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2016 DIGILAW 426 (UTT)

Nidhi Singh v. State of Uttarakhand

2016-08-03

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. The applicants, by means of present application under Section 482 Cr.P.C., seek to quash the charge-sheet dated 09.05.2014 submitted in FIR No. 194 of 2014, cognizance order dated 28.05.2016 as well as the entire proceedings of Criminal Case no. 2934 of 2016, State vs. Prem Prakash Singh and others, pending in the Court of Chief Judicial Magistrate, Udham Singh Nagar relating to offences punishable under Sections 420, 467, 468, 471, 504, 506, 120-B and 342 of IPC, pending before the Chief Judicial Magistrate, Udham Singh Nagar. 2. An FIR was lodged by one Smt. Prabhawati/respondent no. 2 (represented by Shri Shashikant Shandilya in Criminal Writ Petition, but by Mr. Anurag Bisaria and Mr. Shiv Pande, as respondent no. 4 in Application Section 482 Cr.P.C.), on 03.05.2014, for the offences punishable under Sections 420, 467, 468, 471, 504 and 506 of IPC. According to the First Information Report (annexure 11), the informant is resident of District Azamgarh, Uttar Pradesh. Her father was a Freedom Fighter and retired from the post of Deputy Superintendent of Police. The State Government allotted 50 acres of land to him under the Benevolent Scheme in Village Bagwala, Tehsil Kichha, District Uhdam Singh Nagar. When her father died on 10.06.1999, there was no other legal heir except her (informant). After his death, some anti social elements started grabbing his property. Informant’s name was mutated in revenue records. She continued to live in Azamgarh at her matrimonial home. Accused persons hatched a conspiracy to grab the property of her father. They called informant’s son (since deceased) at their house, as a consequence of which, the informant’s son remained mentally perturbed. The land was given by the informant to accused Prem Prakash Singh in theka. He used to get the signatures of the informant on several papers. One Suresh Pal filed a civil suit at Rudrapur. When the informant tried to find out about the civil suit, she came to know that Prem Prakash Singh prepared a forged Will and got the land of her father mutated in her name through Consolidation Court, Kichha. The proceedings of Consolidation Court reveal that there are his and her daughter’s statement in the file, whereas, in fact, neither she, nor her daughter ever gave the statement in the Consolidation Court. The proceedings of Consolidation Court reveal that there are his and her daughter’s statement in the file, whereas, in fact, neither she, nor her daughter ever gave the statement in the Consolidation Court. The Will of her father is a fake document, and therefore, it is prayed, through the First Information Report, that appropriate legal action may be taken against the wrong doers. 3. Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another, (2013) 1 Supreme Court Cases (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 Cr.P.C. Some of those principles, which are relevant in the context of present case, can be summarized as below: i. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. ii. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. iii. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. iv. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. iv. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. v. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. vi. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. vii. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. viii. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. ix. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. x. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. xi. Even in such cases, the Court would not embark upon the critical analysis of the evidence. xi. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. xii. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. xiii. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. xiv. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. xv. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. xvi. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours otherwise, it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration. 4. There appears to be no illegality in the cognizance and summoning order (order under challenge). The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration. 4. There appears to be no illegality in the cognizance and summoning order (order under challenge). No interference is called for in the same at this stage, as would also be evident from the law laid down by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 . Para 28 of the said ruling is reproduced herein below for convenience: “The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defence raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 5. The foundation of Criminal Offence is laid against the applicant in the instant case. Criminal proceeding pending against him therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 6. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of it’s inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. Criminal proceeding pending against him therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 6. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of it’s inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests. 7. Learned counsel for the applicants drew attention of this Court towards para 33 to 42 of the judgment rendered by Hon’ble Apex Court in Chandran Ratnaswami vs. K. C. Palanisamy & others alongwith other connected appeals, reported in (2013) 6 Supreme Court Cases 740, to show that a purely civil dispute has been given colour of a criminal case, which is abuse of process of the Court. He further emphasized that the High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment of persecution. 8. Relevant paragraphs of the judgment of Chandran Ratnaswami vs. K. C. Palanisamy & others alonwith other connected appeals, reported in (2013) 6 Supreme Court Cases 740 are being quoted herein below for convenience: Abuse of Process of the Court “33. The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well-established and recognized doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be abuse of process of court. 34. Lord Morris in Connelly v. Director of Public Prosecutions, observed: (AC pp. 1301-02) “There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction… A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. The power (which is inherent in a courts jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice.” In his separate pronouncement, Lord Delvin in the same case observed that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trail. 35. In Hui Chiming v. R v. R. (1992) 1 AC 34, The Privy Council defined the word “abuse of process” as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case. 36. In the leading case of R. v. Horsferry Road Magistrates’ Court, ex p Pennett, (19940 1 AC 42 on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 37. In R. v. Derby Crown Court, ex p Brookds 12 (1984) 80 CR App R 164 (DC), Lord Chief Justice Ormrod stated: “It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection proved by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable.” 38. Neill, L.J. in R. v. Beck for (Anthony) (1996) 1 CR App R 94, observed that: “The jurisdiction to stay can be exercised in many different circumstances. Neill, L.J. in R. v. Beck for (Anthony) (1996) 1 CR App R 94, observed that: “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.” What is unfair and wrong will be for the court to determine on the individual fats of each case. 39. This court in State of Karnataka v. L. Muniswamy (1997) 2 SCC 699 , observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it come to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case; (SCC p. 703, para 7) “7. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal mattes, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” This case has been followed in a large number of subsequent cases of this Court and other courts. 40. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, this Court in the backdrop of interpretation of various relevant provisions of CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list to myriad kinds of case wherein such power should be exercised: (SCC p. 379, para 102) “102. (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.” 41. This Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 , observed thus: (SCC p. 128, para 8) “8…. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offense is made out even if the allegations are accepted in toto.” 42. In India Oil Corpn. V. NEPC India Ltd., (2006) 6 SCC 736 , this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: (SCC p. 749, para 13) “13… Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.” 9. In the humble opinion of this Court, the facts of the appeals, which have been decided by Hon’ble Apex Court, are distinguishable from the facts and nature of the instant case. The most distinguishing feature is that it is a petition under Section 482 Cr.P.C. for quashing the impugned order. The law propounded by Hon’ble Apex Court in Chandran Ratnaswami vs. K.C. Palanisamy & others along with other connected appeals(supra) is binding upon all courts, but the background of the present petition under Section 482 Cr.P.C. and those appeals is entirely at variance, and therefore, the applicants do not deserve to be granted any benefit of the same. 10. Learned counsel for the applicants argued that the cognizance is barred under Section 195 (I) (b) (i) Cr.P.C. in view of decision rendered by Hon’ble Supreme Court in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, reported in (2005) 4 Supreme Court Case 370. Learned counsel for the applicants also submitted that the DIG had no jurisdiction to direct the SO concerned to lodge the First Information Report and conduct the investigation. He submitted that the FIR can be lodged only in terms of Section 154, 155 and 156 Cr.P.C., which has not been done in the instant case. Learned counsel for the applicants also submitted that the DIG had no jurisdiction to direct the SO concerned to lodge the First Information Report and conduct the investigation. He submitted that the FIR can be lodged only in terms of Section 154, 155 and 156 Cr.P.C., which has not been done in the instant case. In the humble opinion of this Court, the criminal law can be set into motion at the instance of anyone – aggrieved or not aggrieved. 11. Section 156 (3) Cr.P..C. empowers the police officer to investigate the cognizable offence. In the instant case, the application under Section 156(3) Cr.P.C. was rejected. A criminal writ petition was preferred against the same, which too met the same fate as was met by application under Section 156 (3) Cr. P.C. Thereafter, an application was addressed to DIG, who directed the SO concerned to investigate the case. Learned Deputy Advocate General submitted that the contents of application under Section 156 (3) are not exactly the same as was complained and addressed to the DIG. Some additional facts were introduced in the same. Moreover, it is a settled law that if an application under section 156(3) Cr.P.C. is dismissed. It is always open to the complainant to file a criminal complaint case, which is provided in Chapter XV of the Code. It will be useful to quote the language of Section 156 of the Code herein below: “156. Police officer’s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.” 12. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.” 12. It was held in Lalita Kumari vs. Government of Uttar Pradesh and others, reported in (2014) 2 Supreme Court Cases 1, that if the information discloses commission of offence and no preliminary enquiry is permissible then registration of the first information report is mandatory under Section 154 Cr.P.C. Where information received does not disclose a cognizable offence a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not. Even the scope of preliminary inquiry is limited. It is not verified to test the veracity or otherwise of the information received but only to ascertain whether information revels any cognizable offence, proper stage for such verification of the veracity of the information received is after registration of the First Information Report and not before the registration of the FIR. 13. Learned counsel for the applicants has tried to show the contradictions in many factual aspects of the present petitions under Section 482 Cr.P.C., which this Court is not inclined to deal with. Settlement of factual controversy is beyond the domain of the Court dealing with the matters relating of Section 482 Cr.P.C. 14. When WPCRL No. 597 of 2014 was taken up for admission, the Court observed as follows: “Respondent no.5 moved an application under Section 156(3) Cr.P.C. before the Magistrate concerned, which was rejected. She thereafter preferred a revision before the Sessions Judge without meeting any success. On the basis of same set of facts, present FIR was lodged by her. Learned counsel for respondent no.5 placed certain rulings, i.e. Sakiri Vasu vs. State of Uttar Pradesh & others (2008) 1 SCC (Cri) 440, Santosh Kumari vs. State of U.P. & others in Application under Section 482 Cr.P.C. no.25055/2011 and Simran Ahluwalia vs. State of Delhi in Criminal Revision no.145/2010 to show that even if the application under Section 156(3) Cr.P.C. was dismissed, the complainant could have filed the FIR. Learned counsel for the petitioner drew the attention of this Court towards documents annexed with the writ petition and submitted that the nature of present dispute is of civil nature. Learned counsel for the petitioner drew the attention of this Court towards documents annexed with the writ petition and submitted that the nature of present dispute is of civil nature. All the submissions of learned counsel for the parties will be considered when the criminal writ petition is decided on merits. It is provided, as an interim measure that the petitioner shall contact the Investigating Officer of the case on 06.06.2014, and, on such subsequent dates, as may be instructed by the Investigating Officer. No coercive measures shall be taken against the petitioner during the course of interrogation and investigation, provided he cooperates with the Investigating Agency. This interim protection shall be valid till the next date of listing. If the petitioner does not contact the I.O., it will be open for the State counsel to apprise this Court about the same.” 15. Since a charge-sheet has been submitted after the investigation, therefore, WPCRL No. 597 of 2014 has rendered infructuous. But, even then, learned counsel for the applicant argued that when the very foundation of application under Section 482 Cr.P.C. is bad, therefore, there should be hearing on the writ petition. Although, the Court was not inclined to accept the submission of learned counsel for the petitioner, but even then he was heard on the merits of Criminal Writ Petition as well which is also subject matter of discussion in present adjudication. 16. Learned counsel for the applicant submitted that, at the most, the complaint ought to have been filed by the Consolidation Court and the Magistrate Court ought not to have been taken cognizance on the basis of a charge-sheet submitted against the applicants. It is the submission of learned counsel for the applicants that it is the Consolidation Court which should have filed a criminal complaint case against the wrong doers and only then the cognizance should have been taken, as per law. 17. This Court is unable to accept such contention of learned counsel for the applicants, inasmuch as, the forgery was not committed during the period when the document was in custodia legis. If an offence is committed prior to it’s production or giving any evidence in court, no complaint by court would be necessary and a private complaint would be maintainable. This Court is unable to accept such contention of learned counsel for the applicants, inasmuch as, the forgery was not committed during the period when the document was in custodia legis. If an offence is committed prior to it’s production or giving any evidence in court, no complaint by court would be necessary and a private complaint would be maintainable. In the instant case, it is not the complaint of the informant that the forgery was committed when the Will was in costodia legis. The complaint is that the forged Will was prepared, and knowing it well that it was forged one, the same was filed in the Revenue Court. The Court is unable to accept the argument of learned counsel for the applicant that no offence, as alleged, against the applicants are prima facie made out against the applicant. On a careful reading of the documents brought on record, this Court does not find that there is abuse of process of the Court if the proceedings against the applicants are permitted to continue to bring the same to it’s logical conclusion. 18. This Court, therefore, is of the view that no interference is called for, in the proceedings of the Court below, in exercise of its inherent jurisdiction. Applications under Section 482 Cr.P.C. filed on behalf of the applicants are therefore, dismissed at the threshold. 19. Criminal Writ Petition No. 597 of 2014 stands disposed of as ‘infructuous’. 20. As prayed, liberty is granted to the applicants to take all the factual pleas before the Court below for securing their discharge/acquittal at an appropriate stage.