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2012 DIGILAW 650 (HP)

Ashok Kumar v. State of Himachal Pradesh

2012-10-01

KULDIP SINGH

body2012
Judgment Kuldip Singh, J 1. This petition under Section 482 Cr.P.C. has been filed for quashing FIR No.144 dated 17.4.2010, registered at Police Station, Nurpur under Sections 420, 452, 506, 323, 147 IPC at the instance of Ganesh Dutt Sharma respondent No.2. 2. It has been stated that as per complainant Smt. Kalawati executed a Will dated 19.2.2009 in his favour which was registered after the death of Smt. Kalawati. On the basis of said Will some property of the deceased situate at Dhar Kalan (Punjab) has been mutated vide mutation No.527. Smt. Kalawati was literate and was serving as a teacher; the Will claimed by respondent No.2 bears thumb impression of Smt. Kalawati. 3. The further case of respondent No.2 is that Will dated 28.12.2008 set up by petitioners of Smt. Kalawati in their favour is forged and fraudulent document. The mutation No.568 attested on 17. 9.2010 in favour of petitioners in pursuance of Will dated 28.12.2008 is illegal. 4. It has been stated that FIR does not disclose commission of any offence. The parties are clai ming two different Wills of Smt. Kalawati. The Assistant Collector has attested mutation No.568 on 17.9.2010 on the basis of Will dated 28.12.2008. The appeal filed by respondent No.2 against mutation No.568 has been dismissed by Collector on 22.6.2011. The respondent No.2 against the decision dated 22.6.2011 has filed an appeal which is pending before Divisional Commissioner, Kangra. 5. The dispute with respect to inheritance to the estate of Smt. Kalawati is of civil nature. The petitioners have instituted a case before competent authority in State of Punjab for cancellation of mutation attested on the basis of Will dated 19.2.2009. The petitioners have also filed a Civil Suit No.7/2012 before Addl. Civil Judge (Senior Division), Pathankot for declaration that mutation No.527 attested in favour of respondent No.2 on the basis of Will dated 19.2.2009 is illegal. The petitioners have filed a suit in the Court of Civil Judge (Senior Division), Nurpur for declaration and injunction on the basis of mutation No.568. The registration of FIR and setting of criminal law in motion on the basis of complaint of respondent No.2 is an abuse of process of law. The FIR has been filed to put pressure on the petitioners. The complaint is frivolous and oppressive. 6. The respondent No.1 has filed reply. The registration of FIR and setting of criminal law in motion on the basis of complaint of respondent No.2 is an abuse of process of law. The FIR has been filed to put pressure on the petitioners. The complaint is frivolous and oppressive. 6. The respondent No.1 has filed reply. It has been stated that FIR No.144/2010 dated 17.4.2010 has been registered in pursuance of application under Section 156(3) Cr.P.C. On completion of investigation, the challan has been submitted in the Court of learned Judicial Magistrate Ist Class-I, Nurpur on 30.1.2012 and the case was fixed for 15.9.2012 for service of accused. Smt. Kalawati had executed registered Will dated 5.7.2007 in favour of Department of Posts, Govt. of India. The expert has given opinion that the person who wrote his signatures on Will dated 5.7.2007 did not tally with Will dated 28.12.2008. It has been stated that on the basis of opinion of the expert, prima facie case has been made out and therefore, challan has been submitted in the Court. 7. The petitioners have filed rejoinder. It has been stated that the Will put forward by respondent No.2 as Will of Smt. Kalawati is not a valid Will. The FSL report dated 18.6.2011 is not worth reliance as it was obtained on photocopy of the Will executed in favour of petitioners. The subsequent FSL report dated 17.10.2011 is also wrong. The Will produced by respondent No.2 is forged. The authenticity of the Will executed by Smt. Kalawati will be tested in the Civil Court. The submission has been made for acceptance of the petition. The respondent No.2 has not filed any reply. 8. Heard and perused the record. The learned counsel for the petitioners has reiterated the contentions raised in the petition. She has submitted that the dispute is purely of civil nature. The learned counsel for the petitioner s has relied Mohammed Ibrahim and others vs. State of Bihar and another (2009) 8 SCC 751 , Joseph Salvaraj A vs. State of Gujrat and others (2011) 7 SCC 59 , Shiji alias Pappu and others vs. Radhika and another (2011) 10 SCC 705 , Padal Venkata Rama Reddy alias Ramu vs. Kovvuri Satyanarayana Reddy and others (2011) 12 SCC 437. The learned Addl. Advocate General has stated that petition is not maintainable. The challan after investigation has been submitted in the Court. The learned Addl. Advocate General has stated that petition is not maintainable. The challan after investigation has been submitted in the Court. It has been stated in the reply that the Court had fixed the case for service of accused on 15.9.2012. 9. The petitioners are claiming the estate of Smt. Kalawati on the basis of Will dated 28.12.2008. It has been submitted that on the basis of Will dated 28.12.2008, mutation No.568 has been attested in favour of the petitioners by Assistant Collector. This was challenged by respondent No.2 and the Collector has dismissed his appeal on 22.6.2011. The respondent No.2 has filed appeal against the decision dated 22.6.2011 before Divisional Commissioner. The petitioners have filed suit at Pathankot and also separate suit at Nurpur in which the validity of Wills of Kalawati will be determined. The respondent No.2 has lodged FIR against petitioners just to harass them. The FIR is false and fictitious. On the basis of FIR, no criminal case is made out against petitioners. The FIR lodged by respondent No.2 is nothing but abuse of process of law. It emerges from the reply of respondent No.1 that there is another Will dated 5.7.2007 of Smt. Kalawati executed by her in favour of Department of posts, Govt. of India. The respondent No.1 has stated that as per FSL reports the signatures of Smt. Kalawati on Will dated 28.12.2008 are not genuine. 10. In Mohammed Ibrahim and others vs. State of Bihar and another (2009) 8 SCC 751 , it has been held as follows:- This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. 11. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. 11. In Joseph Salvaraj A vs. State of Gujrat and others (2011) 7 SCC 59 , FIR under Sections 406, 420, 506 part-I IPC was registered at Ordhav Police Station, Ahmedabad City. The appellant filed petition under Section 482 of the Code for quashing FIR. The said application came for consideration in the High Court on 11.1.2007. But by that time, charge-sheet was already filed before the competent criminal court. The Single Judge was of the opinion that it was not a fit case to be entertained, the petition was dismissed. The Supreme Court has held as follows:- In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495 , relevant part thereof is reproduced hereinbelow: "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." 12. In Shiji alias Pappu and others vs. Radhika and another (2011) 10 SCC 705 , the Supreme Court has held as follows:- Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. In Shiji alias Pappu and others vs. Radhika and another (2011) 10 SCC 705 , the Supreme Court has held as follows:- Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked. 13. The Supreme Court in Padal Venkata Rama Reddy alias Ramu vs. Kovvuri Satyanarayana Reddy and others (2011) 12 SCC 437 has held as follows:-. It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court vide State of Haryana vs. Bhajan Lal (1992 Supp (1) SCC 335), Janata Dal vs. H.S. Chowdhary and Others ( 1992 (4) SCC 305 ), Rupan Deol Bajaj vs. Kanwar Pal Singh Gill ( 1995 (6) SCC 194 ), and Indian Oil Corp. vs. NEPC India Ltd.(2006) SCC 736. 14. In the case in hand FSL reports relied by respondent No.1 have questioned the genuineness of signature of Smt. Kalawati on Will dated 28.12.2008. vs. NEPC India Ltd.(2006) SCC 736. 14. In the case in hand FSL reports relied by respondent No.1 have questioned the genuineness of signature of Smt. Kalawati on Will dated 28.12.2008. The Investi gating Agency after completion of investigation has submitted the challan in the Court. In the reply it has been stated that Court has fixed the date for service of accused. In other words the Court on the basis of challan has summoned the accused. The summoning of the accused indicates that Magistrate has found prima facie case against petitioners. The petitioners have not assailed the summoning order. In Mohammed Ibrahim (supra) the Supreme Court has held that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. The allegation against the petitioners is that they have forged the Will dated 28.12.2008 of Smt. Kalawati. In State of Haryana vs. Bhajan Lal (1992 Supp (1) SCC 335), in para-102 the Supreme Court has laid down following guidelines to be followed by the High Court in exercise of their inherent powers to quash a criminal complaint:- "(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 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 Section 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 allegationsin the FIR 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 Section 155(2) of the Code. (4) Where, the allegationsin the FIR 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 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 Act concerned (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 Act concerned, 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." 15. It cannot be said that on the basis of allegations in the FIR and FSL reports it can be concluded that case against petitioners is absurd or case is made out for quashing the FIR against the petitioners. The Investigating Agency has collected the material and placed that material before the Court and the Court had fixed the case for service of accused. There is no whisper in the petition or in the rejoinder against the date fixed by the Court below for the service of petitioners. Thus seen from any angle there is no merit in the petition. 16. In view of above, petition fails and is dismissed. In view of disposal of main petition Cr.MP No.447 of 2012 is also disposed of.