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2013 DIGILAW 2142 (RAJ)

Ganga Ram v. State of Rajasthan Anr.

2013-12-02

SANDEEP MEHTA

body2013
JUDGMENT : 1. The instant second misc. petition has been preferred by the petitioners assailing the validity of the F.I.R. No. 154/2006 registered at the Police Station Udaimandir, Jodhpur for the offences under Sections 420, 467, 468, 471 and 191 of the I.P.C. 2. Briefly stated the facts of the case are that the respondent No. 1 Bhikha Ram filed an F.I.R. through a complaint forwarded to the Police Station Udaimandir, Jodhpur for investigation by the learned Judicial Magistrate No. 3, Jodhpur under Section 156(3) of the Cr.P.C. As per the allegations levelled in the F.I.R., the accused persons created a Will by appending forged thumb impressions of late Choutha Ram (the owner of the property) and thereby created a forged valuable security in their favour. Upon registration of the F.I.R., the accused approached this Court by way of a S.B. Cri. Misc. Petition No. 390/2009 seeking quashing of the F.I.Rs. This Court considered the arguments advanced on behalf of the petitioners in the aforesaid misc. petition and decided the same by the order dated 10.3.2010. Some relevant portions of the order dated 10.3.2010 are quoted hereinbelow: "Having considered the submissions made at the bar and carefully perused the relevant material including F.I.R. No. 154/2006, it is noticed that this F.I.R. came to be registered by the police on a complaint having been sent by Judicial Magistrate No. 3, Jodhpur under Section 156(3) of Cr.P.C. for investigation. The investigation of the case is still said to have been pending. It is alleged that the petitioners forged a 'Will' with a view to grab the property of late Chautha Ram. Learned counsel for the petitioners canvassed that both the parties have compromised and settled all the disputes pending in different Courts. Hence, in view of the same, the F.I.R. may be quashed. E converso, learned Public Prosecutor appearing for the State contended that during investigation, the 'Will' has been found to have been forged by the petitioners and the case is still pending investigation, which does not deserve to be quashed. ... A bare reading of the F.I.R. reveals tangibly that the offences under Sections 420, 467, 468 and 471 were, prima facie, made out. As per the arguments advanced by the learned Public Prosecutor, the police also found the 'Will' to have been forged by the petitioners. ... A bare reading of the F.I.R. reveals tangibly that the offences under Sections 420, 467, 468 and 471 were, prima facie, made out. As per the arguments advanced by the learned Public Prosecutor, the police also found the 'Will' to have been forged by the petitioners. Albeit, the case is pending investigation and final opinion has not yet been given, however, it is not a case wherein the contents of the F.I.R. do not disclose any commission of cognizable offence. Merely because the parties have compromised, the F.I.R. cannot be quashed on this ground if the contents of the F.I.R. do disclose commission of a cognizable offence. I do not find any merit in the submissions made by the learned counsel for the petitioners and to my firm view, the petition filed under Section 482 of Cr.P.C. deserves to be dismissed." 3. Significantly enough, this Court took note of the fact that during investigation, the Will in question was found to be forged upon its examination by the F.S.L. It was also observed that merely because the parties allegedly compromised the matter, the F.I.R. could not be quashed on that ground too. Accordingly, the misc. petition filed by the petitioners was rejected on merits. 4. The petitioners however did not rest satisfied with the rejection of earlier petition and just a few months after the rejection of the first misc. petition, this second misc. petition has been preferred by them seeking quashing of the very F.I.R., the validity whereof was examined and upheld by this Court earlier. Two grounds were principally averred in both the misc. petitions in support of the prayer for quashing of the F.I.R. Firstly it was claimed that the matter is essentially of a civil nature and thus, the F.I.R. impugned should be quashed and secondly, it was submitted that the parties had compromised the matter and therefore also, the F.I.R. was fit to be quashed. 5. A notice of this petition was issued to the respondent complainant but no one appeared to argue the case on his behalf. 6. The learned Public Prosecutor has submitted a factual report dated 18.11.2013 forwarded by the Investigating Officer. 5. A notice of this petition was issued to the respondent complainant but no one appeared to argue the case on his behalf. 6. The learned Public Prosecutor has submitted a factual report dated 18.11.2013 forwarded by the Investigating Officer. As per the factual report, the disputed Will was forwarded to the Forensic Science Laboratory for comparison of the thumb impressions and the Finger Print Bureau of the Forensic Science Laboratory has opined that the thumb impressions appended on the Will are different from the admitted thumb impressions of Chautha Ram. Accordingly, it. is mentioned in the factual report that the Will in question is forged. 7. Shri D.N. Yadav learned counsel for the petitioners vehemently contended that there is no bar on the powers of the High Court to entertain a second petition under Section 482 Cr.P.C. even if the first petition had been rejected by the Court. He relies on following decisions rendered by the Hon'ble Supreme Court in support of this contention: (1) AIR 1975 SC 1002 , Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh & Ors. (2) AIR 1979 SC 87 , State of Orissa v. Ram Chander Agarwala (3) AIR 2009 SC 46 , State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors. (4) AIR 2013 SC 1952 , Chandran Ratnaswami v. K.C. Palanisamy & Ors. (5) 1990 Cri.L.J. 1599(1), Mostt. Simrikhia v. Smt. Doliey Mukherjee @ Chhabi Mukherjee & Anr. 8. He also vehemently contended that there is a significant change in circumstances post rejection of the first petition that is to say that the complainant has compromised the case with the accused and therefore, referring to the decision rendered by the Hon'ble Supreme Court in the case of Gian Singh v. State of Punjab & Anr., reported in JT 2012 (9) SC 426 he vehemently contends that the F.I.R. impugned deserves to be quashed on the strength of the compromise. He submits that the complainant himself sent a letter to the accused admitting that he had filed the F.I.R. in question under a misconception and therefore, he was compromising the issue with the accused and that the F.I.R. impugned should be quashed on the basis of the compromise. He relies on the decision rendered by Hon'ble Supreme Court in the case of Rajiv Thapar & Ors. He relies on the decision rendered by Hon'ble Supreme Court in the case of Rajiv Thapar & Ors. v. Madan Lal Kapoor, reported in (2013) 3 SCC 330 in support of the contention that the defence material submitted by the accused can also be considered by the High Court in a petition filed under Section 482 Cr.P.C. for quashing the F.I.R. He, therefore, submits that the F.I.R. impugned deserves to be quashed by this Court by exercising the inherent powers under Section 482 Cr.P.C. 9. Per contra, learned Public Prosecutor has vehemently opposed the submissions advanced by the learned counsel for the petitioners. He submitted that thorough investigation was conducted by the Police in this case. The petitioners did not participate and cooperate with the Investigating Officer. The Will in question was procured during investigation and was got examined from the Finger Print Bureau of the State Forensic Science Laboratory. The Bureau has forwarded a report as per which the thumb impressions of the executant Chautha Ram on the disputed Will were found different from the admitted thumb impressions. Thus, the learned Public Prosecutor urges that there is no justification to quash the F.I.R. impugned in exercise of the inherent powers of this Court. He urges that the so-called compromise between the parties has not been verified during investigation. He further submits that the petitioners are responsible for delaying and stalling the investigation by filing repeated misc. petitions and thus, they should be penalised heavily for abusing the process of this Court and for wasting the precious time of this Court. 10. Heard and considered the arguments advanced at the bar and perused the order impugned. 11. There cannot be a second thought about the proposal that a subsequent petition under Section 482 Cr.P.C. can be entertained by the High Court even if the earlier petition filed by the party had been rejected. However, in the opinion of this Court, such an exercise is only permissible and called for when there is a significant drastic change in circumstances bringing about compelling circumstances calling for the exercise of the inherent powers of the Court in a second round of litigation. 12. It otherwise construed, the situation could be of absolute anarchy. However, in the opinion of this Court, such an exercise is only permissible and called for when there is a significant drastic change in circumstances bringing about compelling circumstances calling for the exercise of the inherent powers of the Court in a second round of litigation. 12. It otherwise construed, the situation could be of absolute anarchy. A litigant having failed to procure a favourable order for himself in the first round of litigation would keep on repeating the attempts to procure a favourable order by filing one petition after the other. Such repeated attempts to avail the inherent powers of the Court for quashing the proceedings despite having failed in the earlier round have to be warded off to maintain the sanctity of this Court's proceedings. 13. Upon going through the order dated 10.3.2010 passed by this Court in the earlier misc. petition, it is manifest that both the arguments advanced by the learned counsel for the petitioners regarding the case being of a civil nature and regarding the parties having arrived at a compromise and thereby seeking to have the F.I.R. quashed were considered by this Court. The arguments did not find favour with the Court and accordingly, the miscellaneous petition filed by the petitioners accused under Section 482 Cr.P.C. was rejected after considering the entire merits of the case. Soon after the rejection of the first misc. petition, the accused have again approached this Court for having the F.I.R. quashed on virtually the same grounds. 14. A strong reliance has been placed by the learned counsel for the petitioner on the document-Annex.2, a so-called compromise, arrived at between the parties post rejection of the first misc. petition. Suffice it to say that the document-Annex.2 is neither a document of sterling worth nor is it otherwise admissible in evidence. The petitioners claim that the complainant addressed the letter (Annex.2) to them admitting therein that he had filed the F.I.R. in question under a misconception and on being all advised. Suffice it to say, the document cannot be termed to be a compromise application as legally provided in the Cr.P.C. It is simply a letter claimed to have been received by the petitioners through post on allegedly being sent by the complainant to them. The veracity of the letter is itself in doubt. Suffice it to say, the document cannot be termed to be a compromise application as legally provided in the Cr.P.C. It is simply a letter claimed to have been received by the petitioners through post on allegedly being sent by the complainant to them. The veracity of the letter is itself in doubt. If at ail the matter had been compromised between the parties genuinely, then nothing prevented the petitioners and the complainant from filing an appropriate compounding application in the Trial Court or before the Investigating Officer. The so-called compromise was also not verified during investigation as is evident from the factual report dated 18.11.2013. 15. Despite the fact that the letter is alleged to have been addressed to the petitioners way back on 18.3.2010, no appropriate compounding application was filed by the parties before the appropriate forum. Thus, this Court is not inclined to give any credence to the letter Annex-2. It may be noted here that the documents filed alongwith this misc. petition are not even supported by any affidavit. Thus, it is evident that the so-called compromise, which has been made the basis of this second petition filed under Section 482 Cr.P.C. is of no value whatsoever and is nothing but a worthless piece of paper, cognizance whereof cannot be taken by this Court upon testing the same on the guidelines laid down by the Hon'ble Supreme Court in the case of Rajiv Thapar v. Madan Lal Kapoor (supra). 16. As a matter of fact, in the opinion of this Court, the prayer made by the petitioner in this misc. petition virtually amounts to requesting this Court to sit in appeal/review over the decision rendered by the Hon'ble Single Bench on 10.3.2010 in the earlier Misc. Petition No. 390/2009. 17. The Hon'ble Supreme Court considered the issue as to whether the complainant can be made to accept the compromise against his desire in the case of JIK Industries Limited & Ors. v. Amarlal V. Jumani & Anr., reported in AIR 2012 SC 1079 . The Hon'ble Supreme Court held as below: "36. Mr. K. Parameshwar, learned counsel appearing for the respondent in Special Leave Petition Nos. v. Amarlal V. Jumani & Anr., reported in AIR 2012 SC 1079 . The Hon'ble Supreme Court held as below: "36. Mr. K. Parameshwar, learned counsel appearing for the respondent in Special Leave Petition Nos. 4445-4454/2009 argued that the impugned judgment of the High Court is based on correct principles inasmuch as the effect of a Scheme under Section 391 of the Companies Act can only be made applicable to a civil proceeding and it cannot affect criminal liability. Learned counsel further submitted that under the criminal law there is nothing known as deemed compounding. It was further urged that under the very concept of compounding, it cannot take place without the explicit consent of the complainant or the person aggrieved. It was also urged that in the instant case the offence has been completed prior to the scheme under Section 391 of the Companies Act was sanctioned by the Court. 37. Learned counsel distinguished between a Scheme under Section 391 and an act of compounding by urging that a Scheme under Section 391 can at most be a Scheme to forego a part of a debt or to restructure the payment schedule of a debt but the act of compounding an offence must proceed on the basis of the consent of the person compounding and his consent cannot be assumed under any situation. 38. Learned counsel further submitted that the impugned judgment of the High Court correctly formulated the principle of compounding by holding that the act of compounding involves an element of mutuality and it has to be bilateral and not unilateral. 39. This Court finds lot of substance in the aforesaid submission. 40. Compounding of an offence is statutorily provided under Section 320 of the Code. If we look at the list of offences which are specified in the Table attached to Section 320 of the Code, it would be clear that there are basically two categories of offences under the provisions of Indian Penal Code which have been made compoundable. 41. There is a category of offence for the compounding of which leave of the Court is required and there is another category of offences where for compounding the leave of the Court is not required. But all cases of compounding can take place at the instance of persons mentioned in the Third Column of the Table. 41. There is a category of offence for the compounding of which leave of the Court is required and there is another category of offences where for compounding the leave of the Court is not required. But all cases of compounding can take place at the instance of persons mentioned in the Third Column of the Table. If the said Table is perused, it will be clear that compounding can only be possible at the instance of the person who is either a complainant or who has been injured or is aggrieved. 73. ... Therefore, Section 147 of the N.I. Act must be reasonably construed to mean that as a result of the said Section the offences under N.I. Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of N.I. Act." 18. Upon reverting to the facts of the case at hand, it is evident that the complainant has no accredited the fact that any compromise has been arrived at between the parties. Thus, the letter - Annex.2 is of no avail to the petitioners. 19. This Court feels that the petitioners are guilty of wasting the precious time of this Court by filing repeated petitions even after the first petition filed by them stood rejected on merits. The Hon'ble Supreme Court considered the import of the filing of a frivolous criminal petition under Section 482 of the Cr.P.C. for quashing the criminal proceedings in the case of Vineet Handa v. State of Haryana. In that case also, the petitioner filed the first misc. petition in a certain capacity and then after the rejection of the first misc. petition, a second misc. petition was filed by him in a different capacity. The Hon'ble Supreme Court held as below: "9. The learned Judge then referred to the judgment of this Court in State of Punjab v. Davinder Pal Singh Bhullar and held that by filing the second petition with similar prayer, the petitioner had indirectly sought review of order dated 18.4.2011, which was legally impermissible. The learned Judge also opined that the petitioner is not entitled to any relief because he has not approached the Court with clean hands. The learned Judge also opined that the petitioner is not entitled to any relief because he has not approached the Court with clean hands. The learned Judge then considered the scope of Section 482 Cr.P.C., referred to the judgment in Davinder Pal Singh Bhullar's case (supra) and dismissed the petition with cost of Rs. 20,000/-. 10. We have heard learned Counsel for the petitioner at some length and carefully perused the record. In our view, the second petition filed by the petitioner was a gross abuse of the process of the Court and the learned Single Judge of the High Court rightly declined to entertain the same on the ground that the same was not maintainable and also on merits. 11. The special leave petition is accordingly dismissed. For filing a frivolous petition and thereby wasting the Court's time, the petitioner is saddled with a cost of Rs. 5,00,000/-, which he shall deposit with the Haryana State Legal Services Authority within a period of two months from today. If the petitioner fails to comply with this direction, the Secretary, Haryana State Legal Services Authority shall take action for recovery of the amount as arrears of land revenue." The facts of the case at hand are almost similar. Having failed to procure a favourable order in the first round, the petitioners have again approached this Court by way of this second petition under Section 482 Cr.P.C. virtually on the same grounds and have managed to stall the investigation for a period of nearly three years. 20. In this view of the matter, the misc. petition being devoid of any merit is dismissed whilst imposing a cost of Rs. 10,000/- on the petitioners. The petitioners are given an opportunity to deposit the cost in the office of this Court within a period of four weeks from today failing which the Dy. Registrar (Judl.), Rajasthan High Court, Jodhpur shall undertake proceedings for recovery of the cost as a fine under Section 421 Cr.P.C. The cost upon being deposited shall be appropriated towards the funds of the State Legal Services Authority.Petition dismissed.