Dinesh Chander Sharma vs S.S. Chambyal and Another

Kuldip Singh, J.—This petition is directed against order dated 24.10.2009 passed by learned Additional Sessions Judge, Una in Criminal Revision No. 12 of 2009 affirming order dated 16.2.2009 passed by learned Judicial Magistrate 1st Class (I), Una in Complaint case No. 6-1-2005.

The facts, in brief, are that the Petitioner has filed complaint against Respondents on the allegations that in April, 2000, the Respondent No. 1 was posted as Sub Divisional Magistrate (SDM), Una and Respondent No. 2 as Station House Officer (SHO), Police Station, Una. A false FIR No. 264 of 2000 under Sections 332, 353, 506 IPC was lodged by one Joginder Singh posted as Peon in the office of Deputy Commissioner, Una against the complainant on 29.4.2000. In pursuance of the said false FIR, Respondent No. 2 held malicious investigation and manipulated the facts and prepared a false Kalandra being case No. 56-4-2000 under Sections 107, 151 Code of Criminal Procedure against the complainant with the purpose to put the complainant in the police lock-up to damage and harm his reputation socially and professionally.

The Respondent No. 2 presented the Kalandra before Respondent No. 1 for consequential action, who without due application of mind demanded personal and surety bond from the Petitioner for releasing the Petitioner on bail. The Respondent No. 1 initiated proceedings against the Petitioner on the basis of Kalandra. It has been alleged from the Kalandra ingredients of offence punishable u/s 307 IPC were made out which were exclusively triable by the Court of Sessions Judge. The Respondent No. 1 forged the notice u/s 111 Code of Criminal Procedure by distorting the material facts of the Kalandra in order to justify his action of illegal exercise of jurisdiction. He has committed offences punishable u/s 466 and u/s 469 IPC. He has also committed an offence punishable u/s 471 IPC.

The Respondent No. 2 has falsely shown the necessity of causing arrest of the Petitioner under Sections 107, 151 Code of Criminal Procedure during investigation by fabricating documents purporting to be made by him as public servant in official capacity. The Respondent No. 2 has committed an offence punishable under Sections 466, 468, 471 and 500 IPC. The complaint was filed on 16.12.2004. The learned Magistrate recorded preliminary evidence but did not issue process and dismissed the complaint on 16.2.2009. The Petitioner filed Criminal Revision No. 12 of 2009 against the order dated 16.2.2009 which was dismissed by the learned Additional Sessions Judge, Una on 24.10.2009, hence petition u/s 482 Code of Criminal Procedure read with Article 227 of the Constitution.

In order to complete the facts, it is necessary to point out that the Petitioner had filed application dated 4.7.2007 u/s 319 for issuing process against Baldev Chand, Kewal Krishan, Shankar Dass and Rattan Chand. The Petitioner had also filed another application u/s 319 Code of Criminal Procedure dated 17.6.2005 for issuing process against Roshan Lal.

I have heard the Petitioner in person and Mr. Rajesh Mandhotra, Advocate learned Counsel appearing on behalf of Respondent No. 2. None appeared on behalf of Respondent No. 1 despite service. The learned Judicial Magistrate in the order dated 16.2.2009 has observed that even otherwise there is no evidence on record that the accused persons have made false statements and, therefore, there exist no ground to proceed against them for committing the offences under Sections 109, 466, 469, 500 IPC. Section 466 IPC is with respect to forgery of record of court or of public register etc. Section 469 IPC is with respect to forgery for purpose of harm and reputation. The Sections 466 and 469 IPC are with respect to preparation of forged documents and these sections have nothing to do with the making of false statement. The learned Magistrate has not recorded a finding that on the basis of material on record forgery in the documents as alleged is not made out.

The learned Additional Sessions Judge has decided the revision mainly on the point of limitation even though the learned Magistrate has not rejected the complaint on the point of limitation. The offence u/s 466 Code of Criminal Procedure is punishable with imprisonment upto 7 years. The Section 468 Code of Criminal Procedure creates bar for taking cognizance after three years if the offence is punishable with imprisonment not exceeding three years.

The learned Additional Sessions Judge has allowed the application of the Petitioner dated 20.5.2009 u/s 399 read with Section 401 and the report of the Additional Superintendent of Police, Una dated 11.2.2004 was permitted to be taken on record in which it has been recorded that SI/SHO Harnam Singh without any basis and intentionally after misusing his powers arrested Dinesh Kumar under Sections 107/151 Code of Criminal Procedure The learned Additional Sessions Judge in the order dated 24.10.2009 has not considered the relevant material on record whether a case u/s 109, 466, 499 and 500 IPC is made out for issuing process.

In view of above discussion, a case for wrong exercise of jurisdiction has been made out. Accordingly, the petition is allowed, order dated 24.10.2009 is set-aside and the case is remanded to the court of learned Additional Sessions Judge, Una to decide the revision afresh in accordance with law. The Petitioner and Respondent No. 2 through his counsel are directed to appear before the learned Additional Sessions Judge, Una on 15.6.2011. The learned Additional Sessions Judge, Una shall issue notice to Respondent No. 1. The record of the case be remitted immediately to the learned Additional Sessions Judge, Una so as to reach before the date fixed. The petition is disposed of on above terms.