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2018 DIGILAW 207 (UTT)

Amrish R. Kilachand v. State of Uttarakhand

2018-04-18

SUDHANSHU DHULIA

body2018
JUDGMENT : 1. The applicant before this Court has invoked the inherent jurisdiction of this Court under Section 482 of Cr.P.C. In this case, a first information report was lodged by the applicant alleging that the property of the applicant was sold by the alleged power of attorney holder Sri P.C. Mathur on the basis of a fake and forged Power of Attorney. Admittedly, Sri P.C. Mathur was an old employee of Kesar Enterprises Limited, a public limited company, controlled by respondent no. 4. The first information report was registered as FIR No. 20 of 2009 under Sections 420, 467, 468 of I.P.C. at P.S. Tallital, District Nainital. The police after investigation filed a final report on 15.06.2010. 2. Subsequent to this, the applicant moved a protest petition before the learned Chief Judicial Magistrate Nainital. The learned Chief Judicial Magistrate, Nainital came to the conclusion that the power of attorney was nowhere on record and there is not even a photo copy of the power of attorney either with the person who is holding the power of attorney or even before the office of Sub-Registrar. The statement of the officials of the Sub-Registrar that they have seen the power of attorney during the sale deed is not of much relevance. Therefore, the learned Chief Judicial Magistrate has held that the investigating officer has not done proper investigation in the matter in order to examine the veracity of the power of attorney and as such further investigation is required. Consequently, the learned Chief Judicial Magistrate passed its order dated 08.03.2011, directing further investigation in the case. 3. The order dated 08.03.2011 passed by the Chief Judicial Magistrate was challenged by the accused in a criminal revision before the learned Sessions Judge, Nainital, who vide order dated 10.06.2011 allowed the criminal revision and set aside the order passed by the Chief Judicial Magistrate dated 08.03.2011 on ground that learned Magistrate should have seen the case diary, which was not done. Hence, the applicant/complainant has invoked the inherent jurisdiction of this Court under Section 482 of Cr.P.C. 4. There was absolutely no reason before the learned Sessions Judge to set aside the order passed by the Chief Judicial Magistrate. Hence, the applicant/complainant has invoked the inherent jurisdiction of this Court under Section 482 of Cr.P.C. 4. There was absolutely no reason before the learned Sessions Judge to set aside the order passed by the Chief Judicial Magistrate. The learned Chief Judicial Magistrate has passed a well considered order and has looked into every aspect of the matter and has come to the conclusion that the investigating officer has not done proper investigation, inasmuch only on the basis of the statements of officials of Sub-Registrar, he has come to the conclusion that during the sale deed officials of Sub-Registrar had seen the power of attorney–a document which is nowhere on record. Therefore, consideration by the learned Chief Judicial Magistrate that on this aspect further investigation needs to be done cannot be faulted with and should not have been interfered by the revisional court. 5. Once a final report is filed before a Magistrate, he has only three options, either to accept the final report or to reject the report and the third option is to order for ‘further investigation’. Sub-section (8) of Section 173 Cr.P.C stipulates this. 6. In view of the above, present criminal misc. application filed under Section 482 of Cr.P.C is allowed. Order dated 10.06.2011 passed by the revisional court is hereby set aside. 7. However, considering that the dispute is between brothers and family members and even earlier there has been similar case between the parties, which has reached into a compromise before the Hon’ble Apex Court, it is made clear that the investigation be done without taking any coercive measures against the private respondents, unless absolutely necessary with reasons to be recorded by the Investigating Officer.