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2013 DIGILAW 511 (UTT)

RAM BAHADUR v. STATE OF UTTARAKHAND

2013-08-05

U.C.DHYANI

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) Applicant-revisionist Ram Bahadur moved an application under Section 156(3) of Cr.P.C. for directing the police station, Doiwala to register the case against O.Ps. and investigate the same. The report was called for by Judicial Magistrate / I Addl. Civil Judge (Junior Division), Dehradun. Police Station, Doiwala submitted report that no FIR was registered. Consequence upon such report, learned Judicial Magistrate directed police station, Doiwala to lodge the FIR on the application under Section 156(3) of Cr.P.C. moved by applicant-revisionist Ram Bahadur. Police Station, Doiwala was directed to register the case and investigate into it, vide order dated 15.11.2006. Aggrieved against said order, a criminal revision was preferred by the State through D.G.C. (Criminal), Dehradun. After hearing both the sides, the revision was allowed. The order dated 15.11.2006 was set aside. The application under Section 156(3) of Cr.P.C. was rejected, vide impugned judgment and order dated 23.01.2007. Aggrieved against the impugned judgment and order, present criminal revision was preferred by the applicant-revisionist. 2. A perusal of application under Section 156(3) of Cr.P.C. will indicate that O.P. No. 1 Haritash Gulshan, I.A.S., Sub Divisional Magistrate, Dehradun; O.P. No. 2 Khushal Singh Rana, Lekhpal, Village Harrawala, Police Station Doiwala and O.P. No. 3 R.P. Arya, Chowki In-Charge, Jogiwala, police station Doiwala were arrayed as accused in their official capacity. According to the complaint itself, whatever the accused persons did, was done by them in their official capacity. They had no personal grudge against the applicant-revisionist. They were the Government servants, who performed their job, in discharge of their official duty. 3. In the application, the applicant alleged that O.P. No. 1 was also physically present, and all the O.Ps. jointly committed the crime. It was not stated in the application as to under which provision, the O.Ps. committed an offence. A perusal of the allegations levelled against the O.Ps. will indicate that an offence of dacoity appears to have been committed by them, which allegation was not, prima facie, palatable. O.P. nos. 2 and 3 were acting in discharge of their duties, as was directed to them by O.P. No. 1. The rest of the O.Ps., as per the allegations, were present on the place of incident. There was no, prima facie, evidence before the Magistrate, on the basis of which it could be inferred that those O.Ps. O.P. nos. 2 and 3 were acting in discharge of their duties, as was directed to them by O.P. No. 1. The rest of the O.Ps., as per the allegations, were present on the place of incident. There was no, prima facie, evidence before the Magistrate, on the basis of which it could be inferred that those O.Ps. committed any offence of the nature alleged by the applicant-revisionist. Learned Sessions Judge, Dehradun, in his judgment and order dated 23.01.2007 discussed the pros and cons of application under Section 156(3) of Cr.P.C. in the light of catena of decisions rendered by the Hon’ble Apex Court, which rulings have been referred to by learned court below in his judgment. 4. Section 156(3) of Cr.P.C. provides that any Magistrate empowered under Section 190 of Cr.P.C. may order such an investigation (as above-mentioned). The word ‘may’ has been used in the Section, which indicates that Magistrate may or may not order for such investigation. The jurisdiction vested under Section 156(3) of Cr.P.C. is a discretionary jurisdiction, which has to be exercised judicially. Whereas learned Magistrate did not exercise his jurisdiction in a judicious way, learned Sessions Judge, Dehradun has dealt with the matter in judicious way holding that the application under Section 156(3) of Cr.P.C. was devoid of substance. Merely because an application under Section 156(3) of Cr.P.C. is moved, the Magistrate is not bound to order the police to register the case. There must be some substance, on the basis of which, it could reasonably be inferred that some cognizable offence was committed. Application under Section 156(3) of Cr.P.C. could not be allowed merely on the basis of some incredible allegations. There is no illegality in the impugned judgment and order dated 23.01.2007 passed by learned Sessions Judge, Dehradun. 5. The criminal revision preferred by the applicant-revisionist is devoid of merits and the same is, accordingly, dismissed.