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1997 DIGILAW 155 (GAU)

Haji Mosod Ali v. Sheela Paul

1997-08-12

V.DUTTA GYANI

body1997
By this petition under section 482 CrPC, the petitioner prays for qushing the complaint filed by the respondent complainant and the order dated 9.8.96 issuing process under section 406, 420/34 IPC against the accused. 2. The dispute relates to sale of two elephants belonging to the complainant respondent. Her allegations is that she gave the elephant in good faith to the accused petitioner to engage the elephant in work and on condition that he would pay the monthly earning to her. On 28.3.94 the accused entered into an agreement to purchase the elephant for Rs.3,30,000/- out of which he paid Rs.60,000/- the balance was to be paid by 28.11.94. The accused failed to comply with the terms of agreement and also stopped payment of monthly earnings. 3. The complainant therefore filed a complaint alleging that she has been duped by the accused who also committed criminal breach of turst. The Magistrate registered a case under section 406, 420/34 IPC. 4. As an aftermath of the above complaint the accused petitioner filed a Civil Suit No.39 of 1996 for specific performance of the agreement and Bainanama dated 22.10.94 and 23.3.95 which the respondent for the first time came to know from the plaint and direct the defendant (complainant-respondent) to execute a registered sale deed. Merits of the suit apart, it was filed as an aftermath of the complaint. The date of filing the suit as it appears from the photostate copy. Anexure III, as filed by the petitioner is 17th August, 1996 after the Court's order dated 9.8.96. Even otherwise it was with a view to meet the charge. Two points have been raised: (i) no case is made out on allegations as made by the complaintant; (ii) secondly, the process of the criminal Court is availed as even for setting aside the civil dispute. 5. The scope of inquiry at the stage of issuance of process under section 202 CrPC is extremely narrow, a plausible of defence of the accused cannot be taken into account at this stage. It is not a condition precedent to this issue of process that the Court of necessity must hold the inquiry as envisaged by section 202 or direct investigation as therein contemplated. It is not a condition precedent to this issue of process that the Court of necessity must hold the inquiry as envisaged by section 202 or direct investigation as therein contemplated. The power to take congnizance without holding inquiry or directing investigation is implicit in section 202 when it says that the Megistrate may, "if he thinks fit, postpone the issue of process against the accused and cither inquire into the case himself or direct an investigation to be made by a police office for the purpose of deciding whether or not there is sufficient ground for proceeding." Therefore, the matter is left to the judicial discretion of the Court whether on examining the complainant and the witnesses if any as contemplated by section 20C to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision. (See A.R. Antulay vs. Ramdas Sriniwas Nayak, AIR 1984 SC 718 ). 6. In Madhavrao Jiwajirao Scindia vs. Sarnbhajirao Chandrojirao Angre, AIR 1988 SC 709 while dealing with the question of quashing criminal proceedings held : "When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontrovertcd allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and whether in the opinion of the Court chances of an ultimate conviction are bleak and. therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 7. In another case. Santosh De vs. Archana Guha, (1994) 2 SCC 420 , the Apex Court held : "Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. In another case. Santosh De vs. Archana Guha, (1994) 2 SCC 420 , the Apex Court held : "Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind section 465 CrPC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Frequent interference by superior Courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system." 8. The Supreme Court in Maninder Kaur vs. Ranjinder Singh, 1992 Suppl (2) SCC 25 while setting aside the High Court's order of quashing a criminal proceeding initiated on the basis of statement of the complainant and two witnesses and where Magistrate came to the opinion that there was sufficient ground for proceeding in the complaint and also issue process against the accused-respondents held : "…to Judge the sufficiency or otherwise of the ground for proceeding was beyond the power of the High Court so as to quash the proceedings under section 482, CrPC. The value to be attached to the statement made by the appellant under section 164 CrPC was to be examined at the enquiry at the precharge stage and possibly at the trial, if charge was to be framed. The steps in investigation could also be commented upon likewise at the said two stages. In the facts and circumstances of the case, the High Court was not justified in quashing the proceedings at the initial stage so as to strengulate it at its inception. The accused-respondents have all their rights preserved under law at the stage of the enquiry as also at the trial, if there is one, eventually.. " 9. In the facts and circumstances of the case, the High Court was not justified in quashing the proceedings at the initial stage so as to strengulate it at its inception. The accused-respondents have all their rights preserved under law at the stage of the enquiry as also at the trial, if there is one, eventually.. " 9. So far as the question of invoking the jurisdiction of the criminal Court for civil dispute is concerned, there is a thin yet distinct line of demarcation, a person cheated has both the remedies open to him to sue the deceiver for recovery the property of money and also to take recourse of criminal Court to seek punishment to the guilty. It cannot be laid down as a rule of general application that one remedy exclude others, it differs from the acts committed may be overlaping, yet giving rights to both the remedies civil as well as criminal. Scindia's case (supra) may well be referred to on this point. 10. In view of the foregoing discussions, this petition fails, and accordingly dismissed. The trial Court is directed to expeditiously proceed with this case. Accused petitioner to appear before the trial Court on 26th August, 1997.