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Nitin Shivhare vs Smt.Anjali Shivhare on 7 December, 2017

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MCRC 9900/2012
Nitin Shivhare vs. Smt. Anjali Shivhare Anr.

Gwalior, dtd. 07/12/2017
Shri Prashant Sharma, Counsel for the applicant.
Shri Sanjay Kumar Mishra, Counsel for the respondent

no.1.

Shri G.S.Chouhan, Public Prosecutor for the respondent
No.2/ State.

This application under Section 482 of Cr.P.C. has been
filed for quashing the F.I.R. registered at Crime No.592/2012
at police station Inderganj, Lashkar, Gwalior for offence
under Section 420, 465, 467, 468, 471 of I.P.C. as well as
order dated 30-12-2012 passed by J.M.F.C. Gwalior in
unregistered Criminal Complaint No……..of 2012 by which
an order under Section 156(3) of Cr.P.C. has been passed
directing the police to register the F.I.R.

The necessary facts for the disposal of the present
application in short are that the respondent no.1 and the
applicant are the husband and wife. The respondent no.1
filed a criminal complaint against the applicant and one Rai
Singh Kushwaha, Advocate, for offence under Section 420,
465, 467, 468, 471 and 120-B of I.P.C. According to the
applicant, the marriage of the applicant and the respondent
no.1 took place on 11-2-2008 and one girl child was born
out of the wedlock on 20-3-2009. On 14-6-2010, the
respondent no.1 left her matrimonial house and from
thereafter she is residing separately. Number of litigations
have taken place between the parties. A complaint was filed
by the respondent no.1 on the allegation that the applicant
has filed a petition under Section 13 of Hindu Marriage Act in
the Family Court, Gwalior which is pending. The respondent
no.1 had neither engaged Shri Rai Singh Kushwaha as her
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Counsel nor had ever authorized him to give any notice on
her behalf to anybody. The applicant, knowing fully well that
the accused no.2 Rai Singh Kushwaha was never engaged by
the respondent no.1, prepared a forged notice in which
certain indecent allegations including the illicit relations of
the applicant with his mother, maid servant and sister were
made. The said notice was filed by the applicant in different
legal proceedings before different Courts pending between
the parties. Thus the complaint was filed alleging that a
forged notice has been prepared and has been filed by the
applicant in different legal proceedings.

The Trial Court by order dated 30-12-2012, passed an
order under Section 156(3) of Cr.P.C. and accordingly, the
police has registered the F.I.R. in crime no. 592/2012.

Challenging the order dated 30-12-2012 passed by the
Magistrate, as well as the F.I.R., it is submitted that the
complaint was not maintainable as the same could have
been filed by the Court only and secondly, there is nothing
on record to prima facie show that the alleged notice was
ever produced by the applicant in any legal proceedings. It
is further submitted that once, the legal proceedings are
pending and according to the respondent no.1, the notice
has been filed before different Courts, then it is clear that
the matter is sub-judice, therefore, the Magistrate, should
not have passed an order under Section 156(3) of Cr.P.C.
and should have proceeded himself after recording the
statement of the complainant and her witnesses under
Section 200 and 202 of Cr.P.C.

Per contra, it is submitted by the Counsel for the
respondent no.1, that as the forged notice was prepared
outside the Court and was subsequently filed in the Court,
therefore, provisions of Section 195 of Cr.P.C. would not
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apply. It is further submitted that after going through the
allegations made in the complaint, if the Magistrate comes to
a conclusion that the allegations disclose the commission of
cognizable offence, then it can issue an order under Section
156(3) of Cr.P.C.

Heard the learned Counsel for the parties.
So far as the applicability of Section 195 of Cr.P.C. is
concerned, the question is no more in res-integra.

The Supreme Court in the case of Iqbal Singh
Marwah Vs. Meenakshi Marwah reported in (2005) 4
SCC 370 has held as under :-

”33. In view of the discussion made above,
we are of the opinion that Sachida Nand
Singh has been correctly decided and the
view taken therein is the correct view.
Section 195(1)(b)(ii) CrPC would be
attracted only when the offences
enumerated in the said provision have been
committed with respect to a document after
it has been produced or given in evidence in
a proceeding in any court i.e. during the
time when the document was in custodia
legis.

34. In the present case, the Will has been
produced in the court subsequently. It is
nobody’s case that any offence as
enumerated in Section 195(1)(b)(ii) was
committed in respect to the said Will after it
had been produced or filed in the Court of
District Judge. Therefore, the bar created by
Section 195(1)(b)(ii) CrPC would not come
into play and there is no embargo on the
power of the court to take cognizance of the
offence on the basis of the complaint filed
by the respondents. The view taken by the
learned Additional Sessions Judge and the
High Court is perfectly correct and calls for
no interference.”
In the present case, the allegations are that the forged
notice was prepared outside the Court and thereafter, it was
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produced. Under this circumstance, the bar as created by
Section 195(1)(b)(ii) of Cr.P.C. would not come into play,
therefore, there is no bar for the Court to entertain the
complaint filed by the respondent no.1.

It is next contended by the Counsel for the applicant
that since, according to the complaint itself, the applicant
has filed the copy of the forged notice in different legal
proceedings, therefore, the Magistrate, should not have
passed the impugned order, so long as those proceedings
are pending.

The question in dispute is no more res integra. The
Supreme Court in the case of Devendra and others Vs.
State of UP and another, (2009) 7 SCC 495 and Syed
Askari Hadi Ali Augustine Imam and another Vs. State
(Delhi Administration) and another, (2009) 5 SCC 528
has set the dispute at naught. In the case of Devendra
(supra) the Supreme Court has held as under:-

“13. There cannot, however, be any
doubt or dispute whatsoever that in a given
case a civil suit as also a criminal proceeding
would be maintainable. They can run
simultaneously. Result in one proceeding
would not be binding on the court
determining the issue before it in another
proceeding. In P. Swaroopa Rani v. M. Hari
Narayana, (2008) 5 SCC 765 the law was
stated, thus: (SCC p. 769, para 11)
“11. It is, however, well settled that in a
given case, civil proceedings and
criminal proceedings can proceed
simultaneously. Whether civil
proceedings or criminal proceedings
shall be stayed depends upon the fact
and circumstances of each case.”

In the case of Syed Askari Hadi Ali Augustine
Imam (supra) the Supreme Court has held as under:-

“21. Indisputably, in a given case, a civil
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proceeding as also a criminal proceeding may
proceed simultaneously. Cognizance in a
criminal proceeding can be taken by the
criminal court upon arriving at the
satisfaction that there exists a prima facie
case. The question as to whether in the facts
and circumstances of the case one or the
other proceedings would be stayed would
depend upon several factors including the
nature and the stage of the case.

22. It is, however, now well settled that
ordinarily a criminal proceeding will have
primacy over the civil proceeding. Precedence
to a criminal proceeding is given having
regard to the fact that disposal of a civil
proceeding ordinarily takes a long time and
in the interest of justice the former should be
disposed of as expeditiously as possible. The
law in this behalf has been laid down in a
large number of decisions. We may notice a
few of them.”

Thus, it is clear that since the findings given by the
Civil Court are not binding on the Criminal Court, therefore,
both the proceedings may go on simultaneously.
As the criminal proceedings and the civil proceedings can go
on simultaneously, therefore, the submission made by the
counsel for the applicant that the criminal proceedings
should not have been initiated, cannot be accepted.

It is further submitted by the Counsel for the applicant
that no document was filed along with the complaint to show
that the alleged forged notice was ever filed before any
Court. The submission made by the Counsel for the
applicant, cannot be accepted for the simple reason, that in
the complaint, the details of the legal proceedings have been
mentioned in which the forged notice is alleged to have been
filed. Further more, it is not the case of the applicant, that
the notice, which is alleged to be a forged notice, has not
been filed in any proceedings.

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It is next contended by the Counsel for the applicant,
that the Magistrate, should not have issued an order under
Section 156(3) of Cr.P.C. and should have proceeded further
after recording the statements under Section 200 and 202 of
Cr.P.C.

An order under Section 156(3) of Cr.P.C. can be passed
after due application of mind.

The Supreme Court in the case of Priyanka
Shrivastava Vs. State of U.P. Reported in (2015) 6 SCC
287 has held as under :-

”27. Regard 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.

28. Issuing 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
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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.

29. At this stage it is seemly to state that
power under Section 156(3) warrants
application of judicial mind. A court of law is
involved. It is not the police taking steps at
the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the
authority of the Magistrate. A principled and
really grieved citizen with clean hands must
have free access to invoke the said power. It
protects the citizens but when pervert
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litigations takes this route to harass their
fellow citizens, efforts are to be made to
scuttle and curb the same.

30. In our considered opinion, a stage
has come in this country where Section
156(3) CrPC applications are to be
supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in
an appropriate case, the learned Magistrate
would be well advised to verify the truth and
also can verify the veracity of the
allegations. This affidavit can make the
applicant more responsible. We are
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing and
alarming when one tries to pick up people

31. who are passing orders under a
statutory provision which can be challenged
under the framework of the said Act or
under Article 226 of the Constitution of
India. But it cannot be done to take undue
advantage in a criminal court as if somebody
is determined to settle the scores.”

If the facts of the present case are considered, then it
would be clear that the Magistrate has considered the
allegations as made in the complaint and after due
application of mind, has issued an order under Section
156(3) of Cr.P.C.

So far as the question of quashment of F.I.R. is
concerned, the Supreme Court in the case of Lalita Kumari
Vs. State of U.P. reported in (2014) 2 SCC 1 has held as
under :

”120. In view of the aforesaid discussion,
we hold:

120.1. The registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
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a cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. 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.

120.3. 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.

120.4. 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.

120.5. The scope of preliminary inquiry is
not to verify the veracity or otherwise of
the information received but only to
ascertain whether the information reveals
any cognizable offence.

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
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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.

120.8. 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 offences, 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.”

It is not the case of the applicant, that even if the
entire allegations are accepted, no case for cognizable
offence would be made out. Further, once, an order has
been issued under Section 156(3) of Cr.P.C., then the Police
has no option but to register the F.I.R. and investigate the
matter.

Thus, this Court is of the considered opinion that the
Magistrate did not commit any mistake by passing an order
under Section 156(3) of Cr.P.C. on the application filed by
the respondent no.1. Similarly, the F.I.R. in crime No.
592/2012 registered at Police Station Inderganj, Gwalior
cannot be quashed.

Accordingly, the F.I.R. registered at Crime
No.592/2012 at police station Inderganj, Lashkar, Gwalior
for offence under Section 420, 465, 467, 468, 471 of I.P.C.
cannot be quashed. The order dated 30-12-2012 passed by
J.M.F.C. Gwalior in unregistered Criminal Complaint No……..
of 2012 by which an order under Section 156(3) of Cr.P.C.

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has been passed, is also hereby affirmed.

The application fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

*MKB*

MAHENDRA KUMAR BARIK
2017.12.11 19:20:40 +05’30’

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