Anil Choudhary vs State Of Rajasthan
2021 Latest Caselaw 15437 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc.(Pet.) No. 4247/2021

1. Anil Choudhary S/o Bhura Ram, Aged About 62 Years, R/o 1, B 41 Shastri Nagar, Jodhpur, Shastri Nagar, Jodhpur City (West), Rajasthan.

2. Mahesh Choudhary S/o Jahan Singh, Aged About 60 Years, Nehru Nagar, Barmer, Kotwali Barmer, Rajasthan.

3. Rukhsana S/o Harhum, Aged About 52 Years, Sindiyo Ka Bash, Siwanchi Gate, Khanda Falsa, Jodhpur City (East), Rajasthan.

4. Smt. Kamla W/o Hari Prasad, Aged About 68 Years, Nagori Gate, Jodhpur City (East), Rajasthan.

5. Smt. Nanda Choudhar W/o Anil Choudhary, Aged About 56 Years, R/o 1, B 41 Shastri Nagar, Jodhpur City (West), Rajasthan.

6. Smt. Kamlesh W/o Mahesh Choudhary, Aged About 58 Years, 1, Naharu Nagar, Barmer, Rajasthan.

7. Smt. Usha W/o Vijay Pooniya, Aged About 68 Years, Civil Line, Jaipur Sadar (West), Rajasthan.

8. Sivani Poonia W/o Vijay Pooniya, Aged About 36 Years, 1, Civil Line, Jaipur Sadar (West), Rajasthan.

9. Himani Poonia W/o Vijay Pooniya, Aged About 32 Years, 1, Civil Line, Jaipur Sadar, Jaipur (East), Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Smt. Jyoti Mirdha W/o Narendra Gehlot, At Present R/o Sirsi Road, Jaipur City, (Raj.), And Permanent Resident Of Gurgaon City, Gurgaon, Haryana.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Rajesh Joshi, Senior Advocate,
                               with Ms. Kamini Joshi and Mr. Raj
                               Kumar Pareek
For Complainant(s)       :     Mr.   Bharat Vyas
                               Mr.   Rajendra Singh Shekhawat
                               Mr.   Snehdeep Khyaliya
For State                :     Mr.   Gaurav Singh, PP




                                     (2 of 8)                   [CRLMP-4247/2021]




         HON'BLE MR. JUSTICE PANKAJ BHANDARI

                                   Order

ORDER RESERVED ON                            ::                 28/09/2021
ORDER PRONOUNCED ON                          ::                 05/10/2021

1. The petitioners have preferred this Miscellaneous Petition for

quashing of FIR No.264/2021 dated 5.8.2021 registered at Police

Station, Chopasani Housing Board for the offence under Sections

420,447, 467, 468, 471 and 120-B IPC.

2. Factual matrix of the case are that a complaint was lodged

on 8.7.2021, by Shri Prem Prakash Mirdha, Power of Attorney of

respondent No.2, which was sent at the Police Station under

Section 153(3) Cr.P.C. for registration of FIR. FIR was registered

on 5.8.2021. The allegation in the FIR is that father of the

complainant and accused No.2 - Bhanu Prakash Mirdha were real

brothers. Father of the complainant expired in 1993. After sad

demise of Ram Prakash Mirdha and his wife Smt. Veena Devi,

Smt. Jyoti Mirdha and Hemsweta Mirdha have become their legal

heirs. On 23.5.1988, Bhanu Prakash Mirdha sold Khasra Nos.103

and 106, the total area being 4 bighas and 17 biswa, situated at

Village Suthala, Tehsil and District Jodhpur to one Shri Bhanwar

Lal. Bhanu Prakash Mirdha had no authority to sell half of the

share of Ram Prakash Mirdha. The accused moved an application

with the Jodhpur Development Authority (hereinafter referred to

as "the JDA") in the year 2017 for changing of the land use. An

acceptance letter dated 26.1.1993 alleged to be written by Ram

Prakash Mirdha was also filed wherein, Jagdeesh Sihag and Govind

Ram Phiroda were the attesting witnesses. The complainant was

(3 of 8) [CRLMP-4247/2021]

not aware that accused has grabbed the property and it is only in

the year 2018, when a suit for partition was filed, this fact came

to the knowledge of the complainant. It is also mentioned that

conversion order dated 26.6.2018 was challenged before the

Divisional Commissioner, wherein a status-quo order was passed.

A suit under Section 53 of the Rajasthan Tenancy Act was also

filed and a preliminary decree has been passed on 2.3.2021 for

partition of the disputed property by meets and bounds.

3. It is contended by learned counsel for the petitioners that

the petitioners are bonafide purchasers, who have purchased the

property from Shri Bhanwar Lal, who has purchased the property

from Ram Prakash Mirdha by a registered sale deed dated

23.5.1988. It is also contended that the registry is of the year

1988 and the present FIR has been lodged after an inordinate

delay of 33 years. It is further contended that in the partition suit

filed by the complainant in the year 1999, it was mentioned that

the disputed property has been sold and that it cannot be

partitioned and that the purchasers are in possession. It is also

contended that pattas were issued in favour of the petitioners by

the JDA in the year 2017.

4. Counsel for the petitioner argues that if FIR does not disclose

commission of a cognizance offence or, if the dispute is of civil

nature or, if continuation of proceedings would tantamount to

abuse of process of law, the High Court can quash the

proceedings. In support of his argument, learned counsel has

placed reliance on the judgment of the Apex Court in State of

Haryana & Ors. Versus Bhajan Lal & Ors.: 1992 Supp (1)SCC

335. Further reliance has been placed on the judgments in Mrs.

Arnavaz (Anu) & Ors. Versus Alcobex Metals Ltd. & Anr.: 2005

(4 of 8) [CRLMP-4247/2021]

(1) WLC (Raj.) 239, Indian Oil Corpn. Versus NEPC India Ltd. &

Ors.: (2006) 6 SCC 736, A P Mahesh Cooperative Urban Bank

Sharesholders Welfare Association Versus Ramesh Kumar Bung &

Ors.: Special Leave Petition (Criminal) No.3869 of 2021 and

Nitu Agarwal Versus State of Rajasthan & Anr.: S.B. Criminal

Miscellaneous (Petition) No.2864/2019 decided by a

Coordinate Bench of this Court on 6.8.2019. It is also contended

that in the partition suit, the complainant had admitted that the

property has been sold and it cannot be partitioned. The suit for

partition was filed in the year 1999 and the present FIR has been

lodged after 22 years of the knowledge of transfer of the disputed

property. It is further contended that the FIR does not disclose the

ingredients of any offence as far as the present petitioners are

concerned, as they have not purchased the property from Bhanu

Prakash Mirdha and thus, they are bonafide purchasers.

5. Learned counsel appearing for respondent No.2 has

vehemently opposed the miscellaneous petition. It is contended

that in the documents submitted before the JDA, it was mentioned

that Ram Prakash Mirdha has consented to the transfer of the

property, which document is a forged document. It is also

contended that the proceedings can be quashed only in rarest of

the rare cases. A No Objection Certificate was obtained from Ram

Prakash Mirdha on 26.1.1993 and society pattas were got issued

in 1992. Counsel for respondent No.2 has placed reliance on the

judgments in S.P. Gupta Versus Ashutosh Gupta: (2010) 6 SCC

562, State of Karnataka Versus M. Devendrappa & Anr.: (2002)

SCC (Cri.) 539, T. Vengama Naidu Versus T. Dora Swamy Naidu

& Ors.: 2007 (1) JCC 877, Shri Mahavir Prashad Gupta & Anr.

Versus State of National Capital Territory of Delhi & Ors.: 2000

(5 of 8) [CRLMP-4247/2021]

Cr.L.J. 4665, Alka Mishra Versus NCT to Delhi: 2011 (184) DLT

560, M/s. Neeharika Infrastructure Pvt. Ltd. Versus The State of

Maharashtra: 2021 SCC Online SC 315, Ranu Kumari Versus

Sanjay Kumar & Ors.: 2008 (2) JCC 1032, M.L. Bhatt Versus

M.K. Pandita & Ors.: JT 2002 (3) SC 89, B. Jagdish Versus State

of A.P. & Anr.: (2009) 1 SCC 681, State of Madhya Pradesh

Versus Awadh Kishore Gupta & Ors.: (2004) 2 CRJ 161, M.

Narayandas Versus State of Karnataka & Ors.: 2004 SCC (Cri.)

118, State of Karnataka & Anr. Versus Pastor P. Raju: (2006) 3

JCC 1398, Syed Askari Hadi Ali Augustine Versus State (Delhi

Admn.) & Anr.: (2009) 5 SCC 528, Mosiruddin Munshi Versus

Md. Siraj & Anr.: 2014 Cri.L.J. 4180, Maratt Rubber Ltd. Versus

Marattukalam: (2001) SCC (Cri.) 646, State of Maharashtra

Versus Som Nath Thapar & Ors.: (1996) 4 SCC 659 and Aizaz &

Ors. Versus State of U.P.: (2008) 4 JCC 2274.

6. From the catena of judgments cited by the counsel for the

parties, the following principles/guidelines can be derived:

A. It is only in cases where a non-cognizable offence or offence

of any kind is not disclosed in the first information report that the

Court will not permit an investigation to go on;

B. Save in exceptional cases where non-interference would

result in miscarriage of justice, the Court and the judicial process

should not interfere at the stage of investigation of offences;

C. The power of quashing should be exercised sparingly with

circumspection;

D. Quashing of a complaint and FIR should be an exception

rather than an ordinary rule;

E. Criminal proceedings ought not to be scuttled at the initial

stage.

(6 of 8) [CRLMP-4247/2021]

7. In the backdrop of the law laid down by the Apex Court in

various pronouncements, this Court is going to deal with the

matter in hand. The uncontroverted facts of this case are that the

present FIR pertains to Khasra Nos.103 and 106 measuring 4

bighas and 17 biswa situated at Village Suthala, Tehsil and District

Jodhpur. The property in question belonged to uncle and father of

the complainant. The complainant's mother filed a suit for

partition of the properties jointly owned in the year 1999. The

property in question was sold by uncle of the complainant - Bhanu

Prakash Mirdha by registered sale deed dated 23.5.1988 to

Bhanwar Lal and further, Bhanwar Lal sold the same property to

the petitioners in the year 1992 and the land use was converted

from agriculture to residential.

8. Both the counsel for the petitioners and the respondents

have not disputed that a partition suit was filed, reference to this

effect also finds place in the FIR. In Para 1 of the revenue suit, the

entire property, which was jointly owned by father and uncle of

the complainant, is detailed out. In Para 6 of the complaint, it is

specifically mentioned that Khasra Nos.103 and 106 measuring 4

bighas and 17 biswa has already been transferred and the

transferee is in possession of the land and therefore, partition of

this property is not sought for meaning thereby that the disputed

property for, which the present complaint has been lodged, was

sold in the notice of the complainant prior to filing of the partition

suit in the year 1999 and no objection whatsoever was raised with

regard to this property in the partition suit. Now, after a lapse of

33 years dispute is being raised with regard to the same property,

which admittedly was sold prior to the date of filing of the revenue

suit for partition in year 1999.

(7 of 8) [CRLMP-4247/2021]

9. The case now made up by the complainant is that without

notice of the complainant's father, the property was sold by her

uncle, which fact stands disproved by the revenue suit filed in the

year 1999. The complainant was knowing about the sale of the

property. The present complaint has been lodged after an

inordinate delay and the explanation given in the FIR for the delay

is that the fact of committing forgery and selling of the disputed

property came to the notice of the complainant only in the year

2018 during the proceedings in the partition suit. This assertion in

the FIR at the face of it is untrue, as in the partition suit itself, it is

mentioned that the disputed property has been sold and the

purchasers are in possession and for that reason, the prayer for

partition of Khasra Nos.103 and 106 is not being made.

10. Challenge to the sale deed executed way back in the year

1988 and which was in notice of the complainant when the

partition suit was filed in the year 1999, is clearly an abuse of

process of law. It is true that powers under Section 482 Cr.P.C. are

to be exercised sparingly and in rarest of the rare case and the

Court should not thwart investigation, but this Court is of the view

that this is an exceptional case where non-interference would

result in miscarriage of justice. The complaint is clearly a

misadventure on the part of the complainant to claim half share in

the property sold by her uncle way back in the year 1988 and

which was in her notice prior to filing of the suit for partition.

Since, the father of the complainant and her mother had not

objected to the sale deed executed in the year 1988, the said sale

deed should be construed to be with the consent of the

complainant's father. The complainant in the partition suit itself

had given her right to claim partition of Khasra Nos.103 and 106

(8 of 8) [CRLMP-4247/2021]

as is evident from a bare reading of Para 6 of the revenue suit.

The allegations in the FIR, even if taken on their face value,

neither prima-facie constitute any offence nor it discloses the

commission of any offence and makes out a case against the

accused. In such circumstances, no prudent person can ever reach

to just conclusion that there is sufficient ground to proceed

against the accused. This Court is of the firm view that permitting

proceedings in this case would tantamount to grave injustice to

the bonafide purchasers, who had purchased the property way

back in the year 1992.

11. The Criminal Misc. Petition therefore deserves to be allowed

and the same is accordingly allowed. FIR No.264/2021 dated

5.8.2021 registered at Police Station, Chopasani Housing Board

for the offence under Sections 420,447, 467, 468, 471 and 120-B

IPC deserves to be and is, accordingly, quashed.

(PANKAJ BHANDARI),J

Sunil Solanki/13

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