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2016 DIGILAW 1372 (HP)

Rajesh Thakur v. State of Himachal Pradesh

2016-07-13

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The petitioner has sought quashing of FIR No. 0045 of 2015 dated 16.8.2015 registered against the petitioners by Police Station Shimla East under Section 447 IPC and Section 3(1)(V) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act registered at the instance of one T.D. Negi at about 9.15 PM against the petitioners. it was alleged that he had purchased the land comprising of Khasra Nos. 689, 690, 691, 692, 694 and 695 measuring 18539 square metres. Petitioners are immediate Neighbourers of the complainant and owners of the land adjacent to the land of the complainant. It was alleged that dispute was qua Khasra No. 695 which he claimed to be his land and petitioners were interfering with the enjoyment of the land. It was also alleged that the petitioners were aggressive and were likely to cause interference at every stage of its enjoyment. 2. Petitioners have also submitted an application to the Settlement Officer for the correction of the revenue entries and Settlement Officer has directed the Naib Tehsildar (Settlement) vide letter dated 29.7.2015 to do the needful as per annexure P-2, qua Khasra No. 695. Petitioners have also instituted a suit before the learned Civil Judge (Junior Division). Petitioners have also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of interim injunction. Learned trial Court vide order dated 8.7.2015 has granted in interim relief with the following observations: ?….. Hence, as on date prima facie case appears in favour of applicant and balance of convenience also lies in his favour and in case respondent is not restrained at this juncture, legal injuries shall be suffered to the applicant. Hence, in view the interest of justice and in order to prevent the multiplicity of litigation between the parties, both the partitas are directed to maintain status quo at Khasra No. 695 qua interference or dispossessing over use of Khasra NO. 695 as possessed by the applicant? 3. The Court has gone through the contents of the FIR. The phrase used in the FIR is that ?the petitioners were aggressive and were likely to cause interference at every stage of enjoyment of the land by the complainant.? 695 as possessed by the applicant? 3. The Court has gone through the contents of the FIR. The phrase used in the FIR is that ?the petitioners were aggressive and were likely to cause interference at every stage of enjoyment of the land by the complainant.? It can be safely gathered from the contents of FIR that it is a civil dispute qua which suit is already pending before the Civil Judge (Junior Division), Shimla. Injunction has been granted in favour of the petitioners as reproduced herein above. Filing of FIR by the complainant against the petitioners is gross misuse of the process of law. Civil dispute can not be permitted to be converted into criminal case. Criminal cases are not shortcuts and civil disputes can not be permitted to be converted into criminal cases. Contents of FIR do not constitute any atrocity upon the complainant by the petitioners within the ambit of Section 3 (1)(V) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act. 4. Their Lordships of Hon'ble Supreme Court in Rajiv Thapar v. Madan Lal Kapoor reported in (2013) 3 SCC 330 have held that following steps should be followed by the High Court to determine veracity of a prayer for quashing of proceedings raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. 5. Their Lordships of Hon'ble Supreme Court in Rashmi Jain v. State of U.P. reported in (2014) 13 SCC 553 have held that purely civil disputes can not be permitted to be converted into criminal offence. Their lordships have further observed that the averments made in that case were made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations were held to be absurd and outlandish on the face of it. Their lordships have held as under: [6] To take the complaint out of the realm of a purely civil dispute, it is maliciously alleged in the complaint that when respondent 2 approached the appellant for payment, the appellant stated as follows: "On 22-3-2009, the applicant met the accused in the market of bazarganj saraitareen and asked for his balance amount, but the accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don't know me. i have not paid to the high and mighty people, who are you. i had to usurp your money and i had done so. thereafter she went in a car." in our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. i had to usurp your money and i had done so. thereafter she went in a car." in our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. the allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at moradabad. in our opinion, these are allegations which on the face of it, cannot be taken seriously by any reasonable person. the high court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial court. [10] Again in g. Sagar Suri v. State of U.P, 2000 2 SCC 636 , this court observed as follows: (scc p. 643, para 8) "8. jurisdiction under section 482 of the code has to be exercised with great care. in exercise of its jurisdiction the high court is not to examine the matter superficially. it is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. criminal proceedings are not a short cut of other remedies available in law. before issuing process a criminal court has to exercise a great deal of caution. for the accused it is a serious matter. this court has laid certain principles on the basis of which the high court is to exercise its jurisdiction under section 482 of the code. jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." [11] in Bhajan Lal Case3, this court enumerated the categories of cases, by way of illustration, wherein the high court would be justified in exercising its inherent power under section 487 CrPC or article 226 of the constitution of India to prevent abuse of the process of court or to otherwise secure the ends of justice. in para 102, these categories of cases are listed as under: (SCC pp. in para 102, these categories of cases are listed as under: (SCC pp. 378-79) "(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 allegations in 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 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. (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." in our opinion, the case pleaded by the petitioner, and as argued by ms Indu Malhotra, squarely falls within the ambit of propositions 5 and 7. 6. Accordingly, the present petition is allowed. FIR No. 0045 of 2015 dated 16.8.2015 registered against the petitioners by Police Station Shimla East under Section 447 IPC and Section 3(1)(V) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act, is quashed. 6. Accordingly, the present petition is allowed. FIR No. 0045 of 2015 dated 16.8.2015 registered against the petitioners by Police Station Shimla East under Section 447 IPC and Section 3(1)(V) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act, is quashed. Pending applications, are also disposed of.