Jharkhand High Court
Surendra Singh vs The State Of Jharkhand on 24 March, 2022
-1- W.P.(Cr.) No. 02 of 2021
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W.P.(Cr.) No. 47 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 02 of 2021
1. Surendra Singh, aged about 64 years, S/o Late Harihar Singh
2. Ashish Kumar Singh, aged about 32 years, S/o Badri Singh.
3. Bikash Kumar Singh, aged about 35 years, S/o Surendra Singh
4. Ganesh Mandal, aged about 45 years, S/o Late Mitan Mandal
Above all residents of Mohalla-Sonbad, P.O.-Motileda,
P.S.-Bengabad, District-Giridih (Jharkhand) ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Deputy Commissioner, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
3. Superintendent of Police, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
4. The Sub-Registrar, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
5. Navin Kumar Rai, aged about 56 years,
S/o Tirath Nath Rai, resident of Village-Sonabad,
P.O.-Motileda, P.S.-Bengabad,
District-Giridih (Jharkhand). ..... ... Respondents
with
W.P.(Cr.) No. 47 of 2021
Purushotam Rai @ Purushotam Kumar Rai
@ Purushotom Kumar, aged about 28 years,
S/o Diwakar Rai, resident of Village-Kachhel,
P.O. & P.S.-Govindpur, District-Dhanbad (Jharkhand),
A/p resident of Village-Harsinghraidih, P.O.-Budiyadih,
P.S.-Giridih (M), District-Giridih. ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Deputy Commissioner, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
3. Superintendent of Police, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
4. The Sub-Registrar, Giridih, P.O.-Giridih,
P.S.-Giridih (T), District- Giridih (Jharkhand).
5. Navin Kumar Rai, aged about 56 years,
S/o Tirath Nath Rai, resident of Village-Sonabad,
P.O.-Motileda, P.S.-Bengabad,
District-Giridih ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. A.K. Kashyap, Sr. Advocate.
[in W.P.(Cr.) No. 02 of 2021]
: Mr. Prabhat Kumar Sinha, Advocate.
[in W.P.(Cr.) No. 47 of 2021]
For the State : Ms Amrita Banerjee, A.C. to S.C.-V
: Mr. P.C. Sinha, A.C. to G.A.-III.
For the Intervener (O.P. No. 5) : Mr. Indrajit Sinha, Advocate
: Mr. Prashant Kumar Rai, Advocate
[in both cases]
------
06/ 24.03.2022 Heard Mr. A.K. Kashyap, learned senior counsel for the
petitioners in W.P.(Cr.) No. 02 of 2021, Mr. Prabhat Kumar Sinha, learned
counsel for the petitioner in W.P.(Cr.) No. 47 of 2021], Ms Amrita
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W.P.(Cr.) No. 47 of 2021
Banerjee, learned A.C. to S.C.-V and Mr. P.C. Sinha, learned G.A.-III for
the State and Mr. Indrajit Sinha assisted by Mr. Prashant Kumar Rai,
learned counsel for the intervener (O.P. No. 5).
2. In both the cases, common FIR is under challenge and the
facts in both the cases are similar and in that view of the matter with the
consent of the parties, these petitions have been heard together at length.
3. It is pertinent to mention here that the intervener was made
party in both the writ petitions, in spite of the opposition made by the
learned counsel appearing for the petitioners by the order of this Court
dated 05.01.2022.
4. At the outset, Mr. A.K. Kashyap, learned senior counsel
appearing for the petitioners in W.P.(Cr.) No. 02 of 2021 submits that the
petitioner No. 1 is the identifier of the Power of Attorney and the Sale
Deed, petitioner No. 2 is the witness to the Sale Deed, petitioner No. 3 is
the Purchaser and petitioner No. 4 is also identifier of the sale deed.
5. Mr. Prabhat Kumar Sinha, learned counsel appearing for the
petitioner in W.P.(Cr.) No. 47 of 2021 submits that the Power of Attorney
Holder is the petitioner in this criminal writ.
6. In both the cases prayer has been made to quash the FIR,
being Giridih (T) P.S. Case No. 217 of 2020, for the alleged offence under
Sections 420, 467, 468 and 471 of the Indian Penal Code, pending in the
Court of learned Chief Judicial Magistrate, Giridih.
7. The FIR was instituted pursuant to letter dated 15.10.2020 of
the District Sub-Registrar, Giridih alleging therein that vide order dated
21.08.2020 in cancellation of Registration Case No. 01 of 2020 passed by
the Deputy Commissioner, Giridih based on the basis of direction vide
Memo No. 930 dated 21.09.2016 issued by the Secretary, Revenue,
Registration and Land Reforms, Department, Ranchi, relating to forged
documents obtained by Purushotom Kumar, who had become legally
entitled pursuant to obtaining General Power of Attorney vide registered
deed No. 3996 dated 17.04.2015 from Nabin Kumar Rai, whereby he was
authorized to do all works including sale of above said stated land on
behalf of him and executed Deed No. I-3674 dated 21.04.2015, Deed No.
I-3675 dated 21.04.2015, Deed No. I-3695 dated 22.04.2015 and Deed
No. I-4351 dated 17.10.2016 in favour of Bikash Kumar Singh (petitioner
No. 3), has been cancelled pertaining to Mauza-Sonbad, Thana No. 49G,
corresponding to Khata Nos. 38, 40 and 01, being Plot Nos. 109, 510, 465
and 466 having an area of 59.25 decimals executed.
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W.P.(Cr.) No. 47 of 2021
8. Mr. A.K. Kashyap, learned senior counsel appearing for the
petitioners submits that on the letter of the Deputy Commissioner, Giridih,
the District Sub-Registrar, Giridih has lodged the FIR. He submits that the
interveners have already filed the Original Civil Suit No. 19 of 2018,
which is pending before the Civil Judge (Sr. Div.)-I, Giridih for the same
cause of action and suppressing this fact, the intervener has lodged the
complaint before the Deputy Commissioner, Giridih, who acted upon the
complaint of the intervener and the Deputy Commissioner passed the
order of cancellation of sale deed and the District Sub-Registrar, Giridih
lodged the FIR on receiving the order of Deputy Commissioner. He
further submits that the order of the Deputy Commissioner dated
21.08.2020 was challenged before the Commissioner, North Chotanagpur
Division, Hazaribag, in Misc. Revision Case No. 95 of 2020, and by order
dated 06.11.2020, the order of the Deputy Commissioner was stayed till
the final disposal of the case. He further submits that the aggrieved party
has not filed any FIR against the petitioners. According to him, Section 83
of the Registration Act, 1908 provides that any prosecution for any offence
under this Act may be commenced by the registering authority in the
official capacity with the permission of the Inspector General of
Registration. He submits that in view of the clear provision under Section
83 of the Registration Act, 1908, the FIR can be lodged only with prior
permission of the Inspector General of Registration, however the same has
not been done in the present cases. He further submits that the petitioner
No. 1 is the identifier of the Power of Attorney and the Sale Deed,
petitioner No. 2 is the witness to the Sale Deed, petitioner No. 3 is the
Purchaser and petitioner No. 4 is also identifier of the sale deed and they
have unnecessarily been dragged in this case, in spite of the admitted fact
that one Civil Suit is already pending for the same cause of action.
9. Mr. Prabhat Kumar Sinha, learned counsel appearing for the
petitioner in W.P.(Cr.) No. 47 of 2021 submits that at the time of
registration, it is mandatory to remain physically present of the Power of
Attorney Holder as well as the purchaser and now a days web photographs
are must and if the any person has not appeared, the registration cannot be
done. He submits that the aforesaid statement finds support from the order
dated 30.10.2018 of the District Sub-Registrar, Giridih.
10. Learned senior counsel appearing for the petitioners submits
that this aspect of the matter has been considered in the case of Md.
Ibrahim & Ors. Versus State of Bihar & Ors., reported in (2009) 8 SCC
751 by the Hon'ble Supreme Court, where in Paras-13 to 17, the Hon'ble
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W.P.(Cr.) No. 47 of 2021
Supreme Court held as follows:-
"13. The condition precedent for an offence
under sections 467 and 471 is forgery. The condition
precedent for forgery is making a false document (or
false electronic record or part thereof). This case does
not relate to any false electronic record. Therefore, the
question is whether the first accused, in executing and
registering the two sale deeds purporting to sell a
property (even if it is assumed that it did not belong to
him), can be said to have made and executed false
documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows
that it divides false documents into three categories:
1. The first is where a person dishonestly or
fraudulently makes or executes a document with the
intention of causing it to be believed that such
document was made or executed by some other person,
or by the authority of some other person, by whom or
by whose authority he knows it was not made or
executed.
2. The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful
authority, after it has been made or executed by either
himself or any other person.
3. The third is where a person dishonestly or
fraudulently causes any person to sign, execute or alter
a document knowing that such person could not by
reason of (a) unsoundness of mind; or (b) intoxication;
or (c) deception practised upon him, know the contents
of the document or the nature of the alteration.
In short, a person is said to have made a `false
document', if (i) he made or executed a document
claiming to be someone else or authorised by someone
else; or (ii) he altered or tampered a document; or (iii)
he obtained a document by practicing deception, or
from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly
and obviously do not fall under the second and third
categories of `false documents'. It therefore remains to
be seen whether the claim of the complainant that the
execution of sale deeds by the first accused, who was in
no way connected with the land, amounted to
committing forgery of the documents with the intention
of taking possession of complainant's land (and that
accused 2 to 5 as the purchaser, witness, scribe and
stamp vendor colluded with first accused in execution
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W.P.(Cr.) No. 47 of 2021
and registration of the said sale deeds) would bring the
case under the first category.
16. There is a fundamental difference between a person
executing a sale deed claiming that the property
conveyed is his property, and a person executing a sale
deed by impersonating the owner or falsely claiming to
be authorised or empowered by the owner, to execute
the deed on owner's behalf. When a person executes a
document conveying a property describing it as his,
there are two possibilities. The first is that he bonafide
believes that the property actually belongs to him. The
second is that he may be dishonestly or fraudulently
claiming it to be his even though he knows that it is not
his property. But to fall under first category of `false
documents', it is not sufficient that a document has
been made or executed dishonestly or fraudulently.
There is a further requirement that it should have been
made with the intention of causing it to be believed that
such document was made or executed by, or by the
authority of a person, by whom or by whose authority
he knows that it was not made or executed.
17. When a document is executed by a person claiming
a property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorised
by someone else. Therefore, execution of such
document (purporting to convey some property of
which he is not the owner) is not execution of a false
document as defined under section 464 of the Code. If
what is executed is not a false document, there is no
forgery. If there is no forgery, then neither section
467 nor section 471 of the Code are attracted. Section
420 IPC."
11. Relying on the aforesaid judgment, learned senior counsel
submits that in the said case, the purchaser and the witnesses have moved
before the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court
has interfered with the matter and quashed the FIR.
12. Per contra, Ms. Amrita Banerjee, learned A.C. to S.C.-V and
Mr. P.C. Sinha, learned A.C. to G.A.-III, both appearing for the State
submit that investigation is still going on and in both these petitions only
the FIR is under challenge. They jointly submit that at this stage, this
Court may not exercise its power under Section 482 Cr.P.C.
13. Mr. Indrajit Sinha, learned counsel appearing for the
intervener in both the cases, by way of referring the FIR submits that the
FIR has been registered under Sections 420, 467, 468 and 471 of the
Indian Penal Code. He refers to Section 467 of the Indian Penal Code and
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W.P.(Cr.) No. 47 of 2021
submits that there is specific provision with regard to documents to be
challenged under that Section, which is involved in this FIR. He further
submits that filing of the title suit does not bar the initiation of criminal
proceeding, if the criminality is made out against the petitioners. He
distinguishes the judgment relied upon by learned senior counsel
appearing for the petitioners in the case of Md. Ibrahim (Supra) and
submits that impersonation is not covered by the judgment as mentioned
in para-16 of the said judgment.
14. In view of the above facts and considering the submission of
learned counsel appearing for the parties, the Court has gone through the
materials available on record. It is an admitted fact that the Power of
Attorney was executed in favour of the petitioner in W.P.(Cr.) No. 47 of
2021, pursuant to that the sale deed was executed in favour of the
petitioner No. 3 in W.P.(Cr.) No. 02 of 2021. By order dated 21.08.2020
the Deputy Commissioner, Giridih has cancelled the Power of Attorney
and sale deed and communicated the order to the District Sub-Registrar,
Giridih. Pursuant thereto, the District Sub-Registrar, Giridih has lodged
the FIR dated 15.10.2020, which was registered on 05.11.2020. The order
of the Deputy Commissioner, Giridih was stayed by the Commissioner,
North Chotanagpur Division, Hazaribag, vide order dated 06.11.2020 i.e.
on very next date of lodging the FIR and directed to stay the operation of
the said order of the Deputy Commissioner, Giridih. It has been submitted
that the land in question has now been mutated and it is an admitted fact
that the petitioner No. 1 is the identifier of the Power of Attorney and the
Sale Deed, petitioner No. 2 is the witness to the Sale Deed, petitioner No.
3 is the Purchaser and petitioner No. 4 is also identifier of the sale deed in
W.P.(Cr.) No. 02 of 2021 and the role of the petitioners who are identifier,
witness and purchaser has been discussed in the judgment of the Hon'ble
Supreme Court in the case of Md. Ibrahim (Supra). It is also an admitted
fact that any aggrieved party has not filed the FIR.
15. For ready reference Section 83 of the Registration Act, 1908 is
quoted hereinbelow:-
"83- Registering officer may commence prosecutions.-
(1) A prosecution for any offence under this Act coming
to the knowledge of a registering officer in his official
capacity may be commenced by or with the permission
of the Inspector General, the Registrar or the Sub-
Registrar, in whose territories, district or subdistrict, as
the case may be, the offence has been committed.
(2) Offences punishable under this Act shall be triable
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W.P.(Cr.) No. 47 of 2021
by any Court or officer exercising powers not less than
those of a Magistrate of the second class."
16. It is an admitted fact that there is no order of the Inspector
General of Registration for registration of the FIR, in spite of that this FIR
has been lodged by the District Sub-Registrar, Giridih, which is against
Section 83 of the Registration Act, 1908.
17. Inherent power of the High Court under Section 482 Cr.P.C. is
with the purpose and object of advancement of justice. Reference may be
made to the judgment rendered by the Hon'ble Supreme Court in the case
of Vineet Kumar & others v. State of Uttar Pradesh & another, reported
in (2017) 13 SCC 369. Paragraphs 22, 23, 24, 26, 27, 28, 29, 30 and 41 of
the said judgment are quoted herein below:-
"'22. Before we enter into the facts of the present case
it is necessary to consider the ambit and scope of
jurisdiction under Section 482 CrPC vested in the High
Court. Section 482 CrPC saves the inherent power of
the High Court to make such orders as may be
necessary to give effect to any order under this Code,
or to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
23. This Court time and again has examined the scope
of jurisdiction of the High Court under Section 482
CrPC and laid down several principles which govern
the exercise of jurisdiction of the High Court under
Section 482 CrPC. A threeJudge Bench of this Court in
State of Karnataka v. L. Muniswamy held that 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. In para 7 of the judgment, the following
has been stated: (SCC p. 703)
following has been stated: (SCC p. 703)
"7. ... 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
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W.P.(Cr.) No. 47 of 2021
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. The compelling necessity for
making these observations is that without a proper
realisation of the object and purpose of the provision
which seeks to save the inherent powers of the High
Court to do justice, between the State and its subjects,
it would be impossible to appreciate the width and
contours of that salient jurisdiction."
24. The judgment of this Court in State of Haryana v.
Bhajan Lal has elaborately considered the scope and
ambit of Section 482 CrPC. Although in the above case
this Court was considering the power of the High
Court to quash the entire criminal proceeding
including the FIR, the case arose out of an FIR
registered under Sections 161, 165 IPC and Section
5(2) of the Prevention of Corruption Act, 1947. This
Court elaborately considered the scope of Section 482
CrPC/Article 226 of the Constitution in the context of
quashing the proceedings in criminal investigation.
After noticing various earlier pronouncements of this
Court, this Court enumerated certain categories of
cases by way of illustration where power under Section
482 CrPC can be exercised to prevent abuse of the
process of the Court or secure the ends of justice.
26. A three-Judge Bench in State of Karnataka v. M.
Devendrappa had the occasion to consider the ambit of
Section 482 CrPC. By analysing the scope of Section
482 CrPC, this Court laid down that authority of the
Court exists for advancement of justice and if any
attempt is made to abuse that authority so as to
produce injustice the Court has power to prevent
abuse. It further held that Court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. The
following was laid down in para 6: (SCC p. 94)
"6. ... All courts, whether civil or criminal possess, in
the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle quando lex
aliquid alicui concedit, concedere videtur et id sine quo
res ipsae esse non potest (when the law gives a person
anything it gives him that without which it cannot
exist). While exercising powers under the section, the
court does not function as a court of appeal or revision.
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W.P.(Cr.) No. 47 of 2021
Inherent jurisdiction under the section though wide has
to be exercised sparingly, carefully and with caution
and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts
exist. Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of
process of the court to allow any action which would
result in injustice and prevent promotion of justice. In
exercise of the powers court would be justified to quash
any proceeding if it finds that initiation/continuance of
it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint,
the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to
look into the materials to assess what the complainant
has alleged and whether any offence is made out even
if the allegations are accepted in toto."
27. Further in para 8 the following was stated:
(Devendrappa case, SCC p. 95) "8. ... Judicial process
should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious
in exercising discretion and should take all relevant
facts and circumstances into consideration before
issuing process, lest it would be an instrument in the
hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the
section is not an instrument handed over to an accused
to short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power under
Section 482 of the Code and the categories of cases
where the High Court may exercise its power under it
relating to cognizable offences to prevent abuse of
process of any court or otherwise to secure the ends of
justice were set out in some detail by this Court in State
of Haryana v. Bhajan Lal."
28. In Sunder Babu v. State of T.N., this Court was
considering the challenge to the order of the Madras
High Court where application was under Section 482
CrPC to quash criminal proceedings under Section
498-A IPC and Section 4 of the Dowry Prohibition Act,
1961. It was contended before this Court that the
complaint filed was nothing but an abuse of the process
of law and allegations were unfounded. The
prosecuting agency contested the petition filed under
Section 482 CrPC taking the stand that a bare perusal
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W.P.(Cr.) No. 47 of 2021
of the complaint discloses commission of alleged
offences and, therefore, it is not a case which needed to
be allowed. The High Court accepted the case of the
prosecution and dismissed the application. This Court
referred to the judgment in Bhajan Lal case and held
that the case fell within Category 7. The Apex Court
relying on Category 7 has held that the application
under Section 482 deserved to be allowed and it
quashed the proceedings.
29. In another case in Priya Vrat Singh v. Shyam Ji
Sahai, this Court relied on Category 7 as laid down in
State of Haryana v. Bhajan Lal. In the above case the
Allahabad High Court had dismissed an application
filed under Section 482 CrPC to quash the proceedings
under Sections 494, 120-B and 109 IPC and Sections 3
and 4 of the Dowry Prohibition Act. After noticing the
background facts and parameters for exercise of power
under Section 482 CrPC the following was stated in
paras 8 to 12:
"8. Further, it is pointed out that the allegation of
alleged demand for dowry was made for the first time
in December 1994. In the complaint filed, the
allegation is that the dowry torture was made sometime
in 1992. It has not been explained as to why for more
than two years no action was taken.
9. Further, it appears that in the complaint petition
apart from the husband, the mother of the husband, the
subsequently married wife, husband's mother's sister,
husband's brother-in-law and Sunita's father were
impleaded as party. No role has been specifically
ascribed to anybody except the husband and that too of
a dowry demand in February 1993 when the complaint
was filed on 6-12-1994 i.e. nearly after 22 months. It is
to be noted that in spite of service of notice, none has
appeared on behalf of Respondent 1.
10. The parameters for exercise of power under Section
482 CrPC have been laid down by this Court in several
cases.
11. '19. The section does not confer any new power on
the High Court. It only saves the inherent power which
the Court possessed before the enactment of the Code.
It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to
give effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can
provide for all cases that may possibly arise. Courts,
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therefore, have inherent powers apart from express
provisions of law which are necessary for proper
discharge of functions and duties imposed upon them
by law. That is the doctrine which finds expression in
the section which merely recognises and preserves
inherent powers of the High Courts. All courts, whether
civil or criminal, possess, in the absence of any express
provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the
principle quando lex aliquid alicui concedit, concedere
videtur id sine quo res ipsa esse non potest (when the
law gives a person anything it gives him that without
which it cannot exist). While exercising powers under
the section, the Court does not function as a court of
appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise
is justified by the tests specifically laid down in the
section itself. It is to be exercised ex debito justitiae to
do real and substantial justice for the administration of
which alone courts exist. Authority of the court exists
for advancement of justice and if any attempt is made
to abuse that authority so as to produce injustice, the
court has power to prevent abuse. It would be an abuse
of process of the court to allow any action which would
result in injustice and prevent promotion of justice. In
exercise of the powers court would be justified to quash
any proceeding if it finds that initiation/continuance of
it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of
justice.
20. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and
the very plenitude of the power requires great caution
in its exercise. Court must be careful to see that its
decision in exercise of this power is based on sound
principles. The inherent power should not be exercised
to stifle a legitimate prosecution. The High Court being
the highest court of a State should normally refrain
from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before
the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no
hard-and-fast rule can be laid down in regard to cases
in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage.'
12. The present case appears to be one where Category
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7 of the illustrations given in State of Haryana v.
Bhajan Lal is clearly applicable."
30. From the material on records, the following facts
are disclosed from the sequence of events which
preceded the registration of FIR on 6-11-2015. The
complainant, her husband and son had taken different
amounts totalling Rs 22 lakhs 50 thousand in the month
of May 2015 for business/shop purposes from the
accused. Three agreements were written on non-
judicial stamp papers on 29-5-2015, 1-6- 2015 and 31-
8-2015 wherein the complainant, her husband and son
have acknowledged receipt of the money in cash as
well as by cheque. Cheques of Rs 6 lakhs, Rs 14 lakhs
50 thousand were given to the accused for ensuring the
repayment. Cheques were drawn on Prathama Bank,
Kanth Branch, District Moradabad. Cheques were
deposited in the bank which were returned with
endorsements "No Sufficient Balance". After cheques
having been dishonoured, complaints under Section
138 of the Negotiable Instruments Act were filed by the
accused against the husband and son of the
complainant which were registered in the month of
September/October and were pending before alleged
incident dated 22-10-2015.
41. Inherent power given to the High Court under
Section 482 CrPC is with the purpose and object of
advancement of justice. In case solemn process of
Court is sought to be abused by a person with some
oblique motive, the Court has to thwart the attempt at
the very threshold. The Court cannot permit a
prosecution to go on if the case falls in one of the
categories as illustratively enumerated by this Court in
State of Haryana v. Bhajan Lal. Judicial process is a
solemn proceeding which cannot be allowed to be
converted into an instrument of operation or
harassment. When there are materials to indicate that a
criminal proceeding is manifestly attended with mala
fide and proceeding is maliciously instituted with an
ulterior motive, the High Court will not hesitate in
exercise of its jurisdiction under Section 482 CrPC to
quash the proceeding under Category 7 as enumerated
in State of Haryana v. Bhajan Lal3, which is to the
following effect: (SCC p. 379, para 102)
"102. (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."
Above Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has noted the
-13- W.P.(Cr.) No. 02 of 2021
With
W.P.(Cr.) No. 47 of 2021
judgment of State of Haryana v. Bhajan Lal, but did not
advert to the relevant facts of the present case,
materials on which final report was submitted by the
IO. We, thus, are fully satisfied that the present is a fit
case where the High Court ought to have exercised its
jurisdiction under Section 482 CrPC and quashed the
criminal proceedings."
18. It is well settled that if the civil suit is pending and criminality
is made out, there is no bar of proceeding both the cases civil and criminal
simultaneously. A reference may be made to the judgment rendered by the
Hon'ble Supreme Court in the case of VESA Holdings Private Limited &
another v. State of Kerala & others, reported in (2015) 8 SCC 293.
Paragraph 13 of the said judgment is quoted herein below:-
"13. It is true that a given set of facts may make out a
civil wrong as also a criminal offence and only because
a civil remedy may be available to the complainant that
itself cannot be a ground to quash a criminal
proceeding. The real test is whether the allegations in
the complaint disclose the criminal offence of cheating
or not. In the present case there is nothing to show that
at the very inception there was any intention on behalf
of the accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC. In our
view the complaint does not disclose any criminal
offence at all. The criminal proceedings should not be
encouraged when it is found to be mala fide or
otherwise an abuse of the process of the court. The
superior courts while exercising this power should also
strive to serve the ends of justice. In our opinion, in
view of these facts allowing the police investigation to
continue would amount to an abuse of the process of
the court and the High Court committed an error in
refusing to exercise the power under Section 482 of the
Criminal Procedure Code to quash the proceedings."
19. However, in case, if it finds that the criminality is not made
out and the criminal prosecution has been initiated, it will amount to an
abuse of the process of Court. For the same cause of action and for
cancellation of the sale deed as well as the power of attorney, the Title Suit
has already been filed earlier by the intervener. It is well settled that any
registered document can be annulled by way of filing the civil suit, which
is not in the domain of the Deputy Commissioner to cancel the sale deed.
Thus, it appears that for a civil wrong, the criminal case has been initiated
against the petitioners and for the same cause of action, the title suit is
pending.
20. In view of the above facts and reasoned analysis, the Giridih
-14- W.P.(Cr.) No. 02 of 2021
With
W.P.(Cr.) No. 47 of 2021
(T) P.S. Case No. 217 of 2020 for the alleged offence under Sections 420,
467, 468 and 471 of the Indian Penal Code, pending in the Court of
learned Chief Judicial Magistrate, Giridih, is hereby, quashed.
21. Both the writ petitions are, accordingly, allowed and disposed
of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
