Gyan Singh vs State of Uttarakhand and Others

Servesh Kumar Gupta, J.—By way of this petition u/s 482 Code of Criminal Procedure. a prayer has been advanced to quash and set aside the order dated 26.08.2009 passed by Sessions Judge, Udham Singh Nagar in Criminal Revision No. 82 of 2009 titled as Gyan Singh v. Trilok Singh Khati and four Ors. In the said revision, learned Sessions Judge affirmed the order of additional Chief Judicial Magistrate, Kashipur passed on dated 25.05.2009 rejecting the application of Petitioner moved by him u/s 156(3) Code of Criminal Procedure. A prayer has also been made to quash the said order of Magistrate too with a further direction that FIR on the basis of the application moved by Petitioner be registered at Police Station Kashipur.

Having heard Learned Counsel for the Petitioner as well as learned Brief Holder, it appears that Petitioner Gyan Singh moved the said application on 15.05.2009, after passing of more than two months of the incident allegedly occurred on 11.03.2009. On the said date, Gyan Singh and his brother Lakhan Singh along with their family members were celebrating the festival of Holi in village Dhimar Khera within the territorial jurisdiction of Police Station Kashipur. On 11.03.2009 at about 03.30 p.m. Sub Inspector Trilok Singh Khati, Virendra Singh Rana, Prakash Joshi and Devraj (all three Constable) posted in Kotwali Kashipur, came sozzled there. They all entered in the dwelling house of the Petitioner and addressing them as ''Chamar'' scolded them by saying that their status is likewise a footwear. Petitioner asked them to stay back because they are under inebriation state. Hearing this, all the police personnel began to beat the family members including females of the house, with batten, kicks and fists. Hearing the commotion at the spot, a number of people assembled there and saved Petitioner and his family members from unruly hands of police personnel somehow.

This application was rejected by the Magistrate, by passing a detailed order, on the ground that since FIR No. 107 of 2009 for the offence u/s 147, 323, 332, 353, 326, 336, 427 Indian Penal Code was registered against Petitioner Gyan Singh, his brother Lakhan Singh, his sons and nephews namely Satveer, Manmohan, Rahul and Pawan, so he opined that the said application has been filed in order to exert pressure upon the police for expunction of the above said FIR.

Feeling aggrieved, Petitioner Gyan Singh filed a revision No. 82 of 2009 which too, was dismissed on merits by passing an elaborate judgment by Sessions Judge, Udham Singh Nagar. Learned Sessions Judge cited a number of precedents in his impugned order of dismissal. Still aggrieved, petition u/s 482 Code of Criminal Procedure. has been filed to invoke inherent powers of this Court with the prayer aforestated.

Learned Counsel for the Petitioner has contended that due to merciless beating by kicks, batten and fists by the police personnel, the injuries were inflicted upon body of Gyan Singh, Lakhan Singh, Rahul, Pawan, Satveer and Manmohan. All have been medically examined (except Lakhan Singh) in District Hospital Moradabad because they could not get examine themselves in Kashipur Government Hospital due to influence of police there. These medical injuries divulge mostly red contusions and single abrasion. These all are of superficial nature. The medical examination bears the date and time 16.03.2009 at 03.40 p.m. i.e. exactly after five days of the incident. So firstly these injuries are not believable at all and appear to have been created by the Petitioner and his family members. Secondly, there is no plausible explanation given by Petitioner why more than two months were elapsed to have recourse of law in moving an application u/s 156(3) Code of Criminal Procedure. This way the reasons depicted in the both impugned orders are quite genuine. Magistrate is not bound to make an order for registration of FIR and investigation of the case despite of unsubstantial allegations, which were being made the basis of lodging the same.

It is very much relevant that the Petitioner along with his brother, nephew and son, were facing the consequence of registration of FIR against them as stated above, so it is apparent that FIR was attempted to be lodged as counter blast of the same.

Learned Counsel for the Petitioner placed reliance upon two precedents; one of Allahabad High Court titled as Mobin v. State of U.P. and Ors. reported in 2006 (2) J. Cr. C. 1178 and another of Lucknow Bench of Allahabad High Court titled as Smt. Saheena Bano v. State of U.P. and Ors. reported in 2006 (1) J. Cr. C. 135. These precedents are pronounced by Single Judge whereby the learned Judge has found that taking the facts and circumstances of those cases into consideration that FIR should have been lodged in exercise of power of u/s 156(3) Code of Criminal Procedure. and they have directed the Magistrate to pass suitable orders. Both these precedents have now been overruled by of late Full Bench of Allahabad High Court in the case of Father Thomas Vs. State of U.P. and Another, . It was held by the Full Bench that order u/s 156(3) Code of Criminal Procedure. is of interlocutory nature bar of revision as envisaged u/s 397(3) cannot be circumvented by moving application u/s 482 Code of Criminal Procedure. Section 397(3) Code of Criminal Procedure. reads as under: 397(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

At the same time, the full bench of Hon''ble Apex Court in the case of Krishnan v. Krishnaveni and Anr. reported in AIR 1997 SCW 950 has held that though the revision before the High Court under Sub-section (1) of Section 397 is prohibited by Sub-Section 3 there of read with Section 401 Code of Criminal Procedure. but still the powers u/s 482 Code of Criminal Procedure. can be invoked if there is grave miscarriage of justice in view of the High Court but such powers u/s 482 Code of Criminal Procedure. can only be invoked by State not by a private person. When first revision has been dismissed by the court of Sessions Judge on merits then the same party cannot take liberty to file second revision under the veil of Section 482 Code of Criminal Procedure. The High Court can exercise its inherent powers u/s 482 Code of Criminal Procedure. still if there is grave miscarriage of justice but that is available for the State only. Besides, Section 397(2) Code of Criminal Procedure. bars exercise of powers of revision against interlocutory order passed in appeal, inquiry, trial or other proceeding.

Recently, the High Court of Punjab and Haryana in the case of Maghar Singh and Anr. v. State of Punjab and Ors. decided on 25.05.2011 has also highlighted the position of law in this regard and has opined that although the power u/s 482 Code of Criminal Procedure. can be invoked instead of filing second revision petition, in case there is apparent injustice but under the garb of Section 482 Code of Criminal Procedure. second revision cannot be filed. If it is permitted in every case, then every petition facing the bar u/s 397(3) could be filed u/s 482 Code of Criminal Procedure. 10. In view of the above, this petition has no force, on merits as well as on legal position, as discussed above. The petition is, accordingly, dismissed.