Arvind Nautiyal vs State Of Uttarakhand And
2022 Latest Caselaw 3534 UK

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                                      C-482 No.995 of 2018
                                      Hon'ble Sharad Kumar Sharma, J.

Mr. Sandeep Kothari, Advocate for the applicants.

Mrs. Lata Negi, Brief Holder for the State of Uttarakhand.

Mr. Prem Kaushal, Advocate for respondent no.2.

The applicants in the present C482 Application have put a challenge to the judgment which had been passed by the revisional court dated 04.06.2018 in Criminal Revision No.05 of 2018 Arvind Nautiyal Vs. State of Uttarakhand and Others; whereby the revisional court while allowing the revision, had set aside the order dated 20.01.2018, thereby rejecting the application preferred by the respondents under Section 156(3) of Cr.P.C. and had remanded the matter to be decided afresh.

Brief facts, which engaged consideration are, that it is not in dispute between the parties that one Jagdamba Prasad Nautiyal, was the recorded owner in possession of the property, which was later on made as a subject matter of the attorney dated 19.10.2001, which was admittedly given in favour of one Mr. Maheshwar Prasad, who was supposed to manage the affairs of the property described therein as contained in Khata No.72, Sateshwar Mohalla, Ward No.6 Tehri Garhwal, (A-11, A Model Town Sector 3, New Tehri, Tehri Garhwal).

The attorney holder Mr. Maheshwar Prasad, is said to have met with the sad demise on 23.08.2003. Later on since Jagdamba Prasad being the principal owner of the property, he is said to have executed a sale deed dated 31.03.2004, in favour of present applicants i.e. Tulsi Devi and one of his son from second wife Ashish Nautiyal. It is further not in dispute nor could be born out from the records, that sale deed was put to challenge before any civil court by the respondents herein, who claimed a rival claim over the property of late Mr. Jagdamba Prasad , on the ground that he was since the son born out of the second marriage of Mr. Jagdamba Prasad with Sureshi Devi, he would have a right of succession over the property in question, which was sold to present applicants by the sale deed of 31.03.2004.

So far as the sale of property is concerned, once the question of title vested with Mr. Jagdamba Prasad, is not in dispute, and the right vested with now Late Mr. Maheshwar Prasad, under the attorney of 22.08.2001, would automatically on his death the right and the title to manage over the property would vest back and would revert to the principal owner Jagdamba Prasad Nautiyal.

In that eventuality, particularly when the sale deed itself of 31.03.2004, was not put to challenge before the Civil Court, coupled with the fact that the sanctioning authority has sanctioned the construction, which was made for raising constructions in favour of the present applicants on 10.05.2010, as well as the fact, which has been argued by the learned counsel for the applicants, that the complaint has been instituted immediately as soon as the entries were recorded in the revenue record on 23.11.2017, which itself attaches malice to the proceedings under Sub Section (3) of Section 156 of the Cr.P.C., this Court is of the view that on an overall purview of the controversy, it takes the shape of a civil dispute, which could not be taken cognizance of by the criminal courts by entertaining the complaint because it will fall within the parameters of the judgment of State of Haryana vs. Bhajan Lal 1992 Supp. (1) SCC 335 particularly the backgrounds, which has been laid down with regards to the nature of offences, which could be tried under Section 482 of Cr.P.C. as contained in para 102 of the said judgment, which is extracted hereunder:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 F.I.R. 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 F.I.R. do not constitute a cognizable offence but constitute only a non-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 concerned Act (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 concerned Act, 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."

Since the criminal proceedings has been barred by the aforesaid judgment of the Hon'ble Apex Court, in relation to a civil dispute and particularly where the applicants and the respondents are claiming their respective rights from the common predecessor owner, the father of the present applicants and respondent no.2, the complaint itself would not be sustainable and it was rightly rejected by the court of Judicial Magistrate, Ist Class, Tehri Garhwal in Criminal Case No.422 of 2017, Arvind Prasad Nautiyal vs. Jagdamba Prasad Nautiyal, the judgment, which has been over turned by the revisional court by the impugned judgment of 04.06.2018.

Since for the reasons given in the judgment of Bhajan Lal, the present C-482 Application is allowed. As a consequence thereto, the revisional court's judgment dated 04.06.2018, allowing the revision and setting aside the order of 20.01.2018, rejecting the application/complaint filed by the respondents under Sub Section (3) of Section 156 of Cr.P.C. that would stand quashed and as a consequence thereto, it will be open for the parties to seek the redressal of the grievances before the competent civil court in the light of the judgment of Bhajan Lal (Supra).

(Sharad Kumar Sharma, J.) 07.11.2022 Arti