Allahabad High Court
Kamil Nisha Begum And Another vs State Of U.P. And 2 Others on 21 September, 2023
Bench: Vivek Kumar Birla, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:182766-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 13527 of 2023
Petitioner :- Kamil Nisha Begum And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Narendra Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vinod Diwakar,J.
1. Heard Sri Narendra Kumar Singh, learned counsel for the petitioners and Sri Ratan Singh, learned A.G.A for the State respondents.
2. The relief sought in this petition is for quashing of the F.I.R. dated 24.6.2023, registered as Case Crime No. 0309 of 2023, under Sections 420, 467, 468, 471, 504, 506 IPC and Section 3 (1) (d), 3 (1) (dha) of SC/ST Act, Police Station Maudarwaja, District Farrukhabad. Further prayer has been made not to arrest the petitioner in the aforesaid case.
3. On 25.8.2023 following order was passed:
"Learned counsel for the petitioner sought time to file supplementary affidavit explaining criminal history of 23 cases. He is desired to file bail orders of the judgments/ final reports and every documents establishing his assertion, within a week.
Put up this case on 05.09.2023 as fresh before appropriate Court."
4. Pursuant to the aforesaid order, no supplementary affidavit has been filed.
5. Learned AGA, on instructions, submits that the petitioners have criminal history of 23 cases.
6. Learned counsel for the petitioners submits that the petitioners have been acquitted in large number of cases and have also been granted bail.
7. Learned AGA has pointed out that petitioners have committed heinous offences under Sections 302, 307 IPC as well including the offences of similar nature.
8. At this stage, learned counsel for the petitioners prays that the petitioners may be permitted to withdraw the present petition with liberty to file fresh petition with better particular.
9. Under these circumstances, we are not inclined to grant any liberty to file fresh petition and therefore, we proceed to consider the matter on merit.
10. Learned counsel for the petitioners submits that the petitioners have been falsely implicated in the present case. It is submitted that the petitioner no. 1 is the mother of petitioner no. 2 and no offence as alleged against them has been made out. It is further submitted that the respondent-informant is not related to the land in question, however, dispute is between the Nagar Palika and petitioner is pending, therefor, it is a purely civil dispute, which is being given colour of criminal case and there is huge delay of lodging the FIR from the date of sale deed in question.
11. Per contra, learned AGA reiterated about the criminal history of 23 cases against the petitioners and on bare reading of the FIR, a cognizable offence has been made out and mere pendency of civil dispute cannot be a ground for quashing the FIR and all such arguments that are being raised by the learned counsel for the petitioners is nothing but the defence, which cannot be considered for the purpose of quashing the FIR.
12. We have gone through the FIR and perused the record.
13. This Court is of the opinion that in the fact and circumstances of the case mere pendency of a civil suit by itself is not sufficient to quash the proceedings.
14. This aspect of the matter has been considered by us in our judgement and order dated 23.8.2023 passed in Criminal Misc. Writ Petition No. 11789 of 2023 (Tuphail Ahmad and 5 others vs. State of UP and 3 others), paragraphs 9, 10, 11, 12 and 13 are quoted as under:
"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 vs. Bhajaj Lal (Supra).
(Emphasis supplied)
10. The Hon'ble Apex Court in Paramjeet Batra vs State Of Uttarakhand & Others, (2013) 11 SCC 673 has clearly held that the complaint disclosing civil transactions may also have criminal texture. Para 12 of the said judgment reads as under:-
"12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court."
(Emphasis supplied)
11. In Vesa Holdings Pvt. Ltd. & Anr. Vs State of Kerala & Ors, (2015) 8 SCC 293 the Hon'ble Apex Court has held that given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. Relevant extract of para 13 of the said judgment reads as under:-
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not?."
(Emphasis supplied)
12. A Co-ordinate Bench of this Court in Criminal Misc. Writ Petition No.18302 of 2022 (Dilip Kumar Singh @ Deepu Singh vs. State of U.P. and 3 Others) has held as under:-
"Considering the aforesaid facts, it cannot be denied that there is no express bar to the simultaneous continuance of a criminal proceeding as well as civil proceedings. Citing the decision rendered by Hon'ble Supreme Court in (1999) 8 SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwal & Others). It has been held that criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit.
Thus, even if the civil proceedings are subjudice before the Provident Fund Commissioner, Varanasi, the criminal prosecution can still proceed against the petitioner.
Having considered the submissions advanced by learned counsel for the parties and from the perusal of records, it is apparent that the allegations in the FIR do constitute ingredients of a cognizable offence.
(Emphasis supplied)
13. In this view of the matter and the law laid down by the Hon'ble Apex Court in the case of Trisuns Chemical Industry (supra), Paramjeet Batra (supra), Vesa Holdings (supra) as well as judgment passed by a Co-ordinate Bench of this Court in the case of Dilip Kumar Singh @ Deepu Singh (supra) and considering the facts and circumstances of the case as alleged in the first information report and the contents of the Original Suit No.191 of 2023 (Tuphail Ahmad vs. Rajesh Tandon) as already discussed in the proceeding paragraphs, we find that the argument of the learned counsel for the petitioners that as a civil dispute is pending and no criminality is attached in the act, is not sustainable in the eye of law hence, stands rejected."
15. In such view of the matter, present petition stands dismissed.
Order Date :- 21.9.2023
Abhishek
