IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 704/2005 (Under Section 482 of the CrPC) Smt. Vimla Devi & Another …….Applicants Versus State of Uttarakhand & Another ……Respondents Mr. Lokendra Dobhal, Advocate, for the applicants. Mr. Shivanand Bhatt, Brief Holder, for the State. None for the private respondent no. 2. 14th December, 2011 Hon’ble Servesh Kumar Gupta, J. By means of this petition, moved under Section 482 CrPC, a prayer has been advanced to quash the order dated 31.3.2005, passed by the Judicial Magistrate, C.B.I., Dehradun in Criminal Complaint Case No. 236/2004, Shyam Lal v. Smt. Vimla Devi & Another, whereby the learned Magistrate refused to discharge the accused persons, as he found sufficient evidence adduced under Section 244 CrPC to level the charge of Section 420 IPC against the applicants petitioners. This order was challenged by filing the Criminal Revision No. 54/2005 before the learned Sessions Judge, Dehradun, which resulted in its dismissal on 6.8.2005. So, the challenge is also made the said judgment and order dated 6.8.2005, passed by the learned Sessions Judge, Dehradun. 2. It is pertinent to mention that none turned up on behalf of the private respondent Om Prakash even in the revised call. So, this Court gave hearing to learned Counsel for the applicants and learned Brief Holder for the State. Also perused the papers on record. 2 3. It appears that one Shyam Lal, father of respondent no. 2 Om Prakash, purchased a piece of land situated on Khasra No. 434, measuring 5265 Sq. Ft. (13 Biswa). It was a self acquired property purchased by Shyam Lal on 30.5.1981 from one Sardar Indra Singh. This property was situated and numbered as 194, Gurudwara Colony, Clementown, Dehradun. It is worth mentioning here that respondent no. 2 Om Prakash is son of Shyam Lal and the applicant no. 1 Smt. Vimla Devi (wife of Jagdish Kanojia) and her son applicant no. 2 Vinod Kumar are respectively the daughter-in-law and grandson of Shyam Lal. 4. Out of the aforementioned land, Shyam Lal voluntarily parted 3.5 biswa for Om Prakash and allowed him to construct house thereupon. Om Prakash, accordingly, constructed his house over the said land, which is in his occupation. Out of remaining 9.5 biswa land, Shyam Lal further sold 5.5 biswa (0.055 acre), which also included an old construction in which Shyam Lal was residing, to Smt. Vimla Devi and her son Vinod Kumar on 18.5.1998 for a sale consideration of rupees one lakh fifty thousand. At the time of executing the sale deed on 18.5.1998, it was agreed between the parties, that Shyam Lal, for his lifetime, shall remain in possession of the said room in which he was living, and after his death, the said construction will be occupied by the applicants. Since Shyam Lal was an octogenarian at the time of execution of this sale deed, so his hearing was impaired and he also had weak eyesight. 5. It is alleged that applicants, taking advantage of above disabilities of Shyam Lal, fraudulently got executed the sale deed for the remaining entire land of 9.5 biswa, instead of 5.5 biswa land. This cheating was revealed on 12.10.2001, when Shyam Lal was asked to vacate the room in which he 3 was living as well as the remaining 4 biswa land, although it was agreed between them on 18.5.1998 that during his lifetime, Shyam Lal will remain in occupation of that room. Therefore, Shyam Lal filed an application under Section 156(3) CrPC on 24.4.2002 before the Court of Chief Judicial Magistrate, Dehradun, which was registered as Miscellaneous Case No. 760/2002. Learned Magistrate having gone through the contents of the said application, registered the same as Criminal Complaint Case No. 236/2004, instead of directing the concerned police station to register and investigate the case. 6. Learned Counsel for the applicants raised a preliminary objection before this Court against the order of Magistrate for registering the application moved under Section 156(3) CrPC as a complaint case, rather than sending the same to the concerned police station for its registration and investigation thereupon. He relied upon a precedent of Allahabad High Court rendered in the case of Bahadur Singh v. State of U.P., reported in 2005 (51) ACC 901, wherein the learned Single Judge of the Allahabad High Court has opined that treating an application moved under Section 156(3) CrPC as a complaint case is not sustainable, when the allegations made clearly makes out a prima facie cognizable offence against the accused. The learned Single Judge was of the opinion that the application, so moved, required investigation by the police. Hence, order of the Magistrate, treating the same as a complaint case, was illegal and that order of Magistrate, which was affirmed by the learned Sessions Judge also, was set aside by the Allahabad High Court directing the Magistrate to pass fresh orders in accordance with the provisions of law. 4 7. With all due regard to the above view of the learned Single Judge of the Allahabad High Court, this Court is unable to agree with the same. In this regard, another precedent of Allahabad High Court itself is quotable, which was rendered in the case of Nathoo Lal Gangwar v. State of U.P & Another, reported in 2008 (61) ACC 792, wherein the learned Single Judge has held that if allegations are made in writing to the Magistrate with a view to his taking action under Section 156(3) CrPC, then it can certainly be treated as a complaint. The learned Judge observed that “normally an application under Section 156(3) CrPC is presented with legal assistance and in the circumstances, the allegations disclosing a cognizable offence are bound to be there. Therefore, merely on this ground, the Magistrate cannot be directed to direct the police to register the case”. It has further been held that “Magistrate is not bound to direct for registration of case on every application filed under Section 156(3) CrPC, otherwise this provision would result in harassment to innocent persons and become a tool for shrewd litigants”. 8. Hence, the preliminary objection raised by the learned Counsel for the applicants is misconceived and it is rejected. 9. After registration of the application moved under Section 156(3) CrPC as a complaint case, the learned Magistrate recorded the statement of Shyam Lal as well as the statements of his witnesses Om Prakash and Atma Ram under Section 244 CrPC. The prayer made by the accused persons to discharge them under Section 245(1) CrPC was rejected as the Magistrate found prima facie sufficient evidence on record produced under Section 244 CrPC, which, if unrebutted, would warrant conviction of the 5 accused persons. So, he passed the impugned order finding it a fit case to level the charge against the accused persons. This order of the Magistrate was challenged by way of filing the Criminal Revision No. 54/2005 before the Sessions Judge, Dehradun, which was dismissed on merit vide judgment and order dated 6.8.2005. Hence, this petition. 10. In the helm of above affairs, it can be pointed out that firstly this petition filed under Section 482 CrPC is barred because in the facts and circumstances, as stated above, it amounts to second revision by the same party under the garb of Section 482 CrPC. On this sole ground, this petition is liable to be dismissed. However, since this Court has given hearing on other aspects of the matter and submissions put forth by the learned Counsel for the applicants, hence, it would be in the fitness of things to make observations regarding those aspects also. 11. It has been pleaded on behalf of learned Counsel for the applicants that a separate Criminal Complaint Case No. 218/2003 was launched by Om Prakash, son of Shyam Lal, against these very applicants, and the subject matter of that complaint case was the same piece of land. The accused persons were discharged by the Magistrate on 18.12.2004 in that complaint case, and the Criminal Revision No. 34/2005 preferred against that order of discharge was also dismissed by the learned Sessions Judge. In this regard, it can significantly be noted that Om Prakash had no locus standi to file that complaint case against the present applicants because at that time Shyam Lal was alive. Secondly, the subject matter of that complaint was directly the exchange of money worth rupees one lakh, which was allegedly due to be paid to Om Prakash for the disputed piece of land. So, the piece of land was in the lateral aspect, much less Om 6 Prakash did not have any locus standi to launch that complaint. It is also pertinent to mention that now Shyam Lal is no more. It has come on the record that he was brutally assaulted on 7.12.2004, so he succumbed to the injuries on 11.12.2004. 12. It has also been highlighted by learned Counsel for the applicants that Shyam Lal had already launched a civil suit no. 292/2001 against these very applicants. So, this complaint was not maintainable. This argument is also not tenable because pendency of a civil litigation itself is not the basis to extinguish any criminal proceeding. I have gone through the pleadings of that civil litigation, which reveals that the same was filed seeking injunction against the applicants preventing them from disposing of the disputed property. The said civil suit was basically meant for cancellation of the aforesaid sale deed, which was executed by Shyam Lal in favour of the applicants. 13. It has been contended on behalf of learned Counsel for the applicants that after the death of Shyam Lal, the complaint cannot be proceeded by Om Prakash. This objection was also rejected by the Magistrate on 20.12.2004 on the strength of a precedent of Allahabad High Court rendered in Abdul Hakim and Others v. State reported in 1973 CrLJ 492. This Court is also in agreement with the above view. 14. All told, in the panoptic view of this Court, the petition is meritless and liable to be dismissed. The same is, accordingly, dismissed. Stay order dated 14.12.2005 is vacated. 7 15. Registry is directed to inform the court concerned accordingly so that trial against the accused applicants may proceed further. (Servesh Kumar Gupta, J.) 14.12.2011 Prabodh