IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-3074 of 2010 (O&M) Date of decision : 02.2.2010 Raj Kumar … Petitioner Versus Anil Dhawan and others …Respondents CORAM : HON’BLE MRS.JUSTICE SABINA Present: Mr.Tara Chand Dhanwal, Advocate for the petitioner. Sabina J. Petitioner-Raj Kumar has filed this petition under Section 482 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) seeking setting aside of the order dated 24.10.2007 passed by Chief Judicial Magistrate, Bhiwani and order dated 9.10.2009 passed by Additional Sessions Judge, Bhiwani vide which the complaint filed by the petitioner was dismissed. The brief facts of the case as noticed by learned Additional Sessions Judge, Bhiwani in para 2 of its judgment reads as under:- “Originally a complaint had been instituted by the revisionist Raj Kumar against the respondents, accused , in which, he alleged that Ramesh Chander Puniwala, Pawan Kumar, Sarla Devi and Ramdevi in collusion with each other, while preparing forged documents succeeded in snatching his property in this regard, he had moved an application in the police station Sadar, Bhiwani and the police has lodged a FIR bearing No.121 dated 26.3.2004 under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code. After that accused No.2 arrested Ramesh Chander Puniwala on 3.4.2004 and produced him before the Court on 4.4.2004 and he was ordered to be remanded to police custody till 6.4.2002. During police custody, Ramesh Chand Puniwala identified two women, who were involved in the commission of said offence. Pawan was also called there, but was not arrested by accused No.2 nor were those women arrested. On 21.4.2004, at about 6:00 P.M. when he (complainant) was sitting on his tea stall, Head Constable Jagdish Chander came there and asked him that he was called by the SHO. On this asking, he told him that he had committed rape upon wife of accused No.4. He went to the Crl.Misc.No.M-3074 of 2010 (O&M) police post, Dinod Gate where accused No.2, 3 and 4 already present and abused him. On that day, at about 7:00 P.M. accused No.3 and 4 gave him slaps and kick blows and asked him to withdraw the complaint. Accused No.4 also told him that he had given an amount of Rest.2,00,000/- to D.S.P. for cancellation of the FIR. They spared him at about 8.30/9.00 p.m. and asked him to again appear in the police post at 9.00 a.m. the next morning. On 22.4.2004, when he appeared in the police post, accused No.3 again asked him to withdraw the complaint. After that he made a complaint in the Police Station City, Bhiwani, but to no avail. Thereafter, accused No.4 in collusion with accused No.2 and 3 moved a complaint before DSP, Bhiwani through the wife of Ramesh Chander Puniwala. On 23.4.2004, a notice under Section 160 Cr.P.C. was issued against him. Accused No.1 to 4 asked him to compromise the matter and withdraw his complaint. On 24.4.2004, when he along with Shiv Rattan Sharma was passing in front of the shop of accused No.4 on a scooter, accused No.2 to 4, who were present here, restrained him and caused him injuries. He was rescued by one Shiv Ratan Sharma, Deen Dayal and other from the clutches of the assailants. No action was taken against the accused persons. Therefore, the revisionist was constrained to file a private criminal complaint.” Learned counsel for the petitioner has submitted that the courts below had erred in dismissing the complaint filed by the petitioner. The petitioner had been successful in proving his case. After hearing learned counsel for the petitioner, I am of the opinion that the instant petition is devoid of any merit and deserves dismissal. Admittedly, FIR No.121 dated 26.3.2004 was lodged by the petitioner against Ramesh Chander Puniwala. Learned Chief Judicial Magistrate in the impugned order has observed that the petitioner had failed to prove on record any document reflecting his ownership qua the property in dispute. The police had not submitted any cancellation report nor had filed discharge application in FIR No.121 dated 26.3.2004. Rather challan had been presented in the court against the accused. The factum of sustenance of injury by the petitioner was not corroborated by any medical evidence. With these 2 Crl.Misc.No.M-3074 of 2010 (O&M) observations, learned Chief Judicial Magistrate dismissed the complaint filed by the petitioner. The learned Additional Sessions Judge in para 9 and 10 of its judgment has observed as under:- “9. After hearing learned counsel for the revisionist, it is seen that the Sections 323, 467, 471 and 120-B of the IPC have not been pressed and it has been argued only under Sections 217, 218, 219 and 506 of the Indian Penal Code. From the entire contents of the complaint and the preliminary evidence adduced, it is seen that the revisionist is aggrieved that case FIR No.121 dated 26.3.2004, under Section 420, 457, 468, 471, 120-B IPC titled State Versus Ramesh etc., Police Station, Sadar, Bhiwani could not have been cancelled vide cancellation report Ex.CW5/A. No evidence has been led on the point that subsequently, challan has been produced in the said FIR but reliance was placed upon the impugned order, in para 10 of the order, it has been observed on the statement of the counsel for the complainant that challan has been presented in the Court against the accused which led to the Area Magistrate in observing that since the challan has been presented sections 217, 218 and 219 are not made out. Moreover, no allegations have been leveled against the respondent No.4, though in the circumstances, it cannot be attributed any role under Sections 217, 218 and 219 IPC which alone are being pressed by the revisionist and not other Sections. 10. As far as sanction under Section 197 Cr.P.C. is concerned, it is well settled proposition of law that no such sanction is required whenever a public servant transgresses his jurisdiction and acts beyond the realm of his official duties. In the present case, it cannot be stated that the respondents No.1 to 3 have acted beyond the discharge of their official duties where the filing of the cancellation report Ex.CW5/A has not been proved in preliminary evidence to be totally malafide and with ulterior motive. There is no offence in IPC in which the respondent No.4 can be held liable to collude with the respondents No.1 to 3 in filing a cancellation report which has its own consequences to follow under Section 190 Cr.P.C. that is for the Court to treat the complaint and the revisionist has a private complaint or send the case for further investigation under Section 156(8) Cr.P.C. for whatever reasons not explained in the preliminary evidence, the cancellation report was not considered and now finally challan report has been filed and now it is open for the revisionist to peruse all his grievance and claim in the trail pending before the Court below under Sections 217, 218, 219 IPC in FIR dated 26.3.2004 Ex.CW 1/1. As far as the present complaint is concerned, there being no iota of evidence of prima facie case being made out to connect the respondents No.1 to 3 with the 3 Crl.Misc.No.M-3074 of 2010 (O&M) filing of the cancellation report under Sections 217, 218 and 219 IPC where there is no case made out under Section 506 IPC as well, the learned trial Court vide the impugned order correctly dismissed the complaint.” The reasons given by the Additional Sessions Judge are sound reasons. In Manoj vs. Prem Lal, 2006(3) RCR (Criminal) 941, it has been held as under:- “Power under Section 482 Cr.P.C. has to be exercised sparingly and such power was not to be utilized as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397 (1) of the Code, as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can entertain a petition under Section 482 of the Code, when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provision of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court.” The facts of the present case do not warrant interference by this Court under Section 482 Cr.P.C. as the learned counsel for the petitioner has failed to convince me that there has been any miscarriage of justice or abuse of process of court. Accordingly, the present petition is dismissed. [ Sabina ] Judge 02.02.2010 sd 4 Crl.Misc.No.M-3074 of 2010 (O&M) 5