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2023 DIGILAW 431 (UTT)

Rajneesh Kumar Singh v. State of Uttarakhand

2023-07-28

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this petition is made to the following: (i) Order dated 12.01.2021, passed in Misc. Application No. 20 of 2020, Rajneesh Kumar Singh vs. Dharm Das Sharma, by the court of 5th Additional Civil Judge (Sr. Div.) Rudrapur, District Udham Singh Nagar (for short “the case”). By which, an application filed by the petitioner under Section 156(3) of the Code of Criminal Procedure, 1973 (for short “the Code”) has been rejected. (ii) Judgment and order dated 15.06.2022, passed in Criminal Revision No. 15 of 2021, Rajneesh Kumar Singh vs. State of Uttarakhand and another (for short “the revision”) by which, the judgment and order passed in the case has been upheld. 2. Heard learned counsel for the parties and perused the record. 3. The petitioner filed an application under Section 156(3) of the Code against the private respondent with the averments that the petitioner is HR Head in Advik Hightech Pvt. Ltd. Pantnagar, District Udham Singh Nagar (for short “the company”). The petitioner was working in the company as Assistant Manager. During his tenure, the private respondent embezzled Rs. 4,92,962.63/-. On 05.10.2020, when the money was demanded by the employees of the company, he denied for it. 4. On the application filed by the petitioner under Section 156(3) of the Code, a report was called from the police station. The impugned order dated 12.01.2021, passed in the case reveals that the court had taken note of the fact that for the offence under Section 406 IPC, the limitation is for three years, which had already expired. The court had also taken note of the statements recorded by the police when report was sought on application under Section 156(3) of the Code on the application. The court had also taken the note of the fact that for similar offences, an FIR No. 216 of 2018 (for short “the earlier FIR”) had already been lodged. 5. Learned counsel for the petitioner would submit that the law on 156(3) of the Code is settled that if the averments disclose commission of offence, an order for investigation has to be made. Learned counsel would also raise the following points into his submissions: (i) Earlier FIR is against the different persons for a different period and for a different cause of action. Learned counsel would also raise the following points into his submissions: (i) Earlier FIR is against the different persons for a different period and for a different cause of action. (ii) In the earlier FIR, charge-sheet has already been filed, in which, the private respondent is not an accused. (iii) The allegations against the private respondent are quite different, which needs to be investigated. 6. Learned counsel for the private respondent would submit that the earlier FIR pertains to the year 2015-2018. As per the petitioner himself, Annexure No. 3 are the documents, through which embezzlement was done. Learned counsel would submit that these documents pertains to the year 2015 onwards, which means that the FIR is for the same period, for which, allegations in the instant case has been levelled. It is submitted that the respondent had left the company in the year 2015. 7. Learned State counsel would submit that the earlier FIR is for the same incident. Therefore, the second FIR may not be lodged in view of judgment in the case of T.T. Antony vs. State of Kerala and Others, (2001) 6 SCC 181 . In the case of T.T. Antony (supra), the Hon’ble Supreme Court has observed “the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case.” 8. The law on Sections 154 and 156 of the Code is not quite similar, there is slight difference. On Section 154 of the Code, in the case of Lalita Kumari vs. Government of Uttar Pradesh and Others, (2014) 2 SCC 1 , the Hon’ble Supreme Court has laid down the guidelines. In Para 120, the law is summarized that, “The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.” Although from Para 120.2 onwards the Hon’ble Supreme Court has given further directions in the matter. 9. In Para 120, the law is summarized that, “The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.” Although from Para 120.2 onwards the Hon’ble Supreme Court has given further directions in the matter. 9. In the case of Section 156 of the Code, the consideration may be quite distinct. In fact, according to Para 156(3) “Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” In fact, abovementioned investigation means, the investigation i.e. carried out by the police officer post lodging of a report pertaining to the cognizable offence. 10. Mere filing of an application under Section 156(3) of the Code does not obligate a Magistrate to order investigation in the matter. The law on this subject is summarized by the Hon’ble Supreme Court in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287 . While referring to the earlier law on the point the Hon’ble Supreme Court in Para 22 of the judgment observed as follows: “22. In Anil Kumar vs. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35, the two-Judge Bench had to say this: (SCC p. 711, Para 11) “11. The scope of Section 156(3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed vs. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692 examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C. the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C. should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.” 11. In the instant case, initially the application has been dismissed on the ground that the offence, as alleged is barred by the limitation. But, in the revision, the rejection of the application under Section 156(3) of the Code, has been upheld on the ground that there has already been an FIR No. 216 of 2018, Police Station Pantnagar, District Udham Singh Nagar, on the same subject. 12. On behalf of the petitioner, it is argued that in the earlier FIR, the cause of action is different. As such, the word “cause of action” may not be coined in the criminal law. The phrase “cause of action” as understood in civil law, may tend to relate to an offence, action, transaction, instigation, abetment, conspiracy, part of the action, etc in the criminal law. Be that as it may, what is argued is that the earlier FIR was lodged by a different person and after investigation, charge-sheet has been filed against different persons. 13. It is the allegation against the petitioner that he embezzled huge amount from the company. The application under Section 156(3) of the Code does not reveal the period during which it was done. In the impugned order dated 12.01.2021, it was recorded that the petitioner worked from 2007 to 2015. According to the earlier FIR, the sale of the scrap was less than the scrap produced in the company. It was filed against three persons, but it records that there may be more persons involved in it. In the application under Section 156(3) apart from other things what is stated is that the payment of scrap of Rs. 3,69,471.63/- has also been embezzled. Annexure No. 3 has been filed by the petitioner himself, which definitely is for the year 2015. In the application under Section 156(3) apart from other things what is stated is that the payment of scrap of Rs. 3,69,471.63/- has also been embezzled. Annexure No. 3 has been filed by the petitioner himself, which definitely is for the year 2015. It is irregularities, embezzlement, non-accounting in the company, to which, the earlier FIR relates. The earlier FIR is against three identified persons with the averment that there may be other persons involved in it. Definitely, the instant application under Section 156(3) of the Code relates to such acts, which falls within the investigation zone of the earlier FIR. Therefore, there is no need to direct for investigation in the application under Section 156(3) of the Code. The courts below on different grounds, but rightly rejected the application. This Court does not see any reason to make any interference in this petition. Accordingly, the petition deserves to be dismissed. 14. The petition is dismissed.