Bodh Raj Vs State of Hp and Others

2024:HHC:5095

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.98 of 2020 Date of Decision: 10.07.2024

_________________________________________________________________________ Bodh Raj ……...Petitioner Versus State of HP and Others …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the Petitioner: Mr. Divya Raj Singh, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. Vishal Panwar, Additional Advocates General and Mr. Ravi Chauhan, Deputy Advocate General, for the respondents No.1 to 5/State. Mr. Pawan Gautam, Advocate, for respondents No.6 & 7. _________________________________________________________________________________ Sandeep Sharma, J. (Oral)

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Being aggrieved and dissatisfied with the order dated 18.12.2019 passed by learned Additional Chief Magistrate, Nurpur, District Kangra, Himachal Pradesh, whereby an application under Section 156(3) Cr.P.C., having been filed by the petitioner/complainant, seeking therein direction to Station House Officer, Police Station Nurpur, to investigate the case after registration of FIR under Sections 420, 406, 417 & 120-B IPC against the respondent/accused, came to be dismissed,

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petitioner/complainant has approached this Court in the instant proceedings filed under Section 482 Cr.P.C., praying therein to set aside the aforesaid order and direct SHO, Police Station concerned to lodge FIR against the respondents for their having committed offence punishable under relevant provisions of law.

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Precisely the facts of the case, as emerge from the record are that petitioner/complainant instituted complaint dated 26.08.2019 before Station House Officer, Police Station Nurpur, District Kangra, H.P., alleging therein that accused, named in the complaint, persuaded them to shell out Rs.5,00,000/- for sending his son to abroad for job. Complainant alleged that since respondent/accused were known to them, they on their persuasion gave Rs.5,00,000/- to the respondent/accused after availing loan from the Bank and other relatives, but neither his son was sent abroad nor till date, money has been refunded.

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Since no action was taken on the aforesaid complaint by the SHO of Police Station concerned, petitioner/complainant lodged complaint before the Superintendent of Police, District Kangra, as well as Director General of Police, Himachal Pradesh, however, allegedly needful was not done and as such, petitioner/complainant filed complaint under Section 156(3) Cr.P.C. in the Court of learned Additional Chief Judicial Magistrate,

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Nupur, District Kangra (Annexure P-5), praying therein to issue direction to SHO of the Police Station concerned to lodge FIR against the accused, named in the complaint.

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Having taken cognizance of the complaint filed by the complainant, as detailed hereinabove, learned Court below called for report from the Police Station concerned. Pursuant to afore direction by the Court concerned, Police filed action taken report dated 10.12.2019 (Annexure P- 6), wherein it came to be reported that daughter of Meena Kumari, who is respondent No.6 herein, is married to the son of the complainant Bodh Raj. During investigation, both the parties made counter allegations against each other, but petitioner/complainant failed to make available any evidence, especially document, suggestive of the fact that sum of Rs.5,00,000/- was given by him to respondent No.6 for sending his son to abroad.

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Police also found during investigation that some dispute inter se respondent No.6 and complainant had also reached High Court of Punjab and Haryana, but same came to be dismissed for non-prosecution, on account of absence of complainant-Bodh Raj. It is only after the dismissal of case before the Punjab and Haryana High Court, petitionerBodh Raj instituted complaint under Section 156(3) Cr.P.C. before the

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learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P., for issuing directions to the SHO concerned to lodge FIR.

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Having taken note of aforesaid action taken report submitted by SHO, Police Station Nurpur, learned Additional Chief Judicial Magistrate, Nurpur, vide impugned order dated 18.12.2019 dismissed the application filed under Section 156(3) Cr.P.C. In the aforesaid background, petitioner/complainant has approached this Court in the instant proceedings.

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Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Divya Raj Singh, learned Legal Aid Counsel representing the petitioner/complainant is that Court below while passing impugned order failed to take note of the fact that specific allegation of cheating, which falls under Section 420 IPC was levelled, but yet, it having taken note of the action taken report, which was otherwise one sided, proceeded to reject the application filed under Section 156(3) Cr.P.C.

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Mr. Divya Raj Singh, learned counsel representing the petitioner while referring to the judgment passed by the Hon’ble Apex Court in Lalita Kumari Vs. State of U.P. , reported as 2014 (2) SCC 1, attempted to argue that whenever complaint discloses cognizable offence, Police is

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otherwise under obligation to lodge FIR. He states that since bare perusal of complaint discloses cognizable offence committed by the accused, named in the complaint, Court below had no option but to order registration of FIR, while exercising power under Section 156(3) Cr.P.C. While referring to the judgment passed by the Hon’ble Apex Court in Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage, (2016) 6 SCC 277, Mr. Divya Raj Singh argued that Court below while calling for action taken report committed procedural irregularities inasmuch as, it failed to direct SHO, to lodge FIR and then investigate the matter. Mr. Divya Raj Singh submitted that since action taken report, which ultimately was made the basis for passing order dated 18.12.2019, was not filed pursuant to lodging of FIR, same could not have been otherwise taken into consideration by the Court concerned while passing impugned order.

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To the contrary, Mr. Vishal Panwar, learned Additional Advocate General representing respondent/State and Mr. Pawan Gautam, learned counsel representing respondents No.6 & 7 supported the impugned order. While making this Court peruse the averments contained in the impugned judgment, vis-a-vis action taken report submitted by Police, above named counsel vehemently argued that complaint which was allegedly not investigated by the SHO, Police Station Nurpur, clearly reveals

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that no money was ever handed over by the complainant to the respondents No.6 & 7, rather, precise allegation, contained in the complaint is was that respondents No.6 & 7 persuaded complainant to arrange sum of Rs.5,00,000/- for further giving to person, who would then send his son to abroad for work.

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Learned Additional Advocate General and Mr. Pawan Gautam further submitted that investigation conducted by the SHO, Police Station Nurpur clearly reveals that son of the complainant, who was promised to be sent abroad, is none else but the son-in-law of respondents No.6 & 7. They submitted that it is highly unbelievable that respondent No.6 & 7 would ask for money to send their son-in-law to abroad, rather, complainant and his family thrown the daughter of the respondent No.6, out of her matrimonial house. They submitted that pursuant to aforesaid matrimonial discord, FIR bearing No.134 of 2019 dated 14.10.2019, under Sections 406, 498-A IPC stands registered at Women Police Station, Chandigarh and the petition filed under Section 156(3) Cr.P.C. is nothing but a counterblast to aforesaid FIR, lodged at the behest of respondents No.6 & 7.

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Having heard learned counsel for the parties and perused material available on record, vis-a-vis reasoning assigned in the impugned judgment, as detailed hereinabove, this Court finds no illegality or infirmity

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in the same and as such, no interference is called for, rather, this Court having scanned entire material available on record, has no hesitation to conclude that petitioner has not approached this Court with clean hands, rather, effort has been made to conceal the material facts.

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Though, complainant/petitioner while making complaint to SHO, Police Station concerned, alleged that respondents No.6 & 7 are in their relations, but nowhere disclosed factum of marriage of their son with daughter of respondent No.6. Similarly, this Court finds that prior to filing of the complaint under Section 156(3) Cr.P.C., petitioner/complainant had filed anticipatory bail in the FIR, lodged at the behest of daughter of respondent No.6, but same was dismissed. It is only after dismissal of aforesaid bail petition, petitioner/complainant instituted complaint under Section156(3) Cr.P.C., seeking therein direction to SHO, Police Station Nurpur, to lodge FIR. Action taken report submitted by SHO pursuant to direction issued by learned Additional Chief Judicial Magistrate while exercising powers under Section 156(3) Cr.P.C. clearly reveals that no documentary evidence, if any, was ever adduced on record, suggestive of the fact that sum of Rs.5,00,000/- was paid to the respondent No.6.

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Though, petitioner/complainant claimed before the Police as well as Court concerned that sum of Rs.5,00,000/- was paid after availing

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facility of loan and arranging money from the near friends, but neither loan documents nor persons from whom allegedly petitioner/complainant had taken money were ever produced before the Police or even before the learned Court below during proceedings filed under Section 156(3) Cr.P.C.

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No doubt, in case titled as Hemant Yashwant Dhage Vs. State of Maharashtra and Others , reported as (2016) 6 SCC 273, Hon’ble Apex Court while referring to its earlier the judgment passed in Mohd. Yousuf Vs. Afaq Jahan , (2006) 1 SCC 627, held that to enable the Police to start investigation, it is open to the Magistrate to direct the Police to register an FIR and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of Cr.P.C., the Police should register an FIR, but omission, if any, on the part of learned Additional Chief Judicial Magistrate, Nurpur, District Kangra to direct SHO of the Police Station concerned to lodge FIR, prior to his submitting action taken report, may not be of much relevance for the reason that pursuant to direction issued by learned Additional Chief Judicial Magistrate, Nurpur, SHO concerned after conducting the investigation, submitted action taken report and on the basis of same, impugned order dated 18.12.2019 came to be passed.

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At this stage, it would be apt to take note of Para 8 of the judgment passed by the Hon’ble Apex Court in Hemant Yashwant Dhage (supra), which reads as under:

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“8. In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated 12.04.2010 warranted registering of FIR by the Police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in Mohd. Yousuf V. Afaq Jahan. This Court explained that registration of an FIR involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the officer in charge of the police station concerned. In para 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to direct the Police to register an FIR and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an FIR. Because Section 156 falls within Chapter XII of the Code which deals with powers of the police officers to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII once FIR is registered in respect of the cognizable offence concerned.”

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If the aforesaid Para is read in its entirety, it suggests that very purpose of directing SHO to lodge FIR before conclusion of proceedings instituted under Section 156(3) Cr.P.C. is only to enable the SHO to conduct the investigation in proper manner. In the aforesaid judgment, Hon’ble Apex Court has categorically held that registration of an FIR

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involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the Officer Incharge of the Police Station concerned. In Mohd. Yousuf (supra), Hon’ble Court has held that to enable the Police to start investigation, it is open to the Magistrate to direct the Police to register an FIR, but even in case where Magistrate does not do so, in explicit words, but directs for investigation under Section 156(3) Cr.P.C., Police should register FIR. No doubt, in terms of aforesaid judgment, Police after having received direction, if any, by the Magistrate under Section 156(3) Cr.P.C. should lodge FIR, to enable it to start investigation, but since aforesaid procedure has been not adopted in the case and straightaway action taken report has been filed, that would not render the impugned order illegal, especially when same is based upon the action taken report. It cannot be disputed that action taken report is based upon the investigation carried out by the SHO, may be without registration of FIR.

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Having scanned pleadings as well as other material adduced on record, this Court has no hesitation to conclude that initiation of proceedings under Section 156(3) Cr.P.C. in the case at hand, is nothing but sheer abuse of process of law, contents of the complaint, if read in its entirety vis-a-vis other material adduced on record, compels this Court to

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conclude that attempt has been made by the petitioner/accused to make a false case against the respondent to wriggle out from the criminal proceedings initiated against him and his family by his daughter-in-law, who happens to be the daughter of respondent No.6. Though, Mr. Divya Raj Singh vehemently argued that sum of Rs.5,00,000/- was paid by the petitioner/complainant after availing loan from the Bank and other friends, but even in these proceedings, no document, suggestive of the fact that loan was taken by the Bank or his friends, was ever came to be adduced.

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Consequently, in view of above, this Court finds no illegality and infirmity in the impugned order and as such, no interference is called for. Present petition fails and is dismissed accordingly, along with pending

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applications, if any.

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July 10, 2024

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( Rajeev Raturi )

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(Sandeep Sharma), Judge

Bodh Raj v. State of Hp and Others

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Bodh Raj v. State of Hp and Others

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