Muthyam Om Prakash Gupta, vs Muthyam Devendhar Gupta,
2021 Latest Caselaw 4597 Tel

     THE HONOURABLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.3029 of 2013

ORDER:

This petition is filed by the petitioners/A-1 to A-13 under

Section 482 Cr.P.C. seeking to quash the proceedings in C.C. No.68

of 2013 on the file of the Additional Judicial Magistrate of First Class

at Nirmal, Adilabad District, for the offences under Sections 448, 386,

506(ii) read with 34 IPC.

2. The case of the prosecution in brief was that the de-facto

complainant/Respondent No.2 filed a complaint before the Police

stating that the petitioners/A-1 to A-13 on 01.06.2011 at 8:30 A.M

illegally trespassed into house of the de-facto complainant and started

abusing him in most un-parliamentary language, while the

complainant was undertaking worship on account of "Amavasya" at

his residence i.e, Budhawarpet Nirmal. A-1 to A-4 threatened the de-

facto complainant as to how dare he was to ask for partition of joint

family properties and attacked him. One Mr. D. Srinivas, Counsellor,

came to the place of the de-facto complainant on the call of the wife

of the de-facto complainant and also Thota Mahesh also came to the

house of the de-facto complainant hearing the hue and cry. The above

two persons noticed that the petitioners 1 to 4 administered the threats

that they would do away with the life of the de-facto complainant

without any evidence. Earlier, the de-facto complainant had registered

a complaint in FIR No 53 of 2011 against his brothers and their wives Dr.GRR,J

for wrongfully restraining the de-facto complainant and taking his

signature on white papers which took place on 01.01.2011 and

keeping the same in their mind they have again tried to attack the de-

facto complainant. The petitioner No.1 arrived Nirmal three days prior

to the date of incident and conspired to kill the de-facto complainant.

Basing on the above complaint, the Police Nirmal Town, Adilabad

District registered FIR No.111 of 2011 for the offences under Sections

448, 506 read with 34 IPC against the petitioners. The Police

conducted investigation and eventually filed a charge sheet referring

the case as false on 30.04.2011. The de-facto complainant filed a

Protest Petition before the Addl. JFCM, Nirmal. The Additional

JFCM has taken cognizance of the offence against the petitioners vide

order dated 24.01.2013 in C.C. No.68 of 2013 under Sections 448,

386, 506(ii) r/w 34 IPC.

3. Heard the learned counsel for the petitioners and the learned

counsel for respondent No.1/Complainant.

4. The learned counsel for the petitioners submitted that the

de-facto complainant filed the above complaint only as a counterblast

to the earlier case filed by the 1st petitioner against him in C.C. No.40

of 2011 on the file of the XI Additional Chief Metropolitan

Magistrate, Secunderabad for the offence under Section 506 IPC. The

de-facto complainant was the brother of the 1st and 3rd petitioners.

There were disputes between them with regard to partition of joint

family properties. Several panchayats were held between the parties in Dr.GRR,J

the presence of their father and elders of community. The de-facto

complainant was disputing the shares and was demanding higher

share unequally to the others.

On 01.01.2011 a meeting was held in the presence of elders at

the house of 3rd petitioner and it was resolved that the de-facto

complainant being the youngest, the other brothers should give an

amount of one crore in cash and all the properties prior to 1998 should

be shared equally and further each brother should deposit an amount

of rupees ten lakhs in cash for the welfare of their parents. The

de-facto complainant subsequently without agreeing to the said terms

filed a false and frivolous complaint before JFCM Nirmal. The said

complaint was referred to Police Nirmal Town and an FIR 53 of 2011

was registered on 23.03.2011. Police Nirmal Town in furtherance of

their investigation filed a charge sheet on 30.04.2011 and referred the

complaint as false and that the matter was civil in nature.

The 1st petitioner also filed a suit in O.S. No.196of 2011 on the

file of XI Junior Civil Judge, City Civil Court, Secunderabad on

29.03.2011 for perpetual injunction with regard to his self acquired

properties. In the said suit, the Court granted injunction in favour of

the 1st petitioner vide orders in IA No 398 of 2011.

On the request of the father of the petitioners 1 and 3 and the

de-facto complainant, all the elders of the community i.e, Petitioners

5 to 13 conducted a meeting at the shop of the father of the petitioners Dr.GRR,J

1 and 3 and the de-facto complainant for settling the partition dispute

on 01.06.2011. All the petitioners including 5 to 13 were specifically

invited by the father of the de-facto complainant to resolve the dispute

between the brothers and to make an amicable settlement among them

all. The de-facto complainant disagreeing for the settlement shouted

at the elders stating that he would go to the Court of law. Upon which

all the elders along with the petitioners left.

The de-facto complainant only to pressurize the petitioners to

succumb them to his illegal demand in resolving the family dispute in

his favour filed the false complaint. The present complaint was an

abuse of process of law using the criminal proceedings for wrongful

purpose. The allegations in the complaint even if taken on their face

value would not constitute any cognizable offences. The averments in

the complaint/Protest Petition and the statement of de-facto

complainant would not satisfy the ingredients of the offences under

Sections 448, 386, 506 read with 34 IPC and prayed to quash the

proceedings.

5. The learned counsel for the respondent No.1/complainant on

the other hand contended that the criminal case could be quashed only

when there were no prima-facie allegations. The complaint would

disclose prima-facie allegations, as such the Court took cognizance of

the Protest Petition and issued summons to the accused.

The complainant had availed the only remedy available to him and

prayed to dismiss the petition.

Dr.GRR,J

6. Perused the record.

7. Admittedly, there were disputes between the brothers with

regard to partition of joint family properties. When a meeting took

place on 01.01.2011 at the house of one of his brothers, the

complainant had not agreed for the settlement and lodged a complaint

against his brothers A-1 and A-2 and the wife, son, daughter of A-1

and the father-in-law of the daughter of A-1, alleging that all the

accused manhandled him, restrained him in a room, kept him under

wrongful confinement, put him under fear and obtained his signature

on white paper with an intention to deprive him of his rights in the

joint family property and forcibly created a document in their favour.

Later, he recovered the said document from the possession of A-1 and

lodged the complaint. The said complaint was registered as FIR 53 of

2011 under Sections 120-B, 386, 341, 323, 506(ii) read with 34 IPC.

Police after investigation filed a final report treating it as false and the

matter was civil in nature.

8. This is another complaint filed by the complainant when his

father called the elders for the settlement of the dispute between the

brothers on 01.06.2011. The complainant alleged that the said

incident took place at his residence at Budhawarpet, Nirmal at 8:30

AM. But the Police in their final report stated that all the alleged

accused persons A-1 to A-14 came over to the house of LW-3 i.e the

house of their father and sat in the shop of LW-3, which was an

undivided property. Admittedly, the complainant was living with his Dr.GRR,J

father in the joint family property. It was mentioned in the final report

that on the call of LW-3, his younger son i.e, the complainant came

from the house and some talks took place among them. As per the

police A-1 to A-14 came on the request of their father and the talks

took place in a joint family property. Thus, the brothers A-1 and A-3

were also having a right in the joint family property and the

complainant cannot claim it as his exclusive property and that they

committed criminal trespass into his house. There cannot be a trespass

by the petitioners 1 and 3, who were the co-owners of the subject

property. When the other petitioners/accused persons came on the

invitation of the father of the de-facto complainant and the petitioners

1 and 3, it could not be alleged that they committed criminal trespass.

Thus, no offence of criminal trespass is prima-facie made out against

the petitioners.

9. The complaint would not disclose that he was put in fear of any

injury and that he was dishonestly induced to delivery any property or

valuable security to attract the offence of extortion. The complainant

alleged in his previous complaint registered as Crime No.76 of 2011

on 30.04.2011 about the allegation of extortion which was referred by

the Police as false. Even in the said complaint, he stated that he

recovered the said document where his signatures were obtained on

white papers from the possession of A-1. As such, his brothers were

not in possession of any document which was signed by him. In the

present complaint, there were no averments and no ingredients Dr.GRR,J

attracting the offence under Section 383 IPC punishable under Section

386 IPC.

10. In a similar manner, the complaint was also not satisfying the

ingredients of the offence under Section 506(ii) IPC against the

petitioners. When the complaint was prima-facie lacking the

ingredients of the alleged offences, the continuation of criminal

proceedings would amount to an abuse of process of law.

11. The Hon'ble Apex Court in Devendra and Others Vs. State of

Uttar Pradesh and Another1 held as under:

"28. Furthermore, in a case of this nature where even, according to Mr Das, no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of mind on his part should have been reflected from the order. (See State of Karnataka V. Pastor P. Raju (2006) 6 SCC 728) and Pawan Kumar Sharma Vs. State of Uttaranchal (Criminal Appeal No.1692 of 2007 decided on 10-12-2007."

12. But the order in the present case also would not disclose any

application of mind by the Magistrate to the contents of the charge-

sheet.

13. The learned counsel for the petitioners relied upon a number of

judgments of the Hon'ble Apex Court in Prof. R.K. Vijayasarathy

(2009) 7 Supreme Court Cases 495 Dr.GRR,J

and another vs. Sudha Seetharam and another2 on the scope of

Section 482 Cr.P.C. wherein it was held that the averments in the

complaint taken on their face do not constitute the ingredients

necessary for the offence or do not disclose the commission of an

offence under IPC, the criminal proceedings may be quashed under

Section 482 Cr.P.C. The complaint must be examined as a whole,

without evaluating the merits of the allegations. Though the law does

not require that the complaint reproduce the legal ingredients of the

offence verbatim, the complaint must contain the basic facts necessary

for making out an offence under IPC.

14. He also relied upon the judgment of the Hon'ble Apex Court in

Chandran Ratnaswami vs. K.C. Palaniswamy and others3 wherein

it was held as under:

"The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well established and a recognized doctrine both by the English courts and courts in India. The wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when 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 High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The

(2019) 16 Supreme Court Cases 739

(2013 6 Supreme Court Cases 740 Dr.GRR,J

ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature."

15. The Hon'ble Apex Court in All Cargo Movers (India) Private

Limited and others vs. Dhanesh Badarmal Jain and another4 held

that "criminal proceedings should not be encouraged, when it is

found to be mala fide or otherwise an abuse of the process of the

court. Superior courts while exercising this power should also strive

to serve the ends of justice."

16. He further relied upon the judgment of the Hon'ble Apex Court

in V.Y. Jose and another Vs. State of Gujarat and another5

wherein it was held as under:

"28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non- existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts."

17. He relied upon the judgment of the Hon'ble Apex Court in

Vinod Natesan Vs. State of Kerala and Others6 wherein it was held

as under:

(2007) 14 Supreme Court Cases 776

(2009) 3 Supreme Court Cases 78

(2019) 2 Supreme Court Cases 401 Dr.GRR,J

"10. ....The dispute between the parties at the most can be said to be the civil dispute and it is tried to be converted into a criminal dispute. Therefore, we are also of the opinion that continuing the criminal proceedings against the accused will be an abuse of process of law and, therefore, the High Court has rightly quashed the criminal proceedings."

18. In Govind Prasad Kejriwal vs. State of Bihar and another7

the Hon'ble Apex Court held as under:

"6.5. It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not. As observed hereinabove, the dispute between the parties can be said to be purely of a civil nature. Therefore, this is a fit case to quash and set aside the impugned criminal proceedings.

19. He relied upon the judgment of the Hon'ble Apex Court in

Jaswant Singh Vs. State of Punjab and another8 wherein it was

held as under:

15. .....In the case of S.W. Palanitkar and others Vs. State of Bihar and another (2002) 1 SCC

(2020) 16 Supreme Court Cases714

Criminal Appeal No.1233 of 2021, dt.20.10.2021 Dr.GRR,J

241). Shivraj Patil, J., in paragraph 27 of the report , hs laid similar emphasis. The same is reproduced below:

"27. ........whereas while exercising power under Section 482 CrPC the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under CrPC, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 CrPC should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 CrPC to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred."

20. Hence, considering the above judgments of the Hon'ble Apex

Court regarding the power and scope of Section 482 Cr.P.C. as the

complaint had not disclosed any prima facie ingredients of the alleged

offences, it is considered fit to quash the proceedings in C.C. No.68 of

2013 on the file of the Additional Judicial Magistrate of First Class at

Nirmal, Adilabad District, taken on file against the petitioners herein.

Dr.GRR,J

21. In the result, this Criminal Petition is allowed quashing the

proceedings in C.C. No.68 of 2013 on the file of the Additional

Judicial Magistrate of First Class at Nirmal, Adilabad District,

against the petitioners herein.

Miscellaneous applications, if any pending, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 27, 2021 LSK