Ramji Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 1439 MP

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR

SINGLE BENCH: HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA

                        Cri. Appeal No.3430/2018
                 (Amit Kumar vs. Hariram Ahirwar & others)

                          Cri. Appeal No.3554/2018
                   (Smt. Nirmala vs. State of M.P. & others)

                           M.Cr.C. No.24031/2018
                   (Sharad Kumar vs. State of M.P. & others)

                             M.Cr.C. No.19244/2019
                           (Dhirendra vs. State of M.P.)

                              M.Cr.C. No.15517/2019
                 (Ramji Kushwaha vs. State of M.P. & another)
                                           and
                            Cri. Appeal No.3533/2018
                   (Santosh Singh vs. State of M.P. & others)
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       Shri Anil Khare, learned Senior Counsel with Shri Bhaskar Pandey

 learned counsel for the appellant in CRA. No.3430/2018.

       Shri A.K. Dixit, learned counsel for the appellant in CRA

 No.3533/2018.

       Shri Siddharth Kumar Sharma, learned counsel for the appellant in

 CRA No.3554/2018

       Shri Manish Datt, learned Senior Counsel with Shri Siddharth

 Kumar Sharma, learned counsel for applicant in MCrC No.24031/2018.

       Shri Ashish Kurmi, learned counsel for the petitioner in MCrC

 No.15517/2019.

       Shri Girish Tiwari, learned counsel for the petitioner in MCrC

 No.19244/2019.

       Shri K.S. Patel, learned PL for the respondent/State.
                                            2

       Shri N.P. Choudhary, learned counsel for the complainants in

CRA. No.3430/2018, CRA No.3533/2018 and MCrC No.15517/2019.

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Whether approved for reporting?             Yes/No
Law laid down
Significant paragraph Nos.


                                     ORDER

(Delivered on /04/2021) At the request of the learned counsel of both the parties, the

matter has been heard finally at motion hearing stage.

2. Since all the above petitions have arisen out of a common

order of cognizance dated 12/04/2018 passed by the Special Court,

Sagar under SC/ST (Prevention of Atrocities) Act 1989, they were

heard together and are being disposed of by this common order.

3. These are the petitions, rather appeals, under Section 482 of

the Code of Criminal Procedure read with Section 14-A of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for brevity, the Act'). The petitioners are praying for

quashing of order dated 12.04.2018 passed by learned Special Judge

(Atrocities), Sagar in unregistered complaint case, by which

cognizance of the offences punishable under Sections 420, 467, 468,

472 of the IPC and Sections 3(1)(v) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

has been taken against Smt. Nirmala, the appellant in Criminal

Appeal No.3554/2018 and Sharad Kumar, the petitioner in MCrC

No.24031/2018 whereas cognizance of the offence punishable under

Section 120B of the IPC has been taken against Amit Kumar, the

appellant in Criminal Appeal No.3430/2018. Further, petitioners in

MCrC No.19244/2019 & MCrC No.15517/2019 seek quashment of

FIR No.01/2019 registered at Police Station A.J.K. District Sagar for

the offence under Sections 419, 420, 467, 468, 471 and 120B of IPC

and Section 3(2)(v) of the Act. The appellant in CRA No.3533/2018

seek quashment of proceedings in Cri. Case No.SCATR 119/2018.

4. Admittedly, complainants Hariram Ahirwar and Gowardhan Ahirawar belong to Scheduled Caste whereas the present appellants/petitioners are members of Non SC/ST Caste.

5. The allegations, as contained in the complaint, are that Parasram

and his nephew Gowardhan jointly purchased a property, bearing

Plot No.15, Part of Khasra No.140/3 admeasuring 930 sq. ft, situated

at Mouza Tili, Patwari Halka No.166, Tahsil and District Sagar vide

registered sale deed dated 06.05.1996. The issueless Parasram who

is brother of complainant Hariram, died on 26.07.2010. During his

lifetime, he executed a Will dated 29.05.2010 by virtue of which, he

bequeathed the aforesaid property as well as other properties to his

wife Shanti Bai and brother Hariram, the complainant herein,

according to the shares given by Parasram (since deceased). After

death of Parasram, names of complainants Hariram as well as that of

Gowardhan were recorded in the revenue record. As complainant

Hariram was in service and mostly out of town, and Gowardhan was

also indisposed and not capable even to walk, therefore, could not

visit the land in question and when petitioners Smt. Nirmala and

Santosh Singh have started construction over the land in question,

the complainant came to know about it on 15.7.2015.

6. Later, the complainant came to know that some persons

including the petitioners impersonated and sold the land to Sharad

Kumar Jain. Sharad Kumar Jain then transferred the land to Amit

Kumar through the power of attorney issued to Sharad Kumar Jain.

Subsequently, Amit Kumar has transferred the land to Nirmala

Gupta and Santosh and other persons by forged registered sale-

deeds. Thus, taking undue advantage, the petitioners in order to grab

the property in question, made a false representation that the

property is in their possession and transferred the same through

forged registered sale-deeds. The factual score as depicted are that

the petitioners are alleged to have made false and forged signatures

of Parasram & Gowardhan and affixing fictitious photographs and

thus executed bogus registered sale deed.

7. It is pertinent to note that an FIR being Crime No.01/2017 has

also been lodged by complainant Hariram on 22.06.2017 against

accused Rajendra Sahu, Dhirendra Vishwakarma, Sunil Dubey,

Mahendra Patel, Kanhaiyalal and Ramji Kushwaha and despite

complaint dated 29.08.2016, no case has been registered against the

present petitioners though they are main accused. Hence, a

complaint under Section 200 CrPC has been filed by the

complainants herein on 27.06.2017 before the Special Judge

(Atrocities), Sagar.

8. By impugned order dated 12.04.2018, learned Special Judge

(Atrocities), Sagar, while considering entire facts and circumstances

of the case including the documents filed by the complainants as

well as the statements recorded under Section 161 CrPC by the

Investigating Officer, came to hold that the fact situation prima facie

revealed criminal culpability and, accordingly, took cognizance

under Sections 420, 467, 468, 472 and 120-B of the Indian Penal

Code and Sections 3(1)(v) and 3(2)(v) of the SC/ST (PoA) Act

against the petitioners and issued bailable warrants requiring them to

appear before the Court.

9. Being dissatisfied with the order impugned, the petitioners

preferred these petitions/appeals contending, inter alia, that the

complaint has been filed with an ulterior motive to harass the

petitioners and its continuance would amount to abuse of process of

the Court. It is also submitted that the allegations made in the

complaint could only be ascertained on the basis of evidence and

documents by a civil court of competent jurisdiction regard being

had to the nature of the dispute and the learned Special Judge had

taken cognizance without any material in the case diary. It is further

contended that the exercise of power under Section 190(1)(a) of the

CrPC was totally unwarranted in the case at hand.

10. Shri Anil Khare, learned Senior Counsel with Mr. Bhaskar

Pandey appearing for Amit Kumar, the appellant in CRA

No.3430/2018 has submitted that the appellant is a bona fide

purchaser and at the time of execution of the sale deed, the appellant

had not made any false or misleading representation and there was

no omission on his part to do anything which he could have done. In

support of his contentions, counsel for the appellant has placed

reliance on the judgment of Mohammad Ibrahim & others Vs.

State of Bihar & another reported as (2009) 8 SCC 751.

11. Shri Manish Datt, learned Senior Counsel along with Shri

Siddharth Kumar Sharma appearing on behalf of Nirmala, the

appellant in CRA No.3554/2018 and Sharad Kumar, the petitioner in

MCrC No.24031/2018 has submitted that the dispute between the

parties is basically a civil dispute and a suit is pending before Sixth

Civil Judge Class I, Sagar as Civil Suit No.156/2016. It is also

contended that the complainants have attempted to cloak it with a

criminal flavor to harass the petitioners. He also relied the citation of

Mohammad Ibrahim & others Vs. State of Bihar & another

reported as (2009) 8 SCC 751. It is pertinent to note that the learned

Court below has taken cognizance against the appellant/Amit under

Section 120-B of IPC and cognizance taken against the

appellant/Nirmala and petitioner/Sharad Kumar under Sections 419,

420, 467, 468, 471, 120-B of IPC and Section 3(2)(v) of SC/ST

(POA) Act, 1989. So far as appellants Amit, Nirmala and Sharad are

concerned. Allegations against them is also that they have conspired

with the other co-accused in committing of this crime. Citation of

Mohammad Ibrahim (supra) is not helpful to the above appellants

as the matter is under investigation and in the nascent stage.

12. Learned counsel for the appellants/petitioners has also

contended that learned Special Court, SC/ST (POA) Act has failed

to follow procedure prescribed under Section 210(1) of Cr.P.C.

Complainant has already filed a complaint before police which has

been registered as Crime No.01/17, therefore, the course available to

the complainant was to follow procedure prescribed under Section

319(1) of Cr.P.C. It is further argued that there is an undue delay in

filing the complaint from which the present appeals/petition arises,

and this demonstrates the mala fide intention of the complainants in

filing the complaint against the appellants/petitioner.

13. Shri Girish Tiwari and Shri Ashish Kurmi, learned counsel for

the petitioners in MCrC No.19244/2019 and MCrC No.15517/2019

contend that the petitioners were bona fide witnesses to the sale-

deed. According to them, the petitioners have never cheated the

complainant.

14. Shri A.K. Dixit, learned counsel for the appellant in CRA-

3533-2018 submits that since the petitioner was bona fide purchaser

for consideration, he could not be said to be guilty of having

committed any criminal offence. Moreover, a compromise has been

reached between complainant and appellant. Since complainant has

no objection therefore, proceeding against this petitioner be quashed.

15. Per contra, learned Government Advocate for the State as

well as Shri Aman Chourasia, learned counsel appearing on behalf

of the complainants, have vehemently contended that the complaint

case cannot be quashed at this nascent stage. The Court cannot sift

and weigh the material placed on record to form an opinion whether

or not a, prima facie, case against the accused is made out. Inherent

powers cannot be exercised to stifle a legitimate prosecution. The

remedies under the criminal law and civil law are not mutually

inclusive but co-extensive; they differ in their content, scope and

consequence and, therefore, even when a civil remedy is available, a

criminal prosecution is not barred.

16. According to learned counsel for the complainant, the

complaint discloses commission of offences punishable under

Sections 420, 467, 468, 472 and 120B of the IPC and Sections 3(1)

(v) and 3(2)(v) of the Act against the petitioners and the same were

sufficient to summon the petitioners. It is also argued that the

learned Special Judge being prima facie convinced that the

complaint filed and other materials produced does disclose

cognizable offence against the accused persons, has taken

cognizance of the complaint and has issued bailable warrants of

arrest and, therefore, there is no jurisdictional error in the order

under challenge. However, he submitted that due to compromise, he

has no objection to quash the proceedings, so far as, appellant-

Santosh Singh in Cr.A. No.3533/2018 is concerned.

17. Heard learned counsel for the respective parties and perused

the order under challenge and the entire record of the case.

18. The learned Special Judge on the basis of materials and

documents on record, has returned a finding that there is a prima

facie case to proceed against the accused persons.

19. The issue involved herein is, whether the learned Special

Judge was justified in taking cognizance of the complaint.

20. Learned counsel for the appellants/petitioner would submit

that the allegations made in the complaint and the materials annexed

do not show the involvement of the appellants/petitioner herein, for

forgery and criminal conspiracy and also committed atrocities on the

complainants under the Act. It is also contended that no prima facie

case is made out against the appellants/petitioner, therefore, the

impugned order deserves to be set aside.

21. The question at this stage, is, not whether there was any truth

in the allegations made but, the question is whether on the basis of

allegations made in the complaint, a prima facie case is made out or

not.

22. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335,

it has been observed :

"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."

23. The principle providing for exercise of the power by a High

Court under Section 482 Cr.P.C. to quash a criminal proceeding is

well settled. The court shall ordinarily exercise the said jurisdiction,

inter alia, in the event the allegations contained in the

FIR/complaint, even if on face value are taken to be correct in their

entirety, does not disclose commission of an offence. This

jurisdiction has to be exercised to prevent abuse of process of law or

otherwise to secure the ends of justice. If the court is satisfied that

prosecution has been launched to harass and victimize the accused

then High Court will be justified in quashing the proceedings.

24. On perusal of case diary as well as records of all connected

cases, this Court is of the view that apparently Special Court, SC/ST

(POA) Act has noticed that the report lodged by the complainant

was not taken proper care, no enquiry was being made, therefore, in

such a situation there is no bar to file a complaint before the Court

having jurisdiction to deal with such cases. In fact, Court taking

cognizance on the complaint has sought the report from concerning

officer who was investigating the matter after considering aforesaid

fact that Special Court, SC/ST (POA) Act has taken cognizance of

the matter, therefore, this Court is of the view that nothing has been

done which is beyond jurisdiction and competence of the Special

Court, SC/ST (POA) Act. So far as, to procedure to be followed

under Section 319 (1) of Cr.P.C. is concerned that the investigation

is at nascent stage, it is pertinent to note that Section 319(1) of

Cr.P.C. relates to those persons who are not made accused in the

enquiry or trial of an offence but has committed any offence for

which such person could be tried then for adding of such person is

requested before Court by the complainant or prosecuting agency to

invoke provision of Section 319(1) of Cr.P.C. At present, this is not the case in which complainant could have invoked this provision.

Investigation is in nascent stage, charge-sheet has not been filed and

concerned agency is not taking interest.

25. The Apex Court in the case of Kamaladevi Agarwal Vs. State

of West Bengal & ors. 2002(1) SCC 555 has held as under:

"Allowing the appeal and setting aside the impugned order passed

by the High Court and restoring the order of the Magistrate with the

direction to proceed with the trial of the case in accordance with the

provisions of law and decide the same on merits the Supreme Court has

held that:

'The High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. There is no substance in the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different code even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas, in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof 'beyond reasonable doubt'."

26. Learned counsel for the appellant in Cr.A. No.3533/18 has

submitted that he has no objection in quashing the proceeding because

compromise has been reached between the complainant and the

appellant. It is pertinent to note that Special Court, SC/ST (POA) Act

has taken cognizance against the appellant under Sections 420, 467,

468, 472 of IPC and Section 3(1)(v) and 3(2)(v) of SC/ST (POA)

Act, 1989. So far as Section 420 of IPC is concerned that is

compoundable with permission of the Court rest are not

compoundable therefore, further course to be adopted by the

appellant is to file compromise before the Court taking cognizance,

to record the compromise and in the light of compromise to consider

cognizance taken for Section 420 of IPC.

27. So far as, submissions of learned counsel for the

appellants/petitioners whether appellants/petitioners are bonafide

purchaser or not and also fact that whether they are involved in the

full conspiracy or not is concerned, it is matter of evidence and will

be settled at the stage of trial when the prosecution and defense

evidence will be led. At this stage, when the investigation has not

been completed and charge-sheet has not been filed, this cannot be

said that the appellants/petitioners are a bonafide purchaser.

28. Apex Court in the case of State of Karnataka Vs. M.

Devendrappa reported in AIR 2002 SC 671, it is held that it would

not be proper for the High Court to analyse the case of the

complainant in the light of all probabilities in order to determine

whether a conviction would be sustainable and on such premises,

arrive at a conclusion that the proceedings are to be quashed. It

would be erroneous to assess the material before it and conclude that

the complaint cannot be proceeded with. In proceedings instituted

on complaint, exercise of the inherent powers to quash the

proceedings is called for only in case where the complaint does not

disclose any offence or is frivolous, vexatious or oppressive.

29. The Apex Court in the case of J.P. Sharma Vs. Vinod Kumar

Jain and others reported in (1986) 3 SCC 67 has held that if prima

facie offences made out on the basis of the allegations made in the

complaint without going into truth or otherwise of the allegations,

High Court cannot exercise its power under Section 482.

30. Considering the entire contentions of learned counsel for the

parties and entire record as well as case diary, this Court is of the

view that on aforesaid legal positions, these Cr.A. Nos.3430-3554-

3533/2018 and M.Cr.C. Nos.19244-15517/2019 and M.Cr.C.

No.24031/2018 being devoid of merit stand dismissed and any stay

or interim order in favour of the appellants/petitioners are hereby

vacated.

31. A copy of this order be sent to the concerning Special Judge,

Sagar and all concerned for information and compliance.

(Akhil Kumar Srivastava) Judge

RS

Digitally signed by RASHMI RONALD VICTOR Date: 2021.04.09 15:29:26 +05'30'