C482/277/2016 of Rajendra Prasad Joshi Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Miscellaneous Application No. 277 of 2016 (under Section C482 of Cr.P.C.)

Rajendra Prasad Joshi

………..Applicant

Versus

State of Uttarakhand & others

….…Respondents

Hon’ble Sudhanshu Dhulia, J. (Oral)

1. Ms. Pushpa Joshi, Senior Advocate, assisted by Mr. Kishan Kumar Verma, Advocate for the applicant.

2. Mr. P.S.Saun, Deputy Advocate General, present for the State/respondent no.1.

3. An application under Section 156(3) of Cr.P.C., has been moved by present applicant before the Chief Judicial Magistrate, Almora praying that his elder brother by deceit had forged his signature and moved an application before the Nagar Palika, Almora to mutate the property in his name after the death of their father.

4. An inquiry was ordered on the said application and it was found that on the said application was moved by applicant in which earlier the name of the applicant was also made but since it was an application given by the brother of the applicant i.e. Kishore Chandra Joshi/respondent no.2 and there was no occasion to write the name of the present applicant, the name was deleted and the notary subsequently signed on it, in order to verify the corrections made. It was found that there is no forgery or cheating as alleged on the basis of that report. The learned Magistrate rejected the application filed under Section 156(3) of Cr.P.C. Aggrieved the present applicant moved revision before the learned District & Sessions Judge, Almora. The revisional court also did not find any merit in the revision, and thereafter relying upon the seminal decision of Hon’ble Apex Court inMrs. Priyanka Srivastava and another Vs. State of U.P. and others

reported in(2015) 6 SCC 287has directed that in case the learned Magistrate find that the affidavit given by the applicant under Section 156(3) of Cr.P.C., was false affidavit, he should take appropriate measure against the applicant. This order does not seems to be in compliance with the direction given by the Hon’ble Apex Court in Mrs.Priyanka Srivastava and another Vs. State of U.P. andothers reported in (2015) 6 SCC 287where the Hon’ble Apex Court stated that the provision under Section 156(3) are sometimes abused and people are unnecessarily being harassed on pretext of direction given by the court below for lodging of First Information Report and investigation, it is for this reasons following order has been passed:-

“In our considered opinion, stage has come in this country where Section 156(3) Cr.P.C., application are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority

of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

5. The District and Sessions Judge, Almora only followed the law what has been stated by Hon’ble Apex Court in the above decision and has rejected the revision. 6. This Court is of the view that no interference is called for in the impugned orders. The application is without merit. The application, filed under Section 482 of Cr.P.C., is hereby dismissed.

Nitesh

(Sudhanshu Dhulia, J.) 16.03.2016