Preetanjali Kapoor v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Court No. - 28 Case :- APPLICATION U/S 482 No. - 9932 of 2023 Applicant :- Preetanjali Kapoor Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Samrat Gupta,Yash Shukla Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J. Heard learned counsel for the applicant, Learned AGA for the State and perused the record. The instant application has been filed for quashing the entire proceeding of Complaint Case No.435/2020, Under Section 406, 420, 425, 500, 504, 506 & 34 I.P.C, Police Station-Vibhuti Khand, District-Lucknow, pending before learned Judicial Magistrate-II, Lucknow, as well as impugned summoning order dated 10.11.2022 passed by learned Judicial Magistrate-II, Lucknow, in the aforesaid complaint case number. Learned counsel for the applicant submits that there are material discrepancies in the statements of the complainant as well as the other witnesses, recorded under sections 200 & 202 of CrPC. He added that the learned trial court has passed the order without recording reasons and only mentioning the fact that the court has gone into the statements under section 200 & Section 202 of CrPC and issued summons against the applicant. In support of his contentions, he has placed reliance on a Judgment of the Apex Court in the case of Anil Kumar and Others Versus M.K.Aiyappa and Another, reported in

(2013)10 Supreme Court Cases,705 and has placed reliance on paragraph no.11 of the said Judgment, which is quoted hereinunder :- "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, 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) CrPC, 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". Referring the aforesaid, he submits that the Apex Court while dealing with the matter in terms of section 156(3) of Cr.P.C. or Section 200 Cr.P.C. has held that the Magistrate is required to apply it's mind and the application of mind by the Magistrate must be reflected in the order and the mere statement that he has gone through the complaint,documents and heard the complainant, will not be sufficient. He has further placed reliance on the Judgment of the Apex Court in the case of Maksud Saiyed Versus State of Gujarat and Others, reported in (2008)5 Supreme Court Cases, 668 and has referred paragraph no. 13 of the said Judgment, which is quoted hereinunder :- "13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability." Placing reliance on the abovesaid case, he submits that the Apex Court has also reiterated the analogy that the application of mind is essential while dealing with the application under section 156(3) of Cr.P.C. Again, he has placed reliance on the Judgment of the Apex Court in the Case of Priyanka Srivastava And Another Vs State of Uttar Pradesh and Others, reported in (2015) 6 Supreme Court Cases,287 and has referred paragraph nos. 20,21,22,26,27 & 28, which are quoted hereinunder :- "20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision: "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 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 abovementioned."

¶21Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri) 380] , had to express thus : (SCC p. 258, para 17) "17. … It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173."

¶22In Anil Kumar v. M.K. Aiyappa , the two-Judge Bench had to say this : (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, 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) CrPC, 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."

¶26At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. State of U.P. [(2014) 2 SCC 1 : (2014) 1 SCC

(Cri) 524] in this regard. The larger Bench had posed the following two questions : (SCC p. 28, para 30) "(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and

(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused." Answering the questions posed, the larger Bench opined thus : (Lalita Kumari case [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] Lalita Kumari v. State of U.P., SCC pp. 35-36, 41 & 58-59, paras 49, 72, 111 & 115) "49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.

¶72It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. ***

¶111… the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has 'reason to suspect the commission of an offence'. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.

¶115Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." emphasis in original) After so stating the Constitution Bench [(2014) 2 SCC 1 : (2014) 1 SCC

(Cri) 524] proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state : (Lalita Kumari case [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , SCC p. 61, para 120) "120.6. 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.

120.7. 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." We have referred to the aforesaid pronouncement for the purpose that in certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.

¶27Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the Sarfaesi Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.

¶28Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the Sarfaesi Act taken. However, the action under the Sarfaesi Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) CrPC is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned." Referring the aforesaid Judgment, he submits that the learned trial court while passing the order dated 11-11-2022, did not apply it's mind and thus, submission is that the impugned order passed is against the settled proposition of law and the same does not sustain in eyes of law and is liable to be set aside. On the other hand, learned AGA has opposed the contention aforesaid and submitted that the trial court has gone into the statements recorded under Sections 200 & 202 CrPC, therefore, the summoning order has been passed, and thus there is no erroneousness in the order dated 10.11.2022 passed by the learned trial court, hence, no interference is warranted. Having heard learned counsel for the parties, and after perusal of the material available on record, it transpires that the learned trial court has passed the impugned summoning order dated

10.11.2022, only considering the statement of the complainant under section 200 CrPC without recording the statements of witness, under section 202 CrPC and considering the same. Further, this court also noticed that the order is unreasoned and against the settled proposition of law as laid down in; Anil Kumar and Others Versus M.K.Aiyappa and Another(supra); Maksud Saiyed Versus State of Gujarat and Others (supra); and Priyanka Srivastava and Another Vs State of Uttar Pradesh and Others (supra). In view of the aforesaid, order dated 10.11.2022 is set aside and the matter is remitted back to the trial court concerned to pass a fresh order within a period of eight weeks from today. Office is directed to communicate this order forthwith to the trial court concerned. With the aforesaid submissions, instant application is hereby allowed. Order Date :- 11.10.2023 Manoj K. High Court of Judicature at Allahabad, Lucknow Bench