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2012 DIGILAW 433 (UTT)

ANIL v. STATE OF UTTARAKHAND

2012-07-27

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta , J. By means of this petition, the prayer has been advanced to set aside the order dated 17.12.2007 passed by learned Chief Judicial Magistrate, Haridwar in Misc. Case No.371 of 2007, Anil Vs. Parvez and others. It has also been prayed to set aside the order dated 11.4.2008 passed by the Sessions Judge, Haridwar in Criminal Revision No.03 of 2008, Anil Vs. State. 2. The facts of the case are that petitioner Anil entered into an agreement with Parvez and others to purchase a piece of land on 26.12.2005 for a consideration at the rate of Rs.5,50,000/- per Bigha. The total cost of land was settled at Rs.92,44,000/-. As alleged, petitioner paid an advance of Rs.3.00 lakh to Mr. Parvez and an agreement was also reduced into writing on a stamp paper of Rs.100/-, which was got notarized. The sale deed had to be executed latest by 28.2.2006 but the same was not done on account of escalation of the prices. It is also stated that on 18.8.2006, the petitioner further paid a sum of Rs.1.00 lakh to one Mr. Basheer (companion of Parvez) and the receipt thereof was also obtained. At last, Basheer refused to execute the deed because of augmentation of the price of land @ Rs.10.00 lakh per bigha. 3. Petitioner thereafter moved an application to the concerned Senior Superintendent of Police on 27.11.2007 by registered post but of no avail. Ultimately, on 4.12.2007, he moved an application u/s 156(3) Cr.P.C. Learned Magistrate, prima facie, got the facts verified from the concerned police station and thereafter, passed the impugned order dated 17.12.2007 whereby the application of petitioner was rejected. Vide the impugned order, learned Magistrate did not find any sufficient cause to take cognizance in the matter as he was of the view that the matter pertained only to the civil dispute. Thereafter a criminal revision no.3 of 2008 was preferred but the same was also dismissed on merits by the order of learned Sessions Judge, Haridwar on 11.4.2008. 4. Thereafter a criminal revision no.3 of 2008 was preferred but the same was also dismissed on merits by the order of learned Sessions Judge, Haridwar on 11.4.2008. 4. It has been contended on behalf of petitioner that learned Magistrate could not have rejected the complaint without rendering any opportunity to the complainant for producing his witnesses u/s 202 Cr.P.C. besides his own examination u/s 200 Cr.P.C. This contention is wholly unsubstantial in view of the latest law laid down by the Full Bench of Allahabad High Court in the case of “Father Thomas Vs. State of U.P. and another reported in 2011 Cri.L.J. 2278”, wherein by an elaborate judgment, the position of law over the maintainability of petition u/s 482 Cr.P.C. or the writ petition, in case of rejection of application moved u/s 156(3) Cr.P.C. by the Magistrate, has been discussed. The Full Bench has also relied upon a judgment of ‘Three Judge Bench’ of Hon’ble Apex Court in the case of “Aleque Padamsee v. Union of India reported in AIR 2007 SC (Supp) 684” as well as another judgment, also of Apex Court, in the case of “Sakhiri Vasu Vs. State of U.P. and others reported in AIR 2008 SC 907 ”. 5. In the case of ‘Aleque Padamsee’ (Supra), it was held that “when the application u/s 156(3) Cr.P.C. is rejected by the Magistrate, the remedy for the informant lies not in filing a writ petition, but in filing a complaint under section 190(1)(b) read with Section 200 of the Code”. 6. In the case of Sakhiri Vasu (Supra), the Apex Court held that “The High Court should discourage the practice of filing a writ petition or petitions under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police. For this grievance, the remedy lies under sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under section 200 Cr.P.C. and not by filing a writ petition or a petition under section 482 Cr.P.C.” 7. For this grievance, the remedy lies under sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under section 200 Cr.P.C. and not by filing a writ petition or a petition under section 482 Cr.P.C.” 7. Thus, there is a clear-cut distinction between an application moved u/s 156(3) Cr.P.C. and the complaint moved u/s 190(1)(b) r/w Section 200 Cr.P.C. In the former case, an application is moved with a view to invoke the powers of the Magistrate directing the police to register and investigate the matter whereas in the latter’s case, the complaint is filed with a view to invoke the powers of the Magistrate under Section 190(1)(b) Cr.P.C. Now, in the instant case, petitioner moved an application u/s 156(3) Cr.P.C. which was rejected by the Magistrate. He could not have compelled the Magistrate for a favourable order obliging him to issue the direction for registration of the case and investigate the same by the police of the concerned station. 8. So, in view of what has been stated above, this petition is devoid of any merits and liable to be dismissed. It is, hereby, dismissed.