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2003 DIGILAW 374 (AP)

SYED ALI AZAM v. STATION HOUSE OFFICER, BANJARA HILLS POLICE STATION, HYDERABAD

2003-03-07

V.V.S.RAO

body2003
V. V. S. RAO, J. ( 1 ) THE petitioner claims that his cousin Smt. Najma Iqbal Abid Ali, W/o. Iqbal Abid Ali purchased 400 Sq. yds. of land from late Smt. Sita Devi under a registered sale deed dated 8-1-1988. The said land was treated as protected area under the Urban Land (Ceiling and Regulation) act, 1976 ( the ULC Act ). Her cousin wanted to sell the land and, therefore, approached the Special Officer and competent authority, Hyderabad Urban Agglomeration constituted under the ULC Act seeking permission under Section 26 of the said Act. The Special Officer refused to give no objection and directed for cancellation of the sale deed. Therefore, a writ petition was filed being WP No. 22225 of 1998 and this Court by an order dated 24-8-1998 in W. P. MP No. 26688 of 1998, suspended the operation of the order of the Special officer refusing to give no objection to sell the land. ( 2 ) IT appears, the petitioner, on instructions from his cousin took labour to the said plot for fencing the same. The mandal Revenue Officer (MRO), Shaikpet, the third respondent herein, it is alleged, without revealing the identity came to the plot and took away the implements and asked the petitioner to come to his office. The petitioner alleged that he was detained in the MRO s Office for a couple of hours and the Sub-Inspector of Police, Banjara hills Police Station was called to the MRO s office. He explained the position regarding title to the Revenue Divisional Officer, secunderabad Division and also gave a letter to him. In reply, the third respondent sent a communication dated 23-9-1999 stating that the petitioner has trespassed into the surplus vacant land belonging to the Government and he is carrying out illegal construction on the land. The petitioner was also informed that a criminal case is registered for the offence of criminal trespass. The first respondent registered Crime No. 447/1999, dated 23-9-1999 under Sections 447 and 186 of the Indian Penal Code. The petitioner filed the present writ petition for quashing the criminal case. ( 3 ) A counter-affidavit is filed by the first respondent denying the allegations made in the affidavit accompanying the writ petition. The first respondent registered Crime No. 447/1999, dated 23-9-1999 under Sections 447 and 186 of the Indian Penal Code. The petitioner filed the present writ petition for quashing the criminal case. ( 3 ) A counter-affidavit is filed by the first respondent denying the allegations made in the affidavit accompanying the writ petition. It is stated that the land claimed by the petitioner s cousin is a Government surplus land and is in possession of the mro, and, therefore, the petitioner by entering into the land committed an offence under Section 447. It is also stated that the petitioner threatened the MRO and the staff when they went there to prevent the petitioner from proceeding with the construction illegally. Therefore, the registration of FIR in relation to the cognizable offence committed by the petitioner is justified. The counter-affidavit also refers to the investigation by the first respondent in which prima facie the allegations are proved. ( 4 ) LEARNED Counsel for the petitioner, Sri Badri Premnath, relies on the sale deed in support of the submission that the plot in question was purchased by Smt. Najma Iqbal abid AH and, therefore, an offence under section 447 IPC is not made out. He further submits that the petitioner never threatened or abused public servants and it is a petty case against the petitioner. ( 5 ) A copy of the sale deed is not produced before this Court. Be that as it may, the alleged rightful owner Smt. Najma iqbal Abid AH has not joined the petitioner in filing the writ petition. Further, the petitioner seeks to quash the FIR only on the ground that the complaint is false and concocted with a view to harass him. No proper ground is taken for quashing the FIR in exercise of powers under Article 226 of the Constitution of India. It is well settled that at the stage of FIR or criminal investigation into a cognizable offence, the court does not ordinarily interfere and quash the proceedings. ( 6 ) IN R. P. Kapur v. State of Punjab, AIR 1960 SC 866 , the Supreme Court pointed out the three circumstances or eventualities when this Court, in exercise of powers under Section 482 of the Code of criminal Procedure, 1973, can quash a criminal complaint or a criminal case. These are1. ( 6 ) IN R. P. Kapur v. State of Punjab, AIR 1960 SC 866 , the Supreme Court pointed out the three circumstances or eventualities when this Court, in exercise of powers under Section 482 of the Code of criminal Procedure, 1973, can quash a criminal complaint or a criminal case. These are1. Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. 2. Where the allegations in the First information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first Information Report to decide whether the offence alleged is disclosed or not. 3. Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High court would not embark upon an enquiry as to whether the evidence in question is reliable or not. ( 7 ) THE principle is well settled. In exercise of powers under Article 226 of the constitution, at the stage of FIR, the Court would not appreciate the evidence brought on record and record a finding. It is for the competent Magistrate or competent Criminal court to consider the defence of the accused after proper trial. There should be no attempt to thwart or slow down the criminal investigation. The criminal justice should be allowed to operate on an even field and the accused should never be allowed to have upper-hand over the law enforcement agencies. It is for the competent Magistrate or competent Criminal court to consider the defence of the accused after proper trial. There should be no attempt to thwart or slow down the criminal investigation. The criminal justice should be allowed to operate on an even field and the accused should never be allowed to have upper-hand over the law enforcement agencies. A reference may be made to State of West Bengal v. Swapan Kumar Guha, air 1982 SC 949 = (1982) 1 SCC 561 , a. R. Antulay v. R. S. Nayak, AIR 1992 sc 1701 = (1992) 1 SCC 225 , State of haryana v. Bhajanlal, AIR 1992 SC 604 = 1992 Supp (1) SCC 335, Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892 = (1992)4 SCC 305 , and State of H. P. v. Pirthi Chand, AIR 1996 SC 977 = (1996) 2 scc 37 . ( 8 ) IN all these decisions it was laid down that while quashing the criminal proceedings at the stage of investigation the extraordinary power under Article 226 of the Constitution should be exercised sparingly and with circumspection in rarest of rare cases. ( 9 ) IN State of West Bengal v. Swapan Kumar Guha (supra), it was laid down that if an offence is disclosed in the FIR, the court will not normally interfere into the investigation of the case and permit investigation into the offence to be completed. If, however, the materials do not disclose an offence, no investigation should normally be permitted and once an offence is disclosed and investigation into the offence must necessarily follow in the interest of justice. It was also observed that justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with proper investigation into the case where an offence has been disclosed, the offence will go unpunished causing serious detriment to the welfare of the society and cause of justice. If the Court interferes with proper investigation into the case where an offence has been disclosed, the offence will go unpunished causing serious detriment to the welfare of the society and cause of justice. ( 10 ) IN State of Haryana v. Bhajanlal (supra), after referring to a catena of decisions, the Supreme Court pointed out the following categories of cases in which the High Court may exercise powers under Article 226 of the Constitution or section 482 of the Code of Criminal Procedure and interfere in proceedings relating to cognizable offence to prevent abuse of process of any Court and secure ends of justice. 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 allegation in the First information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 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 FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, n o 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 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. ( 11 ) SO also, the following observations in State of H. P. v. Pirthi Chand (supra) demand excerption. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prima facie consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When Investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilizes the economy and causes grave incursion on the economic planning of the State. When the Legislature entrusts the power to the police officer to prevent organized commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the high Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk, ( 12 ) THE decision in State of Haryana v. Bhajan Lal (supra) was subsequently followed in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , and mahavir Prasad Gupta v. State of NCT of delhi, (2000) 8 SCC 115 . The following observations from Mahavir Prasad Gupta v. State of NCT of Delhi (supra) are apt. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan { (1988) 4 SCC 655 = 1989 SCC (Cri) 27} it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a Court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of haryana v. Bhajan Lal { (1992) Supp (1) scc 335 = 1992 SCC (Cri) 426} this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. ( 13 ) THE complaint given by the third respondent herein to the first respondent reads as under. I invite kind attention to the subject cited and to inform that there is a piece of ceiling surplus land in T. S. No. 3, Block-B, Ward no. 11 of Shaikpet Village situated at Road no. 3, Banjara Hills. The Special Officer and Competent Authority, U. L. C. , Hyderabad has handed over the said surplus land to the mandal Revenue Officer, Shaikpet for safe custody. The Mandal Revenue Inspector in the reference cited has reported that construction work has been started on the above surplus land today by one Sri Ali azam and that he has stopped the work. The Mandal Revenue Inspector in the reference cited has reported that construction work has been started on the above surplus land today by one Sri Ali azam and that he has stopped the work. The said encroacher Sri Ali Azam attended the office at 12. 30 p. m. , today, obstructed and threatened Mandal Revenue Inspector, while performing official duties. I request you to file a criminal trespass against the above person who have encroached the above surplus land illegally, which is under possession of the Government. I also request you to inform the case No. so as to inform the same to the higher authorities. ( 14 ) THE complaint prima facie discloses commission of offence under Section 447 as well as Section 186 of the 1pc. The petitioner has not placed any material before this Court to show that the complaint is false and it was filed to harass him. It is open to the petitioner to put up all his defence before the Magistrate competent to take cognizance of the case. At the stage of investigation, the case does not warrant any interference under Article 226 of the constitution of India. ( 15 ) FOR the above reasons, the Writ Petition dismissed. There shall be no order as to costs.