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2012 DIGILAW 624 (PNJ)

BAHADUR SINGH v. STATE OF HARYANA

2012-04-25

MEHINDER SINGH SULLAR

body2012
Judgement Mehinder Singh Sullar, J [1] The compendium of the facts, which requires to be noticed for the limited purpose of deciding the sole controversy, involved in the instant petition and emanating from the record, is that, one Bagrawat Singh, son of Kalu Singh, was the owner (to the extent of 1/3rd share) of the land in question, situated within the revenue estate of village Nimbhera, Tehsil and District Mahendergarh. He agreed to sell his share in the land in dispute to complainant Kanwar Singh son of Nitya Nand-respondent No. 2 (for brevity "the complainant"), vide agreement to sell dated 20.07.2006 (for short "the 1st agreement") at the rate of Rs. 3 lacs per acre. He was stated to have received a sum of Rs. 7 lacs in cash, as earnest money. The sale-deed was to be executed and registered on or before 30.09.2006. It was alleged that the complainant has always been ready and willing to perform his part of the contract, but Bagrawat Singh did not turn up to execute the sale-deed, as per the terms & conditions of the agreement. On the contrary, with the connivance, of other co-accused, subsequently, he has executed another false agreement to sell in favour of his brother Bahadur Singh (petitioner), purported to have been written on 4.4.2006, after purchasing the stamp papers in the back date and by fabricating the documents. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that Bagrawat Singh (accused No. 1) with the connivance of other co-accused, did not perform his part of the contract dated 20.07.2006 and failed to execute the sale deed in his favour. On the contrary, subsequently, he has executed another false agreement to sell (in short "the 2nd agreement"), purported to have been written on 04.04.2006 in favour of his brother Bahadur Singh (petitioner-accused No. 2), after purchasing the stamp papers in the back date and by preparing the forged documents. In the background of these allegations, the complainant filed a complaint (Annexure P-1) against the eight accused, including Bagrawat Singh (accused No. 1) and his brother Bahadur Singh (petitioner-accused No. 2), for the commission of offences punishable under Sections 406, 419, 420, 467, 468, 471, 506 and 120B, IPC. [2] Taking cognizance of the complaint and after considering the preliminary evidence, the complaint, with regard to other accused, was dismissed. [2] Taking cognizance of the complaint and after considering the preliminary evidence, the complaint, with regard to other accused, was dismissed. However, Bagrawat Singh (accused No. 1) and his brother Bahadur Singh petitioner (accused No. 2) were summoned to face the trial, for committing the offences punishable under s 406 and 420 read with section 120B, IPC by the Magistrate, by way of impugned summoning order dated 19.03.2007 (Annexure P-2). [3] Aggrieved by the summoning order (Annexure P2), the revision petition (Annexure P-3) filed by both the accused, was dismissed as well, by the Revisional Court, by means of impugned order dated 14.03.2008 (Annexure P-4). [4] The petitioner-Bahadur Singh (accused No. 2) still did not feel satisfied and preferred the present petition, to quash the impugned orders (Annexures P-2 and P-4), invoking the provisions of Section 482. Cr.P.C. [5] The case set-up by the petitioner, in brief, insofar as relevant was that, his brother Bagrawat Singh has agreed to sell his share in the land in litigation to him at the rate of Rs. 3,10,000/- per acre and also received a sum-of Rs. 11,50,000/-, as earnest money, by virtue of 2nd agreement to sell dated 04-04-2006. The sale-deed was to be executed and registered on or before 20.12.2006. However, he executed the sale-deed, bearing No. 3358 dated 19-12-2006 in his (petitioner) favour. [6] The case of the petitioner further proceeds that his brother Bagrawat Singh has also executed an agreement to sell dated 20.07.2006 in favour of the complainant, but it was the complainant, who entered into a subsequent agreement knowing fully well that Bagrawat Singh had already agreed to sell his land to the petitioner, vide 2nd agreement to sell dated 04.04.2006. The civil suit (Annexure P-5) filed by the complainant seeking a decree for specific performance is still pending. It was claimed that in spite of availing his remedy before the civil court, he (complainant) was stated to have filed a false criminal complaint (Annexure P1), by concealing the true material facts of the civil suit. In all, according to the petitioner that, since the complainant has already filed the indicated civil suit, so, no criminal prosecution can legally be continued against the accused. On the strength of aforesaid grounds, the petitioner sought to quash the impugned orders (Annexures P-2 and P-4), in the manner depicted hereinabove. In all, according to the petitioner that, since the complainant has already filed the indicated civil suit, so, no criminal prosecution can legally be continued against the accused. On the strength of aforesaid grounds, the petitioner sought to quash the impugned orders (Annexures P-2 and P-4), in the manner depicted hereinabove. [7] The respondents-State of Haryana and the complainant refuted the prayer of the petitioner and filed their separate respective replies, inter alia, pleading certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. The complainant claimed that, as the petitioner-accused has committed the pointed offences, in the manner mentioned hereinbefore, therefore, the Magistrate has rightly summoned him. Instead of reproducing the entire contents of the replies and in order to avoid the repetition, suffice it to say that, the complainant has reiterated the allegations contained in his complaint (Annexure P-1). However, it will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter. [8] After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this context. [9] At the very outset, what cannot possibly be disputed here is that the Hon'ble Supreme Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch. Bhajan Lal and others, 1992 AIR(SC) 604. which was again reiterated in case Som Mittal v. Government of Karnataka, 2008 2 RCR(Cri) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:- (i) 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. (ii) Where the allegations 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 S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. (ii) Where the allegations 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 S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. (iii) 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. (iv) 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 S. 155(2) of the Code. (v) 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. (vi) 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. (viii) 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. [10] Not only that, again the Hon'ble Apex Court in case Jeffery J. Diermeier & Anr. v. State of West Bengal & Anr., 2010 AIR(SCW) 3493having interpreted the scope of section 482, Cr. P.C. has ruled (para 16) as under:- 16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice. [11] Ex facie the argument of learned counsel for the petitioner that since the complainant has already filed a civil suit (Annexure P5) for specific performance of first agreement dated 20.7.2006, SO, the impugned orders (Annexures P2 & P4) are liable to be quashed, is not only devoid of merit but misconceived as well. [12] As is evident from the record, that Bagrawat Singh, brother of the petitioner, agreed to sell his share in the land in question in favour of the complainant, by means of 1st agreement dated 20.7.2006. Instead of performing his part of contract, in connivance with his brother petitioner Bahadur Singh, he (Bagrawat Singh) subsequently executed the 2nd false agreement, after purchasing the stamp papers in the back date, purported to have been written on 4.4.2006, on the basis of which, Bagrawat Singh executed a sale deed dated 19.12.2006 in favour of his brother Bahadur Singh (petitioner-accused), in order to defeat the rights of the complainant. It has specifically been claimed in the complaint that Bagrawat Singh and his brother-petitioner prepared a false and forged 2nd agreement to sell, purported to have been executed on 4.4.2006 with the intention to cheat the complainant. [13] Meaning thereby, the direct, very serious and specific allegations of commission of heinous offences are assigned to the petitioner and his brother co-accused Bagrawat Singh. [13] Meaning thereby, the direct, very serious and specific allegations of commission of heinous offences are assigned to the petitioner and his brother co-accused Bagrawat Singh. The mere fact that the complainant has filed a civil suit (Annexure P5) for specific performance of the 1st agreement dated 20.7.2006, ipso facto, is not at all a ground to quash the impugned orders. To me, the trial Court has rightly summoned the petitioner and his brother Bagrawat Singh to face the trial under Sections 406 and 420 read with Section 120B, IPC, by way of impugned summoning order (Annexure P2). [14] Not only that, the re visional Court has examined the matter in the right perspective and negate the plea of the petitioner, through the medium of impugned order (Annexure P4), which, in substance, is (paras 10 & 11) as under:- 10. After hearing both the sides at length, going through the material available on record and giving thoughtful consideration to the rival submissions and the case law relied upon by both the sides, at the very outset, I have no hesitation in concluding that the case law relied upon by the learned counsel for the petitioners Arun Kumar and another's case and Manisha Goyal's case is distinguishable on the facts and circumstances of the present case. As in those cases there was no allegation of dishonest intention on the part of the accused whereas the case law relied upon by the learned counsel for the respondent Panchayat Mohalla Sudan Ludhiana Dharamshala's case, Lalmuni Devi's case, M/s. Medohl Chemicals and Pharma Pvt. Ltd.'s case and Pawan Kumar's case have full force on the facts and circumstances of the present case. So, both civil and criminal remedies are available. 11. All complainant witnesses have supported his version. The order under challenge is reasoned, speaking and as per the allegations in the complaint as well as evidence on record. In criminal revision, the revisional Courts have limited jurisdiction and can interfere if the order under challenge is patently wrong, against law, facts and record and suffer from impropriety. But the order under challenge is speaking and reasoned. Hence, there is no scope for interference. Hence, there is no merit in the revision. The same fails and is hereby dismissed. In criminal revision, the revisional Courts have limited jurisdiction and can interfere if the order under challenge is patently wrong, against law, facts and record and suffer from impropriety. But the order under challenge is speaking and reasoned. Hence, there is no scope for interference. Hence, there is no merit in the revision. The same fails and is hereby dismissed. File of the trial Court be sent back and the parties through their counsel are directed to appear before the trial court on 24.3.2008 for further proceedings. File of the trial court be sent back and the file of the revision petition be consigned to the record room. [15] Therefore, the Bench mark and essential ingredients for quashing the criminal prosecution at the initial stage set out in Ch. Bhajan Lal and Som Mittal's cases are totally lacking in this case. Thus, the contrary arguments of learned counsel for the petitioner-accused "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances, as the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand. [16] Moreover, both the Courts below have recorded the cogent grounds in this relevant direction. Such impugned orders, containing valid reasons, cannot possibly be interfered with by this Court, in the present 2nd revision petition, in the garb of petition under section 482, Cr. PC (which is otherwise barred under section 397(3), Cr. PC), unless and until, the same are illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-accused, so, the impugned orders (Annexures P2 & P4) deserve to be maintained in the obtaining circumstances of the case. [17] No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties. [18] In the light of aforesaid reasons and without commenting further anything on merits lest it may prejudice the case of either side during the course of trial of the main complaint case, as there is no merit, therefore, the instant petition is hereby dismissed as such. [18] In the light of aforesaid reasons and without commenting further anything on merits lest it may prejudice the case of either side during the course of trial of the main complaint case, as there is no merit, therefore, the instant petition is hereby dismissed as such. Needless to mention that nothing recorded, hereinabove, would reflect, in any manner, on merits during the trial of the complaint (Annexure P1), as the same has been so observed for a limited purpose of deciding the present petition in this relevant connection. Petition dismissed.