Punjab-Haryana High Court
Harish Verma vs State Of Punjab And Anr on 1 June, 2023
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CRM-M-19106-2018 and connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
212
CRM-M-19106-2018 (O&M)
Decided on : 01.06.2023
Pooja @ Gurinder Kaur Kainth and another
. . . Petitioners
VERSUS
State of Punjab and another
. . .Respondents
CRM-M-19760-2018(O&M)
Harish Verma
. . . Petitioner
VERSUS
State of Punjab and another
. . .Respondents
CRM-M-20644-2018 (O&M)
Puneet Singh
. . . Petitioner
VERSUS
State of Punjab and another
. . .Respondents
CRM-M-7925-2018 (O&M)
Ram Lok and others
. . . Petitioners
VERSUS
State of Punjab and another
. . .Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
PRESENT: Mr. Ankur Mittal, Advocate, Mr. Lalit Singla, Advocate
and Ms. Kushaldeep Kaur Manchanda, Advocate
for the petitioners in CRM-M-19760 & 20644-2018
Mr. K. S. Dadwal, Advocate for the petitioners
In CRM-M-19106-2018
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CRM-M-19106-2018 and connected cases 2
Mr. Atul Goyal, Advocate for the petitioner in CRM-M-7925-2018
Mr. IPS Sabharwal, DAG, Punjab
Mr. Rahul Garg, Advocate for respondent No.2
In CRM-M-7925-2018
Mr. Jaitej Pratap Mittal, Advocate /Legal Aid Counsel
for the complainant in CRM-M-19106, 19760 & 20644-2018
*****
AMAN CHAUDHARY, J.
1. The question of law involved in the present cases being common, the
same are being decided together.
CRM-M-19760, 19106 & 20644-2018-1st case
2. Challenge in the present petitions is to the common order dated
26.04.2018, passed by Nyayadhikari Gram Nyayalaya, Nangal, as well as
consequential FIR No. 58 dated 27.04.2018 registered under Sections 295-A, 499
and 500 IPC at Police Station Nangal, District Rupnagar.
CRM-M-7925-2018-2nd case
3. Challenge in the present petition is to the order dated 30.01.2018,
Annexure P-8, passed by Judicial Magistrate First Class, Shri Anandpur Sahib,
Rupnagar, and consequential proceedings including registration of FIR No. 19
dated 12.02.2018, under Sections 420, 467, 468, 471 and 120-B IPC at Police
Station Nurpur Bedi, District Rupnagar.
4. Shorn of unessentials, the facts in the 1st case are that a video of a
song named "Jeeju" was released, wherein the petitioner No.1 in CRM-M-19106-
2018 is depicted beating up her drunk husband, who she imagined to be Yamraj, a
role portrayed by the petitioner in CRM-M-19760-2018, with a 'gada'. The song
is said to have hurt the religious feelings of the complainant, an advocate by
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profession. Aggrieved complainant, filed an application under Section 156(3)
CrPC, wherein direction was issued for registration of FIR against the petitioners.
5. In the 2nd case, the petitioners and respondent No.2 are real brothers.
As per the Will dated 11.09.1981 of their maternal uncle, half the share of his
movable and immovable property was to be transferred to petitioner No.1, and the
rest to petitioner Nos. 2 to 5. Whereas, vide a subsequent Will dated 18.09.1981,
the entire property was to be divided equally amongst all the petitioners. The
complainant-respondent No.2, who was the 6th brother was not getting any share
as per either of the Will. A suit was accordingly filed by him against the present
petitioners alleging that both the Will were forged and fabricated. However, the
trial Court held the Will dated 18.09.1981 to be by way of undue influence. An
appeal was preferred by the petitioners against the order of civil Court and during
the lis being pending, an application under Section 156(3) Cr.P.C. was filed by
respondent No.2 seeking registration of FIR.
6. Learned counsel for the petitioners in the 1st case would submit that
in the application filed under Section 156(3) CrPC, the complainant had not
averred that he had approached the police authorities prior to filing of the same. In
the 2nd case, though it was mentioned that the complainant-respondent had
approached the police, however no document was filed alongwith the application
to substantiate. Further, the trial Court had decided the suit on 19.08.2017, the
appeal against which was filed in November, 2017 and notice was issued on
29.11.2017. There was an order passed on 03.01.2018, wherein it has been
recorded that the complainant had appeared in person on the said date, but in the
application filed on 30.01.2018 under Section 156(3) Cr.P.C., this fact of
challenge to the civil decree was concealed. The Magistrate also failed to verify as
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to whether the complainant had, as a matter of fact, approached the police and if at
all, the outcome thereof. It was further assiduously urged by the learned counsel in
both the cases, that the applications in question filed under Section 156(3) Cr.P.C.
were not accompanied by affidavits of the respective complainants, as mandated,
the compliance of which, even the Magistrate was bound to ensure. In this regard,
reliance was placed on the judgments of Hon'ble The Supreme Court in Priyanka
Srivastava vs. State of U.P., (2015) 6 SCC 287, Vikram Johar vs. State of U.P.,
(2019) 14 SCC 207 and Babu Venkatesh vs. State of Karnataka, (2022) 5 SCC
639.
7. While assailing the impugned order, the submission advanced in the
1st case, was that it is discernible therefrom that the Magistrate without even
having viewed the song in question, formed a prima facie opinion that an offence
had been committed and directed registration of FIR against the present
petitioners, by ignoring that it is only if an act that is a malicious and deliberate
attempt to outrage the religious feelings of one class, Section 295-A IPC would be
attracted. To buttress the assertion, he relied on the judgments in Ramji Lal Modi
vs. State of U.P., 1957 SCR 860, Mahendra Singh Dhoni vs. Yerraguntla
Shyamsundar, (2017) 7 SCC 760 and Priya Prakash Varrier vs. State of
Telangana, (2019) 12 SCC 432. It was further submitted that despite service,
respondent No.2 did not put in appearance, which shows that the application was
merely filed to harass the petitioners, by levelling false and frivolous allegations.
8. In the 2nd case, the contention raised was that it is a judgment of civil
Court wherein the Will in question was found to be as a result of undue influence
and there was no finding that it was by way of forgery, as was alleged, but the
Magistrate without verifying the fact of it having been appealed against or attained
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finality, wrongly directed registration of FIR. During the interregnum, the said
judgment even stands set aside by the Appellate Court vide judgment dated
15.11.2019. The basis of the said order directing registration of FIR itself no
longer exists, is yet another ground for seeking quashing of the FIR. The
application was filed with ulterior motive and merely to settle scores.
9. The learned Counsel would submit that the impugned orders passed
in these cases are literally identically worded and do not reflect application of
mind by the Magistrate. In this regard reference was made to Anil Kumar vs.
M.K. Aiyappa, (2013) 10 SCC 705, Maksud Saiyed vs. State of Gujarat,
(2008) 5 SCC 668, Ashokbhai Chandrakantbhai Gandhi and Anr vs. State of
Gujarat and others, 2017 (3) GLR 1898, Lalaram vs. State of U.P., 2020 SCC
OnLine All 1497, Brinda Karat vs. State (NCT of Delhi), 2022 SCC OnLine
1775, Radhey Shyam Bharti vs. State of U.P., 2022(3) ILR (Allahabad) 195 and
Usha Chakraborty vs. State of W.B., 2023 SCC OnLine SC 90.
10. Though while resisting the petitions, it could not be refuted by the
learned State counsel assisted by counsel for the complainants that there was any
document to evidence that the police authorities had been approached prior to
filing the applications under Section 156(3) CrPC and that affidavits were
attached thereto, on the other hand, it was canvassed that there is no requirement
of first approaching the police authorities before filing application under Section
156(3) CrPC and filing of affidavit along with the application is not a statutory
requirement but is based only on the observations made in the judgment in
Priyanka Srivastava (supra), to make the complainant liable for prosecution in
case allegations are found to be false, is thus a curable defect. The complainant
can be prosecuted even otherwise, if found to have given false evidence or
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complaint. The directions were passed keeping in view the particular facts of the
said case, as there were multiple complaints filed by the complainant and as per
Section 32 of the SARFAESI Act, there was a protection of action taken in good
faith, which the Magistrate should have kept himself alive to before venturing into
directing registration of FIR under Section 156(3) CrPC. The complainant has
two options, either to file a complaint to the police or approach the Magistrate
under Section 156(3) Cr.P.C. Further urged that the Magistrate has three options
available while adjudicating such an application, either to refer: (i) it to the police
for registration of the case and investigation, if a cognizable offence is made out;
or (ii) if non-cognizable offence is made out, to keep it with himself or (iii) if no
offence is made out, can dismiss the application. Recording of reasons for a
particular decision under Section 156(3) Cr.P.C. are not necessary. The judgment
in Priyanka Srivastava (supra) was also not found mentioned in the subsequent
judgment in HDFC Securities Ltd. vs. State of Maharashtra, (2017) 1 SCC
640.
11. To bolster the aforesaid submissions, reliance was placed on the
judgments in M/s Sujan Multiports Ltd. vs. State of Haryana 2019 SCC
OnLine P&H 6502, Sobren Singh vs. State of U.P., 2005 SCC OnLine All 1490,
Samaj Parivartan Samudaya vs. State of Karnataka, (2012) 7 SCC 407, State
of Gujarat vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659, Ramdev Food
Products Private Limited vs. State of Gujarat, (2015) 6 SCC 439, Minu
Kumari vs. State of Bihar, (2006) 4 SCC 359, Vinubhai Haribhai Malaviya vs.
State of Gujarat 2020(1) RCR (Criminal) 1, Suresh Chand Jain vs. State of
Madhya Pradesh, 2001(2) SCC 628, Hemant Yashwant Dhage vs. State of
Maharashtra, 2016(6) SCC 273, Madhu Bala vs. Suresh Kumar, 1997(8) SCC
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476, Neeharika Infrastructure (P) Ltd. vs. State of Maharashtra, 2021 SCC
OnLine SC 315, Mohd. Yousuf vs. Smt. Afaq Jahan, 2006(1) SCC 627 and M/s.
MMTC Ltd. vs. M/s Medchl Chemicals & Pharma (P) Ltd, 2002(1) RCR
(Criminal) 318.
12. In rebuttal, learned counsel submits that the two options that the
learned opposite counsel had referred to, available with the complainant are in fact
under Sections 154 and 200 Cr.P.C and not under Sections 154 and 156 CrPC, as
in order to approach the Magistrate under 156(3) Cr.P.C, he is obliged to first go
to the police under Section 154 Cr.P.C. An application once filed under Section
156(3) Cr.P.C., relates to the investigation, whether upon a direction to register
the FIR or to monitor it, as held by Hon'ble The Supreme Court in Sakiri Vasu v.
State of U.P., (2008) 2 SCC 409. By placing reliance on the judgments in the
cases of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, in particular
to category of cases illustrated in (1), (3) and (7) of para 102, Krishna Lal
Chawla vs State of U.P, (2021) 5 SCC 435 and Subrata Roy Sahara vs. Union
of India, (2014) 8 SCC 470, it was vehemently contended that by filing the
applications by the complainant, an attempt was made to browbeat, harass and
humiliate the petitioners and permitting such proceedings to continue would
amount to abuse of process of law.
13. Heard the learned Counsel for the parties at length and with their able
assistance perused the case files.
14. It would be apposite to make a reference to Sections 154 and 156(3)
Cr.P.C., which read thus:
"154. Information in cognizable cases-
(1) Every information relating to the commission of a
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cognizable offence, if given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his
direction, and be read Over to the informant; and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in
this behalf.
(2) A copy of the information as recorded under sub- section
(1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer
in charge of a police station to record the information referred
to in subsection (1) may send the substance of such
information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be
made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the
powers of an officer in charge of the police station in relation
to that offence.
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within the limits
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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."
15. A profitable reference can be made to the judgment in Sakiri Vasu
(supra), wherein Hon'ble The Supreme Court, elucidately interpreted the
provisions of Sections 154 as well as 156(3) Cr.P.C., and held that a person
aggrieved by the inaction on part of police station in not registering an FIR, has
his first remedy to approach the Superintendent of Police, under Section 154(3)
Cr.P.C. or any other officer as referred to in Section 36 Cr.P.C. by making an
application in writing. It is only thereafter, can he approach a Magistrate under
Section 156(3) Cr.P.C. A further remedy is also envisaged in the Code by filing a
criminal complaint under Section 200 Cr.P.C. An application having been filed
before the Magistrate under Section 156(3) Cr.P.C., can be preferred for a
grievance being raised on account of non-registration of FIR or in case there is no
proper investigation being carried out. The ambit of aforesaid provision being
very wide would include all incidental powers necessary for ensuring a proper
investigation, as when any power is expressly granted by the statute it impliedly
includes, even without special mention, every power and control, the denial of
which would render the grant itself ineffective.
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16. The Constitution Bench of Hon'ble The Supreme Court in the case of
Lalita Kumari vs. State of U.P., (2014) 2 SCC 1, had held that a police officer
cannot refuse to register an FIR if it discloses commission of a cognizable offence,
however, in exceptional cases, before registering the FIR, the preliminary enquiry
by the concerned police officer was held to be permissible only to ascertain
whether the information reveals any cognizable offence. Reiterating the above in
Priyanka Srivastava (supra), Hon'ble The Supreme Court finding a scenario
which was not only disturbing but also having a potential to create a stir with
regard to unscrupulous, unprincipled and deviant litigants knocking the doors of
the Court and taking recourse to Section 156(3) Cr.P.C. in a routine procedure,
observed that the Magistrate had a duty cast that cannot be marginalized and the
order directing registration of FIR warrants application of judicial mind. It has to
be borne in mind by the Magistrate that sending the matter would be conducive to
justice and in appropriate cases, the Magistrate would be well advised to verify the
truth and also verify the veracity of the allegations, while taking note of the same
in entirety. Having regard to the enunciation of law, it was reiterated that the
Magistrate has to remain vigilant with regard to the nature of allegations made and
not to issue directions without application of mind. It is for the purpose of
ensuring that fellow citizens are not harassed by pervert litigants and a litigant at
his own whim cannot involve the authority of the Magistrate. A stage had come in
the country where the application filed under Section 156(3) Cr.P.C. must be
supported by an affidavit duly sworn by the applicant, who seeks to involve the
jurisdiction of the Magistrate, so that the said person is conscious that in case it is
found to be false he will be liable for prosecution. It is necessary that before filing
a petition under Section 156(3) Cr.P.C., there must be a prior application filed
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under Sections 154(1) and 154(3) Cr.P.C. Both the aspects should be clearly spelt
out in the application and necessary documents to that effect shall be filed. Most
pertinently, the order passed was directed to be sent to the Chief Justices of the
High Courts for circulation amongst the Sessions Judges and Magistrate, so that
they can remain more vigilant and diligent while exercising the power under
Section 156(3) Cr.P.C. Relying on the dictum in Priyanka Srivastava (supra),
Hon'ble The Supreme Court in the case of Vikram Johar (supra), observed that
the potentiality of misuse of Section 156(3) to harass those, who are entrusted
with various statutory functions was noticed. The person making the allegation
should take responsibility of what they have said in the complaint, thus, the
application under Section 156(3) Cr.P.C. has to be supported by an affidavit.
17. The law expounded in Priyanka Srivastava (supra), was followed
by Hon'ble The Supreme Court in Babu Venkatesh (supra), whereby the
judgments and orders of the High Court upholding the order passed by the
Magistrate were set aside, as it failed to take into consideration the legal position
as enunciated in the aforesaid case and the petitions were dismissed by merely
observing that serious allegations were made in the complaint. The Magistrate was
found to have totally failed to consider the mandate in the aforesaid judgment,
while passing the order under Section 156(3) Cr.P.C. as the complaint was not
supported by an affidavit, thus, he ought not to have entertained the application. It
has been categorically held that the Magistrate would be well advised to verify the
truth and veracity of the allegations and prior to filing a petition under Section
156(3) Cr.P.C., there have to be applications Sections 154(1) and 154(3) Cr.P.C.
18. Incontrovertibly, there was non-adherence of two germane aspects
involved in the present cases, to which the Magistrate appears to have been
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oblivious, first; being that without following the procedure envisaged under
Section 154 CrPC, the complainants had embarked on filing applications under
Section 156(3) Cr.P.C., secondly; the same were not even accompanied by a duly
sworn affidavit of the complainant, as necessitated, both of these being pre-
requisite to be mandatorily and meticulously followed as were the unambiguous
directions in Lalita Kumari, Sakiri Vasu, Priyanka Srivastava and Babu
Venkatesh (supra), with respect to which, the Magistrates were also required to
remain more vigilant and diligent while exercising the power under Section
156(3) Cr.P.C.
19. It is evident that the Compact Disc containing the song, was not even
viewed by the Magistrate, but still he reached the conclusion that the offence was
made out, is unfounded as per law laid down by the Constitution Bench of
Hon'ble The Supreme Court in Ramjilal Modi (supra), that, "Section 295A does
not penalise any and every act of insult to or attempt to insult the religion or the
religious beliefs of a class of citizens but it penalises only those acts of insults to
or those varieties of attempts to insult the religion or the religious beliefs of a class
of citizens, which are perpetrated with the deliberate and malicious intention of
outraging the religious feelings of that class. Insults to religion offered unwittingly
or carelessly or without any deliberate or malicious intention to outrage the
religious feelings of that class do not come within the section. It only punishes the
aggravated form of insult to religion when it is perpetrated with the deliberate and
malicious intention of outraging the religious feelings of that class." Further that,
"the language employed in the section is not wide enough to cover restrictions,
both within and without the limits of constitutionally permissible legislative action
affecting the fundamental right guaranteed by Article 19(1)(a) of the
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Constitution." Based on the above ratio, Hon'ble The Supreme Court in
Mahendra Singh Dhoni (supra) quashed the proceedings against the petitioner
while observing that it is clear as crystal that Section 295-A IPC does not stipulate
everything to be penalised and any and every act would tantamount to insult or
attempt to insult the religion or the religious beliefs of class of citizens, and in
Priya Prakash Varrier (supra) that the allegations even if it is true would not
come within the ambit and sweep of Section 295-A IPC.
20. Referring to the 2nd case, the direction for registration of FIR was
primarily on account of a civil Court decree, wherein the Will in question was
found to be executed by undue influence and not having been held to be forged as
had been alleged, however, the said judgment had not attained finality, a factum
which was concealed by the complainant, as he was completely in the know and
knowledge of it, having appeared before the appellate Court on 03.01.2018, while
the application was filed on 30.01.2018. In S.P. Chengalvaraya Naidu vs.
Jagannath, (1994) 1 SCC 1, it was held by Hon'ble The Supreme Court that, "A
litigant, who approaches the court, is bound to produce all the documents executed
by him which are relevant to the litigation. If he withholds a vital document in
order to gain advantage on the other side then he would be guilty of playing fraud
on the Court as well as on the opposite party."
21. It is worthwhile to refer to the catena of judgments by Hon'ble The
Supreme Court and the High Courts relating to application of mind by the
Magistrate while exercising the power under Section 156(3) CrPC. In M.K.
Aiyappa (supra), Hon'ble The Supreme Court, observed that, "We may first
examine whether the Magistrate, while exercising his powers under Section
156(3) Cr.P.C., could act in a mechanical or casual manner and go on with the
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complaint after getting the report. The scope of the above mentioned provision
came up for consideration before this Court in several cases. This Court in
Maksud Saiyed case (supra) examined the requirement of the application of mind
by the Magistrate before exercising jurisdiction under Section 156(3) and held that
where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or
Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case,
the Special Judge/Magistrate cannot refer the matter under Section 156(3) against
a public servant without a valid sanction order. The application of mind by the
Magistrate should be reflected in the order. The mere statement that he has gone
through the complaint, documents and heard the complainant, as such, as reflected
in the order, will not be sufficient. After going through the complaint, documents
and hearing the complainant, what weighed with the Magistrate to order
investigation under Section 156(3) Cr.P.C., should be reflected in the order,
though a detailed expression of his views is neither required nor warranted. We
have already extracted the order passed by the learned Special Judge which, in our
view, has stated no reasons for ordering investigation."
22. In Radhey Shyam Bharti (supra) it was held that, "...The Magistrate
has to apply his mind to the entire material before him in order to ascertain
whether commission of any cognizable offence is prima facie made out so as to
warrant trial of the opposite party and he cannot direct registration of an F.I.R.
merely for the reason that the police report mentions that no F.I.R. has been
registered previously...". It was held in Lalaram (supra) that the Magistrate shall
pass the order with due application of judicious mind. In re: Ashokbhai
Chandrakantbhai Gandhi (supra), it was observed and held that remedy under
Section 156(3) is not of a routine nature but exercise of powers therein require
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total application of judicial mind and that while passing an order under Section
156(3) Cr.P.C., the Magistrate shall record a short order disclosing the reasons to
send for investigation.
23. It was observed in Shri Subhkaran Luharuka vs. State (Govt. of
NCT of Delhi) 2010(7) RCR (Criminal) 595, that there are pre-requisites to be
followed by the complainant before approaching the Magistrate under Section
156(3) of the Code which is a discretionary remedy as the provision proceeds with
the word "May", thus, the Magistrate is required to exercise his mind while doing
so, who should pass orders only if he is satisfied that the information reveals
commission of cognizable offences and also about necessity of police
investigation for digging out of evidence neither in possession of the complainant
nor can be procured without their assistance.
24. Considering the impugned orders passed in the present cases, in light
of the exposition of law, the reflection of application of mind is conspicuously
missing therein, as evidently the Magistrate had neither assimilated nor verified
the truth and veracity of the allegations and merely mentioned that prima facie, an
offence was made out, that too without even having watched the questioned song,
which purportedly had hurt the religious feelings of the complainant, while it is
settled that in such an act, there must be a malicious and deliberate attempt to
outrage the religious feelings of one class as held in Ramji Lal Modi, Mahendra
Singh Dhoni and Priya Prakash Varrier (supra). Likewise, the direction in the
2nd case, had been given for registration of FIR, based on the decree of the civil
Court, even though there was no finding recorded of forgery of Will in it and that
too without verifying whether any challenge was made thereto or it attained
finality, which infact now stands set aside, a fact undisputed. That apart, the
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complainant-respondent in order to gain advantage, had also intentionally
concealed the factum of the appeal having been filed against the said decree, to
which he was privy, as divulging of the said information would have not produced
the desired result of direction to register FIR, which in itself is sufficient to
disentitle him to any relief, he having not approached the Court with clean hands.
On factual foundation, the ingredients of the offence not being satisfied, the
impugned orders are palpably erroneous. Hon'ble The Supreme Court in Usha
Chakraborty (supra) had held that where the allegations are vague and do not
carry the essential ingredients to constitute the alleged offences, it cannot lead to
the registration of FIR based on an application filed under Section 156(3) Cr.P.C.
25. The record of the 1st case reveals that complainant-respondent being
duly served, there was no representation on his behalf, except on one date i.e.
12.07.2019, when an advocate had put in appearance, without any authorization
filed, as recorded in the order dated 18.04.2022, whereupon fresh notice was
issued to him and when despite service, none had appeared, this Court vide order
dated 09.03.2023 appointed the legal aid counsel to represent him and assist the
Court.
26. Hon'ble The Supreme Court in Chanchalpati Das vs. State of W.B.,
2023 SCC OnLine SC 650, observed that, "We would like to add that just as bad
coins drive out good coins from circulation, bad cases drive out good cases from
being heard on time. Because of the proliferation of frivolous cases in the courts,
the real and genuine cases have to take a backseat and are not being heard for
years together. The party who initiates and continues a frivolous, irresponsible and
senseless litigation or who abuses the process of the court must be saddled with
exemplary cost, so that others may deter to follow such course..."
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27. Hon'ble The Supreme Court elucidated, the plight of a litigant caught
in the web of frivolous proceedings in Subrata Roy Sahara (supra) by observing
that, "...One needs to keep in mind, that in the process of litigation, there is an
innocent sufferer on the other side, of every irresponsible and senseless claim. He
suffers long drawn anxious periods of nervousness and restlessness, whilst the
litigation is pending, without any fault on his part. He pays for the litigation, from
out of his savings (or out of his borrowings), worrying that the other side may
trick him into defeat, for no fault of his. He spends invaluable time briefing
counsel and preparing them for his claim. Time which he should have spent at
work, or with his family, is lost, for no fault of his..." While the Court's ruling
pertained to civil proceedings, these observations ring true for the criminal justice
machinery as well."
28. In so far as the judgments relied upon by the learned State counsel as
well as counsel for the complainant, are concerned, the same are being referred to
hereunder;
29. In HDFC Securities Ltd. (supra), the challenge to the order passed
by the Magistrate under Section 156(3) Cr.P.C. was not laid on the ground of
application not having been filed by adopting the procedure as envisaged under
CrPC or that no affidavit in support had been submitted, rather the same was on
merits, the case involved a civil dispute of unauthorized and fraudulent trading
from the account of the complainant, which was opposed on the ground of petition
being premature, since it was at pre-cognizance stage and the High Court refused
to quash the proceedings, finding no flaw or illegality in the impugned order.
30. In M/s Sujan Multiports Ltd. (supra), with regard to the judgment
in Priyanka Srivastava (supra), it has been observed that, "....Hence, this
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judgment of the Hon'ble Supreme Court does not lay down, as a precedent, that
taking of affidavits and finding the veracity and truth of allegations by a
Magistrate is a 'sine qua non' for passing order under Section 156(3) Cr.P.C. This
has been left to the discretion of the Magistrate, if considered appropriate in a
particular case; but only as an advisory. That discretion is always there otherwise
also. Still further insisting upon affidavits at the stage of Section 156(3) Cr.P.C
may not be otherwise desirable; because an affidavit is a sworn statement, which
if submitted before the Magistrate, may not be possible for him to ignore at that
time; even if it turns out to be false later on." However, Hon'ble The Supreme
Court in Babu Venkatesh (supra), has reiterated the law laid down in the
Priyanka Srivastava (supra) and in no uncertain terms held that, "From the
perusal of the complaint it can be seen that, the complainant/respondent No. 2
himself has made averments with regard to the filing of the Original Suit. In any
case, when the complaint was not supported by an affidavit, the Magistrate ought
not to have entertained the application under Section 156 (3) of the Cr.P.C. The
High Court has also failed to take into consideration the legal position as has been
enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra),
and has dismissed the petitions by merely observing that serious allegations are
made in the complaint."
31. The judgment in Sobren Singh (supra), was passed in the year 2005
by Allahabad High Court, wherein it was though observed that no prior complaint
under Section 154(1) and 154(3) was required for filing complaint under Section
156(3) Cr.P.C., but Hon'ble The Supreme Court in Priyanka Srivastava and
Babu Venkatesh (supra) has unequivocally laid down the mandate, while
elucidating that before filing complaint under Section 156(3) Cr.P.C., the
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complainant ought to have approached the police authorities under Section 154
Cr.P.C.
32. The issue that arose in Samaj Parivartan Samudaya (supra) was
not regarding Section 154 and 156(3) Cr.P.C. and Hon'ble The Supreme Court
had given observations with regard to the setting in motion of the criminal
machinery and the procedure laid down under Section 200 Cr.P.C.
33. In Girish Radhakrishnan Varde (supra), Hon'ble The Supreme
Court has held that after the registration of FIR under Section 154 Cr.P.C. and
having completed the investigation by submitting the final report, the Magistrate
does not have the power to add or amend Sections of IPC.
34. Hon'ble The Supreme Court in Ramdev Food Products Private
Limited (supra) was not dealing with the aspect as had been drawn out in
Priyanka Srivastava and Babu Venkatesh (supra), with regard to the manner in
which the complaint under Section 156(3) is to be filed, as the issue was with
regard to the difference between the powers under Sections 202 and 156 Cr.P.C.,
and it was also observed that the Magistrate is required to apply his judicial mind
while exercising power under Section 156(3) Cr.P.C.
35. In Vinubhai Haribhai Malaviya (supra), it was held by Hon'ble The
Supreme Court that the Magistrate had wide powers under Sections 156(3)
Cr.P.C. to ensure proper investigation that includes the power to order further
investigation. Neither was the adjudication with regard to the manner in which the
complaint under Section 156(3) Cr.P.C. is to be filed nor the power to be
exercised thereunder. In Suresh Chand Jain (supra), a judgment delivered in the
year 2001, it was held that there was no requirement to examine the complainant
on oath before passing an order to register an FIR under Section 156(3) Cr.P.C.
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Minu Kumari (supra), was a case wherein the Additional Sessions Judge had set
aside the order on the ground that there was no power of recalling under Section
360(2) Cr.P.C., it was held that the High Court should have exercised the power
under Section 482 Cr.P.C. for rectifying the error, as the summons were
mistakenly issued by the Magistrate.
36. Hon'ble The Supreme Court in Hemant Yashwant Dhage and
Madhu Bala (supra), held that if directions are issued by the Magistrate for
investigation under Section 156(3) Cr.P.C. it shall also include direction for
registration of FIR. In Neeharika Infrastructure (supra), Hon'ble The Supreme
Court laid down various guidelines where High Court would be justified in
passing interim order either staying further investigation in FIR/complaint or
interim order in nature of no coercive step.
37. Hon'ble The Supreme Court in Mohd. Yousuf (supra) had observed
that the Magistrate before taking cognizance can order investigation under Section
156(3) of the Code and at that time, he is not to examine the complainant on oath
and that it is the duty of the officer incharge of the police station to register FIR,
even if the Magistrate does not say so in so many words while directing
investigation under the aforesaid provision, and in the case of M/s. MMTC Ltd.
(supra) the issue being adjudicated with regard to a complaint filed by a company,
it was held that the company is de jure complainant and must associate a human
being as de facto.
38. As is apparent from the facts and issues involved in the above
judgments, they being distinct, do not lend support to the submissions advanced
on behalf of the respondents.
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39. Hon'ble The Supreme Court in Hasmukhlal D. Vora vs. State of
T.N., 2022 SCC OnLine SC 1732, has observed and held that, "It must be noted
that the High Court while passing the impugned judgment, has failed to take into
consideration to the facts and circumstances of the case. While it is true that the
quashing of a criminal complaint must be done only in the rarest of rare cases, it is
still the duty of the High Court to look into each and every case with great detail
to prevent miscarriage of justice. The law is a sacrosanct entity that exists to serve
the ends of justice, and the courts, as protectors of the law and servants of the law,
must always ensure that frivolous cases do not pervert the sacrosanct nature of the
law."
40. It is a settled canon of law that the Court has inherent powers to
prevent the abuse of its own processes and shall not suffer a litigant utilising the
institution of justice for unjust means. It would be proper to deny any relief to a
litigant who attempts to pollute the stream of justice by coming to it with his
unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings
cannot claim unlimited right upon court time and public money to achieve his
ends.[See Krishna Lal Chawla vs State of U.P, (2021) 5 SCC 435].
41. It was held in State of Karnataka vs. L. Muniswamy and others,
(1977) 2 SCC 699 by Hon'ble The Supreme Court that, "In the, exercise of this.
whole some power, the High Court is entitled to quash a proceeding if it comes to
the conclusion that allowing the proceeding to continue would be an abuse of the
process of the Court or that the; ends of justice require that the proceeding ought
to be quashed. The saving of the High Court's inherent powers, both in civil and
criminal matters, is designed to. achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to degenerate into weapon of
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harassment or persecution. In a criminal case, the veiled object behind a lame
prosecution, the very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are higher than the ends of
mere law though justice has got to be administered according to laws made by the
legislature. The compelling necessity for making these observations is that
without a proper realisation of the object and purpose of the provision which seeks
to. save the inherent powers of the High Court to do justice between the State and
its. subjects, it would be impossible to appreciate the width and contours of that
salient jurisdiction."
42. Hon'ble The Supreme Court in the case of Bhajan Lal (supra)
enumerated the following principles for exercise of power under Section 482
CrPC:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and
of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
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inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non- cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
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which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
43. In Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683,
Hon'ble The Supreme Court observed and held that, "The scope and ambit of
powers of the High Court under Section 482 of the Code has been enunciated and
reiterated by this Court in a series of decisions and several circumstances under
which the High Court can exercise jurisdiction in quashing proceedings have been
enumerated. Therefore, it is unnecessary to burden the judgment by making
reference to all the decisions on the point. It would suffice to state that though the
powers possessed by the High Courts under the said provision are very wide but
these should be exercised in appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which alone the courts exist."
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44. As a sequel to the foregoing discussion and analysis, this Court finds
that the impugned orders are liable to be set aside by invocation of the wide and
plentitude power under Section 482 CrPC.
45. Consequentially, the present petitions stand allowed and the
impugned orders as well as the resultant FIRs alongwith the proceedings arising
therefrom are set aside.
46. Pending application, if any, stands disposed of accordingly.
47. Copy of the judgment be placed on the files of the connected cases.
(AMAN CHAUDHARY)
JUDGE
01.06.2023
gsv
Whether reasoned/speaking? Yes/ No
Whether reportable? Yes/ No
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