Kadam Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8756 MP

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         THE HIGH COURT OF MADHYA PRADESH
                 Writ Petition No.25331/2021
      Kadam Singh and another Vs. State of M.P. and others

Gwalior, Dated:14-12-2021

      Shri Sanjeev Jain, Advocate for petitioners.

      Shri Sanjay Kumar Sharma, Government Advocate for

respondents no.1 to 3/State.

This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

"i. That, the impugned FIR i.e., Annexure - P/1 & Annexure - P/2 may kindly be quashed alongwith criminal case which has been filed on the basis of the said FIR (s).

ii. That, the respondent may kindly be directed to compensate the petitioner with an amount of Rs.1,00,000/- for registering the false FIR i.e., Annexure - P/1 & Annexure - P/2, and implication the petitioner in the same.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted."

2. It is submitted by the counsel for the petitioners that in fact the

FIRs in question were lodged with a malafide intention to dispossess

the petitioners from the land in question. Ms. Ladobai, Kishanlal and

Nadeela entered into an agreement to sell in favour of Kanhaiyalal

Bijoriya in respect of agricultural land bearing survey no.11/2 area

0.084 hectare, survey no.15 area 0.188 hectare, survey no.16 area

0.115 hectare, survey no.17 area 0.021 hectare (half share), survey

no.18 area 0.052 hectare (half share), survey no.20/1 area 0.031

hectare (half share), survey no.20/2 area 0.010 hectare (half share),

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

total area 0.444 hectare situated in village Veerpur, Lashkar, District

Gwalior. The agreement was executed on 31/5/1997. The said

disputed property is the ancestral property of the petitioners, in which

father of the petitioners had 1/7 th share. Thereafter, Kishanlal and

Ladobai alienated the said land vide registered sale deed dated

29/9/1999 in favour of Veersingh Tomar. The said sale deed was

executed without any intimation and permission of the petitioners

and, therefore, the sale deed dated 29/9/1999 cannot be used against

the interest of the petitioners. It is the case of the petitioners that no

partition has taken place and, therefore, without effecting any

partition, no specific piece of land can be sold. It is submitted that

father as well as uncle of the petitioners filed a suit, which was

registered as Civil Suit No.246A/1997 and by judgment and decree

dated 22/10/2001 passed by Ninth Civil Judge, Class-II, Gwalior it

was held that the father and uncle of the petitioners have 1/7 th share

in the property and a right of preemption was also given in favour of

the plaintiffs. In the meanwhile, one suit was filed by Kanhaiyalal for

specific performance of contract on 31/5/1997 and the said suit was

decreed by judgment and decree dated 10/12/2004 passed by First

Additional Judge to the Court of First Additional District Judge,

Gwalior in Civil Suit No.11-A/2002 and it was held that Kanhaiyalal

is entitled to get the sale deed executed by virtue of an agreement to

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

sell. However, it is submitted that neither the petitioners nor their

father were impleaded as a party and the said decree was passed

behind the back of the petitioners. Against the judgment and decree

dated 10/12/2004, Veersingh Tomar, Kishan Singh and Ladobai have

preferred First Appeal No.79/2005 and the said appeal has been

admitted and by order dated 2/3/2005, an interim order has been

passed and execution of the judgment and decree, so far as it relates

to delivery of possession, has been stayed. The petitioners have filed

an application under Order I Rule 10 CPC before the High Court,

which is still pending adjudication. It is submitted that since the

petitioners have 1/7th share in the property and they are in possession

of the same and in order to dispossess them, false FIRs have been

lodged and, therefore, they are liable to be quashed.

3. Heard learned counsel for the petitioners.

4. During the course of arguments, it was fairly conceded by the

counsel for the petitioners that the petitioners have also filed a civil

suit and their application for grant of temporary injunction has been

rejected, against which a miscellaneous appeal is pending. The only

contention for quashment of the FIR is that the petitioners are in

possession of the land in dispute, however, in view of the fact that the

application for grant of temporary injunction filed by the petitioners

has also been rejected, therefore, it cannot be said that the petitioners

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

are in possession of the land in dispute. Furthermore, this Court at the

very initial stage of investigation cannot give any finding. The

petitioners are free to establish their defence in the trial. Furthermore,

it is the settled principle of law that if the FIR discloses commission

of cognizable offence, then the same cannot be quashed merely on

the ground of malafides.

5. The Supreme Court in the case of Renu Kumari Vs. Sanjay

Kumar reported in (2008) 12 SCC 346 has held as under:-

"9. "8. Exercise of power under Section 482 CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under CrPC, (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. The courts, 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 the course of administration of justice on the principle of 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 the powers under the section, the court

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

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 the 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 the 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 the 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 report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR p. 869)

10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The 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 CrPC 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. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) '(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-

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

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 Act concerned (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 Act concerned, 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.'

11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The 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. [See Janata Dal v. H.S. Chowdhary and Raghubir Saran (Dr.) v. State of Bihar.] 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

THE HIGH COURT OF MADHYA PRADESH Writ Petition No.25331/2021 Kadam Singh and another Vs. State of M.P. and others

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. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi) and Rajesh Bajaj v. State NCT of Delhi.]"

The above position was again reiterated in State of Karnataka v. M. Devendrappa, State of M.P. v. Awadh Kishore Gupta and State of Orissa v. Saroj Kumar Sahoo, SCC pp. 547-50, paras 8-11.

6. Accordingly, no case is made out for interference in the matter.

The petition fails and is hereby dismissed in limine.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.12.15 17:50:45 +05'30'