Nanak Singh Sehgal And Ors. vs The State And Ors.
2002 Latest Caselaw 431 Del

JUDGMENT

V.S. Aggarwal, J.

1. Nanak Singh Sehgal and others have pressed into service provisions of Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure for quashing FIR No. 139/2000 registered at Police Station Model Town, Delhi with respect to offence punishable under Section 147, 149, 341, 454, 380, 458 and 506 of the Indian Penal Code.

2. The facts of the petitioners case can be delineated to be that most of them are office bearers of Gurdwara Gujranwala Town Satsang Sabha. The plot of land underneath Gurdwara measuring 241.67 sq. yds was owned by Permanand Chhabra who donated the same in favor of Gurudwara Gujranwala Town Satsangh Sabha vide a Power of Attorney, agreement to execute the conveyance deed etc. Subsequently it is claimed that document in support were also executed in favor of Gurudwara Gujranwala Town Satsang Sabha. Thereafter the plot was constructed upon and Gurudwara building was set up. Respondent No. 2, O P Arora claimed himself to be a doctor. he played a trick on the previous owner and some how entered into the ground floor rear portion of property bearing No. 45, Gujranwala Town, Delhi. On 18.2.2001 the Junior Engineer from Municipal Corporation approached the Police Station Model Town and requested for early assistance for demolition of unauthorised construction of plot No. B-45 Gujrawala Town, Delhi. Respondent No. 2 lodged a daily diary entering alleging that a dacoity has taken place. The spot was visited by the police and respondent No. 2 thereupon has informed that somebody had wrongly informed the police control room in this regard.

3. Thereafter respondent No. 2 through a friend filed a criminal writ petition No. 170/2000 seeking a direction for tracing the respondent No. 2 O P Arora and for registration of the First Information Report. Thereafter respondent No. 2 got a registered a first information report No. 139 of 2000 in question. After registration of first information report petitioners' had claimed anticipatory bail from the court of Additional Sessions Judge. The petitioners had been admitted to anticipatory bail. On 29th march, 2000 this court dismissed the criminal writ petition No. 170/2000 when respondent No. 2 was produced to have become infructuous.

4. A suit No. 303/2000 had been filed by Gurudwara Gujranwala Town Satsangh Sabha referred to above against respondent No. 2 and Delhi Vidyut Board. In the said suit a compromise was arrived at between the petitioners and respondent No. 2. Respondent No. 2 had agreed to receive a sum of Rs. 7 lakhs in full and final settlement of all claims and for handing over portion of the property in this occupation. A sum of Rs. 5,50,000/- was received by him. He handed over the keys of the portion in his possession and the balance was to be paid to him as understood by him on cancellation/withdrawal/quashing of the first information report No. 139/2000 Police Station Model Town. The statement of the parties were recorded in civil suit and respondent No. 2 even had sworn an affidavit in this regard. Even this court had taken note of the said compromise to have been arrived at between the parties and respondent No. 2 while the earlier writ petition No. 296/2000 was dismissed to be withdrawn.

5. petitioners seek quashing of the first information report alleging that despite the compromise and payment of the amount to respondent No. 2 he has taken little steps in that direction and a valid compromise has been arrived at. It is further claimed that nothing incriminating even had been found against the petitioners.

6. Respondent No. 2 had appeared in person. He was afforded an opportunity to engage a counsel but he declined. He submitted his written submissions and statement in this regard. Respondent No. 2 claimed that no State machinery had earlier come to his rescue. The petitioners had looted his house and destroyed it completely. The police had detained him for quite a long time. He is hiding and changing his place of residence. The documents placed by the petitioners were stated not genuine as such he further claimed that there cannot be a compromise so as to quash a first information report with respect to a non-compoundable offence.

7. During the submissions our attention was drawn to the Full Bench decision of this court in the case of Gurucharan Singh Bhawani v. State and Anr. 2002 I AD (Delhi) 576. This court was considering the question as to whether in exercise of the powers under Section 482 of the Code of Criminal Procedure non-compoundable offence permitted to be compounded or not. The Full Bench scanned through various precedents and held that what is not permissible under Section 302(9) of the Code of Criminal Procedure cannot be made permissible under Section 482 of the Code of Criminal Procedure. Inherent powers cannot be utilised in derogation of specific prohibition under the Code of Criminal Procedure. It was further held that what is not permissible under Section 482 of the Code of Criminal Procedure cannot be achieved by referring to Article 226 of the Constitution.

8. The decision of the Full Bench indeed has a binding force, but the question herein is not as to whether a non-compoundable offence is being made compoundable or not. The petitioners seeks quashing of the first information report to be an abuse of the process of the court and further asserts that it is a fraud on the court as such.

9. Section 482 of the Criminal Procedure Code in its stark brevity reads :-

"482. Saving of inherent power of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

10. It is patent from the aforesaid that that Section 482 of the Code of Criminal Procedure saves inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of the court or to secure the ends of justice.

11. The Supreme Court in the case of R P Kapur v. State of Punjab was concerned with the inherent powers of the court under Section 561-A of the Criminal Procedure Code. The Supreme Court held that normally the accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere. But the High Court can take a view that institution or continuation of the criminal proceedings may amount to abuse of the process of the court and in that even should quash the proceedings. The Supreme Court held:-

".....It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends os justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned processings would secure the ends of justice...."

12. A Division Bench of the Andhra Pradesh High Court in the case of R. Narapa Reddy v. Jagarlumudi and Ors. too was concerned that the question as to what is meant by abusing the process of the court and it was held:

"17. Abusing the process of the Court is a term generally applied to proceeding which is wanting in bona fides and is frivolous, vexatious, or oppressive. ....."

13. At this stage it would be appropriate further to refer to the decision of the Supreme Court in the case of State of Karnataka v. L. Muniswamy and Ors. . Thereto the Supreme Court once again concluded that if the court comes to a conclusion that allowing of the proceedings would be an abuse of the process of the court, the High Court in exercise of its inherent powers can quash the same. The precise finding in this regard are:-

"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature....."

14. The decision rendered by the Supreme Court in the case of State of Harayana and Ors. v. Bhajan Lal and Ors. is also in the same direction. The Supreme Court without being exhaustive laid certain guidelines as to when the first information can be quashed. Those guidelines were by way of illustrations. But it was held that extraordinary powers under Article 226 and inherent powers under Section 482 of the Code of Criminal Procedure can be utilised to prevent the abuse of the process of the court. The Supreme Court concluded :

"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 Article 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 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."

15. The same guidelines were provided by the Supreme Court even few years later in the case of State of UP v. O P Sharma when it held that inherent powers can be utilised to advance the cause of justice and the Supreme Court concluded:-

" When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the court exercises its inherent power under Section 482, the prima consideration should only be whether the exercise of the power advance the cause of justice or it would be an abuse of the process of the court. ....."

16. Consequently it must be concluded keeping in view the principles involved above that to advance the cause of justice or to abuse the process of court the inherent powers under Section 482 of the Code of Criminal Procedure besides extraordinary jurisdiction of this court under Article 226 can be utilised and further that decision of the Full Bench of this court in the case of Gurcharan Singh(supra) has little application in the facts as would be noticed hereinafter.

17. Respondent No. 2 had got registered a first information report with respect to offenses punishable under Section 147, 149, 341, 452, 380, 448, 506 of the Indian Penal Code at Police Station Model town. It appears that parties have been in a prolonged litigation. A petition even had been filed for habeas corpus and when respondent No. 2 was produced the said petition was dismissed to have become infructuous. A Civil Suit had been filed by Gurudwara Gujranwal Town Satsangh Sabha, a registered society and the matter as such before the learned Civil Judge had been compromised. Therein an application under Order 23 Rule 3 of the Code of Criminal Procedure was filed and Rs. 7 lakh was said to be paid to respondent No. 2 in full and final settlement of the claims. The relevant extract of the same reads:-

"II). That the plaintiff has agreed to pay a sum of Rs. 7,00,000/- (Rs. Seven Lacs only) to the defendant No. 1 towards the full and final satisfaction of all the claims of the defendant No. 1 in premises bearing No. B-45, Gujranwala Town Part-I, Delhi-110009 and for handing over the possession of the said portion under his occupation of the plaintiff, and which amount the defendant No. 1 has agreed to receive from the plaintiff."

"V) That another criminal case titled as State.. v. ..Avtar Singh and others i.e. against 11 persons of the Gurdwara Committee members under Sections 147,149, 341, 448, 454, 380, 506 I.P.C. vide F.I.R. No. 139/2000 pertaining to P.S. Model Town is pending investigation previously with the Police Station: Model Town and now at present being investigated by the District Crimes Cell, Pitampura.

That the defendant No. 1 shall move the proper applications to the different Authorities i.e. to the Commissioner of Police, Deputy Commissioner of Police, Lt. Governor and to the Chief Minister etc. for the withdrawal/quashig/cancellation of the said case F.I.R. No. 139/2000 and the defendant No. 1 Shri Om Prakash Arora shall make all sincere efforts for getting the criminal case F.I.R. No. 139/2000 quashed/withdrawn/ compromised/cancelled against the 11 members of the plaintiff Gurdwara namely S/Shri Avtar Singh Anand, Nanak Singh, Udham Singh, Singh, Varinder Pal Singh alisa Billa, Krishan Lal Dua, Bhupinder Malhotra, Jasbir Singh Thukral, Mohan Singh Dhanjal and his son and one anther person and most of them being the Committee members of the Gurdwara namely Gurdwara Gujranwala Town Satsang Sabha ......"

18. Before the civil court even the affidavit had been filed by respondent No. 2 stating that the petitioners were not responsible for any such offence. The said decision of the civil court on basis of the compromise had been echoed even in this court in criminal writ petition No. 296/2000. This court recorded:-

"...Reading of the same show that all the claims of the parties have been settled in terms of the application under Order 23 Rule 3 CPC. Said application bears the signature of the parties. Affidavits in support of the same were also filed by the parties. Petitioner has received a Pay Order of Rs. 5,50,000/- which was in terms of the agreement. The terms and conditions of the agreement are contained in Ex. C-1 (filed by the respondents with their reply). As per agreement the present petitioner undertook to abide by the terms of the same. The perusal of Ex. C-1 shows that petitioner had undertaken to withdraw this writ petition bearing No. 296/2000 titled as Dr. Om Prakash Arora v. State and Ors. He had undertaken that he would withdraw this writ petition on or before but latest by 4.9.2000.

Mr. O P Wadhwa appearing for the respondents No. 4 to 13 contends that in view this undertaking given by the petitioner before the Civil Judge vide his statement dated 29.5.2000 this petition cannot survive. Petitioner has already received consideration amount of Rs. 5,50,000/-. That the respondents No. 4 to 13 are prepared to pay the balance amount of consideration of Rs. 1,50,000/- on the qushing of this FIR. He further says that the moment petitioner makes the statement in court on that very day draft of Rs. 1,50,000/- will be handed over to him.

In this view of the matter counsel for the petitioner says on instruction from petitioner that he wants to withdraw this petition. petition is accordingly dismissed as withdrawn. dusty to both the parties.

19. Now at this stage respondent No. 2 is not interested in this regard. it was told to respondent No. 2 in court that he may accept the balance amount of Rs. 1.5 lakhs but he had certain other conditions which are extraneous to the compromise that has been arrived at. He had already received Rs. 5.5 lakhs of the amount.

20. Once a person has made the other agreed to act in a particular manner and received a huge amount of Rs. 5.5 lakhs and petitioners are ready to pay the balance amount it would be improper to allow continuation of the proceedings. Respondent No. 2 in this process is abusing indeed the process of the court. It would be in the interest of justice that proceedings are quashed keeping in view the events. The opposition by respondent No. 2 at this stage therefore will be of little avail.

21. In an identical manner in the case of Satish Gathwal and Ors. v. State and Anr. 1998 (2) Journal of Criminal Cases (Delhi) 114 this court found that when such is the situation the first information should be quashed. In paragraph 17 this court recorded:-

"17. Her statement was a representation made and undertaking given before this Court that she will not pursue her complaint and on the basis of this, the petitioner has given and she has accepted Rs. 6.00 lakhs in part satisfaction of the agreement. This is very unfortunate that she is now backing out from this undertaking. She is estopped in law from withdrawing her undertaking and representation. This would amount to committing Contempt of Court by her. From the agreement entered into between the parties and which is confirmed by them in Court, no doubt is left that this was a package deal for divorce as well as for quashing the criminal proceedings. By denying this agreements, she is certainly misusing the process of the Court. The Court would not allow a party to misuse its process."

22. Indeed identical is the position herein. At the risk of repetition it can be stated that respondent No. 2 had taken a huge amount to settle the disputes and now he is retracing his steps. The petitioners are willing to pay Rs. 1.5 lakhs which is the balance amount. Respondent No. 2 indeed cannot be allowed to do so. The process of law cannot be allowed to be misused because in that event it will tantamount to putting an end to the proceedings of the civil court where a compromise had been recorded and even by this court in criminal writ petition already referred to above. That never can be intention of law. The long arm of law will not permit abusing the process of the court.

23. Consequently it is directed that petitioners will deposit the balance amount of Rs. 1.5 lakhs with the Registrar of this court. Respondent No. 2 if he chooses can apply for withdrawal of the same. Subject to the aforesaid the first information report No. 139/2000 is quashed.