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2016 DIGILAW 176 (UTT)

Sachin Chamoli v. State of Uttarakhand

2016-04-23

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. Mr. Vinod Sharma, Advocate for the applicant. 2. Mr. S.S. Adhikari, Brief Holder for the State/respondents. 3. The present applicant before this Court has invoked the inherent jurisdiction of this Court under Section 482 CrPC and filed the present application. 4. The case of the applicant before this Court is that one Ankur Sinha has committed an offence under Sections 420/468 of IPC and Sections 10/24 of the Emigration Act. The applicant filed an application to this effect before the Police Station Dalanwala, Dehradun wherein no action was taken. Thereafter, he moved an application to Senior Superintendent of Police, Dehradun but nothing happened and ultimately he had to invoke the jurisdiction of learned Chief Judicial Magistrate, Dehradun by filing an application under Section 156(3) CrPC praying that a direction be given to the police authority to do the needful in the matter which was rejected by the learned Chief Judicial Magistrate, Dehradun vide order dated 15.02.2016 which is annexed as Annexure No.2 to the present application. 5. Both the applications which have been filed before the Senior Superintendent of Police, Dehradun and learned Chief Judicial Magistrate, Dehradun have been perused. In his applications, the sum and substance of allegation is that the accused who is the Manager or Owner of Bamko India which is situated at Laxmi Road, Dehradun has committed an offence by cheating, etc, as his letter pad belongs to some persons in China on that basis he has procured Visa for persons who are being sent to China. This is the primary allegation of the present applicant. Nothing further has been elaborated on it. This Court finds that admittedly, the application has not been filed along with an affidavit which is now a mandatory requirement as per the law laid down by the Hon’ble Apex Court in the case of Priyanka Srivastava & another Versus State of Uttar Pradesh & others reported in (2015) 6 SCC 287 . 6. Be that as it may, the learned Magistrate has rejected the application of the applicant on ground that since all materials are already available with the applicant, therefore no investigation is required in the matter. The application filed before the learned Magistrate under Section 156(3) CrPC has been rejected vide order dated 15.02.2016. Hence, the present application has been filed by the applicant. 7. The application filed before the learned Magistrate under Section 156(3) CrPC has been rejected vide order dated 15.02.2016. Hence, the present application has been filed by the applicant. 7. The learned counsel for the applicant has relied upon the Constitutional Bench judgment of the Hon’ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh & others reported in (2014) 1 SCC (Cri) 524 and submits that in view of the law laid down by the Hon’ble Apex Court in the above case once the cognizable offence is disclosed before the learned Magistrate, the learned Magistrate has no option but to pass an order under Section 156(3) CrPC but the learned Magistrate has not even bothered to look into this ruling, to this effect learned Magistrate relied upon the rulings which are not necessary. As of now, this submission of the learned counsel for the applicant as far as the law laid down by the Hon’ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh & others reported in (2014) 1 SCC (Cri) 524 is concerned, the said decision is on the procedure which has to be followed by the police authorities on an information given under Section 154 CrPC. It has been categorically laid down that in case, a police authority receives an information which discloses cognizable offence, they have no option but to lodge an FIR as the legislature categorically used the word “shall” which was given in the scope on discretion of the police authorities. The case of the applicant is not applicable here when the application is filed before the learned Magistrate under Section 156(3) CrPC as the word which clearly used is “may”. The learned Magistrate may give a direction to the police to do the investigation which necessarily imply that he may not in his discretion. In fact, ruling which is presently in this case and the law laid down by the Hon’ble Apex Court in the case of Ramdev Food Products Private Limited Vs. State of Gujarat reported in (2015) 6 SCC 439 it has been held that it is purely the discretion of the learned Magistrate whether to give directions under Section 156(3) CrPC or not, he may decline it or even direct the police for investigation under Section 202(1) CrPC. In other words, wide discretion powers have been given to the learned Magistrate. In other words, wide discretion powers have been given to the learned Magistrate. Therefore, the contention of the applicant that in every case wherein on application under Section 156(3) CrPC cognizable offence is disclosed, the learned Magistrate has no choice but to direct investigation under Section 156(3) CrPC is highly misplaced. 8. Now this Court has to examine whether on the strength of the application moved by the present applicant before the learned Magistrate any cognizable offence was made out or not. The present application merely states that accused for his personal benefit has sent certain persons on letter pads which are in Chinese language of Chinese company namely SBK (HK) Corp. Ltd. GZ Rep Office Room 409-411, De Gao Building, Yi An Road, Guanghou 51220, China, therefore he has committed an offence. The present applicant was admittedly not cheated by the accused. In any case the alleged accused has not been made a party before this Court. Moreover, the application is also not accompanied by an affidavit which is now a mandatory requirement. Although it is true that the learned Magistrate has rejected the application of the applicant on different grounds but after perusal of the application and after hearing the arguments of the present applicant for considerable length, I am of a considered view that it is a frivolous and vexatious application under Section 156(3) CrPC which was only liable to be rejected summarily. 9. The application under Section 482 CrPC has no merit and is hereby dismissed.