Madhya Pradesh High Court
Dr. Sant Kumar Namdev vs Shrikant Namdev on 4 October, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 4th OF OCTOBER, 2024
MISC. CRIMINAL CASE No. 3104 of 2024
DR. SANT KUMAR NAMDEV
Versus
SHRIKANT NAMDEV AND OTHERS
Appearance:
The petitioner in person.
Shri Varun Tankha - Advocate for respondent No.1 through
videoconferencing.
Shri N.K. Mishra - Advocate for respondent No.2.
ORDER
The instant petition is preferred by the petitioner under Section
482 of the Cr.P.C. seeking quashment of the orders dated 23-07-2022
passed by the Second Additional Sessions Judge, Panna in Criminal
Revision No.24/2022 and 24-03-2022 passed by the Chief Judicial
Magistrate, Panna in in Unregistered Complaint UNCR-22/2021
contained in Annexure-A/1 and Annexure-A/2 respectively.
2. The petitioner submits that the respondents are brother-in-law
and wife of the petitioner. There are number of cases going on and the
petitioner has been falsely implicated in the cases at the behest of his
brother-in-law, respondent No.1 herein. Petitioner contends that an
application under Section 156(3) of the Cr.P.C. was filed by the
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petitioner before the Court of Chief Judicial Magistrate, Panna in which
it was alleged by the petitioner that he was owner of a car, i.e. Maruti
Zen bearing registration No.MP-20CC-2406. Ownership of the said car
was transferred in the name of the respondent No.2 on the basis of
forged documents. It is contended by the petitioner that his signatures on
the prescribed form which is required to be submitted for the purposes of
transfer of ownership of the vehicle, were forged. The petitioner never
signed any form and, therefore, by forging the signatures of the present
petitioner on Form No.29 and Form No.30, ownership of the said vehicle
was transferred in the name of the respondent No.2. Thus, alleging
commission of the aforesaid cognizable offence the application was filed
before the Chief Judicial Magistrate, Panna.
3. The Chief Judicial Magistrate, Panna vide impugned order
dated 24-03-2022 dismissed the said application, while observing that
the present petitioner has already obtained the documents under the
Rights to Information Act and, therefore, there is no requirement of
seizure of any other documents by the Police. The Court has also
observed that if the petitioner is claiming his signatures on the
documents to be forged, he ought to have examined his signatures by a
handwriting expert, which has not been done and the such course is
available with the present petitioner during course of trial, at the stage of
evidence and accordingly the Court posted the matter for recording of
the petitioner's evidence before registration in terms of Sections 200 and
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202 of the CrPC.
4. The order passed by the Chief Judicial Magistrate, Panna was
assailed by filing a revision, however, the revisional Court vide
impugned order dated 23-07-2022 (Annexure-A/1) also dismissed the
revision. Petitioner contends that the impugned orders passed by the trial
Court as well as revisional Court are unsustainable, inasmuch as the
application filed under Section 156(3) of the CrPC contained the specific
allegations of commission of cognizable offence and on the strength of
document obtained under the RTI Act when it was prima facie
established by the petitioner that a cognizable offence was committed,
the Court had no other option, but to direct the Police to conduct an
investigation and registration of offence against the respondents herein.
The petitioner submits that the order impugned passed by the trial Court
is not sustainable in view of the judgment of the Apex Court rendered in
the case of XYV vs. State of Madhya Pradesh and others, (2023) 9 SCC
5. The petitioner further submits that in the present case the trial
Court itself dismissed the application filed under Section 156(3) of the
CrPC and, therefore, the Court could not have converted the same
dismissed application into a complaint and treated the said dismissed
application to be a complaint under Section 200 of the CrPC. In support
of the contention the petitioner has placed reliance on the decisions
rendered in the cases of Sanjai Gupta son of Dashrath Lal Gupta vs.
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Gulab Misra son of unknown and others, 2006 (1) SCC 67 (All).
Petitioner has also placed reliance on the decisions of the Apex Court
rendered in the cases of Babubhai Jamnadas Patel vs. State of Gujrat
and others, (2009) 3 SCC 1297, Hemant Yashwant Dhage vs. State of
Maharashtra and others, (2016) 6 SCC 273, Mohd. Yousuf vs. Afaq
Jahan (Smt.) and another, (2006)1 SCC 627 and Priyanka Shrivastava
and another vs. State of U.P. and others, (2015)6 SCC 287 . It is
contended by the petitioner that the Court can issue directions for
investigation and also registration of an FIR, if the application filed
under Section 156(3) of CrPC reflects commission of a cognizable
offence. It is further contended by the petitioner that, if an FIR is
registered the Police Officer would be in a better position to take further
steps which are contemplated in Chapter XII of the Cr.P.C. when the FIR
is registered.
6. Per contra, counsel for the respondent No.1 submits that the
present petition filed under Section 482 of the CrPC deserves to be
dismissed. It is contended by the counsel that the trial Court rightly dealt
with the application and found that there was no scope to issue any
direction for investigation to the Police, inasmuch as the petitioner was
already in possession of the document obtained by him under the RTI
Act and secondly, it was open for the petitioner to adduce relevant
evidence of handwriting expert during course of the evidence. It is
contended by the counsel that the impugned order does not require
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interference and heavy reliance has been placed on the decision of the
Delhi High Court in the case of Shri Subhkaran Luharuka & Anr. vs.
State and anr. ILR (2010) 6 Delhi 495.
7. Counsel for the respondent No.1 also submits that this petition
is not maintainable in view of the judgment of the Apex Court rendered
in the cases of Mona Panwar vs. High Court of Judicature of Allahabad
through its Registrar and another, (2011) 3 SCC 496 , Rajinder Prasad vs.
Bashir and others, (2001) 8 SCC 522 and Kailash Verma vs. Punjab
State Civil Supplies Corporation and another, (2005) 2 SCC
571, inasmuch as the petition filed under Section 482 of CrPC is in the
garb of second revision and hence, the same is not maintainable. The
counsel has also placed reliance on the decision of the Delhi High Court
in the case of Rajesh Chetwal vs. State (CRL.M.C.1656/2011, decided
on 24-08-20211) and Sukhwasi vs. State of Uttar Pradesh, 2007 SCC
OnLine All 1088 and contended that belated challenge to the
proceedings under Section 482 of the CrPC is not maintainable and the
petition is liable to be dismissed.
8. Counsel for the respondent No.2 also submits that the petition
filed by the petitioner deserves to be dismissed. It is contended by the
counsel that the trial Court having conceded the application filed the
petitioner under Section 156(3) of the CrPC has passed an elaborate
order which contains cogent reasons, and the said reasons later on, have
been scrutinized by the revisional Court which also affirmed the order
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passed by the trial Court. It is thus, contended by the counsel that the
present petition has made a futile attempt to question the impugned
orders which do not require any interference, as there exists no infirmity
or perversity.
9. The material on record reflects that the petitioner approached
the trial Court in an application under Section 156(3) of the CrPC
alleging inter alia, that his signatures were forged on Form No.26 and
Form No.30 which is required to be submitted for the purposes of
transfer of ownership of the vehicle with the Transport Authority. In
support of the application the petitioner produced the documents
obtained under the Rights to Information Act and on the basis of the
said documents, in the application a prayer was made to direct the police
to conduct an investigation and register offence against the respondents
therein. The contention so advanced in the present application by the
petitioner is that once an application under Section 156(3) of the CrPC is
made which reflects commission of cognizable offence, the Court has no
other alternative, but to issue necessary direction to the Police for
investigation as well as registration of the offence.
10. In order to deal the aforesaid contention so advanced by the
petitioner, it is first germane to deal with the provisions of Section 156
of the CrPC which are reproduced herein :
"156. Police officer's power to investigate
cognizable case.--(1) Any officer in charge of a
police station may, without the order of a
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Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within
the limits of such station would have power to
inquire into or try under the provisions of Chapter
XIII.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer
was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section
190 may order such an investigation as above-
mentioned."
11. A perusal of the aforesaid provisions makes it abundantly
clear that the Magistrate is required to exercise discretion while
considering that the allegation prima facie necessitates police
investigation. Thus, dealing with an application under Section 156(3)
of the CrPC is sine qua non and, therefore, it cannot be said that
Magistrate is required to act mechanically only upon receiving the
application under Section 156(3) of the CrPC. Therefore, this Court is
not convinced by the argument of the petitioner that once such
application is made, there has to be a direction in terms of Section
156(3) of the CrPC for the purposes of investigation and registration of
an FIR. In the present case, the the trial Court while passing the order
impugned observed that the petitioner is in possession of the documents
which have already been obtained under the RTI and the Court also
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observed that it is for the petitioner to adduce evidence in the form of
handwriting expert report pertaining to his signatures on the aforesaid
documents which were submitted for the purposes of transfer of
ownership of the vehicle. The Apex Court in the decision which is being
strongly relied upon by the petitioner in the case of XYZ (supra) held in
paragraph No.24 as under :
"24. Therefore, in such cases, where not only does
the Magistrate find the commission of a cognizable
offence alleged on a prima facie reading of the
complaint but also such facts are brought to the
Magistrate's notice which clearly indicates the need
for police investigation, the discretion granted in
Section 156(3) can only be read as it being the
Magistrate's duty to order the police to investigate.
In cases such as the present, wherein, there is
alleged to be documentary or other evidence in the
physical possession of the accused or other
individuals which the police would be best placed
to investigate and retrieve using its powers under
the CrPC, the matter ought to be sent to the police
for investigation."
12. A perusal of the aforesaid paragraph clearly indicates that the
Magistrate is required to exercise his discretion when in his opinion the
commission of cognizable offence is prima facie established, which in
turn, requires police investigation. The second part of paragraph No.24
of the aforesaid judgement also reveals that when other evidence like
documentary or other evidence in the physical possession of the accused
or other individuals, the police would be best placed to investigate and
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retrieve using its powers under the provision of the Cr.P.C., and hence,
the matter ought to be sent to the police for investigation. In the case in
hand, the documents are already in the possession of the present
petitioner which according to the petitioner were submitted to get the
ownership of the vehicle transferred and, therefore, in such an
eventuality the investigation by the police is not required as has been
held by the trial Court.
13. The other limb of the argument of the petitioner is that an
application filed under Section 156(3) of the CrPC cannot be treated as a
complaint under Section 200 of the CrPC and according to the petitioner
in view of the decision of the Allahabad High Court in the case
o f Sanjay Gupta (supra) the order impugned is unsustainable. To deal
with this contention of the petitioner, recourse can be taken to the
judgment of the Apex Court in Mona Panwar (supra) wherein the Apex
Court while dealing with an order of the Magistrate directing registration
of the application filed under Section 156(3) of the Cr.P.C. as a
complaint in paragraph Nos.21, 22 and 23 held as under :
"21. From the order dated 1-8-2009, passed by the
appellant, it is evident that the appellant had called
for a report from the police station concerned and
considered the said report wherein it was inter alia
mentioned that no case was registered on the basis
of the application made by Respondent 3.
Respondent 3 at the time of filing complaint before
the appellant had filed her own affidavit, carbon
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copy of the application sent by her to the Senior
Superintendent of Police, Saharanpur with its postal
registration and photocopy of the medical
certificate. Under the circumstances the appellant
had exercised the judicial discretion available to a
Magistrate and directed that the application, which
was submitted by Respondent 3 under Section
156(3) of the Code, be registered as complaint and
directed the Registry to present the said complaint
before her on 28-8-2009 for recording the statement
of Respondent 3 under Section 200 of the Code.
22. The judicial discretion exercised by the
appellant was in consonance with the scheme
postulated by the Code. There is no material on the
record to indicate that the judicial discretion
exercised by the appellant was either arbitrary or
perverse. There was no occasion for the learned
Single Judge of the High Court to substitute the
judicial discretion exercised by the appellant merely
because another view is possible. The appellant was
the responsible judicial officer on the spot and after
assessing the material placed before her she had
exercised the judicial discretion. In such
circumstances this Court is of the opinion that the
High Court had no occasion to interfere with the
discretion exercised judiciously in terms of the
provisions of the Code.
23. Normally, an order under Section 200 of the
Code for examination of the complainant and his
witnesses would not be passed because it consumes
the valuable time of the Magistrate being vested in
inquiring into the matter which primarily is the duty
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of the police to investigate. However, the practice
which has developed over the years is that
examination of the complainant and his witnesses
under Section 200 of the Code would be directed by
the Magistrate only when a case is found to be a
serious one and not as a matter of routine course. If
on a reading of a complaint the Magistrate finds
that the allegations therein disclose a cognizable
offence and forwarding of the complaint to the
police for investigation under Section 156(3) of the
Code will not be conducive to justice, he will be
justified in adopting the course suggested in Section
200 of the Code."
14. The aforesaid analysis by the Apex Court makes it
abundantly clear that there is no embargo in treating an application
under Section 156(3) of the CrPC to be a complaint and issue direction
for the purposes of recording of statement of the complaint under
Section 200 of the CrPC. Similar view has been taken in Sukhwasi
(supra) and the High Court of Allahabad has taken note of the identical
ratio laid down in a previous judgment i.e. Chandrika Singh Vs. State of
U.P., (2007) 58 ACC 777 . Therefore, this Court is of the considered
view that the Magistrate while applying his mind to the application filed
under Section 156(3) of CrPC has rightly concluded that the present
petitioner has already produced the documents after obtaining the same
from the Transport Department and so far as his alleged forged signature
on the documents were concerned, it was open with the petitioner to
adduce evidence pertaining to the report of handwriting expert during
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course of trial. Thus, in the considered view of this Court, the trial Court
has not committed any error while passing the impugned order.
15. The decisions relied upon by the petitioner are of no
assistance to him. Accordingly, this petition preferred under Section 482
of the CrPC stands dismissed. No order as to costs.
(MANINDER S. BHATTI)
JUDGE
ac
