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2019 Supreme(Chh) 263
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
GOUTAM BHADURI, J.
RAJENDRA CHAWLA - Appellant
Versus
CHANDRA PRAKASH CHABDA - Respondent
Criminal Miscellaneous Petition No. 1583, 1663 of 2017
Decided on : 28-02-2019
Advocate Appeared:
Rajeev Shrivastava, Adv., Amrito Das, Adv., Ravi Bhagat, Adv.
Headnote:
Criminal Procedure Code,1973 – 156(3),420,465,468,471,120-B,200,202,397,399,401 and 401(2) - Indian Penal Code,1860 – Section 420, 467, 468 and 471 – Judicial Magistrate First Class – Section 153(3) - Complaint was filed by respondent No.1 with an allegation has been committed by petitioners - Along-with application, another application was also filed - Subsequent order sheets which are on record would show the police report was called by JMFC u/s 153(3) of Cr.P.C., and case was further fixed and on that date police report was received - Arguments were heard finally - Order was passed and application u/s 156(3) was rejected - In such revision order only State was party - Subsequently after remand of case, trial Court by order observed that considering facts alleged, it was felt that statement u/s 200, 202 of Cr.P.C., would be required and directed complainant to keep present his witnesses for recording evidence u/s 200 & 202 Cr.PC. - Said order was again subject of challenge and by impugned order passed in Criminal Revision Revisional Court observed that earlier direction given has not been properly followed and set aside the order of JMFC – Held, Supreme Court in (Abhinandan Jha v. Dinesh Mishra, (1968) AIR SC 117 had dealt with similar question as to whether a Magistrate can direct the Police to submit a charge sheet when the Police after investigation into a cognizable offence has submitted a final report - In instant case revisional Court has exceeded its jurisdiction not vested in it and virtually entered into jurisdiction of Police to direct for registration of FIR by not accepting the Police Report, which is not permissible - Magistrate could have recorded statement u/s 200 and thereafter could have proceeded but it is not the case here - In the result, FIR which is registered at the direction of Magistrate despite the fact that Police gave a report that no offence is made out, cannot be continued - In view of the above discussion on facts and law, petitions are allowed - Order of Judicial Magistrate and that of Revisional Court are quashed - Consequently, FIR which is registered against petitioner shall also stand quashed – Petition allowed.
GOUTAM BHADURI, J.
1. Both the petitions i.e., Cr.M.P.No.1583 of 2017 & Cr.M.P. No.1663 of 2017 are decided together as two different orders passed by the Courts below in different stages are subject to challenge in one proceeding. Since the facts and law involved in both the cases are one and the same, they are decided by this common order.
2. Cr.M.P.No.1663 of 2017 is against the judgment dated 23rd August 2017 passed in Criminal Revision No.119 of 2017 by the Sixth Additional Sessions Judge, Bilaspur. The said order was passed by the revisional Court against the order dated 07.06.2017 passed by the Judicial Magistrate First Class, Bilaspur whereby the JMFC has refused to take cognizance of the complaint u/s 156(3) of Cr.P.C. In the result the complaint moved by the complainant u/s 156(3) was dismissed.
3. Cr.M.P.No.1583/2017 is filed against the Order dated 09.10.2017 passed by Sixth Addl. Sessions Judge, Bilaspur in Criminal Revision No.188/2017. In such revision, the order passed by the JMFC dated 26.10.2017 was under challenge whereby the Magistrate has held that prima facie sufficient evidence is available and directed the Station Incharge, City Kotwali to register the case against the petitioners/accused u/ss 420, 467, 468, 471 of IPC and submit the final report after investigation.
4. Both the orders of the JMFC as also by the Revisional Court are passed in one Criminal Complaint filed but at the different stages, therefore, it involves the same facts which are narrated herein below :
5. The facts of the case are that a complaint was filed by respondent No.1 Chandra Prakash Chabra with an allegation that offence u/s 420, 465, 467, 468, 471 & 120-B has been committed by the petitioners herein. Along-with the application, another application was also filed u/s 156(3) of Cr.P.C. The subsequent order sheets which are on record would show that on 31.12.2016, the police report was called by the JMFC u/s 153(3) of Cr.P.C., and the case was further fixed for 28.02.2017 and on that date the police report was received. Thereafter on 10.03.2017 the arguments were heard finally. The order was passed on 07.06.2017 and the application u/s 156(3) was rejected. The aforesaid order was subject of revision before the Additional Sessions Judge. The Additional Sessions Judge by order dated 23rd August, 2017 remanded the case back to the JMFC with a direction to restrict the same in terms of section 156(3) of Cr.P.C. and passed the order. In such revision order only State was party. Subsequently after remand of the case, the trial Court by order dated 20.09.2017 observed that considering the facts alleged, it was felt that the statement u/s 200, 202 of Cr.P.C., would be required and directed the complainant to keep present his witnesses for recording evidence u/s 200 & 202 Cr.PC. The said order was again subject of challenge and by impugned order dated 09th October, 2017 passed in Criminal Revision No. 118 of 2017, the Revisional Court observed that earlier direction given by it on 23.08.2017 has not been properly followed and set aside the order of JMFC dated 20.09.2017 and further directed for hearing and passed an order for consideration of the application u/s 156(3) of Cr.P.C. Under these circumstances on 26.10.2017, the JMFC heard the complainant u/s 156(3) and directed for registration of offence u/s 420, 467, 468, 471 of Cr.P.C.
6. Learned counsel for the petitioner would submit that initially the Judicial Magistrate has asked for the report from the police thereby has taken cognizance. However, when the application u/s 156(3) of Cr.P.C., was dismissed, the complainant filed revision without impleading the proposed accused in the revision, therefore, it would be against the principles laid down in Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517. It is stated that as consequence of the Revisional Court order dated 09th October, 2017, the FIR has been registered. If the FIR has been registered, i
