C482/301/2022 of OMVATI ALIAS OMATI DEVI Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 301 of 2022

Smt. Omwati @ Omati Devi

…........ Petitioner

State of Uttarakhand and others …..... Respondents

Present : Mr. Bharat Singh, Advocate for the petitioner.

Mr. S.S. Adhikari, Deputy Advocate General with Mr. Balwinder Singh, Brief Holder for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

Challenge in this petition is made to the followings:-

(i)Order dated 24.06.2020, passed in Misc. Application No.76 of 2020, Smt. Omwati alias Omati Devi vs. Ajay Kumar and others, passed by the court of 1[st] Judicial Magistrate, Haridwar. By this order, an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) has been ordered to be treated as complaint (for short, “the case”), and;

(ii)The judgment and order dated 09.09.2021, passed in Criminal Revision No.159 of 2020, Smt. Omwati alias Omati Devi vs. State of Uttarakhand and others, by the court of 3[rd]Additional District and Sessions Judge, Haridwar (for short, “the revision”), by it, the order dated 24.06.2020 in the case has been confirmed. passed in Criminal Revision No.159 of 2020, Smt. Omwati alias Omati Devi vs. State of Uttarakhand and others, by the court of 3[rd]Additional District and Sessions Judge, Haridwar (for short, “the revision”), by it, the order dated 24.06.2020 in the case has been confirmed.

2. Briefly stated, the facts are as follows. The petitioner moved an application under Section 156(3) of the Code with regard to an incident dated 09.05.2020 at 06:45 in the morning. According to it, on that day, the private respondents armed with deadly weapons assaulted the petitioner and her family members. The reason for such incident has also been narrated in the application. The court, by the impugned order dated 24.06.2020, observed that the details have already been disclosed by the petitioner in her application under Section 156(3) of the Code, therefore, investigation is not required and ordered that the application shall be treated as complaint. This order has been challenged in the revision. The revision has been rejected. Aggrieved by it, the petitioner is before this Court.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner would submit that, in fact, the private respondent no.7 had already filed an FIR with regard to the same incident on 09.05.2020 at 04:55 PM. The incident is admitted. Therefore, the application under Section 156(3) of the Code ought to have been allowed. In fact, in para no.12 of the affidavit in support of the petition, it is stated that both the courts below failed to consider that in absence of any proper investigation by competent investigating officer the entire material neither can be brought on record nor can be examined during trial.

5. Learned counsel for the petitioner would also submit that the petitioner has already been examined under Section 200 of the Code.

6. While exercising jurisdiction under Section 156(3) of the Code, it is not mandatory for the Magistrate to order for investigation as soon as such application is filed before the court. In the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, (2015)6 SCC 287, on this aspect, the Hon’ble Supreme

Court referred to the earlier judgments in para no.22 and observed as hereunder:-

“22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this: (SCC p. 711, para 11)

“11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against public servant without valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.””

7. In the impugned judgment dated 24.06.2020,

the Court has made reference to the case of Rameshbhai Pandurao Hedau vs. State of Gujarat (2010)1 UC 656. In the case of Rameshbhai (supra), after investigation, Final Report was submitted and the protest petition was filed for investigation under Section 156(3) of the Code. The Magistrate instead of directing for investigation postponed the issuance of process and kept the complaint case for inquiry in accordance with Section 202 of the Code. In

those circumstances, the Hon’ble Court observed as

hereunder:-

“26. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the appellant as complaint under Section 200 of the Code and has thereafter proceeded under Section 202 CRPC and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of sub-section (2) of Section 202 the learned Magistrate deems if fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Session”

8. In the instant case, both the courts below had

observed that this matter does not require any investigation and the application under Section 156(3) of the Code may be treated as complaint. These orders are in accordance with law.

9. It is the case of the petitioner that witnesses are available, medical reports have already been collected, they are to be produced in the evidence. Therefore, this Court is of the view that there is no error in the impugned judgments and orders. Accordingly, the petition deserves to be dismissed.

10. The petition is dismissed.

Sanjay

(Ravindra Maithani, J.)

10.03.2022