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Madhya Pradesh High Court · body

2013 DIGILAW 283 (MP)

Afsar Mohd. v. State of M. P.

2013-03-01

Anil Sharma

body2013
ORDER 1. Petitioners have filed this petition under section 482 of CrPC for quashment of FIR registered at crime No. 152/2012 at police station Talaiyya, Bhopal on 6.7.2012 against the petitioners for the offence punishable under sections 420, 467, 468 and 471 of IPC copy of which has been filed along with the petition as Annexure P-1. 2. The brief facts of the case are that respondent No. 2- complainant lodged a frivolous FIR at police station Talaiyya subject matter of which is akin to the facts of the civil suits pending between the parties in which the veracity of the documents alleged to be forged in the FIR has to be adjudged after recording evidence of the parties. The FIR has been got registered in order to undue pressurize the petitioners to either get their dismissed or to get it compounded under pressure of criminal prosecution. Petitioners No. 3 and 4 filed a civil suit No. 253A/12 on 31.1.2012 against a number of defendants including the minor sons of the respondent/complainant for declaration of title and permanent injunction. Copy of the plaint has been filed with the petition as Annexure P-2. The suit is based on an oral Hiba of the suit property made in favour of the plaintiffs by Akhtar Mohd. Khan in the year 1996 and confirmed by a memorandum of Hiba dated 23.4.1994. The copy of the written statement filed on behalf of the respondent/complainant is Annexure P-3. 3. The minor sons of respondent/complainant have also filed a civil suit No. 38A/2010 for declaration of title of permanent injunction with regard to suit property against Maimoona Bi and Wasim Mohd. This suit is also pending in the Court of XIV Additional District Judge, Bhopal. Copy of plaint of that suit is filed with the petition as Annexure P-4. 4. According to petition before lodging of FIR (Annexure P/1), the respondent/complainant has filed same/identical complaint with the police station on 11.11.2011 which was enquired into by City Superintendent of Police, Kotwali Division, Bhopal and he submitted his report to the Director General of Police, Bhopal on 8.2.2012 vide Annexure P-7 concluding that since both the parties have filed suits in the Court which are pending, it would be fair if the dispute is decided by the Court and if the Court directs the police to take action, then only the police may proceed accordingly. Copy of this report has been obtained by the petitioners under Right to Information Act. After submission of the report by the CSP, Kotwali Division, Bhopal, the respondent/complainant manifestly filed another complaint at police station Talaiyya, Bhopal and succeeded in getting the FIR registered against the petitioners, therefore, petitioners have filed this petition for quashment of the same on the ground that considering the civil litigation between the parties, the complaint for the same on the same facts is not maintainable as both the parties are having Hibanama in their favour genuineness of which is to decided by a civil Court. 5. Learned counsel for the petitioners has drawn attention of this Court towards the report Annexure P-7 on complaint made by Shri Mushir Mohd. Khan according to which civil suit filed by both the parties are pending before the Court, therefore, it will be better that the dispute be decided by the Court and if the Court directs the police to take action then action will be taken accordingly. Learned counsel for the petitioner submitted that the dispute regarding Will can only be decided by civil Court and complaint by the Court would be necessary before cognizance of the offence of alleged forgery could be taken. In support of his arguments he has cited the judgment of this Court in the matter of Ajay Pandey v. State of Madhya pradesh and others, 2007 (1) MPHT 531 , in which it has been held that where the dispute between the parties in of civil nature, the question whether a Will is a forged Will already pending for decision in civil litigation between the parties and subsequently FIR lodged making the same allegation Will was forged by the adversary, the purpose was to cow down the adversary. There was misuse of criminal law. The Will had been produced in civil Court, and complaint by the Court would be necessary before cognizance of the offence of alleged forgery could be taken. The lodging of FIR held to be clearly an abuse of the process of law, therefore, FIR quashed under section 482 of CrPC. There was misuse of criminal law. The Will had been produced in civil Court, and complaint by the Court would be necessary before cognizance of the offence of alleged forgery could be taken. The lodging of FIR held to be clearly an abuse of the process of law, therefore, FIR quashed under section 482 of CrPC. This judgment is based on the judgments of Hon. apex Court in the matter of State of Karnataka and another v. L. Muniswamy and others, AIR 1977 SC 1489 , Chandra Pal Singh v. Maharaj Singh, AIR 1982 SC 1238 and State of Haryana v. Bhajanlal, AIR 1992 SC 604 . 6. Learned counsel for petitioners has also cited judjment of Hon. apex Court in the matter of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751 , in which it has been held that criminal Court ensure that criminal proceedings are not misused for settling scores or pressurizing parties to settle civil disputes. 7. On the other hand, learned counsel for respondent No. 2 has cited the judgment of Hon. apex Court in the matter of D. Venkatasubramaniam and others v. M.K. Mohan Krishnamachari an another, (2009) 10 SCC 488 in which it has been held that it is the statutory obligation and duty of police to investigate into crime and Courts normally ought not to interfere and guide investigating agency as to in what manner investigation has to proceed. Interference of high Court without recording any reason whatsoever, directed the police that it is obligatory on their part to record statements from witnesses, arrest, seize property and filed charge-sheet. 8. Learned counsel for the respondent No. 2 has submitted that under section 482 of CrPC this Court can direct the police to stay filing of final report under section 173 of CrPC till disposal of civil suit. In this regard she has cited the judgment of Hon. apex Court in the matter of Usha Ahuja v. State of Haryana and others, AIR 1999 SC 3242 in which it has been held that the width of power of the High Court under section 482 of CrPC in principle, is very expansive but in practice the power is exrcised in exceptional case. The inherent power of the Court in not an unrestricted power to make any order which the High Court desires to pass. The inherent power of the Court in not an unrestricted power to make any order which the High Court desires to pass. The power is meant to be exercised to give effect to any order under CrPC or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, therefore, where a complaint was lodged against the respondents, partners of firm under sections 405, 406 and 408 of IPC and a civil suit is pending between the parties for dissolution of the partnership firm and rendition of accounts and the said respondents filed criminal misc. petition before the High Court praying to quash the FIR and the High Court having notiece that a civil suit is pending between the parties and investigation on the complaint of the appellant by the police is in progress, stayed in exercise of its inherent powers the filing of final report under section 173 of CrPC by the police. The High Court by passing impugned order did not achieve any of the purposes for which the power exists. 9. Learned counsel for the respondent has also cited the judgment of Hon. apex Court in the matter of M/s. Medchl Chemiscals and Pharma Pvt. Ltd. v. M/s. Biological E. Ltd. and others. AIR 2000 SC 1860, in which it has been held that under inherent powers under section 482 CrPC quashing of complaint on allegations leveled in complaint on face of it disclosed offence alleged, complaint cannot be quashed merely on grounds the civil remedy is available. 10. In the present case, civil suit between the parties is already pending before lodging of FIR in which genuineness of Hibas’ which are executed in favour of both the parties is to be considered and civil Court has to give verdict about genuineness of one of them, therefore, without consideration of evidence on the point of genuineness of Hibananma, the FIR lodged in the police is premature as Hiba cannot be said to be forged merely on the ground of allegation made by opposite party. Judgments cited by learned counsel for the respondent No. 2 are applicable in a case where civil suit between the parties was not pending or in civil suit genuineness of Hibas’ in favour of both the parties was not to be considered. Judgments cited by learned counsel for the respondent No. 2 are applicable in a case where civil suit between the parties was not pending or in civil suit genuineness of Hibas’ in favour of both the parties was not to be considered. The case of the petitioner is squarely covered by the judgment cited by learned counsel for the petitioner in the matter of Ajay Pandey (supra) based on judgments of Hon. apex Court, therefore, CSP, Kotwali Division, Bhopal has rightly sent the report (Annexure P-7) to the Director General of Police but the respondent No. 2 has filed similar FIR before another police station and got the FIR registered, therefore, looking to the judgment passed by this Court in the matter of Ajay Pandey (supra), the FIR lodged against the petitioner is liable to be quashed under section 482 of CrPC as it is a grave misuse of process of law, thereforer, petition is allowed and FIR registed at Crime No. 152/2012 at police station Talaiyya, Bhopal on 6.7.2012 against the petitioners for the offence punishable under sections 420, 467, 468 and 471 of IPC and subsequent proceedings thereto are hereby quashed. 11. A copy of this order be sent to learned trial Court for necessary information and compliance. ..........