Calling for status reports in applications under 156 (3) CrPC where cognizable offences are spelled is departure from law and wrong holds HC

12/05/2022

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CRM (M) No. 331/2022
CrlM No. 695/2022

Reserved on : 27.04.2022
Pronounced on : 04.05.2022
Kamaljeet Singh age 47 yrs. S/O Mehar Chand R/O Natraj Road Lines Fruit Mandi Narwal Jammu.
…. Petitioner (s)
Through :- Mr. Himanshu Beotra, Advocate
V/s
1. Union Terrotory of J&K Through SHO Police Station Trikuta Nagar Jammu;
2. Joginder Singh S/O Raunak Singh R/O Village Sangrampur Akhnoor.
….Respondent(s)
MR. JUSTICE MOHAN LAL
ORDER
04.05.2022
1. Petitioner has invoked the jurisdiction of this court in terms of section 482 of the Code of Criminal Procedure for seeking quashment of orders dated 05-04-2020 & 20-04-2022 rendered by the court of Ld. Judicial Magistrate 1st Class City Judge Jammu, whereby, the Ld. Court instead of proceeding and directing respondent No.1 to register FIR in cognizable offence disclosed by the petitioner in his application against respondent No.2, has directed respondent No.1 to file the ‘status repot’ and to conduct the ‘preliminary enquiry’ in the cognizable offence contrary to the mandatory provisions of law and against the Constitutional Bench judgment of Hon’ble Supreme Court titled Lalita Kumari V. Govt. of U.P. [2014 (2) SCC 1], with further direction to respondent No.1 to lodge/register FIR against Respondent No.2 u/ss 403/406/408/409/420 /506 IPC disclosed in the complaint.
2. It is averred, that petitioner is a transporter running a business under the name and style of “M/s Style Natraj Road Lines” having its registered office at Narwal Fruit Mandi Jammu, and has been providing his services to the various vendors at Fruit Mandi Narwal Jammu for transportation of Apples to the different parts of the Country on credit basis, as such, the transportation charges were collected by the respondent no. 2 who being an employee/agent of the petitioner since over a decade had developed a relation of trust with the petitioner for the said purpose, respondent no. 2/accused person used to collect the charges from the clients/debtors of the petitioner in the regular course of business, who being the servant/ agent of the petitioner in said business used to report the collection so made by him by the clients/debtors of the petitioner. It is averred, that petitioner as usual for the period 2019 to 2021 on credit basis provided his transportation services to the firms viz; 1. Satpal & Co. 14,50,000/- 2. Tarsem Lal & Deepak Kumar 7,33,000/ 3. Madan Lal & Sons 4,70,000/- 4. Vinod Kumar & Co 73,000/- 5. Sopar Fruit Co. 49,000/-, however, the petitioner was shocked to know recently on 22-03-2022 from the aforesaid debtors/clients that the respective charges to be paid by them stood already collected by the respondent no. 2 in the month of February and March 2022, respondent No.2 did not pay the same to the petitioner nor reflected in his books maintained, as much as an amount of Rs 13,09,800/-, RS. 6,07,000/-, Rs.4,70,000/-, Rs 73,000/- & Rs. 49,000/- by Sat Pal & Co., Tarsem Lal & Deepak Kumar, Madan Lal & Sons, Vinod Kumar & Co, Sopar Fruit Co. respectively totaling Rs. 25,08,800/- was taken already by the respondent no. 2 which was never forwarded to be paid to the petitioner thereof, petitioner after being shocked by the aforesaid fact contacted the respondent no. 2 to enquire the same, however, the respondent no. 2 audaciously accepted that he had collected the aforesaid amount from clients/debtors of the petitioner and even accepted to have mis-appropriated the aforesaid funds dishonestly for his own use and refused to pay back the same, on the contrary respondent No.2 threatened the petitioner to eliminate him and his family, and further threatened to implicate him in false and frivolous case in case the petitioner would follow him or lodge any complaint against him. It is moreso averred, that aforesaid facts clearly demonstrate that respondent no. 2 had swindled huge money of the petitioner amounting to Rs 25,08,800/- which he was under legal obligation to hand over the same to the petitioner, but respondent no. 2 with dishonest intention & illegal act misappropriated the aforesaid amount and has converted and used the said amount for his own use and rather than returning the said amount, respondent no. 2 has been threatening the petitioner, for which the respondent no. 2 was required to be booked under appropriate provisions of Indian Penal Code. It is further averred, that petitioner was left with no option but he appeared before respondent No.1 (SHO P/S Trikuta Nagar Jammu) for lodging FIR against respondent No.2 and filed a written complaint dated 22-03-2022 against proper receipt disclosing the commission of cognizable offences, however, when nothing was done, petitioner approached SSP Jammu by way of complaint sent through registered post dated 30-03-2022 but no FIR was registered and finally petitioner filed an application u/s 156(3) of Cr.PC before Ld. JMIC City Judge Jammu and in support of his averments he also filed an affidavit as well as copy of the complaint dated 22-02-2022 lodged with respondent No.1 alongwith postal receipts dated 30-03-2022 sent to SSP Jammu, but the Ld. Magistrate vide impugned order dated 05-04-2022 rather directing respondent No.1 to register FIR in cognizable offence disclosed in the complaint called for the status report from respondent No.1 against the provisions of law, however, respondent No.1 filed the report on 19-04-2022 wherein, he neither denied the receipt of the complaint from petitioner nor disclosed as to whether FIR has been lodged, but sought time to file status report clearly meaning thereby that respondent No. 1 has flouted the mandatory provisions of Sec. 154 of Cr.pc and not only this, the Ld. Magistrate on 20-04-2022 passed yet another impugned order whereby he after accepting the fact that petitioner had complied the provisions of Section 154(1) & 154(3) of Cr.pc directed respondent No.1 to complete the preliminary enquiry within 7 days and to proceed in accordance with law.
3. Ld. Counsel for petitioner at the time of presentation of the petition has vehemently articulated arguments, that pending notice to the respondents, the petition can be disposed of with the direction to respondent No.1 to register the FIR. Ld. Counsel has forcefully argued, that registration of FIR is mandatory u/s 154 of the Code of Criminal Procedure if information disclose commission of a cognizable offence and no preliminary enquiry is permissible in such a situation, moreso, a police officer cannot avoid his duty of registering the offence if cognizable offence is disclosed, however, the scope of preliminary enquiry is only to verify the veracity or otherwise of the information in cases of matrimonial/family disputes, commercial offences, medical negligence cases & corruption cases etc.
It is vehemently urged, that if a police officer does not register FIR on the application or the complaint disclosing cognizable offence, the action must be taken against such erring officers, in the case in hand, the complaint/application filed by the petitioner before respondent No.1 (SHO P/S Trikuta Nagar Jammu) discloses commission of cognizable offences u/ss 403/406/408/ 409/420/506 IPC, therefore, respondent No.1 was mandatorily required to register FIR, in as much as, the Ld. Magistrate in ordering the status report and conducting preliminary enquiry in the matter was legally incorrect, misdirected itself and committed a serious departure from the mandatory provision of law as enunciated in (i) Lalita Kumari Vs Govt. of U.P. (2014) 2 SCC 1), (ii) Ram Sharan Jatav V. State of U.P, (Allahabad) & (iii) Anisetti Venkata Nagendra Babu V. State of Andhra Pradesh (writ Petition No. 15178 of 2019 decided on 14-10-2019) in not ordering registration of FIR against respondent No.2. Prayer has been made for setting aside/ quashment of impugned orders dated 05-04-2022 & 20-04-2022 passed by JMIC City Judge Jammu with the direction to respondent No.1 to lodge FIR against Respondent No.2.
4. Heard Ld. Counsel for petitioner. The averments of petition disclose that a serious departure has been made by Ld. Magistrate in not following the mandate of Lalita Kumari’s judgment (Supra) relied by Ld. Counsel for petitioner, and as the question of law requires appreciation, the respondents are not required to be heard at this stage, therefore, the petition can be disposed off on legal issue and on merits.
In Lalita Kumari Vs. Govt. of U.P. [2014 (2) SCC 1] relied by Ld. Counsel for petitioner, 5 Judges Bench of Hon.ble Supreme Court enunciated the mandatory provisions to be followed while registering FIR by the police as under:-
Criminal Procedure Code, Section 154 Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation - Whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR Further held:-
(i) 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.
(ii) 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.
(iii) 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.
(iv) The scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(v) 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.
(vi) 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.
(vii) 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 offence, 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
In Ram Sharan Jatav—Appellant Versus State of U.P & Others—Respondents [Cr. Appeal No. 6822 of 2019 D/d 17-12-2021] & in Anisetti Venkata Nagendra Babu—Petitioner versus The State of Andhra Pradesh and others—Respondents [writ Petition No. 15178 of 2019 decided on 14-10-2019] relied by Ld. Counsel for petitioner, the principles of law for registration of FIR in Lalita Kumari.s judgment (Supra) have been followed with full force by Allahabad and Andhra Pradesh High Courts holding that u/s 156(3) of Criminal Procedure Code 1973 it is the duty/incumbent upon the Magistrate concerned to order the registration of First Information Report (FIR) in the application which discloses the commission of cognizable offence and in that situation no preliminary enquiry was permissible.
5. Ratios of the judgments of “Lalita Kumari.s Case”, “Ram Sharan Jatav.s Case” & “Anisetti Venkata Nagendra.s Case” (Supra) relied by Ld. Counsel for petitioner make the legal proposition abundantly clear, that the registration of FIR is mandatory u/s 154 of Cr.pc if information discloses commission of cognizable offence and no preliminary enquiry is permissible in such a situation, the preliminary enquiry can only be conducted to ascertain wither cognizable offence is disclosed and moreso the police officer cannot avoid his duty of registering the offence if cognizable offence is disclosed and action must be taken against such earring officers. It is noteworthy to reiterate here, that annexure-III to the petition is the complaint lodged by the petitioner to respondent No.1 (SHO Police Station Trikuta Nagar Jammu) against respondent No.2 in regard to the offences of criminal breach of trust/misappropriation of the money of the complainant, cheating to him by respondent No.2 who was his employee and criminal intimidation etc. and out of the offences u/ss 403/406/408/ 409/420/506 IPC incorporated in the complaint, offences u/ss 406,408,409,420 IPC are cognizable. After the refusal of respondent No.1 to register FIR, the petitioner/complainant approached the court below under the provisions of Section 156(3) of Cr.pc seeking directions to respondent No.1 to lodge FIR against respondent No.2/accused under the relevant sections of law. Impugned order dated 05-04-2022 (Annexure I) rendered by the court of Ld. Judicial Magistrate 1st Class (City Judge Jammu) depicts that the said court has directed respondent No.1 (SHO P/S Trikuta Nagar Jammu) to furnish status report in the complaint lodged by the petitioner. By another impugned order dated 20-04-2022 (Annexure-II) rendered by the said court has passed directions to SHO P/S Trikuta Nagar Jammu to complete the preliminary enquiry within 7 days and proceed in accordance with law. Perusal of the aforesaid impugned orders dated 05-04-2022 & 20-04-2022 demonstrate that the Ld. Court below has shown complete departure in not following the principles enunciated by 5 Judges Bench of Hon.ble Supreme Court in Lalita Kumari.s case (Supra) governing the field to be observed while registering FIR. The Ld. court below therefore, was legally incorrect and utterly misconceived in obtaining the status report and ordering the preliminary enquiry in the complaint. The complaint filed by petitioner before the police/court clearly discloses the commission of cognizable offences, and therefore, it was mandatory for respondent No.1 (SHO P/S Trikuta Nagar Jammu) as well as the Ld. Judicial Magistrate 1st Class (City Judge Jammu) to register FIR on the complaint of petitioner against respondent No.2. In view of the above, I am of the considered view, that the Ld. Court below has misdirected itself and utterly erred in obtaining the status report and ordering preliminary enquiry in the complaint which is against the mandate of law as discussed above. Hence, the petition is allowed. The impugned orders dated 05-04-2022 & 20-04-2022 are quashed/set aside. It is, therefore, ordered that the Court of Ld. Judicial Magistrate 1st Class (City Judge Jammu) on receipt of this order shall forthwith pass orders for registration of the FIR against respondent No.2 without fail and further delay. Copy of this order be forthwith provided to the Ld. Court below for information and strict compliance.
6. Disposed of accordingly.
(Mohan Lal)
Judge
Jammu:
04.05.2022
Vijay

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