Punjab-Haryana High Court
Sandeep Kumar vs State Of Punjab on 2 September, 2023
Neutral Citation No:=2023:PHHC:115529
2023:PHHC:115529
CRM-M-35798-2023 -1-
111 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-35798-2023
Date of Decision: 02.09.2023
Sandeep Kumar ...... Petitioner
Versus
State of Punjab ......... Respondent
CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT
Present : Mr. Viren Sibal, Advocate,
for the petitioner.
*****
RAJBIR SEHRAWAT, J. (ORAL)
1. The present petition under Section 482 of the Code of Criminal
Procedure has been filed for quashing of FIR No.4 dated 05.01.2011,
registered under Sections 465, 467, 468 and 471 of the Indian Penal Code,
1860, (for short, 'IPC'), at Police Station Navi Bardari, District Jalandhar;
order dated 07.12.2010 passed by the Civil Judge (Senior Division),
Jalandhar, pursuant to which the aforesaid FIR was registered; order dated
19.04.2018 passed by the Judicial Magistrate Ist Class, Jalandhar, vide
which the cancellation report filed by the police qua the above-said FIR was
not accepted by the Court; and also the order dated 06.06.2023 passed by the
Judicial Magistrate Ist Class, Jalandhar, vide which the application filed by
the petitioner for discharge in the case has been dismissed by the Court
below.
2. The facts, in brief, as involved in the present case are that one
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Prem Kumar Sabbarwal and others had filed a civil suit seeking declaration
as owner in possession of the property comprised in Khasra Nos.1991/12813
and 12815 situated in Jalandhar. The said suit was decreed by the Civil
Court, vide judgment and decree dated 22.10.2005. The present petitioner
was not the party to the said suit. Thereafter, the above-said Prem Kumar
Sabbarwal filed an execution petition. In the said execution proceedings, the
petitioner had preferred objection petition asserting therein that the petitioner
was tenant on the land involved in the decree. It was further asserted by the
petitioner that the mother of the petitioner was the owner of the land
adjoining the land involved in the decree. To assert the claim qua tenancy;
the petitioner had placed on record of the Executing Court a rent note dated
29.08.2000 showing the petitioner to be a tenant on the land involved in the
decree. However, the decree holder produced before the Executing Court
another copy of the same alleged rent note, which he claimed to have
obtained under the Right to Information Act from the Electricity Board,
wherein the brother of the petitioner was shown to be the tenant on the land;
and not the petitioner himself. When the said copy of the rent note was
presented before the Executing Court, that Court ordered registration of FIR
against the petitioner, vide impugned order dated 07.12.2010. Accordingly
the FIR was registered by the police in the year 2011. However, as the facts
would show, during the pendency of the execution petition itself, the decree
holder had settled the dispute with the present petitioner; under which; he
had sold the land involved in the decree to the wife of the petitioner. This
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situation is also reflected in the subsequent orders dated 05.03.2013 and the
order dated 12.01.2015 passed by the Executing Court. Accordingly, the
dispute regarding the property in question; as such, was finally settled before
the Executing Court itself; and as a result, the execution proceedings were
disposed of in view of the aforesaid settlement between the parties.
However, before that, FIR was already ordered to be registered by the
Executing Court.
3. After investigation of the matter, the police had filed a
cancellation report before the Magistrate, in which, inter alia, it was stated
by the police that the matter had already been settled between the parties.
However, the Magistrate had rejected that cancellation report, vide order
dated 19.04.2018 stating therein that since, the FIR was got registered on the
order of the Court, therefore, mere settlement between the parties could not
having been a ground for the police to file a cancellation report.
Accordingly, the police was directed to further investigate the case. As a
result, the police filed challan against the petitioner, in which the police only
placed on record the two copies of the rent note referred to in the Court
order; without there being any other supporting evidence. Since, the
petitioner was made to face proceedings in the FIR, and according to the
petitioner there was no substance left in the matter, therefore, he had filed
an application before the Criminal Court for his discharge in the case.
However, even the said application has been dismissed by the Court below,
vide order dated 06.06.2023. It is challenging the all above-said orders and
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the FIR that the present petition has been filed.
4. Arguing the case, counsel for the petitioner has submitted that
the very initiation of the case against the petitioner was based on the facts
which were not even verified at that stage in any manner. No doubt that
there was a copy of the rent note shown to the Court in the execution
proceedings wherein the brother of the petitioner was shown as a tenant of
the land in question and he had applied for electricity connection as such,
however, subsequently the petitioner himself was introduced as a tenant on
the property in question with the consent of the family and of the then
landlord. Therefore, only change of name of the tenant was required to be
done; and that was exactly done. Therefore, there was no criminal aspect
involved in the matter. The brother of the petitioner had never raised any
dispute that his name had wrongly been replaced in the said rent note.
Therefore, the Executing Court should not have rushed in the matter to get
the FIR registered against the petitioner without first verifying the said facts.
In any case, the decree holder himself had settled the dispute with the
petitioner and accordingly, he had sold the property to the wife of the
petitioner. As a result, even the execution proceedings, during pendency of
the above-said FIR registered against the petitioner, ended in disposal based
on the compromise between the parties. Therefore, even the decree holder
of the said case, who statedly, presented the different copy of the same rent
note before the Court was not left with any grievance against the petitioner.
Hence, the entire case against the petitioner has resulted in miscarriage of
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justice. It is further submitted by the counsel for the petitioner that even
with the challan, there is no material supplied to the petitioner in support of
the allegations that it was the petitioner who had forged and fabricated the
alleged rent note by substituting himself in place of his brother. Therefore,
otherwise also, there is no material to support the case against the petitioner.
Hence, the present petition deserves to be allowed and the aforesaid FIR and
all the proceedings consequent thereon deserve to be set aside.
5. Notice of motion.
6. On the asking of the Court, Mr. Jaspal Singh Guru, AAG,
Punjab, accepts notice on behalf of the respondent-State.
7. It is submitted by the counsel for the State, being instructions by
HC Saranjit Singh, that the case was registered against the petitioner on the
order of the Court only. Therefore, the petitioner cannot be granted any
concession by quashing of the FIR. After investigation, the police have even
filed challan against the petitioner. Therefore, whatever assertion the
petitioner is making, that is only the defence, if any, which the petitioner
can take during the trial.
8. Having heard counsel for the parties and having perused the
case file, this Court finds substance in the arguments raised by the counsel
for the petitioner. In the first instance, the very aspect of ordering
registration of the aforesaid FIR only on production of two copies of the
same document containing the name of two different persons as a tenant;
may not be justified; because the other person also happens to be none other
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than the real brother of the petitioner. Real brother of the petitioner had
never raised any complaint or any issue that his name had wrongly been
substituted with the name of the petitioner and that he was still the tenant on
the land. There is nothing on record to show any grievance of the brother of
the petitioner, who is stated to be the other person named in the second copy
of the rent note. Hence, even before the Executing Court, there was nothing
to suggest the mens rea on the part of the petitioner. Therefore, in the
considered opinion of this Court, the Executing Court itself should not have
been over-enthusiased to rush in ordering the registration of the FIR.
Rather, the said Court should have refrained from entering into this aspect,
which was beyond the scope of the executing proceedings, per se.
9. Otherwise also, the challan filed by the police also does not
contain any material through which the element of mens rea is sought to be
proved against the petitioner. It is not even in dispute that earlier the police
themselves had filed the cancellation report, though, the same was not
accepted by the Magistrate. The police had rightly relied upon the fact that
the executing proceedings itself had ended in disposal on the basis of
settlement between the petitioner and the decree holder. Under the said
settlement, the decree holder has already sold the property in question to the
wife of the petitioner through a registered sale deed. Therefore, even if the
proceedings are permitted to continue before the Trial Court, that would be
only a futile exercise, which would not result anything except the wastage of
the precious time of the Trial Court. Moreover, since the parties had already
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settled their dispute, therefore, it would not be inappropriate to lend a
quietus to the proceedings, which were initiated against the petitioner
regarding the property qua which there is no more any dispute. Therefore,
this Court finds substance in the arguments of the counsel for the petitioner
that the aforesaid FIR and the consequent proceeding against the petitioner
deserves to be quashed.
10. In view of the above, the present petition is allowed. FIR No.4
dated 05.01.2011, registered under Sections 465, 467, 468 and 471 of the
IPC, at Police Station Navi Bardari, District Jalandhar; order dated
07.12.2010 passed by the Civil Judge (Senior Division), Jalandhar; order
dated 19.04.2018 passed by the Judicial Magistrate Ist Class, Jalandhar; and
the order dated 06.06.2023 passed by the Judicial Magistrate Ist Class,
Jalandhar, along with all the proceedings consequent thereon; against the
petitioner, are quashed.
(RAJBIR SEHRAWAT)
JUDGE
02.09.2023
adhikari
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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