Himachal Pradesh High Court
Reserved On: 03.10.2024 vs State Of Himachal Pradesh & Others on 25 October, 2024
2024:HHC:10292
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No.939 of 2024
Reserved on: 03.10.2024
Date of Decision: 25.10.2024.
Naina Kohli ...Petitioner
Versus
State of Himachal Pradesh & others ..Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla
Whether approved for reporting?
For the Petitioners : Mr. Sunil Kumar, Advocate.
For the Respondents : Mr Jitender Sharma, Additional
Advocate General for respondent No.1
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing
of F.I.R. No. 155 of 2018, dated 12.06.2018, registered for the
commission of an offence punishable under Section 420 of Indian
Penal (IPC) at Police Station Shimla West, Himachal Pradesh.
2. Briefly stated, the facts giving rise to the present petition
are that respondent No.2/informant filed a complaint before the
police asserting that he had entered into an agreement with Smt.
Naina Kohli (present petitioner) to buy 8 Biswas of the land for
₹1,61,000/. He paid the amount to the petitioner and the petitioner
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acknowledged its receipt on 22.12.1993. It was agreed that the seller
would execute the sale deed after obtaining permission under Section
118 of the H.P. Tenancy and Land Reforms Act. The petitioner
approached the informant to sell three biswas of land adjoining the
land earlier proposed to be sold. This land was to be sold for a
consideration of ₹1,03,000/-. A new agreement was executed on
24.06.2000 for the purchase of eleven biswas of the land for a total
consideration of ₹2,64,000/-. The balance amount of ₹1,03,000/- was
to be paid at the time of the execution of the sale deed. The petitioner
requested the informant for some money on which the informant paid
an amount of ₹33,000/- and a new agreement was executed between
the parties. The informant visited Shoghi repeatedly and requested
the petitioner to cooperate in seeking permission under Section 118 of
the H.P. Tenancy and Land Reforms Act. The permission was granted
by the Deputy Commissioner. The informant was asked to get the
latest Jamabandi of eleven Biswas of land. When the informant
obtained Jamabandi, he found that the petitioner had sold four biswas
of land agreed to be sold to the informant. The petitioner was
refusing to honour the agreement. When the informant went to the
petitioner's house, she threatened him and asked him not to pursue
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the matter. Hence, an application was filed to take action against the
petitoner as per law.
3. Being aggrieved from the registration of the F.I.R. the
petitioner approached the Court by filing the present petition. It was
asserted that the informant made false allegations of cheating to get
an undue advantage. The informant filed a protest petition seeking
further investigation into the matter. The Police have submitted a
cancellation report in which it was submitted that no criminal case
was made out and the matter was civil. The informant had pleaded
false facts in the complaint. An agreement to sell does not confer any
title upon a person in whose favour such an agreement was executed.
The informant had suppressed the material facts and filed a false F.I.R.
to damage the petitioner's reputation. Therefore, it was prayed that
the present petition be allowed and the F.I.R. be ordered to be quashed.
4. I have heard Mr. Sunil Kumar, learned counsel for the
petitioner and Mr. Jitender Sharma, learned Additional Advocate
General for respondent No.1/State.
5. Mr Sunil Kumar, learned counsel for the petitioner
submitted that a false complaint was made against the petitioner to
damage her reputation. The allegations in the F.I.R. do not constitute
the commission of cognizable offence. Therefore, he prayed that the
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present petition be allowed and the F.I.R. be ordered to be quashed. He
relied upon Sarabjit Kaur vs. the State of Punjab 2023(5) SCC 360 in
support of his submission.
6. Mr Jitender Sharma, learned Additional Advocate General
for respondent No.1 submitted that truthfulness or otherwise of the
allegations are not to be seen at this stage. The Court is only
concerned with the allegations in the F.I.R. while deciding the petition
under Section 482 of Cr. P.C. The allegations in the F.I.R. constitute the
commission of cognizable offence. Therefore, he prayed that the
present petition be dismissed.
7. I have given considerable thought to the submission made
at the bar and have gone through the record carefully.
8. The law regarding the exercise of jurisdiction under
Section 482 of Cr.P.C. was considered by the Hon'ble Supreme Court in
A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was
observed:-
"9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court in
the case of Indian Oil Corporation v. NEPC India Limited (2006) 6
SCC 736: 2006 INSC 4521 after considering the earlier precedents.
It will be apposite to refer to the following observations of this
Court in the said case, which read thus:
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"12. The principles relating to the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure to
quash complaints and criminal proceedings have been stated
and reiterated by this Court in several decisions. To mention
a few--Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh
Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of
Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC
591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla
[(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State
NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC
269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State
of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M.
Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19]
and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful
Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles,
relevant to our purpose are:
(i) A complaint can be quashed where the allegations
made in 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 the case alleged
against the accused.
For this purpose, the complaint has to be examined as a
whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a meticulous
analysis of the material nor an assessment of the
reliability or genuineness of the allegations in the
complaint is warranted while examining prayer for
quashing a complaint.
(ii) A complaint may also be quashed where it is a clear
abuse of the process of the court, as when the criminal
proceeding is found to have been initiated with mala
fides/malice for wreaking vengeance or to cause harm,
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or where the allegations are absurd and inherently
improbable.
(iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power
should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence alleged. If
the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients
have not been stated in detail, the proceedings should
not be quashed. Quashing of the complaint is warranted
only where the complaint is so bereft of even the basic
facts which are necessary for making out the offence.
(v.) A given set of facts may make out : (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil
wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in civil
law, may also involve a criminal offence. As the nature
and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or has
been availed, is not by itself a ground to quash the
criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal offence
or not."
9. Similar is the judgment in Maneesha Yadav v. State of U.P.,
2024 SCC OnLine SC 643, wherein it was held: -
"12. We may gainfully refer to the following observations of
this Court in the case of State of Haryana v. Bhajan Lal1992 Supp
(1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
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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
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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 to spite him
due to private and personal grudge.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should
be exercised very sparingly and with circumspection
and that too in the rarest of rare cases; 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 FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice."
10. The present petition has to be considered as per the
parameters laid down by the Hon'ble Supreme Court.
11. The F.I.R. consists of two parts: the first part is about an
agreement to sell between the petitioner and the informant and the
petitioner not adhering to her part of the contract and the second part
is about the threat advanced to the informant when he visited the
petitioner's house in connection with the agreement executed
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between him and the petitioner. The first part prima facie constitutes a
civil liability and is enforceable in Civil Court by way of specific
performance but the second part is purely a criminal matter because
threatening a person amounts to criminal intimidation, which is
cognizable by the police as well as the Court.
12. It was submitted that the allegations are false. This Court
cannot determine the truthfulness or falsity of the allegations in the
proceedings for quashing of F.I.R because it is a matter of trial to be
adjudicated by the learned Trial Court where the matter is pending.
This position was laid down in Maneesha Yadav v. State of U.P., 2024
SCC OnLine SC 643 wherein it was held: -
"13. As has already been observed hereinabove, the Court would
not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made
in the FIR or the complaint at the stage of quashing of the
proceedings under Section 482 Cr. P.C. However, the allegations
made in the FIR/complaint, if taken at its face value, must
disclose the commission of an offence and make out a case
against the accused. At the cost of repetition, in the present
case, the allegations made in the FIR/complaint even if taken at
its face value, do not disclose the commission of an offence or
make out a case against the accused. We are of the considered
view that the present case would fall under Category-3 of the
categories enumerated by this Court in the case of Bhajan
Lal (supra).
14. We may gainfully refer to the observations of this Court in
the case of Anand Kumar Mohatta v. State (NCT of Delhi),
Department of Home (2019) 11 SCC 706: 2018 INSC 1060:
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"14. First, we would like to deal with the submission of
the learned Senior Counsel for Respondent 2 that once
the charge sheet is filed, the petition for quashing of FIR
is untenable. We do not see any merit in this submission,
keeping in mind the position of this Court in Joseph
Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of
Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph
Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7
SCC 59: (2011) 3 SCC (Cri) 23], this Court while deciding
the question of whether the High Court could entertain
the Section 482 petition for quashing of FIR when the
charge-sheet was filed by the police during the pendency
of the Section 482 petition, observed: (SCC p. 63, para 16)
"16. Thus, the general conspectus of the various
sections under which the appellant is being
charged and is to be prosecuted would show that
the same are not made out even prima facie from
the complainant's FIR. Even if the charge sheet
had been filed, the learned Single Judge [Joesph
Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj
365] could have still examined whether the
offences alleged to have been committed by the
appellant were prima facie made out from the
complainant's FIR, charge-sheet, documents, etc.
or not."
13. Hence, it is not permissible for the Court to go into the
truthfulness or otherwise of the allegations made in the FIR.
14. It is undisputed that the matter is pending before the
learned Trial Court, which is seized of the matter. It was laid down by
the Hon'ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734:
2023 SCC OnLine SC 949 that when the charge sheet has been filed,
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learned Trial Court should be left to appreciate the same. It was
observed:
"At the same time, we also take notice of the fact that the
investigation has been completed and charge-sheet is
ready to be filed. Although the allegations levelled in the
FIR do not inspire any confidence particularly in the
absence of any specific date, time, etc. of the alleged
offences, we are of the view that the appellants should
prefer a discharge application before the trial court under
Section 227 of the Code of Criminal Procedure (CrPC). We
say so because even according to the State, the
investigation is over and the charge sheet is ready to be
filed before the competent court. In such circumstances,
the trial court should be allowed to look into the materials
which the investigating officer might have collected
forming part of the charge sheet. If any such discharge
application is filed, the trial court shall look into the
materials and take a call whether any case for discharge is
made out or not."
15. In view of the above, there is no reason to quash the F.I.R.
therefore, the present petition fails and the same is dismissed, so also
the pending applications, if any.
16. The observation made hereinabove shall remain confined
to the disposal of the petition and will have no bearing, whatsoever,
on the merits of the case.
(Rakesh Kainthla)
25 October, 2024
th
Judge
(ravinder)
