Mukesh Jain vs State Of Uttarakhand & Others

Lok Pal Singh, J

1) Criminal Misc. Application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 28.06.2011, passed by Chief Judicial Magistrate, Dehradun in Misc. Application no. 165 of 2011, Mukesh Jain vs Jai Prakash Mittal and others, whereby application filed by the applicant under Section 156(3) of Cr.P.C. was rejected. A further prayer has been made for quashing the order dated 02.05.2012, passed by the Sessions Judge, Dehradun, in Criminal Revision no. 101 of 2011, Mukesh Jain vs State of Uttarakhand, dismissing the revision preferred against the order dated 28.06.2011.

2) Brief facts of the case are that mother of the applicant, who claims herself the tenant of Society known as Panchayati Mandir Panjikrit Samiti, filed an original suit no. 285 of 1978, titled as Smt. Santosh Kumar vs Panchayati Mandir. During the pendency of said suit, the accused-respondents fabricated forged papers of Society claiming themselves to be its officer bearer. Application under Section 156(3) Cr.P.C. was filed by the applicant on 26.09.2010, whereupon C.J.M., Dehradun directed the police to lodge FIR in the crime. Said FIR was registered as case crime no. 435 of 2010, under Sections 430, 380 of IPC against Jai Prakash Mittal and others (accused-respondents) at P.S. Kotwali Dehradun. It is alleged in the FIR that the civil appeal of the applicant titled as Mukesh Jain and others vs Panchayati Mandir Samiti is pending in the court of Addl. District Judge I, Derhadun. The named accused persons harbour enmity with the applicant as the shop / workshop of the applicant is on the property of Panchayati Mandir Samiti (Society), where he is a tenant. Accused persons had no connection with the Society, despite said fact they used to claim themselves as office bearers of said Society. When the applicant made a complaint in this regard to the President and Secretary of Panchayati Mandir, the Secretary submitted an application on 31.08.2010 to Superintendent of Police, Dehradun. It is also alleged that accused persons are trying to misappropriate the rent with the intention to cause financial loss to the applicant. Taking advantage of applicant's absence from his shop / workshop, the accused persons used to misappropriate the goods causing loss to him, so that the applicant would be compelled to vacate the shop and hand over the possession to the accused persons. It is also alleged that when the applicant went to Delhi in regard to marriage of his daughter for the period 16.07.2010 to 18.07.2010 and on his return when he reached his shop on 19.07.2010, he found that the accused persons have forced opened the lock of the entrance gate of the property and damaged the property of the applicant and threatened the applicant to dispossess him. When applicant resisted such move, the accused persons hurled abuses and threatened the applicant of dire consequences. Said complaint was made with P.S. Kotwali Dehradun on 20.07.2010, but to no avail.

3) It is further alleged that on 27.08.2010, when the applicant went to Sonipat, in his absence on 29.08.2010, the accused persons with the help of labourers dismantled the southern and western wall of one room and verandah, which is part of property no. 118, and had removed one folding press sheet worth Rs.75,000/-, two iron plates, measuring about 16'X3' about ¾ inch in thickness worth Rs.75,000/- and iron scrap worth Rs.50,000/-. Report in this regard was lodged by Piyush Jain, nephew of the applicant, with P.S. Kotwali Dehradun on 29.08.2010, but neither the police took any action against the accused persons nor were the articles recovered. On repeated requests when the police did not lodge the FIR, the applicant moved an application to Sr. Superintendant of Police, Dehradun, but to no avail.

4) Thereafter, application under Section 156(3) Cr.P.C. was filed by the applicant on 26.09.2010, whereupon C.J.M. Dehradun directed the police to lodge the FIR. On the orders of Magistrate, FIR was lodged in the aforesaid matter. The I.O. after completion of investigation submitted final report in the matter on 25.11.2010. Subsequent thereto, the applicant filed another application dated 13.06.2011 under Section 156(3) Cr.P.C. in the court of CJM, Dehradun, with the aforesaid averments. However, the incident was shown in the case as of 19.08.2010. It is contended that since the accused-respondents have committed offence punishable under Section 467, 468, 471, 120B and 420 IPC, the P.S. concerned be directed to lodge the FIR in the matter and investigate the crime.

5) Learned CJM, Dehradun by its order dated 28.06.2011 rejected the application stating that in view of the averments made in the application, prima facie, no cognizable offence appears to have been made out against the accused-respondents and rejected the application filed under Section 156(3) of Cr.P.C. Feeling aggrieved, the applicant preferred the criminal revision before the Sessions Judge, Dehradun, which too was dismissed on 05.02.2009. Hence, present C-482 petition.

6) Heard Mr. S.K. Jain, Senior Advocate assisted by Mr. Siddhartha Sah and Mr. Siddhartha Jain, Advocate for the applicant; Mr. V.K. Kohli, Senior Advocate assisted by Ms. Rajni Supyal, Advocate for respondent nos. 2, 3 and 7 and Mr. Sandeep Tandon, Dy. Advocate General for the respondent State.

7) Learned counsel for the applicant would submit that the allegations made in the application under Section 156(3) Cr.P.C. clearly makes out a case of serious cognizable offence, but the Magistrate concerned without having considered the seriousness of the allegations made in the application, in a cryptic and cursory manner, has rejected the application and the revisional court too had dismissed the revision in the same fashion.

8) On the other hand, Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the respondent nos. 2, 3 and 7 would submit that on the same set of allegations earlier an application under Section 156(3) of Cr.P.C. was filed. Learned Magistrate directed the police station concerned to lodge the FIR. On this, case crime no. 435 of 2010, was lodged and after investigation in the matter, the police submitted the report that nothing adverse was found against the accused-respondents. It is contended that in the aforesaid case, the incident was shown to be for the period 27.08.2010 to 29.08.2010, whereof in the subsequent application the incident was shown to be of 19.08.2010, which appears to be prior to the lodging of the FIR. It is further contended that since the investigation has already been concluded by the I.O. on the FIR in regard to the subsequent allegation of offences committed by the accused-respondents there was no occasion for the learned Magistrate to issue directions to the police. He would further submit that from the allegations made in the application under Section 156(3) of Cr.P.C., no cognizable offence is made out against the respondents. He would further submit that the matter pertains to the civil dispute, which is pending in the competent court having jurisdiction. It is contended that repeated applications under Section 156(3) of Cr.P.C. are being filed just to harass the respondents.

9) I have gone through the material available on record. A perusal of the same would reveal that a specific date of incident has been mentioned in the first application, whereas another application in regard to the offence of that period was made under Section 156(3) of Cr.P.C. On said application, Magistrate directed the police to lodge the FIR. The matter was investigated and Final report was submitted. Subsequent application under Section 156(3) of Cr.P.C. with same averments in regard to the previous offence has been filed. A perusal of the application under Section 156(3) of Cr.P.C. would show that prima facie, no cognizable offence is made out against the respondents. In view of the above, I do not find any illegality or infirmity in the orders impugned passed by the courts below. Criminal misc. application filed under Section 482 of Cr.P.C. is devoid of merit and is, accordingly, dismissed.

10) Learned counsel for the applicant would submit that it is the right of the applicant to file a private complaint. In the facts and circumstances of the case, the applicant would be at liberty to file a complaint if he so desires before appropriate court.