Jharkhand High Court
Khalid Nadim Khan vs State Of Jharkhand on 11 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P No. 2227 of 2016
Khalid Nadim Khan .... .... Petitioner(s).
Versus
1. State of Jharkhand
2. Anita Chandra .... .... Opposite Party(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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FOR THE PETITIONER(S) : Mr. Raja Ravi Shekhar Singh, Advocate
FOR THE STATE : Ms. Lily Sahay, APP
FOR THE O.P NO.2 : Mr. Mukesh Kumar, Advocate
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09/11.01.2021
The lawyers have no objection with regard to the proceeding, which has
been held through video conference today at 11.00 A.M. They have no complaint
in respect to the audio and video clarity and quality.
2. By filing this application, petitioner has prayed to quash the entire
criminal proceeding arising out of Bokaro, Sector-4 P.S. Case No. 123 of 2016,
corresponding to G.R. No. 1069 of 2016 registered under Section 406, 420 IPC.
3. Counsel for the petitioner submits that the entire dispute is civil in nature
which would be apparent from perusal of the FIR itself. He submits that
admittedly the sale deed has been registered and even mutation has been done. It
is alleged that after mutation process was over, the informant raised dispute that
possession has not been given to him. As the possession was not given, this
criminal case was lodged. It has been stated that even admitting what has been
mentioned in the FIR, this case should not come within the purview of the criminal
proceeding as the entire allegation is civil in nature and no offence under Sections
415 and 405 IPC is made out to attract offence under Section 420 and 406 IPC.
He further submits that petitioner is not the owner of the said land.
4. Counsel appearing on behalf of the State assisted by counsel for the
opposite party no.2 submits that petitioner is a middleman and infact he is the
person who has received the entire money. He submits that the possession of the
land has not yet been given to the informant which led to filing of this case. He
submits that since possession has not been given, the informant has been cheated.
Further opposite party no.2 submits that the case has already proceeded and the
evidence of three witnesses have been recorded and thus at this stage, the FIR
cannot be quashed.
5. I have heard the parties, and have gone through the entire documents. In
the FIR it has been mentioned that informant wanted to purchase some land as a
result of which it was decided by the parties to sale the land of Mouza Tetuliya
Khata No. 42, Plot No. 472 having an area of 5.5. decimals out of two acres of the
land which was already there. The price fixed was Rs. 8, 50,000/-. The total
amount was given to the land owner by six cheques from 15.5.2012 to 28.2.2013.
In the FIR it has been admitted that land was registered in the name of informant.
Further it has also been mentioned that mutation has also been done in respect of
the land in question in favour of the informant. Thereafter it has been mentioned
that possession of the land was not given. The informant pressurized the petitioner
to give possession of the land. Petitioner agreed to return the money or the land
but neither the amount was returned nor possession was given, thus informant felt
cheated and had lodged this case which was registered as Bokaro Sector- 4 P.S.
Case No. 123 of 2016 under Sections 406, 420 IPC.
6. One of the ground the opposite party no.2 has taken while opposing the
prayer is that the case has proceeded and charge has already been framed and three
witnesses have also been examined in this case. As per him since the trial has
proceeded, the proceeding cannot be quashed. This issue is not res-integra. The
Hon'ble Supreme Court of India in the case of Anand Kumar Mahatta Vrs. State
(NCT of Delhi) reported in (2019) 11 SCC 706 has held that inherent power of
the High Court to quash the proceeding can be exercised even after the charge-
sheet is filed. Paragraph No. 16 of the said judgment needs to be quoted as under:-
16. There is nothing in the words of this section which
restricts the exercise of the power of the Court to prevent the
abuse of process of court or miscarriage of justice only to
the stage of the FIR. It is settled principle of law that the
High Court can exercise jurisdiction under Section 482
CrPC even when the discharge application is pending with
the trial court5. Indeed, it would be a travesty to hold that
proceedings initiated against a person can be interfered
with at the stage of FIR but not if it has advanced and the
allegations have materialised into a charge-sheet. On the
contrary it could be said that the abuse of process caused by
FIR stands aggravated if the FIR has taken the form of a
charge-sheet after investigation. The power is undoubtedly
conferred to prevent abuse of process of power of any court.
7. From the aforesaid judgment now it is well settled that at any stage, to
prevent the abuse of the process of law, FIR can be quashed by exercising
jurisdiction under Section 482 Cr.P.C. From the aforesaid paragraph it is also clear
that filing of the charge-sheet cannot be a ground to refuse quashing the FIR if no
criminal offence is made out. Thus from the judgment of the Hon'ble Apex Court,
this Court feels that there is no bar in quashing the FIR even if charge-sheet has
been filed and the case is proceeded and three witnesses have been examined.
8. On the merit of this case, I find that in the FIR the informant has admitted
that after taking money, the sale deed has been executed and registered and the
land has been mutated in the name of informant. Mutation clearly suggests that
possession is with the purchaser. If the possession was not with the purchaser
(informant in this case), the land would not have been mutated in the name of the
informant by the State. Even for the sake of argument, if it is taken that possession
has not been given then also there is no application of Sections 405 and 415 IPC
as admittedly after payment of money, sale deed has been executed and registered
and the land has been mutated.
9. Section 405 IPC defines "Criminal Breach of Trust". As per the said
definition there has to be entrustment of property and dishonest misappropriation
or conversion of the said by the accused. In this case, I find that no ingredients
which attracts the aforesaid section. So far as Section 415 IPC is concerned which
defines cheating, I find that basic ingredients of the penal section is also not
attracted from the aforesaid submission made in the written report.
10. The Hon'ble Supreme Court in the case of Indian Oil Corporation Vrs.
NEPC India Ltd. & Ors. reported in (2006) 6 SCC 736 has held that any effort to
settle dispute and claims, which do not involve any criminal offence, by applying
pressure through criminal prosecution should be deprecated and discouraged. The
court also noticed the growing trend in the business circles to convert purely civil
dispute into criminal cases.
11. The Hon'ble Supreme Court in the case of State of State of Haryana and
Ors. Vrs. Bhajan Lal & others report in 1992 Suppl. (1) SCC 335 has laid down
some conditions for quashing the FIR. Seven conditions have been laid down in
paragraph no.102 of the said judgment. It is necessary to quote paragraph no. 102
here:-
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
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 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.
12. This Court feels on the facts of the case which has been narrated herein
above, this present case falls under the First and Fifth categories set out in
paragraph no. 102 of the judgment of Supreme Court in the case of State of
Haryana and Ors. (Supra).
13. Thus, it is held that the entire dispute is civil in nature without having any
criminal angle. The prosecution is malafide, untenable and solely intended to
harass the petitioners. The continuance of this proceeding would be nothing but
an abuse of the process of Court.
14. Considering the facts of this case and what has been held above and in
view of the judgments referred to above, I hereby quashed the FIR and the entire
criminal proceeding of Bokaro Sector- 4 P.S. Case No. 123 of 2016, corresponding
to G.R. No. 1069 of 2016. All subsequent proceedings are also hereby quashed.
15. Accordingly, this application stands allowed.
(ANANDA SEN , J)
anjali/ C.P 3
