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2020 DIGILAW 103 (UTT)

Amit Kumar Sharma v. State Of Uttarakhand

2020-02-14

N.S.DHANIK

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JUDGMENT N.S. Dhanik, J. - Present Criminal Miscellaneous Application, under Section 482 CrPC, has been preferred to quash and set aside the order dated 21.7.2018 passed by the Additional Chief Judicial Magistrate, Haridwar in Misc. Case No. 1520 of 2018 filed under Section 156(3) CrPC as well as the judgment and order dated 29.1.2019 passed by the 4th Additional Sessions Judge, Haridwar in Criminal Revision No. 521 of 2018. 2. Facts, in brief, are that the applicant filed an application under Section 156(3) CrPC before the Additional Chief Judicial Magistrate, Haridwar alleging that he had filed a complaint against the respondents 2 to 5 that they had made theft of stamp duty when they purchased a property in Haridwar and, on this complaint, the Additional District Magistrate (Finance & Revenue), Haridwar vide his order dated 5.3.2018 imposed penalty of rupees three lakhs on the said respondents for causing revenue loss to the State exchequer. Due to this, the said respondents nurtured enmity towards the applicant. At about 7.55 AM on 9.3.2018, the said respondents abused the applicant in the filthy language and when the applicant tried to stop them, the said respondents started beating the applicant and threatened him to remain prepared to face the dire consequences. On this application under Section 156(3) CrPC, the court below sought report from the police. The police reported that the applicant did not produce any independent witness of the alleged incident or any other medical report and recommended that there was no need of any further proceeding in the matter. Having received this report, the learned Additional Chief Judicial Magistrate, Haridwar vide impugned order dated 21.7.2018 admitted the case of the applicant as a complaint case and posted the matter for recording statement under Section 200 CrPC. Feeling aggrieved, the applicant assailed the order dated 21.7.2018 by filing Criminal Revision No. 521 of 2018, which was rejected by the 4th Additional Sessions Judge, Haridwar vide order dated 29.1.2019 and the order of the ACJM was affirmed. Hence, the applicant has filed the present Criminal Miscellaneous Application under Section 482 CrPC. 3. Respondents 2 to 5 filed counter affidavit and rebutted the allegations of the applicant. It has been stated in the counter affidavit that the said respondents did not cause any revenue loss to the State exchequer. Hence, the applicant has filed the present Criminal Miscellaneous Application under Section 482 CrPC. 3. Respondents 2 to 5 filed counter affidavit and rebutted the allegations of the applicant. It has been stated in the counter affidavit that the said respondents did not cause any revenue loss to the State exchequer. However, on the complaint of the applicant, the Additional District Magistrate, vide order dated 5.3.2018, imposed the penalty on them for theft of the stamp duty and they filed an appeal against the said order which is pending before the Commissioner and there is also stay on the order dated 5.3.2018. The said respondents denied the incident of 9.3.2018, as alleged by the applicant and contended that the applicant concocted a false story merely to implicate them in a false case. 4. Having heard learned Counsel for the parties and on perusal of the materials on record, it transpires that the applicant and the respondents 2 to 5 are the residents of the same locality. On the complaint of the applicant, the penalty for theft of stamp duty was imposed on the said respondents. However, the matter is still pending before the Commissioner. As regards the incident of 9.3.2018, the applicant failed to produce any independent witness of the incident. He even failed to substantiate his allegations by filing any medical report. Accordingly, the police recommended that no further action was required in the matter. In these facts and circumstances, the learned ACJM was of the view that since the entire facts are within the knowledge of the applicant himself and, therefore, there is no need for investigation and admitted the application of the applicant as a complaint case. 5. Learned Counsel for the applicant argued that the Magistrate was bound to pass an order for registration of the FIR and its investigation by the police on the application under section 156 (3) CrPC. Learned State Counsel and learned Counsel for the respondents 2 to 5 argued that there is no such legal mandate. 6. 5. Learned Counsel for the applicant argued that the Magistrate was bound to pass an order for registration of the FIR and its investigation by the police on the application under section 156 (3) CrPC. Learned State Counsel and learned Counsel for the respondents 2 to 5 argued that there is no such legal mandate. 6. This controversy came up for hearing before a Division Bench of Allahabad High Court in the case of Sukhwasi vs. State of U.P., (2007) 59 AllCriC 739 , and since there were divergent views on this issue, the question "Whether the Magistrate is bound to pass an order on each and every application under section 156(3) CrPC containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases" was referred to the larger Bench of the Allahabad High Court and the reference was answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) CrPC and there is no such legal mandate. He may or may not allow the application in his discretion and the Magistrate has discretion to treat an application under section 156(3) CrPC as a complaint. 7. In view of the facts and circumstances of the case and the legal position discussed above, I find no illegality or infirmity in the impugned orders. There is no substance in the present Criminal Miscellaneous Application and the same is hereby dismissed. Interim order, if any, stands vacated.