Ranjit Kalra And Others vs Romala Kapoor
2023 Latest Caselaw 1005 j&K

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                   LADAKH AT JAMMU


                                       CRMC No. 73/2012


                                                Reserved on: 10 .05.2023
                                             Pronounced on: 18 .05.2023

Ranjit Kalra and others

                                       ...petitioners
                          Through: - Mr.Pranav Kohli Sr. Advocate
                                     with
                                       Mr. Sachin Dev Sigh Advocate


Vs.

Romala Kapoor

                                       ...respondents
                          Through: -   Mr. Supreet Singh Johal Advocate.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1 The petitioners have challenged the complaint filed by the

respondent/complainant against them alleging commission of offences

under Sections 323, 379, 380, 382, 382, 451 and 506 RPC read with

Section 120-B RPC which is stated to be pending before the Court of

learned Chief Judicial Magistrate, Jammu. Challenge has also been

thrown to order dated 27.05.2011 passed by the learned CJM whereby

the learned Magistrate has, after observing that, prima facie, offences

under Sections 452, 323, 382, 506 RPC are made out against the

petitioners, issued process against them.

2 It appears that the respondent/complainant has filed the

impugned complaint before the learned trial Magistrate against the

petitioners and co-accused alleging therein that, on 22.05.2009 at

around 4.30 pm, the petitioners and co-accused came to the residence

of the respondent/complainant and knocked at her door. Upon opening

the door, the petitioners forcibly entered into her house along with

certain gunda elements and started assaulting and abusing the

respondent/complainant. It is further alleged that the

respondent/complainant was mercilessly beaten by the petitioners and

the co-accused. The respondent/complainant was manhandled,

assaulted and abused by the petitioners, who are alleged to have

threatened the respondent/complainant that they would not allow her to

reside in House No. 9/10 Canal Road Opposite BSF Camp, Jammu.

3 It is alleged in the impugned complaint that, upon hearing

noise, the son and daughter of the complainant who were sleeping

inside the house tried to rescue the respondent/complainant from the

clutches of the petitioner and co-accused, but they continued to give

beating to the respondent/complainant, who was made to sign certain

blank papers. It is further alleged that the petitioners and co- accused

took away all the documents relating to the property from the almirah

of the respondent/complainant and when she resisted, she was hit with

a wooden log. It is also alleged that the police was in connivance with

the petitioners who managed to take away not only the important

documents, but also cash and jewelry by breaking open the lock of the

almirah. The respondent further goes on to allege that instead of taking

any action against the petitioners and co-accused, she was kept in a

lock up at Women Cell, Canal Road, Jammu. According to the

respondent/complainant, her house was ransacked and she was not

allowed to go back inside her house. It is alleged that the

respondent/complainant was thrown out forcibly from her house as the

petitioners do not want her to reside in it. In short, the

respondent/complainant has alleged that the petitioners have forcibly

taken over possession of her house.

4 After presentation of the aforesaid complaint, it seems that

the learned trial Magistrate recorded the preliminary evidence and vide

order dated 08.07.2008, instead of issuing process against the

petitioners/accused, the learned Magistrate forwarded the complaint to

Superintendent of Police, City South, Jammu for getting the

accusations levelled in the complaint verified by an officer not below

the rank of Dy.SP with specific directions to enquire into the following

aspects:

(i) Whether complainant has been putting up in the house;

(ii) No. 9/10 Canal Road, Opposite BSF Camp Jammu on the day she was allegedly assaulted by the accused;

(iii)Whether the accused broke open the locks of almirah and took away the original documents and further obtained the signatures of complainant forcibly on blank papers; and,

(iv)whether accused are denying access to the complainant to the house in question after the occurrence.

5 It seems that pursuant to aforesaid directions of the

Magistrate, enquiry in terms of Section 202 CrPC was conducted by

the SDPO City East, Jammu and the Superintendent of Police City

South, Jammu submitted his report dated 01.10.2009 to the learned trial

Magistrate, who, after considering the report of enquiry submitted by

the Superintendent of Police, recorded further preliminary evidence of

the respondent/complainant and vide the impugned order dated

27.05.2011 observed that the report of enquiry is not reliable and that,

prima facie, offences under Sections 452, 323,506 RPC are made out

against the petitioners and co-accused. Accordingly, process was

issued against the petitioners and co-accused.

6 The petitioners have challenged the impugned complaint

and the impugned order on the ground that the allegations made in the

impugned complaint are false and frivolous as was found after a

detailed enquiry conducted by the Inquiry Officer. It has been

submitted that the respondent/complainant, who happens to be the elder

sister of petitioners No.2 & 4, has filed a civil Suit challenging the Will

executed by their mother in favour of petitioner No.4. It has been

averred that, vide order dated 06.08.2007 passed by the learned Munsiff

(Sub Registrar) Jammu in the said suit, the parties were directed to

maintain status quo with respect to the position and possession of the

property which is subject matter of the Will. According to the

petitioners, the property in question was in possession of petitioner

No.4 at the relevant time, but, the respondent/complainant forcibly took

over possession of the said property which compelled petitioner No.4

to file an application seeking restoration of possession. It has been

submitted that the learned Munsiff (Sub Registrar) Jammu, after

holding a detailed enquiry/trial, came to the conclusion that petitioner

No.4 has been forcibly evicted from the property in question by the

respondent and, accordingly, vide order dated 27.01.2009, the

respondent was directed to hand over the possession of House No.9/10

Patta Paloura, Jammu to petitioner No.4.

7 It is averred by the petitioners that they lodged FIR No.

183/2007 for offences under section 448 RPC before the Police Station

Domana which culminated in filing of challan against the petitioners. It

has been further submitted that when the respondent did not comply

with order dated 27.01.2009 passed by the Munsiff (Sub Registrar)

Jammu, petitioner No.4 sought implementation of the said order

through the Police Agency and vide order dated 16.05.2009, the civil

Court directed SHO Police Station, Domana to take over possession of

the House in question from the respondent and hand over the same to

petitioner No.4.

8 According to the petitioners, in pursuance of the aforesaid

directions of the civil Court, SHO Police Station Domana along with

In-Charge, Police Station Women Cell and other police officials

accompanied by the Executive Magistrate First Class, Jammu visited

the property in question on 22.05.2009 and evacuated the respondent

from the said property. It has been submitted that, during the process, a

detailed inventory of items was prepared on spot and the entire

proceedings were conducted in presence of the Executive Magistrate

First Class, whereafter possession of property in question was handed

over to petitioner No.4.

9 It has been contended by the petitioners that the genesis of

the impugned complaint is the implementation of order of restoration of

possession passed by the civil Court and this fact has been clearly

narrated by the Inquiry Officer in his report, but the learned trial

Magistrate has brushed aside the same and issued process against the

petitioners. It has been further submitted that the impugned complaint

has been filed for wreaking vengeance upon the petitioners by making

false and frivolous allegations. It has been submitted that initiation of

criminal proceedings against the petitioners is a pure and simple case of

abuse of process of law. It has been further contended that the learned

trial Magistrate, while issuing process against the petitioners, has acted

in a mechanical manner and has not applied his mind to the material

that was available before him.

10 I have heard learned counsel for the parties and perused

the record of the case including the trial Court record.

11 As already noted, the learned Senior Counsel appearing

for the petitioners has vehemently contended that the respondent has

filed the impugned compliant against the petitioners only to wreak

vengeance upon them. It has been contended that the respondent having

failed to retain illegal occupation of the property in question and having

been evicted from the premises in due course of law, has chosen to file

a false and frivolous complaint against the petitioners with a view to

harass and humiliate them and to take revenge upon them. It has been

submitted that all these facts were before the learned trial Magistrate,

but he has ignored to take these facts into consideration and, without

assigning any cogent reason, for taking a view other than the one

projected him by the Inquiry Officer, the learned trial Magistrate has

issued process against the petitioners, which is not in accordance with

law.

12 Per contra, learned counsel appearing for respondent has

argued that the scope of powers of the High Court under Section 482 is

very limited and it is not open to the High Court to embark upon an

enquiry into the genuineness or otherwise of the allegations made in the

complaint at this stage. It has been contended that, it is for the trial

Court to ascertain veracity of the allegations made in the complaint

after holding trial and this Court, in exercise of its jurisdiction under

Section 482 CrPC, cannot hold a mini trial for the said purpose. The

learned counsel has further argued that the order of Magistrate taking

cognizance of offences and issuing process against the accused cannot

be called into question in proceedings under Section 482 CrPC on the

ground that, on the basis of material available before the Magistrate, a

different view is also possible. It has been contended that the

Magistrate is not duty bound to accept the result of an enquiry or

investigation and if the Magistrate, after applying his judicial mind to

the material, decides to issue process against the accused, he cannot be

precluded from doing so. In order to support the aforesaid contentions,

the learned counsel has relied upon judgments of the Supreme Court in

the cases of Nirmaljit Singh Hoon vs The State of West Bengal and

Anr., (1973) 3 SCC 753, Nagawwa vs Veeranna Shivallngappa

Konjalgi, (1976) 3 SCC 736, Nupur Talwar vs Cbi & Anr , (2012)

11 SCC 465 and A.V. Mohan Rao & anr vs M.Kishan Rao and anr.

(2002) 6 SCC 174 .

13 In order to determine the merits of rival contentions raised

by learned counsels for the parties, it would be apt to notice certain

facts that have emerged from the record and that are not in dispute.

14 The respondent has filed a civil Suit against petitioners

No.2 and 4 before the Court of Munsiff (Sub Registrar) Jammu. The

subject matter of the said Suit is a House situated at Patta Paloura and

in the said suit, the civil Court has passed an interim order on

06.08.2007 whereby the parties have been directed to maintain status

quo with regard to the position and possession existing on spot over the

suit property as on the said date. According to the petitioners, petitioner

No.4 was in possession of the said property as on date of filing of the

said suit, but, she was forcibly dispossessed by the respondent from the

suit property. It is not in dispute that petitioner No.4 has lodged an FIR

against the respondent in this regard which has been registered as FIR

No. 183/2007 at Police Station, Domana.

15 The record further shows that petitioner No.4 made an

application before the civil Court under Section 151 CPC seeking status

quo ante by restoration of possession of the suit property. The said

application, after contest from the respondent herein and after recording

of evidence, was decided by the civil Court in terms of order dated

27.01.2009. Vide the said order, the application of petitioner No.4 was

allowed and the civil Court gave a finding that petitioner No.4 herein

was in actual possession of the suit property on the date of filing of the

suit and that he has been dispossessed forcibly by the respondent from

the said property on 13.09.2007. On the basis of these findings, the

learned civil Court has issued an interim mandatory injunction against

the respondent herein asking her to hand over possession of the suit

house to petitioner No.4 within one month. It seems that the said order

was not obeyed by the respondent which compelled petitioner No.4 to

file an application for implementation of the said order before the civil

Court. The record further shows that, on 16.05.2009, the civil Court in

presence of the parties directed SHO Police Station, Domana to take

over the possession of the suit house from the respondent and to put

petitioner No.4 in possession of the said house with a further direction

to report compliance to the Court.

16 As per the report of enquiry submitted by the S.P City

South Jammu on 22.05.2009, order dated 16.05.2009 passed by the

civil Court was received by the SHO Police Station, Domana and the

SHO along with In-charge Women Cell, officials of the police and the

Executive Magistrate First Class Jammu proceeded on spot to

implement the said order. The report indicates that the respondent was

evacuated from the House in question in terms of the order of the civil

Court. Inventory of the household articles was prepared and the articles

were handed over to the respondent and her son Munish Kumar in

presence of the Executive Magistrate against proper receipt. The report

further indicates that the respondent tried to create law and order

problem, as such, she was taken into custody by initiating proceedings

under Sections 107/151 Cr.PC and she was bound down for good

behavior. The possession of the suit house was handed over to

petitioner No.4 in presence of the Executive Magistrate First Class. As

per the report of enquiry, neither any original documents of the

respondent was taken away, nor any lock of the almirah was broken. It

is further stated in the complaint that no blank papers were got signed

by the respondent. The report concludes that the allegations made in the

impugned complaint are baseless and that the same have been made

only with a view to take revenge because the respondent/complaint had

been dispossessed by virtue of order of the civil Court.

17 If we have a look at the impugned complaint, the alleged

occurrence is stated to have taken place on 22.05.2009 the date on

which petitioner No.4 took over the possession of the suit property

from the respondent with assistance of the police pursuant to order of

the trial Court. The allegations made in the impugned complaint clearly

indicate that the respondent is trying to give a criminal colour to the

proceedings which took place during implementation of the order of the

civil Court. As per the order of the civil Court, the police as well as

petitioner No.4 were legally entitled to take over possession of the suit

property from the respondent, who, as a law abiding citizen, instead of

resisting implementation of the Court order, was duty bound to hand

over possession of the suit property to petitioner No.4. As is clear from

the enquiry report, the respondent, instead of doing so, created law and

order problem which compelled the police to initiate the proceedings

under Sections 107/151 CrPC against her. It seems that she did not stop

here, but, after having failed to resist the implementation of the order of

civil Court, she has chosen to file the impugned complaint which, in the

facts and circumstances of the case, clearly is an act of wreaking

vengeance upon the petitioners after having lost legal battle against

petitioner No.4 before the civil Court

18 The learned trial Magistrate has brushed aside the enquiry

report submitted by a high ranking police officer on the ground that the

enquiry report is based upon the report submitted by the SHO

concerned. The said observation of the trial Magistrate is factually

incorrect. As is clear from the report of enquiry, the same is based upon

the report of SDPO East Jammu, who is an officer of the rank of Dy.SP

and not the SHO of Police Station, Domana. As per order dated

08.07.2009 passed by the trial Magistrate, S.P South was directed to get

the accusations verified through an officer not below the rank of Dy.

SP. The Superintendent of Police, as per the mandate of the directions

issued by the learned trial Magistrate, asked the SDPO to hold an

enquiry into the matter and based his enquiry report on the proceedings

conducted by the SDPO, who is of the rank of the Dy. SP. Therefore,

the learned Magistrate is not right in rejecting report of enquiry solely

on the basis of incorrect appreciation of the facts and record.

19 In a case where the Magistrate, before issuing process

against the accused on the basis of a complaint, decides to hold an

enquiry or direct investigation under Section 202 Cr.PC, the same is

done with the purpose of ascertaining the truth or falsehood of the

allegations made in the complaint. It is in these circumstances that the

learned Magistrate vide his order dated 08.07.2009 directed enquiry

into the accusations leveled in the impugned complaint. The Inquiry

Officer, as already stated, indicated in his detailed report that the

accusations are false and that the same have been made by the

respondent in order to take revenge against the petitioners for having

been dispossessed from the suit property pursuant to the order of the

Civil Court.

20 It is true that a Magistrate is at liberty to discard the report

of enquiry and take an independent view on the bass of material

available before him, but then, for discarding the report of enquiry,

there must be some cogent reasons for the Magistrate to do so. In the

instant case, admittedly, the respondent was dispossessed from the suit

property in due process of law in terms of order of the civil Court and

during implementation of the said order, the occurrence is stated to

have taken place. The report of enquiry, when read in conjunction with

the background facts emerging from the record that was available with

the trial Magistrate as also with this Court, there was no reason for the

Magistrate to discard the version of occurrence given by the Inquiry

Officer. Unfortunately, the learned Magistrate, without assigning any

plausible reason for discarding the version given by the Inquiry Officer,

has simply accepted the version given by the respondent/complainant

as a gospel truth and proceeded to issue process against the petitioners.

21 It has to be borne in mind that, it is not a case where the

Magistrate, at the very outset, after recording the preliminary evidence

of the complainant issued process against the petitioners, but, it is a

case where, after recording the preliminary evidence of the

complainant, the Magistrate had directed enquiry as regards the

veracity of the allegations made in the complaint, meaning thereby that

the Magistrate was not sure about the genuineness of the allegations

made in the compliant. If that was so, then once the material in the

shape of enquiry report came before the trial Magistrate, there was

hardly any reason for the Magistrate to proceed to issue process against

the petitioners without spelling out cogent reasons as to why the report

of enquiry cannot be accepted. The impugned order passed by the

learned trial Magistrate is, therefore, not sustainable in law.

22 In the backdrop of aforesaid facts, it appears to be a clear

cut case of brazen attempt on the part of the respondent to persecute the

petitioner in order to take revenge for having lost the civil litigation

against them. The respondent, it seems, has filed the impugned

complaint to pressurize the petitioners to settle the civil dispute in

which petitioner No. 4 has succeeded in recovering the possession of

suit property. The prosecution initiated by the respondent/complainant

against the petitioners is manifestly actuated with mala fides and

ulterior motive for wreaking vengeance upon the petitioners due to

private and personal grudge. If such prosecutions are allowed to

proceed, then, the litigants would be encouraged to blatantly and

brazenly violate the orders of the civil Courts by resorting to frivolous

criminal prosecutions against the successful parties. This is a fit case

where this Court should exercise its powers under Section 482 Cr.P.C

to quash the impugned complaint as also the impugned order passed by

the learned trial Magistrate.

23 For the foregoing reasons, the petition is allowed and the

impugned complaint and the proceedings emanating therefrom against

the petitioners are quashed.

Record of the trial Court along with a copy of this judgment be

sent back.

(Sanjay Dhar) Judge

Jammu 18.05.2023 "Sanjeev, PS"

                Whether the order is speaking:       Yes
                Whether the order is reportable:     Yes