPC is made out or not?
19. It is next contended by the counsel for the applicants that since the
complainant had not filed an affidavit in support of his complaint as
reported by the Supreme Court in the case of Priyanka Srivastava
(supra), therefore, the complaint should have been dismissed.
20. The Supreme Court in the case of Priyanka Srivastava (supra)
has held as under :-
"30. In our considered opinion, a stage has come
in this country where Section 156(3) CrPC
applications are to be supported by an affidavit duly
sworn by the applicant who seeks the invocation of
the jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would be
well advised to verify the truth and also can verify
the veracity of the allegations. This affidavit can
make the applicant more responsible. We are
compelled to say so as such kind of applications are
being filed in a routine manner without taking any
responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are
passing orders under a statutory provision which can
be challenged under the framework of the said Act
or under Article 226 of the Constitution of India. But
it cannot be done to take undue advantage in a
criminal court as if somebody is determined to settle
the scores.
31. We have already indicated that there has to be
prior applications under Sections 154(1) and 154(3)
while filing a petition under Section 156(3). Both the
aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed.
The warrant for giving a direction that an application
under Section 156(3) be supported by an affidavit is
so that the person making the application should be
conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is
found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the
veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as
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, as are illustrated
in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] are being filed. That apart, the learned
Magistrate would also be aware of the delay in
lodging of the FIR."
21. This Court has already observed that the SHO, Police Station
Waraseoni, District Balaghat had not acted in accordance with law and
committed a material illegality by sitting over the opinion formed by it
and did not file it before the concerning Magistrate. If he had filed his
report pointing out that no offence is made out, then the Magistrate
could have directed the Police to investigate or could have decided to
hold an enquiry, as held by the Supreme Court in the case of Kailash
Vijayvargiya (Supra). Therefore, the complaint can also be treated as
a protest petition.
22. The applicants have filed a copy of complaint along with an
affidavit filed by the respondent no.2. However, it is the contention of
the counsel for the applicants that the affidavit should have contained
the entire allegations in detail and a declaration that the contents of the
complaint is true to his personal knowledge and the affidavit be treated
as part of the complaint, is not a sufficient compliance.
23. The aforesaid contention made by counsel for the applicants
cannot be accepted. If the complainant has given a solemn statement in
the form of affidavit that the contents of the complaint are true to his
personal knowledge and the affidavit be treated as part of the complaint,
then it is a sufficient compliance because if the allegations are found to
be false, then he can be prosecuted for offence of giving false affidavit
also.
24. No arguments on the merits of the case were advanced.
25. It was not argued that even if the entire allegations are accepted,
no offence would be made out warranting issuance of an order under
section 156(3) of CrPC.
26. Considering the totality of the facts and circumstances of the case,
this Court is of the considered opinion that no case is made out
warranting interference.
27. The application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
TG/AL
TRUPTI GUNJAL
2024.05.31 14:39:33
+05'30'
