Research › Search › Judgment

Chhattisgarh High Court · body

2023 DIGILAW 155 (CHH)

Rajlaxmi W/o Shri Janaklal Sonar v. Ramesh Kumar S/o Shri Jhumuk Lal Kannauje

2023-03-17

PARTH PRATEEM SAHU

body2023
ORDER : 1. Challenge in this petition is to the order dated 23.02.2017, passed in Criminal Revision No. 202 of 2016, whereby learned 3rd Additional Sessions Judge, Durg (C.G.) dismissed the criminal revision filed by petitioner. 2. Learned counsel for petitioner submits that petitioner made written complaint on 30.04.2014 before Police Station – Nandini Nagar, Ahiwara, Tahsil – Dhamdha, District – Durg alleging that respondent No.1 obtained her affidavit and committed forgery and she was impersonated by other women in the mutation proceeding initiated before Tahsildar, Ahiwara and got registered the ancestral property in his name after death of her father on 15.06.2007. Police authorities have not taken any cognizance on the complaint submitted by her, therefore, petitioner filed an application under Section 156 (3) of Criminal Procedure Code before the Judicial Magistrate First Class, Durg, which was dismissed in an arbitrary manner without considering the provision under Section 156 (3) of Cr.P.C. in its entirety. The order rejecting the application under Section 156(3) of Cr.P.C. was challenged in revision before the Sessions Court, which also came to be dismissed by the impugned order. 3. Learned counsel for petitioner further contended that the offence reported to the Police Station is cognizable offence, therefore, the police authorities were duty bound to register FIR based on the complaint lodged by her. Learned Magistrate erred in dismissing the application under Section 156 (3) of Cr.P.C. considering that petitioner has already filed civil suit and the allegations are still to be decided in civil proceeding pending before the Court of competent jurisdiction. 4. Learned counsel for respondent No.1 would submit that there was civil dispute with respect to the ancestral property between petitioner and respondent No.1, who are real brother and sister. After death of their father, petitioner to take her share in the property has filed civil suit and thereafter only to pressurize respondent No.1, false complaint was made against respondent No.1. He also contended that mutation proceeding dated 15.06.2007 is in accordance with law based on the documents executed by petitioner. After sometime as petitioner changed her mind, has made false allegation against respondent No.1. He also contended that mandatory provision under Criminal Procedure Code before filing application under Section 156(3) of Cr.P.C. has not been followed. He also contended that mutation proceeding dated 15.06.2007 is in accordance with law based on the documents executed by petitioner. After sometime as petitioner changed her mind, has made false allegation against respondent No.1. He also contended that mandatory provision under Criminal Procedure Code before filing application under Section 156(3) of Cr.P.C. has not been followed. Petitioner has even not submitted affidavit in support of application filed under Section 156 (3) of Cr.P.C., which is mandated by the Hon’ble Supreme Court in case of Priyanka Srivastava & Another Vs. State of Uttar Pradesh & Ors., reported in (2015) 6 SCC 287 . He contended that in the aforementioned decision Hon’ble Supreme Court in categorical terms has observed that if for any reason the Station House Officer failed to register first information report on the complaint received under Section 154 (1), the aggrieved party has to submit an application to the concerned Superintendent of Police under Section 154(3) of Cr.P.C. No such application was submitted by petitioner, therefore, application under Section 156 (3) of Cr.P.C. was not tenable. 5. Learned State counsel adopts the argument raised by learned counsel for respondent No.1 and submits that the order passed by learned Sessions Court is in accordance with law and does not call for any interference. 6. I have heard learned counsel for parties and perused the documents placed on record. 7. Perusal of Annexure P-3 would show that petitioner made a written complaint against respondent No.1 on 30.04.2014. Relationship between petitioner and respondent No.1 is not in dispute that they are real brother and sister. The disputed property which is the root cause of the proceedings initiated by petitioner is ancestral property. It is the case of petitioner that respondent No.1 got executed her affidavit for some other purposes and the same has been used in the mutation proceedings and further in the mutation proceedings she was impersonated by some other woman. Perusal of documents placed along with reply by respondent No.1 would show that petitioner has filed civil suit on 03.10.2012, which is pending before the First Civil Judge Class-I. Pleading in civil suit is that respondent No.1 got mutated his name in revenue record with consent to manage the properties. 8. After about one and half years of filing of civil suit, petitioner made written complaint to the concerned police station. 8. After about one and half years of filing of civil suit, petitioner made written complaint to the concerned police station. Learned Magistrate considering the pendency of the civil suit has dismissed the application filed under Section 156 (3) of Cr.P.C.. 9. In case of Paramjeet Batra Vs. State of Uttarakhand & Ors, reported in (2013) 11 SCC 673 , while considering prayer for quashment of FIR and criminal proceeding after availing civil remedy has observed in Para-12, which reads as under :- “12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.” 10. Learned revisional Court considering that the handwriting report which was made basis to file complaint is not pursuant to direction or order by any authority and no prima-facie case in the facts of the case is made, dismissed the revision. 11. According to the provision under Section 154 (3) of Cr.P.C. if the concerned Police Officer failed to register the first information report, the complainant is required to send the substance of such information in writing to the concerned Superintendent of Police. During the course of argument, this Court put specific query to learned counsel for petitioner with regard to submission or forwarding of any information/application by petitioner to the concerned Superintendent of Police, he submits that no such document is available in the record. During the course of argument, this Court put specific query to learned counsel for petitioner with regard to submission or forwarding of any information/application by petitioner to the concerned Superintendent of Police, he submits that no such document is available in the record. He has also not disputed the submission of learned counsel for respondent No.1 that petitioner has not submitted any affidavit in support of application under Section 156 (3) of Cr.P.C. stating that petitioner has complied with the provision under Section 154 (1) and 154 (3) of Cr.P.C.. 12. Hon’ble Supreme Court in case of Priyanka Shrivastava (supra) while considering the provision under Section 156 (3) of Cr.P.C has observed in Para 30 and 31, which reads as under :- “30. 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 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. 31. We have already indicated that there has to be prior applications under Section 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 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. 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 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.” 13. In the aforementioned decision, Hon’ble Supreme Court has clearly held that application under Section 156 (3) of Cr.P.C. are to be supported by an affidavit duly sworn by applicant, who seeks invocation of jurisdiction of Magistrate and further that prior to filing of application under Section 156 (3) of Cr.P.C. there should be application under Section 154 (1) and 154 (3) of Cr.P.C.. If the facts of this case are to be tested in light of the principles laid down by Hon’ble Supreme Court in the aforementioned decision admittedly petitioner has not submitted affidavit in support of application under Section 156 (3) of Cr.P.C. and before filing the application under Section 156 (3) of Cr.P.C. before the Magistrate has not sent any information in writing to the concerned Superintendent of Police as required under Section 154 (3) of Cr.P.C. Further in the facts of the case, petitioner has already availed the civil remedy available to her and has filed civil suit in the month of October, 2012, whereas the compliant has been lodged after lapse of about more than one and half years of filing of civil suit making allegation of commission of crime against respondent No.1. 14. 14. Considering the aforementioned decision of Hon’ble Supreme Court as also the facts and circumstances of the case, I do not find any good ground to interfere with the impugned order passed by the learned Courts below. 15. Accordingly, the petition being devoid of any substance which is liable to be and is hereby dismissed.