AMRISH R KILACHAND vs STATE OF UTTARAKHAND AND ORS

 Sudhanshu Dhulia, J

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.Â

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.

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.

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 â€" 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.Â

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 CrPC stipulates this.Â

In view of the above, present criminal misc. application filed under Section 482 of CrPC is allowed. Order dated 10.06.2011 passed by the

revisional court is hereby set aside.

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.Â