Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 996 (MP)

Rameshwar Singh Meena v. Kishan Singh Meena

2011-08-25

G.D.SAXENA

body2011
ORDER 1. This revision petition under section 397/401 of the Code of Criminal Procedure 1974 preferred by the petitioners/accused is directed against an order dated 15th July 2010 passed in Sessions Case No.215/2009 by the Additional Sessions Judge, Chachora, District Guna, rejecting thereby an application of the accused under section 227 of CrPC for discharging them of the charges for commission of offence punishable under sections 420, 467, 468 read with section 120B of IPC and fixed the case for recording prosecution evidence. 2. The fact, in brief, just for the decision of the case are that respondent No.1 Kishan Singh Meena filed a civil suit against his father Raghunath Singh Meena, Ratan Singh, his brother, Smt. Sushila, his sister and Rameshwar Singh, brother-in-law (husband of his sister Sushila) claiming his share in the agricultural land comprised in Survey No.483/01, 486/01, 489/01,492,494 and 496/01 total in area 1.104 hectare situated in Village Kumbharaj, District Guna. The said suit was decreed in favour of plaintiff complainant Kishan Singh. It is alleged that during pendency of the aforesaid civil suit, Ratan Singh, brother of respondent-complainant executed a Power of Attorney with regard to the share in the aforesaid family property in favour of his father Raghunath Singh. Raghunath Singh transferred two plots of the land in dispute by way of unregistered sale deeds in favour of Smt. Sushila Bai, his sister and Rameshwar Singh and pursuant thereto possession of those plots were handed over to them. It is stated that one B.R. Kamle, the CMO of Nagar Panchayat without verification of the facts regarding ownership or otherwise from the office record, issued a fictitious certificate in favour of Smt. Sushila to the effect that she is the sole owner of the disputed land. Having come to the notice of the respondent, he filed a complaint before the trial Court against Sushila, Rameshwar Singh and said B.R. Kamble, CMO of Nagar Panchayat, Chachoda on which the cognizance was taken by the trial Court for commission of offence under sections 420, 476, 468 read with section 120B of IPC and the case being exclusively triable by the Court of Sessions, same was committed to the Sessions Judge, Guna. On committal, the trial is commenced before the Additional Sessions Judge Chachoda, District Guna M.P. Being aggrieved by the order of framing charge, two revision petitions bearing Criminal Revisions No.913/2009 and 923/2009 were submitted against the said order by the revisionists B.R. Kamble, Rameshwar Singh and Sushila before this Court. By an order dated 15th March 2010, this Court allowed both the revisions. The impugned order so far as it relates to revisionist B.R. Kamble for want of permission under section 195 of CrPC was set aside. So far as other revisionists are concerned, their revision was disposed of with a direction to them to move appropriate application before the learned trial Court to the effect that they have not committed any offence and their civil rights have already been determined by the civil Court. It is directed that if such an application is moved by them, the trial Court shall decide the same as per law. Consequently, the application under section 227 of CrPC was moved, which was dismissed by the order impugned. 3. The contention of the learned counsel for the petitioners is that the impugned order passed by the learned trial Judge is against the directions of this Court contained in the order dated 15th March 2010 as well as against the facts and the evidence adduced before the trial Judge and the law, hence, same is liable to be set aside. It is submitted that the learned trial Judge has not even considered any of the grounds raised in the application under section 227 of CrPC. Therefore, it is prayed that by allowing the revision petition, the accused-petitioners be discharged of the charges for commission of offences as alleged. 4. Per contra, the learned counsel appearing for the respondent No.1 submitted that no illegality has been committed by the trial Judge in passing the impugned order and the revision petition is liable to be dismissed. 5. Heard the learned counsel for the parties and also perused the documents submitted by the parties during final arguments and the law governing the situation. 6. It is admitted that the disputed two plots situated in village Kumbharaj were the joint property and in joint ownership of Kishan Singh (the respondent No.1) and his brother Ratan Singh. Ratan Singh executed the Power of Attorney in favour of his father Raghunath Singh for the sale of plot/share in his joint property. 6. It is admitted that the disputed two plots situated in village Kumbharaj were the joint property and in joint ownership of Kishan Singh (the respondent No.1) and his brother Ratan Singh. Ratan Singh executed the Power of Attorney in favour of his father Raghunath Singh for the sale of plot/share in his joint property. In the year 2005, Raghunath Singh, the Attorney holder of Ratan Singh sold by way of unregistered sale-deeds the disputed plots which were in the joint ownership of Ratan Singh and Kishan Singh, during pendency of civil suit instituted by Kishan Singh against Raghunath Singh, Ratan Singh and others which was decided and decreed on 7th September 2006 in favour of plaintiff Kishan Singh. The defendant Raghunath Singh, was prohibited in law to sale/transfer the disputed plots till partition of the property. So also, defendant No.2 Ratan Singh was prohibited to make construction over the disputed plots which were in joint ownership and possession of both the brothers till partition of property is effected. After passing the decree by the civil Court, on the basis of unregistered sale-deeds Smt. Sushila and her husband Rameshwar Singh got certificate about the sole ownership from CMO Nagar Panchayat Kumbharaj in their favour. It is not in dispute that being aggrieved by the said certificate issued by the CMO Nagar Panchayat Chachoda, on the initiation of Rameshwar Singh and Sushi la, the complaint under section 190 CrPC was fi led. The trial Court upon the complaint and after recording the statements recorded under sections 200 and 202 CrPC, took cognizance and issued the processes for securing the presence of the accused. Since the offences against the accused were exclusively trible by the Court of Sessions, the case was committed to the Sessions Judge, Guna. On transfer, the trial was commenced before the Additional Sessions Judge Chachoda, District Guna. 7. Hence, the question that remains for consideration before this Court is whether the trial Court was justified in framing the charges against the petitioners-accused on the basis of the evidence adduced and in rejecting the application under section 227 of CrPC, preferred by the petitioners accused. 8. In the case of Devendra v. State of U.P. [ (2009)7 SCC 495 ], the apex Court held: "The fact that the appellants are co-sharers is not in dispute. The dispute between them is confined to the extent of their respective shares. 8. In the case of Devendra v. State of U.P. [ (2009)7 SCC 495 ], the apex Court held: "The fact that the appellants are co-sharers is not in dispute. The dispute between them is confined to the extent of their respective shares. It must be determined only in a civil suit. If appellants 1 and 2 had executed a deed of sale in favour of a third party stating that they have one-third share over the entire properties, the same would not be binding on the respondent-complainant. If any cause of action arose by reason of a threat of dispossession at the hands of the co-sharer or at the hands of the third party, as was contended, recourse to legal action could always be taken." 9. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior Courts would not encourage harassment of a person in a Criminal Court for nothing. 10. Further, a wrong committed on the part of a person may be a civil wrong or a criminal wrong although an act of omission or commission on the part of a person may give rise to both civil action and criminal action. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the Courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out. 11. In the case of Indian Oil Corporation, M/s. v. M/s. NEPC India Ltd. [ AIR 2006 SC 2780 ], the apex Court held: "While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant." 12. Hence, merely because an act has a civil profile is not sufficent to denude it of its criminal outfit as observed by the apex Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal and others [ (1999)8 SCC 686 ]. It is further observed that the Investigating Agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. 13. Again, in the case of P. Vijayan v. State of Kerala [ AIR 2010 SC 663 ], the apex Court held: "At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against- the accused so as to frame a charge against him. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial......" 14. In the light of the above discussions, it appears that there was a dispute over the family property and the civil suit was filed by the complainant-plaintiff which was decided in his favour. Further, there was an injunction order in favour of the complainant. Meanwhile, during the pendency of the civil suit, the accused petitioners entered into an agreement to sell and in order to get the said agreement registered, they obtained a forged and fabricated certificate from the CMO to substantiate that they are the sole owners of the property. Having come to notice of the complainant, he filed a complaint against the accused-petitioners on which cognizance has been taken by the criminal Court by issuing process against the accused. Since the offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Judge and on transfer the trial was commenced before the Additional Sessions Judge Chachoda, District Guna. In the meantime, the petitioners including the CMO knocked the doors of this Court by filing revisions which were decided by the common order giving liberty to the petitioners therein to approach the trial Court with better particulars. The trial Court by the impugned order rejected the prayer of the petitioners and fixed the case for recording prosecution evidence. 15. The words "not sufficient for proceeding against the accused" appearing in section 227 of CrPC postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution and at the time of framing charge, evidence cannot be appreciated. Even grave suspicion is enough to proceed against the accused. Hence, where from the statement of the complainant and his witnesses, a prima facie case is made out, the framing of charge cannot be said to be illegal and same is not required to be interfered with. Even grave suspicion is enough to proceed against the accused. Hence, where from the statement of the complainant and his witnesses, a prima facie case is made out, the framing of charge cannot be said to be illegal and same is not required to be interfered with. 16. Consequently, this Court does not find any merit in this revision, which fails and is dismissed hereby.