•Ci'" ^) IN THE HIGHCOURT OF CHHATTISHGARH AT BILASPUR (C.GV CRIMINAL MISGELLANEOUS PETITION Ho)^t20V\ Slnste Benc PETITIONER : MahavirAwasYojnaPvt.Ltd. Sw".^-l-^-i-'i'" RESPONDEiMTS 1. Complainant Accused VERSUS Smt. Sita Devi Chouhan, W/o Shri S.K. Chouhan, Aged about 65years, R/o Motipara, Durg, Distt. Durg (CG) 2. Padma Devi (dead) D/o Umapado Bagchi (as mentioned in applicatlon u/s 156(3) of Cr.P.C.) 3. Subhash Bagchi S/oUmapadoBagchi, . Aged about 52 years, Both R/o Motipara, Durg, Distt. Durg (GG) 4. Stateof Chhattisgarh Through Station House Officer, Police Station - Durg (CS) (Not mentioned in lower Court record andcomplaint.) CRIMINAL WIISCELLANEOUS PETITION UNDER S THE CODE OFCRIMINAL PROCEDUi ION 482 OF ~~^ HIGH COURT OF CHHATTiSQARH : BiLASPUR Sinale Bench: Hon'ble Shri iVtanindra IViohan Shrivastava^J. PETITIONER RESPQNDENTS Cr.M.P.No.748/2011 Mahavir Awas Yojna Pvt. Ltd. Versus Smt. Sita Devi Chouhan and others APPLICATiON UND6R SECTION 4&2 OF THE CODE OF CRIiViiNAL PROCEDURE Present: - Smt. Fouzia Mirza, counsel for the petitioner. Shri Sudhir Bajpal, Deputy Government Advocate for the State. ORAL ORDER (Passed on 18th of November, 2011) Meard on admission. By this petition under Section 482 CrPC, the petitioner has chaiienged legaiity and validity of order dated 23/7/2011 passed by the Judiciai Magistrate 1 Class, Durg on a comptaint of respondent No.1, exercising powers under Section 156 (3) of CrPC and directing the poiice to register FiR and hoid investigation. 2. Learned counsei for the petitioner submits that the complaint / appiication on which the Court has invoked its jurisdiction under Section 156 (3) CrPC to direct registration of offence and hoid invesiigaiion, is mereiy a compiaint of claim reiating to civil right and is a civil dispute but instead of taking any remsdy under civii iaw, respondent No.1 abused ihe process of iaw and the Magistrate has aiso not looked into this aspect and directed offence to be registered. '.^*-'".:: 't^ ^ ^^i^~^ i^ I —/ J '^</ .^^" 3. The case of the compiainant is that there was an agreement executed between respondent No.1 and Padma Devi (since deceased) for saie of a land and Padma Devi received advance of Rs.20,000/- from respondent No.1. The possession of the iand was aiso given to respondent No.1 on his assurance to make payment of the baiance amount at the time of registration and since the date of agreement, the iand and house remained in possession of respondent No.1. The respondent No.1 contacted Padma Devi time and again for execution of sale deed. After some time, the petitioner and respondent No.3 contacted respondent No.1 desiring to purchase the land but respondent No.1 refused. On the basis of generai power of attorney, respondent No.3 soid the iand to the petitioner, vide registered saie deed dated 25/09/02. Thereafter, respondent No.1 / complainant obtained documents under the Right to information and came to know that generai power of attorney said to be executed by respondent No.2 in ravour of respondent No.3, bears a faise and rabricated thumb impression and thus, by preparing a forged power of attorney, respondent No.3 sold the property to the petitioner. 4. Ths concerned Magistrate forwarded the compiaint to the poiice siation for enquiry. The poiice submitted enquiry report along with statements of witnesses. The Magistrate again sent the report back to the Investigating Orficer vide order dated 23/7f2011 stating that the report has been submitted without registering any FiR therefore, the direcUon was given to register FIR. It is against this FiR, this petition has been fiied. Learned counsei for the petitioner contended that the iearned Magistrate mechanicaily invoked its jurisdiction to direct registrafion of FiR and investigation, ignoring that the complaint, on the face of it, oniy makes out a case of civii dispute and even if it is accepted on its face value and in its ^ "'^ t? '<3i8S^?< f': , ) .^ "•'ss^ssss^'' ^ emirety, no case of commission of offence under Section 420, 466, 467, 471/34 iPC is made out. It is further contended that once a report was submitted, the learned Magistrate ought to have applied its mind and ought not to have remitted the matter back to the poiics. it is aiso contended that various revenue proceedings are going on. 5. A perusai of appiication under Section 156 (3) CrPC fiied by respondent No.1 / compiainant shows that what compiainant has aileged is that late Padma Devi had entered into an agreement to sell with the compiainant and aiso received advance and parted with the possession which was given to the compiainant. The property comprised of a house standing on the land which was also subject matter of agreement. it has further been alieged that though number of times, the compiainant approached Padma Devi offering baiance amount, it could not materiaiize. Further averment in the appiication is that the petitioner and Subhash Bagchi approached the compiainant expressing wiiiingness to purchase the property, of which, the compiainant was in possession under the agreement to seii. The compiainant however, refused and thereafter, it is aileged that a forged power of attorney was prepared by which Subhash Bagchi, ciaiming to be power of attorney hoider of Padma Devi, sold that very property to the petitioner. It has been specificaiiy aiteged that Padma Devi was a literate iady who used to sign in Engiish whereas the document /' power of attorney bsars thumb impression which is an act of forgery. it is alieged that with the help of forged documents, the property was sold by Subhash Bagchi in favour of the petitioner thereby committing offence of forgery as weii as cheating. !t has aiso been faiseiy stated that there is no construction on the iand whereas there exists a house which aiso caused ioss, in terms of registration fee, to the Government. ~\^'" ^ss^^ 4 ^ 6. On the appiication so fiied by the complainant, the Chief Judiciai Magistrate vide its order dated 27/09/2010 directed the police to register FiR. On 23/07/2011, the Magistrate recorded that though there was a direction to register FiR and hold investigation, the police did not register any offence and camed out some enquiry and submitted report. Therefore, the Court beiow directeci the police to register FIR and submit report. 7. In the opinion of this Court, there is no iliegaiity in the order of the Court beiow. it cannot be disputed that the ieamed Magistrate has power to direct registration of FiR whiie directing investigaiion to be made on an appiication in exercise of its powers under Section 156 (3) CrPC, in view of the judgment of the Supreme Court in ihe case of Sakiri Vasu v. State of U.P.. 2008 AiR SCW 309. Recentiy, in the case of Srinivas Oundluri and others v. M/s. SEPCO Eiectric Power Construction Corooration & ors., 2010 Cri.L.J. 4457, the Uupreme court nas aiso taKen simiiar view. 8. infact, in the beginnsng, though, on the appiication under Section 156 (3) CrPC, the Magistrate directed the poiice to register FiR and hoid investigation but the police did not carry out judicial order and made enquiry without registering FiR and submitted a report which has been rightiy ignored by the iearned Court beiow. The petitioner never chaiienged the judicial order dated 27/09/2010 by which the Chief Judiciai Magistrate had directed FIR to be registered and investigafion to be heid. 9. The contents of the application under Section 156 (3) CrPC cannot be said to be of such a nature to say that even if they are accepted in its entirety and 1^»"; y-e' @t •c on its face vaiue, none ofthe ingredients ofSection 420,466, 467,471/34 or iPC is made out. There is specific aliegation that the properiy in dispute was in possession of the compiainant under an agreement to sell and the petitioner approached the complainant for sale of the land and the complainant did not agree for it and therefore, iater on, Subhash Bagchi prepared a forged document, purporting to be power of attorney given by Padma Devi which was used to prepare a forged saie deed in the name of Padma Devi in favour of the petitioner in respect of the property, which the compiainant was hoiding In his possession under the agreement to seii, from Padma Devi. i therefore, do not find any material in this petition. The petition is iiable to be dismissed and is accordingiy dismissed. 10. The police however, shail hold a fair and proper invesiigaiion without being infiuenced by the observations made by this Court because the observations in this case are oniy in the limited purposes of examination as to whether the Court beiow was justified in directing registration of FIR and hoid investigation. Sd/- Manindra Mohan Shrivastava Judge '^sepii