Pradeep Kumar vs State Of U.P. And Another
2022 Latest Caselaw 2135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved On 13.04.2022
 
Judgment Delivered On 06.05.2022
 
Court No. - 91 
 
Case :- APPLICATION U/S 482 No. - 16839 of 2006 
 

 
Applicant :- Pradeep Kumar 
 
Opposite Party :- State of U.P. and Another 
 
Counsel for Applicant :- Rajiv Gupta,Harish Chandra 
 
Counsel for Opposite Party :- Govt. Advocate 
 
Hon'ble Syed Aftab Husain Rizvi, J.

1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and learned Sri Vinod Kant Srivastava, learned Additional Advocate General for the State and perused the material on record.

2. This criminal misc. application U/s 482 Cr.P.C. is filed to quash the impugned order dated 14.11.2005 and proceeding pending in the court of Special Judicial Magistrate (C.B.I.) Ghaziabad as case no.3544 of 2005 (State vs. Pradeep Kumar) for the offences under Sections 448, 323, 504 & 506 IPC, P.S. Link Road, Ghaziabad.

3. The submissions of learned counsel for the applicant are that the dispute is regarding the flat/ house no.62 HIG Duplex, Chandra Nagar Tehsil-Dadri, District Ghaziabad. It was allotted by GDA to opposite party no.2 and her husband on 29.06.1983 under self-financing scheme by depositing Rs.19,510/- only. The remaining amount was to be deposited in installments. Regarding the property in question, an agreement to sale was executed by opposite party no.2 and her husband- Sri K.S. Kumar on 22.06.1990 in favour of the applicant. Sri K.S. Kumar also executed a will in favour of the applicant on the same date and possession of the flat was also given under a receipt which was executed after payment of the whole agreed amount. The applicant deposited Rs. 2,98,335/- on 24.06.2003 in pursuance of demand letter of GDA as per the terms and conditions of the agreement. The other relevant documents were also handed over to opposite party no.2, so that the sale deed be executed by GDA directly in favour of the applicant as per the scheme available at that point of time. Applicant started to live in the flat and also paid water tax and house tax. Due to price hike of the property, the opposite party no.2 and her husband became dis-honest. They tried to take forceful possession of the flat on 07.01.2004. Applicant instituted a Civil Suit for specific performance of agreement in which the opposite party no.2 appeared and filed her written statement. Under the evil design, the opposite party no.2 filed a complaint before the SSP on 23/27.04.2004. The C.O.- III made an enquiry and submitted a detailed report that allegations are false. When the opposite party no.2 could not get the desired result, she lodged an FIR on 08.05.2005 registered as crime no.86 of 2005, under Section 448, 323, 504, 506 IPC, alleging therein that complainant is the true owner of the flat and Pradeep Kumar is trying to take it illegal possession. After detailed investigation, it was found that property in question has been sold to the Pradeep Kumar and final report was submitted.

Against the final report, the opposite party no.2 filed objections and the learned Magistrate vide order dated 14.11.2005 has taken cognizance and issued summons to the applicants. On the other hand the opposite party no.2 again tried to take illegal possession of the flat in question with the help of police and hence the applicant made a complaint before SSP Ghaziabad who sought a report regarding the matter by directing S.P. City Ghaziabad. The S.P. City inquired into the matter and submitted his report dated 02.01.2006 before S.S.P. Ghaziabad, specifically stating that the Civil Suit is pending regarding the property in question. He also stated that the allegations made by Smt. Vinita Kumar were found to be incorrect. The opposite party no.2 Smt. Vinita kumar again lodged an FIR on 03.10.2006 at P.S. Link Road, Ghaziabad which was registered as case crime no.313 of 2006 U/s 419, 420, 506, 467 and 468 IPC. It is alleged in the said impugned FIR that an offence of cheating and fraud has been committed by applicant/ Pradeep Kumar regarding the flat in question. The impugned FIR does not disclose any offence, which could be alleged to be committed by petitioner and indicates to a Civil dispute. The police rightly submitted the final report in the matter in issue and hence the learned Magistrate should not have passed the summoning order dated 14.11.2005.

4. Learned counsel for the opposite party no.2 and learned AGA for the State submitted that there are allegations of criminal acts against the applicant. The informant has also corroborated the allegations of the FIR in his statement U/s 161 Cr.P.C. The Investigating Officer has submitted the final report only on the ground that some civil litigation is pending. Learned Magistrate being satisfied with the material available in the case diary has come to the conclusion that a prima-facie criminal case is made out has rejected the final report and taken cognizance of the offence. There is no illegality in the impugned summoning order.

5. From the material on record, it is quite clear that civil dispute is going on between the parties regarding disputed house. According to applicant, possession was delivered by the opposite party No.2 by the executing an agreement. The allegations levelled against in the FIR are also contradictory and improbable. The Investigating Officer has come to the conclusion that property has been sold to the applicant (accused) and possession was also delivered. Hence the allegations of the FIR does not stand corroborated. The learned Magistrate has not taken any evidence and has passed the summoning order only on the basis of material available in the case diary. He has also not recorded his finding that from the material available on case diary, a prima-facie case is made out against the applicant-accused. He has simply recorded the finding that the Investigating Officer has submitted the final report on the basis of pending cases and on the basis of objections and affidavits filed by the applicant, cognizance is liable to be taken and has taken cognizance accordingly. The impugned order is wholly arbitrary and illegal. The learned Magistrate has not discussed, the evidence on the basis of which he reached to the conclusion that prima-facie case is made out against the applicant.

6. From the material available on the record, it transpires that there is a dispute between the parties regarding flat/ house allotted to opposite party no.2 by GDA and regarding which agreement has taken place between the parties. In pursuance of this agreement the applicant complied the demand notice of GDA and has deposited the amount there. He is also in possession of the aforesaid house. So the dispute between the parties is of Civil in nature. The applicant has also filed a Civil Suit for specific performance of contract and the matter can finally be decided by the Civil Court.

In case of 'State of Haryana and others Vs. Ch. Bhajan Lal and others', in Civil Appeal No.5412 of 1990, decided on 21.11.1990, the Hon'ble Apex Court in paragraph no.108 has laid down following norms for exercising powers under section 482 Cr.P.C.":-

"108. 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.

(i). 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.

(ii). Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. 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.

(iii). 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.

(iv). Where, the allegations in the F.I.R. 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.

(v). Where the allegations made in the F.I.R. 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.

(vi). 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 oncerned Act, providing efficacious redress for the grievance of the aggrieved party.

(vii). 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."

7. Applying the aforesaid principle of law on the facts and circumstances of the case, this Court is of considered opinion that charge-sheet and continuation of proceedings is an abuse of the process of court, which is liable to be quashed.

8. Accordingly the application U/s 482 Cr.P.C. is allowed and the proceeding is hereby quashed.

Order Date:- 06.05.2022

C.Mani