Legal Question in Criminal Law in India

what is court process after allow 156(3) against cheating through filed false affidavits in government department by accused . dear sir my 156 already dismiss in mm court on the ground civil nature case and IO reported in mm court that property sold on the bases of registered will but there is not question of registered will but also accused file false and concealed the name of other legal heir name ( non beneficiary of will ) from the affidavit and they show only they are legal heir leave behind the death of deceased and government department get mutation and free hold on the basis of false information i-e cheating and we protest for this type of cheating but is it possible new IO appointed by session court after allow the 156 for investigation of this case and new IO file only on the last IO report based new report and closer report in the court and court shall be dismissal after the allow the 156 (3) .dear sir is it benefit for me if i was go in the court of mm and give evidence under section 200 or above method is good for me ?

Asked on 9/04/13, 3:28 am

3 Answers from Attorneys

salil kumarp salilkumar associates
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The mm has ample power to foreword the complaint u/s 156(3) crpc or reject it out right or it can take cognizance by its own as a complaint case. The following decisions will make it clear :

It is well settled that under Section 156(3), CrPC, the Magistrate has not to pass the order mechanically and has to apply his judicial mind. On this point, decision of this Court, M/s. Skipper Beverages Pvt. Ltd. v. State 2001 IV AD (Delhi) 625, may be referred to in which it was held:

„It is true that Section 156(3) of the Code empowers to Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass order under Section 156(3) of the Code."

In the light of Meenakshi Anand case (Supra), the learned M.M. and ASJ have exercised judicial discretion and taken cognizance of the offence and adjourned the matter for pre-summoning evidence.

In case of Minu Kumari and Another Vs. State of Bihar and Others, (2006), 4 SCC 359, the Supreme Court observed thus:

"When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its

President v. Union of India and others (1996 (11) SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained"

In the light of the above pronouncements, it cannot be said that the learned M.M. and ASJ committed any illegality by rejecting the application of the petitioner for registration of FIR.

The plea of the petitioner that the documentary evidence that needs to be adduced by him cannot be recovered without the help of the police is without any merit as this record being known to the petitioner can be summoned and got produced in evidence by the petitioner before the learned M.M.

The powers of High Court under Section 482 CrPC are to be exercised sparingly and not as a matter of routine. Inherent powers of High Court under

Section 482 CrPC are meant to add ex debita justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of court.

In Janata Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305, the Supreme Court observed that in what circumstances the inherent powers should be exercised:

"132 The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles".

Further, in B.S.Joshi Vs. State of Haryana, (2003) 4 SCC 675, the Supreme Court reiterated the legal position that the Court's inherent powers have no limit, but should be exercised with utmost care and caution. Inherent powers must be utilized with the sole purpose to prevent the abuse of the process of the court or to otherwise secure the ends of justice.

The remedy :

1. Aggrieved person can file a protest petition before the mm court.

2. The another remedy is Revision against Dismissed application of 156(3) cr.pc before the district court.

3. The aggrieved can also approach the high court through a writ petition .

By :

SALIL KUMAR

ADVOCATE

E. No.K/136/1999

THALASSERY-670 101

MOB : 9447536929

9061435365

advocatesalil@gmail.com

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Answered on 9/04/13, 5:56 am
KarVai Legal Solutions Rajiv Gupta 9811284735 Ch.No: 359, Western Wing, Tis Hazari, Delhi www.karvai.in
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repeat query.

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Answered on 9/04/13, 8:46 am
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you may approach high court for direction to the police to register FIR.

Regards

adv.kamal.grover@gmail.com

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Answered on 9/05/13, 9:51 pm

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