Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 443 (JK)

Susheela Devi v. Munish Kapoor

2009-09-04

VIRENDER SINGH

body2009
1. Through the instant petition the aforesaid four petitioners seek quashing of the complaint (annexure-`B) filed by Muneesh Kapoor respondent (hereinafter for short complainant) for the offences punishable under Sections 193/465/34 RPC and the order dated 14-05-2004 (annexure-C) passed by the learned Munsiff (Judicial Magistrate First Class) Reasi, whereby process has been issued against them to face trial. 2. Trial Court record has been summoned and this virtually amounts to stay of proceedings. Brief facts: 3. The case set up by the complainant is that his grand-father Shri Moti Ram was adopted by one Mst. Heeran Wd./o Dittu who owned a Kacha house with open land attached thereto and a shop built in the Abadhi-deh situate at Main Bazar near Bus Stand, Katra. After the death of the aforesaid Heeran, Moti Ram had become the exclusive owner in possession of the aforesaid property and made certain improvements in the shop from time to time. After the death of Moti Ram, his son Om Parkash (father of the complainant) came into exclusive possession of the said property and by making further improvements in it, constructed eight shops on the ground floor and twenty rooms on the first floor and the second floor. Out of the eight shops on the ground floor, six shops were let out to different persons namely Rattan Lal (father of Kamal Kishore petitioner-3), Rakesh Kumar (brother of Ashok Kumar petitioner-4), Sharuti Sagar; Behari Lal; Parma Nand and Krishan Chand. The remaining two shops remained in possession of Om Parkash and in one of the shops he started his business activities in the name and style of "M/S State Handloom and Handicraft. Petitioner-2 (Kamal Abrol) was employed as Salesman at this shop. All other shops on the first floor were being run in the shape of a Hotel. 4. It is then alleged that petitioner-1 (Smt. Susheela Devi) in league and connivance with other three petitioners executed one gift deed dated 11th Sept., 2002 and other deed dated 7th Sept. 2002 in favour of peititoners-2 to 4 with respect to three shops out of the eight shops on ground floor, by making a false statement that she was the owner and had title in the said property. She also got the said shops registered from the Sub-Registrar (Sub-Judge) Katra. 2002 in favour of peititoners-2 to 4 with respect to three shops out of the eight shops on ground floor, by making a false statement that she was the owner and had title in the said property. She also got the said shops registered from the Sub-Registrar (Sub-Judge) Katra. The case of the complainant is that all the petitioners with a common criminal intention had fabricated the said false evidence for the purpose of using it at any stage of judicial proceedings in order to cause harm to him and, as such, they have committed the offences punishable under sections 193/465/34 R.P.C. After recording the preliminary evidence the learned trial Judge vide impugned order dated 14-05-2004 has issued process against all the petitioners. 5. It needs to be mentioned here that the civil proceedings were also initiated by Om Parkash for getting the aforesaid three shops evicted and that a civil suit filed at the instance of one of the petitioners against Om Parkash is also subjudice. 6. Another fact which is also worth mentioning is that prior to the filing of the complaint (annexure-B), Om Parkash had earlier also filed a complaint (annexure-A dated 08-10-2002 on the same set of allegations before the Judicial Magistrate First Class, Katra which came to be dismissed vide order dated 17.10.2002. In the second complaint (annexure-B), the factum of filing of the first complaint and its dismissal has not been mentioned by the complainant. 7. Heard Mr. D.K.Khajuria, learned counsel for the petitioners (accused) and Mr. Vikram Sharma learned counsel appearing for the complainant. I have also gone through the entire record minutely with the assistance rendered by them. 8. Mr. Khajuria submits that not only on facts, the basic complaint (annexure-B) and the impugned order (annexure-C) passed thereon deserve to be quashed primarily on the ground that the complainant has made an attempt to give tinge of criminality to a pure civil dispute pending between the parties which is still subjudice, even on legal anvil also, the present complaint was not maintainable being second one on the same set of allegations, as the first complaint had already been dismissed by the Court vide detailed order dated 17.10.2002. That being so, the only remedy available to the complainant in law was to get the said order set aside by filing a revision or resorting to any other recourse available to him. That being so, the only remedy available to the complainant in law was to get the said order set aside by filing a revision or resorting to any other recourse available to him. Once that option not availed of, the present complaint (annexure-B) could not be made the subject-matter of taking of the cognizance by the Court for the purposes of issuance of process against the petitioners. 9. Mr. Khajuria then submits that not only the second complaint was not legally maintainable in the present set of circumstances, the complainant also went to the extent of even concealing the factum of filing of the first complaint (annexure-A) filed by his father absolutely on the same set of allegations and its dismissal. This material concealment is staring at the complainant and therefore, not only the second complaint and impugned order vide which the process has been issued against the petitioners are liable to be quashed, the present case calls for imposing a heavy cost upon the complainant. 10. In support of his arguments, Mr. Khajuria has relied upon the following judgment handed down by Honble Supreme Court:- "(i) AIR 1962 SC 876, Pramatha Nath Talukdar v. Saroj Ranjan (ii) AIR 1977 SC 2432, Bindeshwari Prasad Singh v. Kali Singh (iii) AIR 2003 SC 702, Mahesh Chand v. B.Janardhan Reddy & anr." 11. Per contra, Mr. Vikram Sharma submits that the dismissal of the earlier complaint dated 08-10-2002 filed by Om Parkash vide order dated 17-10-2002 cannot be legally said to be dismissal under section 203 of the Criminal Procedure Code (for short the Code) and therefore, the second complaint was not barred. He submits that the first complaint, in fact, was dismissed at its pre-cognizance stage, declining the prayer for police investigation in terms of Section 155 (2) and (3) of the Code. The cognizance of the offence was taken only vide order dated 14.05.2004 when the Magistrate resorted to the procedure provided under Chapter XV of the Code. He submits that the Court initially called for the report under section 202 of the Code and after the police submitted it, the learned Magistrate in his wisdom deemed it proper to record preliminary evidence and on the basis of said evidence he found it to be, prima-facie, a case for issuance of process under section 204 of the Code. Mr. Mr. Sharma goes on to submit that even if the report submitted in terms of Section 202 of the Code had gone against the complainant which, is not the case on hand, still the Court could legally switch over to the exercise of recording preliminary evidence. Therefore, taking the present case from legal and procedural aspect, the second complaint was maintainable, may be on the same set of allegations and therefore, it does not merit dismissal on the point of its maintainability atleast. 12. Mr. Sharma then submits that otherwise also pendency of civil suit is no bar to initiate criminal proceedings as both can run parallely. According to him, the present complaint is not dependent upon the out come of civil proceedings and, prima facie, as per the allegations, it attracts all the offences alleged. Therefore, on this count as well, the petitioners have no case. 13. In support of his arguments, Mr. Sharma relies upon the judgments rendered in case H.S. Bains v. The State (Union Territory of Chandigarh, AIR 1980 SC 1883, and M. Krishnan v. Vijay Singh and another, 2001 AIR SCW 4142. He also lends support from Pramatha Nath Talukdars case (supra), relied upon by Mr. Khajuria. 14. What amounts to taking cognizance of an offence as envisaged under Section 190 of the Code vis-a-vis Chapter XVI of the Code (Chapter XV of Central Code) dealing with the complaints to the Magistrate, in my view, is the prime question for consideration in the case on hand. Chapter XVII of the Code (XVI of Central Code) deals with the commencement of the proceedings before the Magistrate and this stage would come after the cognizance of an offence is taken by the Magistrate and he finds that there are sufficient grounds for proceedings under section 204 of the Code. 15. In case R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207, their lordships while dealing with a such like situation arising from a complaint observed in para-9 as under:- "(9) After referring to the observations in Emperor v. Sourindra Mohan, 37 Cal. 412: (6 I.C.S) it was stated by Das Gupta J. in Supdt. & Remembrancer of Legal Affairs, W.B v. Alani Kumar, A.I.R. (37) 1950 Cal. 437, as follows: "What is taking cognizance has not been defined in the Cr. P.C & I have no desire to attempt to define it. 412: (6 I.C.S) it was stated by Das Gupta J. in Supdt. & Remembrancer of Legal Affairs, W.B v. Alani Kumar, A.I.R. (37) 1950 Cal. 437, as follows: "What is taking cognizance has not been defined in the Cr. P.C & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. has taken cognizance of any offence u/S. 190 (1) (a), Cri. P.C. he must not only have applied his mind to the contents of the petition. But he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap: proceeding u/s 200 & thereafter sending it for inquiry & report u/s 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap. But for taking action of some other kind e.g. ordering investigation u/s 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." In our opinion that is the correct approach to the question before the C." 16. Subsequently also in other case titled Narayandas Bhagwandas Madhavdas v. The State of West Bengal, AIR 1959 SC 1118, the Apex Court while relying upon R.R. Charis case (supra), observed in para-8 as under:- "8. .. As to when cognizance is taken of an offence will dependent upon the facts and circumstances of each case and is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XVI of the Code of Criminal procedure or under S. 204 of Ch. XVII of the Code" 17. In the aforesaid case, their lordships were dealing with a complaint of Foreign Exchange Regulation Act and it was argued from the State side that in R.R. Charis case (supra), the Honble Supreme Court was dealing with a matter which came under the Prevention of Corruption Act (1947). XVII of the Code" 17. In the aforesaid case, their lordships were dealing with a complaint of Foreign Exchange Regulation Act and it was argued from the State side that in R.R. Charis case (supra), the Honble Supreme Court was dealing with a matter which came under the Prevention of Corruption Act (1947). Their lordships observed that this aspect would make no difference as it was the principle enunciated which was approved. 18. In Nirmialjit Singh Hoon v. The State of West Bengal & others, AIR 1972 SC 2639 while dealing with the scope of investigation by the Police under section 156 (3) of the Code, their lordships also considered the said case on the point of taking cognizance of an offence under section 190 (i) (a) of the Code and observed in para-35 as under:- "(35).. Secondly, it is well settled that before a Magistrate can be said to have taken cognizance of an offence under S. 190 (1) (a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under S. 200 and the provisions following that section. But where he has applied his mind only for ordering an investigation under S. 156 (3) or issuing a warrant for purposes of investigation, he cannot be said to have taken cognizance of the offence" 19. In the aforesaid judgment also the view taken in R. R. Charis case (supra) was reitereated. 20. In Tula Ram and others v. Kishore Singh, AIR 1977 SC 2401, their lordships while dealing elaborately with Section 156 (3), 190 (1) (a), 200, 202 and 204 of the Code have observed in para-14 as under:- "14. ................Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge: 1. That a Magistrate can order investigation under S.156 (3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 40 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec.202 of the Code. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. (4) Where a Magistrate orders investigation by the police before taking cognizance under S. 156 (3) of the Code and receives the report there upon he can act o n the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above". 21. In Mohd. Yousuf v. Smt. Afaq Jahan and others, (2006) 1 SCC 627, the Apex Court while dealing with sections 156 (3) and 202 of the Code made a distinction between the pre-cognizance stage and the post-cognizance stage, observed in para-10 as under:- "10. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202 (1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202 (1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". This can be discerned from the culminating words in Section 202 (1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". 22. In the aforesaid judgment, their lordships have again reiterated the view taken in R.R. Chari and Narayandas Bhagwandas Madhavdas cases (supra). 23. In a very recent judgment handed down in case Raghu Raj Singh Rousha v. M/s. Shivam Sundaram Promoters (P) L & another, 2009 (1) R.C.R. (Criminal) 531, the Honble Supreme Court while referring to Mohd. Yousafs case (supra) and other various judgments has reiterated the same view. 24. From the ratio of the aforesaid judgments, one legal aspect should be very clear that considering the private complaint by the Judge for the purposes of directing investigation under Section 156 (3) of the Code would not amount to taking cognizance of an offence. At this stage, he has not to examine the complainant on oath. But if he does so and proceed to examine him and such other evidence as he may produce in support of his complaint, then in that eventuality it can be said that the Court has taken cognizance of an offence. 25. Let us now examine the present case on this legal aspect on its own facts, appreciating, whether the judgments cited by Mr. Khajuria to strike his view point are applicable to the facts of the present case. 26. In case Pramatha Nath Talukdars case (supra), the factual aspect was altogether different. Their lordships while dealing with Section 202, 203 and 204 (1) of the Code observed that an order of dismissal of the complaint under section 203 of the Code, is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances i.e. where the previous order was passed on an incomplete record or on misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. It was further observed that it cannot be said that to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given an other opportunity to have his complaint enquired into. Mr. Khajuria while relying upon this judgment made an attempt to develop his view point that the order of dismissal passed by the learned Judge on 17-10-2002 on a first complaint was a detailed order upon a full consideration of the case and therefore, the complainant could not have another opportunity to get the second complaint on the same set of allegations, enquired into. 27. In Bindeshwari Prasad Singhs case (supra) another judgment relied upon by Mr. Khajuria, their lordships while relying upon Pramatha Nath Talukdar"s case (supra) reiterated the same view and in Mahesh Chands case (supra) the view already taken in Pramatha Nath Talukdars case (supra) and Bindeshwari Prasad Singhs case (supra) was reiterated. 28. In my view, the judgments cited by Mr. Khajuria are distinguishable on facts and, as such, cannot lend any support to him to assert his point. 29. I have gone through the order dated 17-10-2002 passed by the learned Judicial Magistrate (Ist Class, Katra) while declining the prayer of the complainant for sending the complaint for police investigation. No doubt, the operative part of the order shows that the complaint was dismissed but, in my view, it cannot be said to be a dismissal strictly in terms of section 203 of the Code. The complaint was dealt with by the Court primarily on the aspect of seeking orders for investigation of the case and the learned trial Court while dealing with that aspect dwelt upon the allegations also. The complaint was dealt with by the Court primarily on the aspect of seeking orders for investigation of the case and the learned trial Court while dealing with that aspect dwelt upon the allegations also. The learned Magistrate, no doubt, went into all aspects of the case and observed that the dispute was with regard to title of the property and no civil or revenue Court had yet adjudicated upon the said title and therefore, if the police was asked to investigate the case, it would amount to return a finding of the title in question which is not the job of the police, but in my view, all this exercise was being done for the purposes of considering the complaint for sending it to police for investigation and ultimately the Court did not accede to the prayer and dismissed the complaint. Legally, this can be said to be an exercise at pre-cognizance stage. What is observed in the earlier order dated 17-10-2002 prima-facie amounts to applying of the mind by the Judge to the entirety of the facts of the complaint and therefore, Mr. Khajuria in his wisdom developed his case that the Magistrate had decided the first complaint in its fullness. This all at the first blush appeared to be attractive, but cannot be accepted when tested from procedural point of view provided by the Code. Appreciating it from that angle, even if, the learned Judge had ultimately dismissed the first complaint, this cannot be said to be dismissal in terms of section 203 of the Code. Therefore, the second complaint on the same facts was not barred under law. Mr. Sharma has rightly made an attempt to have support from Pramatha Nath Talukdars case (supra) relied upon by Mr. Khajuria only. 30. I agree with the contention of Mr. Khajuria that the present complainant is none, but the son of Om Parkash and, in all fairness he should have disclosed the factum of filing of the earlier complaint and the result thereof as it is not believable that he was not aware of the outcome of the earlier complaint, more so when the second complaint is just verbatim of the first complaint. This material concealment, in my view, would have been sufficient to dismiss the second complaint out rightly in the ordinary set of circumstances, but I am not commenting upon it adversely primarily for the reason that the dismissal of the earlier complaint is not standing in the way of the second complaint, when tested on legal anvil. So I stop here. 31. The other important aspect now left for consideration is, whether the present complaint (annexure-B) and the order dated 14.05.2004 (annexure-C) vide which process to secure presence of the petitioners has been issued call for quashing of the entire proceedings on the ground that from the bare perusal of the allegations in the complaint and the preliminary evidence adduced in support thereof, no criminal offence as alleged is made out. 32. Admitted position is that a partition suit is pending before the civil Court. The property in question is a joint property qua the father of the complainant and petitioners-1 and 2. The petitioners are relying upon the suit (annexure-`D) filed by petitioner-1 prior to the filing of the present complaint. In the report submitted by the police which is available on the trial Court record, there is also a reference to the civil dispute between the parties. According to Mr. Khajuria the report is in favour of the petitioners, whereas Mr. Sharma while joining issue on this aspect states that the operative part of the report is in favour of the complainant and therefore, the learned trial Court has also taken into consideration the said report along with preliminary evidence adduced by the complainant. I, however, do not feel the necessity of entering into all these details as in my view, from the allegations as contained in the complaint and the preliminary evidence adduced, prima facie, no criminal offence as alleged is made out for proceedings ahead with the complaint. No doubt that the pendency of a civil suit is no bar to initiate criminal proceedings and both can run parallely, but this depends on the facts of each case, but civil proceedings are not always a short cut of other remedies available in law. The present case on facts is of that type only. 33. No doubt that the pendency of a civil suit is no bar to initiate criminal proceedings and both can run parallely, but this depends on the facts of each case, but civil proceedings are not always a short cut of other remedies available in law. The present case on facts is of that type only. 33. I am conscious of well settled legal position that process under section 561-A of the Code (section 482 of Central Code) has to be exercised with great care and not to be done superficially. But a matter which is essentially of a civil nature if, has been given cloak of criminal offence, this Court would immediately exercise its inherent jurisdiction to stall the process in order to prevent abuse of the process of the Court or otherwise to secure the ends of justice. A matter which involves a dispute of a civil nature only should not at all be allowed to be the subject-matter of a criminal offence as held by the Apex Court in Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 and this view still holds the field. The present case, in my view, evidently is a case of that nature and therefore, it calls for invoking of the inherent jurisdiction of this Court. I am also conscious of the fact that the earlier view that findings recorded in a civil suit are binding in a criminal case on the same facts, but not vice versa has been watered down by a Constitution Bench of the Apex Court in case Iqbal Singh Marwah v. Meenakshi Marwah, 2005 (4) SCC 370 in which their lordships have held that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein, but so far as the present case is concerned, I am of the considered view that the allegations as set out in the basic complaint (annexure-B) are the evidence adduced in support of those allegations in the shape of preliminary evidence, prima facie, do not make out a criminal offence against any of the petitioners. For the accused, issuance of a process is a very serious matter, as by that he is put in the dock. 34. For the accused, issuance of a process is a very serious matter, as by that he is put in the dock. 34. After examining the case on hand on the anvil of legal as well factual aspect, no doubt, I have ultimately come to the conclusion that the second complaint (annexure-B) was legally maintainable, the first complaint being dismissed not under section 203 of the Code, it however, deserves to be quashed by invoking inherent powers envisaged under Section 561-A of the Code (Section 482 of the Central Code). Therefore, while answering to the legal preposition in favour of the complainant on the maintainability of the second complaint (annexure-B), I hereby, quash the same and the order dated 14-05-2004 (annexure-C) vide which the process has been issued against the petitioners under section 204 of the Code. 35. The net result, thus, is that the petition on hand is allowed in the aforesaid terms. Trial Court record be sent back.