The mere filing of an application under Section 156(3) of the Code of Criminal Procedure, 1973 does not obligate a Magistrate to order an investigation, and the application must disclose the commission of a cognizable offence.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this petition is made to the following:

(i) Order dated 12.01.2021, passed in Misc. Application No. 20 of 2020, Rajneesh Kumar Singh vs. Dharm Das Sharma, by the court of 5th Additional Civil Judge (Sr. Div.) Rudrapur, District Udham Singh Nagar (for short “the case”). By which, an application filed by the petitioner under Section 156(3) of the Code of Criminal Procedure, 1973 (for short “the Code”) has been rejected.

(ii) Judgment and order dated 15.06.2022, passed in Criminal Revision No. 15 of 2021, Rajneesh Kumar Singh vs. State of Uttarakhand and another (for short “the revision”) by which, the judgment and order passed in the case has been upheld.

2. Heard learned counsel for the parties and perused the record.

3. The petitioner filed an application under Section 156(3) of the Code against the private respondent with the averments that the petitioner is HR Head in Advik Hightech Pvt. Ltd. Pantnagar, District Udham Singh Nagar (for short “the company”). The petitioner was working in the company as Assistant Manager. During his tenure, the private respondent embezzled Rs. 4,92,962.63/-. On 05.10.2020, when the money was demanded by the employees of the company, he denied for it.

4. On the application filed by the petitioner under Section 156(3) of the Code, a report was called from the police station. The impugned order dated 12.01.2021, passed in the case reveals that the court had taken note of the fact that for the offence under Section 406 IPC, the limitation is for three years, which had already expired. The court had also taken note of the statements recorded by the police when report was sought on application under Section 156(3) of the Code on the application. The court had also taken the note of the fact that for similar offences, an FIR No. 216 of 2018 (for short “the earlier FIR”) had already been lodged.

5. Learned counsel for the petitioner would submit that the law on 156(3) of the Code is settled that if the averments disclose commission of offence, an order for investigation has to be made. Learned counsel would also raise the following points into his submissions:

(i) Earlier FIR is against the different persons for a different period and for a different cause of action.

(ii) In the earlier FIR, charge-sheet has already been filed, in which, the private respondent is not an accused.

(iii) The allegations against the private respondent are quite different, which needs to be investigated.

6. Learned counsel for the private respondent would submit that the earlier FIR pertains to the year 2015-2018. As per the petitioner himself, Annexure No. 3 are the documents, through which embezzlement was done. Learned counsel would submit that these documents pertains to the year 2015 onwards, which means that the FIR is for the same period, for which, allegations in the instant case has been levelled. It is submitted that the respondent had left the company in the year 2015.

7. Learned State counsel would submit that the earlier FIR is for the same incident. Therefore, the second FIR may not be lodged in view of judgment in the case of T.T. Antony vs. State of Kerala and Others, (2001) 6 SCC 181. In the case of T.T. Antony (supra), the Hon’ble Supreme Court has observed “the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case.”

8. The law on Sections 154 and 156 of the Code is not quite similar, there is slight difference. On Section 154 of the Code, in the case of Lalita Kumari vs. Government of Uttar Pradesh and Others, (2014) 2 SCC 1, the Hon’ble Supreme Court has laid dow