IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.224 of 2008 (Under Section 482 Cr.P.C.) Vipin Saini ………. Applicant Versus State of Uttarakhand & others ..…. Opp. Parties Mr. Parikshit Saini, Advocate for the applicant Mr. P.S. Bohara, Brief Holder for the State/opp. Party no.1 Dated: September 22, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this criminal miscellaneous application moved u/s 482 Cr.P.C., the prayer has been made to quash the order dated 10.1.2008 passed by the Chief Judicial Magistrate, Haridwar on the application no.369/2007 moved u/s 156(3) Cr.P.C. By the said order, the learned Magistrate rejected the application of the petitioner and did not find appropriate, in light of the facts disclosed therein, to make an order for registration and investigation of the case. The said order of learned Magistrate was challenged by the petitioner by filing a criminal revision no.53/2008 before the court of Sessions Judge, who having heard the same, affirmed the order of learned CJM by passing the judgment and order dated 12.3.2008. The petitioner has also prayed to quash the order of learned Sessions Judge and at the same time, has requested to pass a favourable order directing the Chief Judicial Magistrate for exercising his powers u/s 156(3) Cr.P.C. At the very outset, a legal controversy arises before this Court as to whether the powers u/s 482 Cr.P.C. can be invoked at the instance of some party whose revision has been dismissed by the Sessions Judge u/s 397(1) Cr.P.C. In this 2 regard, it would be worthwhile to mention the precedent of the Hon’ble Apex Court in the case of “Krishnan and another Vs. Krishnaveni and another reported in 1997 AIR SCW 950”. In that case, Three Judges’ Bench of the Hon’ble Apex Court has dealt with the scope of Sections 397, 401, 482 and 483 Cr.P.C. The Hon’ble Apex Court while relying upon the various earlier precedents, rendered by the same Court in cases of “Madhu Limaye vs. State of Maharashtra reported in (1977) 4 SCC 551” as well as in the case of “V.C. Shukla Vs. State through C.B.I. reported in (AIR 1980 SC 962)” has reiterated that the powers of the High Court u/s 482 and 483 Cr.P.C. cannot be invoked by filing a second revision because it is specifically barred u/s 397(3) Cr.P.C. In other words, when there is a specific bar for filing a second revision u/s 397(2) Cr.P.C., then the party, whose revision has been filed in the court of Sessions, cannot circumvent the bar, stated above, by putting a veil of Sections 482 and 483 Cr.P.C. upon his petition and invoking the powers of the High Court. However, this bar of Section 397(3) Cr.P.C. would not hamper the way of the High Court in exercising its inherent powers vested in it u/s 401 Cr.P.C., nay the plenary powers u/s 482 and 483 Cr.P.C., if there is a feeling or the party concerned is able to put forth and prove before the High Court that there has been grave miscarriage of justice by dismissal of his revision in the court of Sessions. This view has been of-late reiterated in the judgment of Hon’ble Punjab and Haryana High Court in the case of Maghar Singh and another Vs. State of Punjab and others in CRM No.M37269 of 2010, decided on 25.5.2010. Now, the relevant facts, to be considered in the instant case are that on 3.10.2007 at about 12 noon, an incident occurred in the office of the petitioner which is located within 3 the territorial jurisdiction of P.S. Jwalapur, Haridwar. It appears that some motorcycle was financed by ICICI Bank, Jwalapur to one Sri Shaheed. Petitioner is the Franchise Holder of the said Bank and his work is to deposit the due installments of the loan from various borrowers and then in turn, submit the consolidated amount of his collection to the Bank. The installment of Rs.4,200/- became due, so the petitioner along with his office team members, became active to recover the same. They seized the motorcycle in order to exert pressure of recovery of installments. Sri Shamshad or his friends, namely, Ajab Singh and others, went to the office of petitioner and deposited Rs.4,200/- in lieu of that installment. But it is alleged that the petitioner, along with his other team, demanded Rs.2,000/- more in order to return the vehicle. Altercations were advanced from each other, which turned into quarrel and manhandling. It is alleged that the petitioner tried to lodge an FIR at the P.S. Jwalapur on the same day, i.e. on 3.10.2007, but could not get success for lodging the same, so he sent his version to the complaint section operating in the office of SSP, almost after two months but that too could not yield any result. So, the petitioner, finding no other way, moved an application u/s 156(3) Cr.P.C. on dated 12.12.2007 to the Chief Judicial Magistrate, which was dismissed by the impugned order dated 10.1.2008 and on filing the revision, the same was also dismissed by the impugned order dated 12.3.2008. On the other hand, the FIR was lodged by Sri Ajab Singh (as above-named) against the petitioner along with his two other office bearers, namely, Arun Gautam and Parveen Giri for the offence of Sections 147, 307, 323, 504 and 506 IPC, which was registered at the police station concerned, bearing crime no.485 of 2007. 4 Learned counsel for the petitioner has apprised this Court that after the investigation, a chargesheet has been submitted against the petitioner and others and the trial is also proceeding in the court below, after levelling of charge upon them. The entire grievance of the petitioner is that the police has not done justice to him by refusing to lodge the FIR submitted by him against Sri Ajab Singh. He also relied upon a precedent of Hon’ble Allahabad High Court in the case of “Ram Nath Vs. State of U.P. & others reported in 2007(3) ALJ 392”. In the said case, the learned Judge of the Allahabad High Court, having placed reliance upon the sundry precedents including Apex Court, has held that “adopting a hyper-technical view that jurisdiction to examine different version is completely lacking and hit by Ss.161 and 162 of the Code is improper- Magistrate has jurisdiction to direct for registering a counter case in respect of same occurrence”. Undoubtedly, there is no prohibition for the Magistrate for making the direction to register the case regarding the cross-version, but at the same time, the Magistrate cannot be forced to exercise his powers u/s 156(3) Cr.P.C. putting forth a counter version before him, which he feels prima faciely not substantial and that too after having procured the report of the police, as asked by him to submit after preliminary enquiry. Having gone through the impugned orders of the courts below, this Court also feels that no grave injustice has occurred to the petitioner, so that to invoke the powers of this Court u/s 482 Cr.P.C. Virtually, this petition is in the form of second revision by putting a veil of Section 482 Cr.P.C. over it. It is needless to mention that if the petitioner was so aggrieved, then alternate course of action was opened to him 5 by filing a criminal complaint as a cross version before the Magistrate. But he cannot compel the Court of the Magistrate or any superior Court to get a favourable order, notwithstanding the unsubstantial contents in his application, which do not prima faciely inspire any confidence. In view of what has been stated above, this petition is bereft of any merit and is liable to be dismissed. Petition is, accordingly, dismissed. (Servesh Kumar Gupta, J.) 22.9.2011 Rajeev Dang