Bajrang Lal And Ors. vs State Of U.P. And Anr.
2021 Latest Caselaw 3625 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 23
 

 
Case :- U/S 482/378/407 No. - 7518 of 2017
 

 
Applicant :- Bajrang Lal And Ors.
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Rishad Murtaza,Arvind Kumar Shukla,Brijesh Kumar Shukla
 
Counsel for Opposite Party :- Govt. Advocate,Rama Pati Shukla,Ravi Shankar Mishra,Vyas Narayan Shukla
 

 
Hon'ble Rajeev Singh,J.

Heard Shri Arvind Kumar Shukla, learned counsel for the applicants and Shri Gyan Singh, learned A.G.A. for the State.

This application has been filed by the applicant for quashing the charge sheet dated 14.08.2017, summoning order dated 25.08.2017 as also the proceedings of Criminal Case No. 1388 of 2017 arising out of Case Crime No. 838 of 2015, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Kotwali Nagar, District Pratapgarh.

As per prosecution case, respondent no. 2 is the co-tenure holder of land having Gata No. 1331, area 0.251 hc., on which, a temple of Lord Shiva and one innards are constructed. The said land was gifted by the ancestors of respondent no. 2. F.I.R. bearing Case Crime No. 838 of 2015, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Kotwali Nagar, District Pratapgarh was lodged by respondent no. 2 with the allegations that the applicants, with the intention to grab the said land, prepared a forged khasra of the aforesaid land and on the basis of the same, showing the said land to be a Parti land, they obtained interim order from the court of Civil Judge (Junior Division), Pratapgarh in Civil Suit No. 1130 of 2015.

After investigation in the said F.I.R., charge sheet dated 14.08.2017 was filed by the Investigating Officer, on which, cognizance was taken by the court below on 25.08.2017. Hence, this application.

Rebutting the allegations made in the F.I.R., learned counsel for the applicants submits that, in fact, one Jokhu Lal, who was the recorded tenure holder of Gata No. 1331, desired to sell his share. Thus, a sale deed dated 8th February, 1983 was executed in favour of the father of the applicant nos. 1 to 8 and applicant no. 9, after receiving the full sale consideration amount of Rs.30,000/-. Thereafter, the names of applicant no. 9 as well as father of applicant nos. 1 to 8 were mutated in the revenue records vide order dated 02.11.2010. After demise of the father of the applicant nos. 1 to 8, the property in question was duly endorsed in their names being legal heirs. It is vehemently submitted by the learned counsel for the applicant that the possession of the applicants continued over the property since 1983 till date.

Submission of the learned counsel for the applicants is that the applicants were constructing a wall over their property, on which, the complainant of the present case, having ill-intention while objecting the same, started creating nuisance. It is submitted that in order to avoid any unwarranted nuisance, Civil Suit No. 1130 of 2015 was filed by the applicants on 06.08.2015 along with the application of interim injunction. On the same day, stay order was passed by the court below and the respondents, including the complainant, were restrained from interfering in the possession of the suit property. Learned counsel for the applicants vehemently submits that the complainant-respondent no. 2, knowing the fact that the applicants are the owners of the property in question, in connivance with the other people, who deal in the real estate business and also the land grabbers, with the intention to claim possession of the same, lodged a false F.I.R. bearing Case Crime No. 838 of 2015 (supra) (annexed as Annexure 3 to the application) on 08.09.2015 on the basis of the allegation that complainant is the co-tenure holder of gata no. 1331, which was donated by his ancestors, over which, a temple of Lord Shiva and a innards is situated. It is further alleged therein that the applicants, with the ill-intention, tried to encroach the said land and by obtaining some forged documents, civil suit was filed. It is also alleged in the F.I.R that when respondent no. 2 obtained information, under the Right to Information Act, the officer concerned informed that the documents claimed by the applicants are forged and fabricated.

Submission of the learned counsel for the applicants is that after conducting investigation in the aforesaid F.I.R., final report was submitted on 06.06.2016 on the ground that the civil suit is pending before the competent court. However, thereafter, further investigation was conducted and the impugned charge sheet dated 14.08.2017 was filed against all the applicants, on which cognizance was wrongly taken by the court below on 25.08.2017. Learned counsel for the applicants next submits that the names of the applicants were duly mutated in the revenue records. Reliance in support of the submission has been placed on Annexure 6 to the application, which is a computerised khatauni. Lastly, learned counsel for the applicants, placing reliance on the decisions of the Hon'ble Apex Court in the cases of State of Karnataka Vs. L. Muniswamy & Ors., (1977) 2 SCC 699, Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., (2007) 12 SCC 1, Rishipal Singh Vs. State of U.P. & Anr., (2014) 7 SCC 215, Commissioner of Police & Ors. Vs. Devender Anand passed in Criminal Appeal No. 834 of 2017, Paramjeet Batra Vs. State of Uttarakhand & Ors. passed in Criminal Appeal No. 2069 of 2012, submits that in exercise of power under Section 482 Cr.P.C., the High Court is entitled to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue, would be an abuse of the process of the Court, especially when a dispute, which is essentially of civil in nature, is given a cloak of criminal offence. It is, thus, submitted that the impugned proceedings may be quashed.

Learned A.G.A., on the other hand, while opposing the prayer of the applicants, submits that in F.I.R. bearing Case Crime No. 838 of 2015 (supra) lodged by respondent no. 2 on 08.09.2015, investigation was started, but on the ground of pendency of the civil proceedings, final report was submitted. Thereafter, further investigation was ordered, during which, the statement of Area Lekhpal, namely, Nirbhay Yadav, in the form of question-answer, was also recorded. The said Lekhpal was specifically asked that whether the khasra dated 25th July, 2015 showing the nature of the land as Parti, in which, the name of the applicants is mentioned, was issued under his signature. The Lekhpal categorically replied that the said document was not issued by him. The Lekhpal, in his statement, further stated to the Investigating Officer that over plot no. 1331, area 0.251 hc., a temple and an innards is recorded. He also stated that one shanty is situated in front of the temple, which belongs to Prem Chandra Vishwakarma s/o Parasnath Vishwakarma. Learned A.G.A. further submits that the statement of said Prem Chandra Vishwakarma was also recorded, who stated that the shanty was put in the front of the temple with the permission of the Secretary of the temple trust. It is also submitted that after recording the statements of other witnesses, charge sheet was filed, on which cognizance has also been taken by the court below. Learned A.G.A. next submits that the applicants have not disclosed the statements of any witness recorded by the Investigating Officer under Section 161 Cr.P.C. and are only trying to invoke the inherent jurisdiction of this Court, which is not permissible.

Learned A.G.A. lastly submits that the case laws relied by the learned counsel for the applicants are not applicable. Placing reliance on the judgment of the Hon'ble Apex Court in the case of Priti Saraf & Anr. Vs. State of NCT of Delhi & Anr., 2021 SCC Online SC 206, learned A.G.A. submits that inherent power of the High Court under Section 482 Cr.P.C. is exceptional one and great care should be taken before embarking to scrutinise the complaint/FIR/charge sheet in deciding whether the rarest of rare case is made out to scuttle the prosecution in its inception.

I have considered the arguments advanced by the learned counsel for the parties and gone through the record.

It is evident that closure report in Case Crime No. 838 of 2015 (supra) was filed by the Investigating Officer, merely on the basis of the fact that the civil suit was filed by the applicants for permanent injunction. Thereafter, further investigation was conducted, during which, the statement of Lekhpal concerned and other witnesses were recorded. In the statement of the Lekhpal, he categorically stated that he had not issued the alleged document dated 25.07.2015 as claimed by the applicants, which was also filed in the court of Civil Judge (Junior Division) in the suit proceedings. It is also evident that after due investigation, charge sheet has been filed by the Investigating Officer, on which, cognizance has already been taken by the court below vide order dated 25.08.2017 and at this stage, defence of the applicants cannot be entertained.

In the judgment of the Hon'ble Apex Court in the case of Priti Saraf (supra), while setting aside the order of the High Court, by which, criminal proceeding was quashed, Hon'ble Apex Court held that while exercising the inherent power under Section 482 Cr.P.C., the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction. Paragraphs 24 to 36 (relevant) are quoted hereunder:

"24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.

25.In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this Court in State of Haryana v. Bhajan Lal (supra). The relevant para is mentioned hereunder:--

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.

27. It has been further elucidated recently by this Court in Arnab Manoranjan Goswami v. State of Maharashtra where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.

29. In the matter under consideration, if we try to analyse the guidelines of which a reference has been made, can it be said that the allegations in the complaint/FIR/charge-sheet do not make out a case against the 2nd respondent or do they disclose the ingredients of an offence alleged against the 2nd respondent or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the 2nd respondent.

30. In the instant case, the complaint/FIR/charge-sheet as noticed above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this stage, as noticed above, whether the allegations in the complaint were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. v. P. Radhakrishna ought to be noticed. In para 3, this Court observed:--

"3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."

31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.

32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.

33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry v. Rajesh Agarwal (supra):--

"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v.Bhajan Lal [1992 Supp (1) SCC 335]"

34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.

35. The submission made by Mr. P. Chidambaram, learned senior counsel for 2nd respondent showing bonafides and taking us through the documentary evidence annexed to the counter affidavit on record to show that it was a simple case of termination because of breach of terms of the contract giving rise to a purely civil dispute or initiation of the arbitral proceedings would not attract the provisions under Sections 406, 420, 34 IPC may not hold good at this stage for the reason what is being suggested by the learned counsel for the 2nd respondent can be his defence during the course of trial but was not open to be examined by the High Court to take a judicial notice and for quashing of the criminal proceedings in exercise of its inherent powers under Section 482 CrPC.

36. So far as the further submission made by learned counsel for the 2nd respondent that if the High Court has failed to consider the charge-sheet and other material available on record, the matter be remitted back to the High Court for re-consideration afresh in accordance with law. There may be some substance in what being urged by learned counsel for the 2nd respondent but for the reason that matter has been argued threadbare before us, and learned counsel for the parties have taken us through the record of criminal proceedings. After going through the record, we are satisfied that there was sufficient material available as manifests from the record of criminal proceedings to connect the 2ndrespondent in the commission of crime. Consequently, we do not consider it appropriate to remit the matter back at this stage, as it would be an exercise in futility; on the contrary, it will just delay the proceedings, and hold the criminal trial at bay, which deserves to be expedited."

In view of above facts and discussions, application fails and stands dismissed.

Trial court is directed to expedite the trial of the proceedings, without giving any unnecessary adjournments to either of the parties.

Order Date :- 16.3.2021

VKS