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2016 DIGILAW 273 (UTT)

Ram Gopal Semwal v. State of Uttarakhand

2016-06-28

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. Pursuant to an application moved by the complainant/respondent No. 2 – Swami Maheshwaranand under Section 156(3) of Cr.P.C. before the Additional Civil Judge (S.D.)/1st Judicial Magistrate, Haridwar where the allegations of forgery and cheating etc. have been alleged against the present applicants. Learned Magistrate sought information from the concerned police station and came to the conclusion that no such report has been filed in the concerned police station. Thereafter, on the basis of the report, came to the conclusion that no cognizance need to be taken against the accused (present applicants) vide order dated 17.07.2015. Aggrieved by the said order, the complainant preferred a revision before the District & Session Judge, Haridwar, which was registered as Criminal Revision No. 432 of 2015. Subsequently, the matter was transferred to the court of IIIrd Additional Session Judge, Haridwar. Thereafter, the revisional court vide order dated 27.05.2016 allowed the revision and has set aside the order of the court below remanding the matter back to the learned Magistrate for fresh consideration. Hence the present applicants, who are accused in the complaint, have invoked the inherent jurisdiction of this Court by filing the present application under Section 482 of Cr.P.C. 2. Heard Mr. Vivek Shukla, learned counsel for the applicants, Mr. A.S. Gill, learned Deputy Advocate General for the State and perused the records. 3. Learned counsel for the applicants – Mr. Vivek Shukla would argue that it was a false and frivolous complaint against the applicants, as there is already a civil litigation going on between the parties. Apart from this, the present applicants have already sought protection from the Division bench of this Court in which notices have been issued to the private respondents. He further submits that this application under Section 156(3) of Cr.P.C. has to be seen in the light of the pending litigation between the two parties. 4. After having heard the parties, this Court is of the view that the trial court and the revisional court have not considered the application filed by the complainant under Section 156(3) of Cr.P.C. in its true perspective, particularly, in view of the direction given by the Hon’ble Apex Court in the case of Priyanka Srivastava & another reported in (2015) 6 SCC 287 where abuse of the provision of Section 156(3) of Cr.P.C. in the hands of the litigants, has been discussed. The relevant portion of the judgment of the Hon’ble Apex Court (referred above) is reproduced as under:- “In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. 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 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. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart the learned Magistrate would also be aware of the delay in lodging of the FIR.” 5. That apart the learned Magistrate would also be aware of the delay in lodging of the FIR.” 5. In view of the decision of the Hon’ble Apex Court, no interference is called for in the order dated 27.05.2016 passed by the revisional court. However, it is hereby directed that the trial court shall consider the above guidelines of the Hon’ble Apex Court before taking cognizance in the matter under Section 156(3) of Cr.P.C. The learned Magistrate, before proceeding further in the matter on the basis of the complaint under Section 156(3) of Cr.P.C., shall take strict proof to this fact that earlier the applications under Section 154(1) of Cr.P.C. before the police station concerned and under Section 154(3) before the S.S.P. concerned must be filed and the application under Section 156(3) of Cr.P.C. should be filed along with an affidavit to that effect. The court concerned, after verification of the veracity of the allegations, pass appropriate order therein. 6. With the aforesaid observation, the present application under Section 482 Cr.P.C. stands disposed. 7. Let a copy of this order be supplied today to learned counsel for the applicants on the payment of usual charges.