Prithvi Raj & Ors. vs State (Nct) Of Delhi
1998 Latest Caselaw 918 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioners claiming to be the elected representatives of Sanatan Dharam G.K.-II Sabha (hereinafter referred to as "the Society"), have in this petition sought quashing of F.I.R. No. 119/97, of P.S. Chitranjan Park initially registered for offence under Section 448 of the Indian Penal Code (for short "I.P.C.").

2. The Sanatan Dharam Greater Kailash-II Sabha is a Society registered under the Societies Registration Act, 1860. The affairs of the Society are managed and controlled by its Executive Committee comprising 15 elected members. The Society is looking after and managing Sanatan Dharam G.K.-II Temple. One Medical Centre, Library, School and Dharamsala are also run in the temple premises and are managed by the Society. It is the admitted position that the last Executive Committee was constituted on 26.12.1993 in the General Body Meeting of the Society. Elections were due in December, 1995. Jatinder Nath, the intervener was the President and Shri S.M. Aggarwal, the General Secretary of the Society.

3. It is the petitioners case that Jatinder Nath and his associates have been trying to hold back elections on one pretext or the other. Elections were scheduled to be held on 24.3.1996. The petitioners, apprehending that Jatinder Nath and his associates were likely to tamper with the election process or to have the elections postponed with the help of other senior members of the Society, approached Civil Court, Delhi, which was pleased to appoint a Local Commissioner as an Observer, who in his report submitted to the Court exposed the fraud of Jatinder Nath and his associates and also reported that election meeting was postponed. It is further alleged that about 30 members on 3.1.1997 sent a requisition for convening of Extra Ordinary General Meeting of the Society to decide about holding of elections. On the expiry of period of 30 days there was no response from the General Secretary of the Society to this notice. As such fresh notice dated 4.2.1997 was served for requisitioning Extra Ordinary General Body Meeting on 2.3.1997 to transact the following business:

"1. To enrol all interested and eligible residents of the Colony as members of the Sabha.

2.To discuss and hold fresh elections of the Committee since the time of the present Executive Committee had expired on 31st December, 1995.

3.To entrust the management of the Shri Sanatan Dharam Sabha to the President of the GK-II Welfare Association for enrolling the new members and holding fresh elections in A reasonable time."

4. It is alleged that in response to above notice dated 4.2.1997 General Body of the Society met on 2.3.1997. The members present in the said Extraordinary Meeting unanimously decided to constitute an ad hoc Committee of five persons. It empowered them to hold free and fair elections within two months. Rajnish Goenka was elected as the President. Through letter dated 5.3.1997 Registrar of Societies was duly informed of the result of the meeting held on 2.3.1997. Copy of proceedings of the Extraordinary Annual General Body Meeting dated 2.3.1997 and copies of the notice dated 4.2.1997 and that of 3.1.1997 were also sent. In the meeting called on 16.3.1997 two Returning Officers were appointed for holding elections. Election schedule was prepared and notified by Returning Officers. Last date for filing nominations was 15.4.1994. In all 22 nomination papers were received. Scrutiny was fixed for 18.4.1997. Two nomination papers were rejected on the same day. Five candidates withdrew their candidature thereby leaving 15 candidates. As the persons to be elected were 15 and the contesting candidates were also 15, therefore, all 15 were declared duly elected unopposed on 19.4.1997 and the result was duly notified by the Returning Officers. On 20.4.1997 meeting of the General Body took place. Result of election of the members of the Executive Committee was duly approved by the General Body 15 members of the Executive Committee also elected officer bearers amongst themselves, namely, President, Vice-Chairman, General Secretary and Treasurer.

5. The petitioners have alleged that Jatinder Nath with the help of his associates made several attempts to take over the possession of the Sabha and the Temple, which came to be possessed and controlled by the petitioners. One of such attempt was immediately reported on 2.3.1997 to the police but of no effect. Another complaint dated 14.3.1997 was made. However, Jatinder Nath in connivance with local police made a frivolous complaint, which subsequently was converted into the impugned FIR dated 1.9.1997 for offence under Section 448, I.P.C. and now the local police is harassing the petitioners and other Executive Members. It is alleged that Jatinder Nath and others had already filed civil suit in this Court being Suit No. 768/97 titled as Sanatan Dharam GK-II Sabha and Others Vs. Rajnish Goenka and Others, which is still pending wherein all disputes regarding election between two rival groups is the subject matter, including the dispute that whether the petitioners are duly elected members of the Society entitled to manage its affairs. Jatinder Nath and others have no right to interfere in the Management. Proceedings under Section 145, Cr. P.C. were also initiated, which are also pending.

In the above factual back drop F.I.R. is sought to be quashed on the ground that on similar cause of action matter is already pending in Civil Court and registration of F.I.R. is nothing but an abuse of power and non application of mind by the police. The dispute is between the two rival factions with respect to the affairs of the Society. There is no mens rea. There is no question of criminal trespass. Proper mind was not applied by the police. FIR was registered in a mechanical manner at the behest of Jatinder Nath. Because of pendency of civil suit, no useful purpose will be served in continuing with the investigation of the F.I.R. as all disputes, which are sought to be raised are of civil nature without there being any criminality therein.

Learned Counsel for the parties were heard and we were taken through the record.

6. In reply filed on behalf of the respondent, it is submitted that on 10.3.1997 complaint from Jatinder Nath was received in the office of the Deputy Commissioner of Police wherein it was alleged that elections for constituting fresh Executive Committee were due in December, 1995. Notice for holding General Body Meeting was given to all Members for holding elections on 24.3.1996. Elections could not be held on 24.3.1996. Meanwhile one Shri R.S. Arora and Shri K.S. Kapoor, claiming themselves to be the Returning Officers, had issued notification for holding of elections into the Executive Committee, which were scheduled to be held on 27.4.1997. Before that date on 19.4.1997, 15 persons were declared as elected. Reply also makes reference to the two civil suits pertaining to the election dispute, stating that one suit filed by Shri Rajnish Goenka was dismissed in default while the other is pending in this Court. As the complaint dated 10.3.1997 did disclose commission of a cognizable offence, therefore a regular case vide FIR No. 119/97 under Section 448, I.P.C. was registered.

During the course of investigation evidence came on record disclosing commission of offence under Sections 468/471, I.P.C, therefore, the said provisions were also added. In addition Section 420, I.P.C. was also added to FIR on 3.3.1998 after material was collected to the effect that a new account in the name of Sanatan Dharam Mandir, GK-II Sabha has been opened at State Bank of Indore, GK-II and being operated instead of the old Bank Account in the name of Sanatan Dharam, GK-II Sabha.

7. We need not go into the question of legality or validity of the elections, alleged to have taken place, as the matter is already subjudice in Civil Suit No. 768/97 pending in the Original Side of this Court, wherein decree has been claimed against the petitioners restraining them from interfering in the affairs, working management and control and possession of property of the Sabha. The scope of the present writ petition is only to see whether in the facts and circumstances, a case has been made out for quashing of F.I.R.

8. In State of Haryana and Others Vs. Ch. Bhajan Lal and Others AIR 1952 S.C. 604, by way of illustration categories of cases were specified wherein extraordinary power under Article 226 of the Constitution read with Section 482, Cr. P.C. may be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice stating that 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 exercise. A note of caution is given that power of quashing criminal proceedings should be exercised very sparingly and that too in rarest of rare cases and that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint. Categories of cases specified in Bhajan Lal's case (supra) are as follows:

"1. Where the allegations made in the First Information Report of 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 made 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.

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 allegation 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."

9. In Bhajan Lal's case (supra) number of decisions were referred and relied upon, one of which is that of Madhavrao Jiwaji Rao Scindia and Another etc. Vs. Sambhajirao Chandrojirao Angre and Others etc, . Speaking for the Bench, Justice Ranganath Misra, as he then was in the said decision observed:

"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

In Madhavrao's case (supra), the Court held that breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. Judgment of the Bombay High Court quashing prosecution of the four accused persons for offences punishable under Sections 406/467 read with Sections 34 and 120B, I.P.C. was approved.

10. On the ratio of the decisions in Bhajan Lal's case (supra) and Madhavrao's case (supra) what deserves to be noticed is that whether taking into consideration the peculiar features present in the instant case it would be expedient and in the interest of justice to permit the prosecution to continue.

11. It is pertinent to note that before filing of the complaint dated 4.3.1997, which was received in the office of the Deputy Commissioner of Police on 10.3.1997, which led to the registration of a case for commission of criminal trespass, Rajnish Goenka had already lodged a complaint vide DD No. 7A on 2.3.1997 with Police Station Chittranjan Park, New Delhi. It was entrusted to ASIS.B. Misra, who visited the premises of the Society and reported back the result of his enquiry. This report is recorded as DD No. 10A on 2.3.1997 at 2.25 p.m. As per this report many members of the Society with Rajnish Goenka were present inside the temple. Rajnish Goenka informed that at about 11 a.m. meeting of the Executive Committee was to be held. Many members were present. Jatinder Nath and S.R. Aggarwal of the previous Executive Committee had also convened a meeting. When Rajnish Goenka and others entered the temple premises, Jatinder Nath and S.R. Aggarwal walked out. The members who were present duly appointed Rajnish Goenka as Chairman on ad hoc basis with an ad hoc committee of four other members. ASI reported that Rajnish Goenka brought to his notice that ad hoc committee, which had been constituted by the Members was in possession of the Society is property including temple but excluding the cash box and documents. As such the cash box and other documents were not touched by them. As per the report of the ASI there was no likely-hood of any quarrel, therefore, no further action was required on the complaint of Mr. Goenka and moreover the S.H.O. had instructed the beat constable and head constable to pay more attention towards the temple side, to avoid any untoward incident.

12. In view of the report of the A.S.I. and the fact that dispute is of a civil nature about the right to manage the affairs of the Society and of the fact that erstwhile Executive (through in the name of the Sabha) has already approached this Court by filing civil suit for injunction wherein all disputes including the one that whether the petitioners are entitled or not to manage the affairs of the temple and the property of the Society, we are of the view that it is one of those case where no useful purpose is likely to be served to allow the prosecution to continue. There is no criminality attached to the alleged acts of managing the affairs of the Society by the petitioners.

13. Mr. Gandhi pointed out that during the course of investigation the petitioners were asked to produce the original record, which were not produced and evidence had come that there might be some tampering with the record of the so called elections, there fore, there is no question of quashing of criminal proceedings. Such a contention does not hold good inasmuch as the question whether the petitioners have or have not been validly elected is a dispute of a civil nature and such disputed questions of fact will have to be decided on the basis of evidence to be led in civil suit. In case during the pendency of the civil suit it is shown that some documents were tampered with, law will have its own course and at that stage prosecution can be directed to be launched against the persons found to be committing act of forgery. Act of a rival group claiming to have come in possession under a bona fide claim of right on the basis of a meeting alleged to have been held will not fall in the category of criminal trespass but would be trespass of a civil nature, for which the matter will have to be dealt with and decided in civil jurisdiction and not in criminal jurisdiction. The mere fact that without touching or operating the Bank Account, which had been opened by the erstwhile executive, fresh account in the name of Society has been opened by the petitioner will not bring it in the mischief of Section 420, I.P.C. For these reasons, we are of the view that F.I.R. in question deserves to be quashed and set aside.

14. Consequently, the petition is allowed. FIR and proceedings taken thereunder are quashed. However, it is made clear that observations made while deciding this petition will not prejudice any of the parties in any pending litigation or other proceedings.