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Madhya Pradesh High Court · body

2017 DIGILAW 320 (MP)

Harish Bhai v. State of M. P.

2017-03-02

ALOK VERMA

body2017
ORDER : MR. ALOK VERMA, J. 1. This application under Section 482 Cr.P.C. is directed against the order passed by learned Magistrate First Class, Indore, in Criminal Case No.33926/2015 dated 13.10.2015, wherein the learned Magistrate after recording the statement of complainant and other witnesses passed an order of taking cognizance against the present petitioners under Sections 406 and 420 of IPC. 2. The relevant facts for disposal of this application are that complainant/respondent No.2 filed a criminal complaint before the Court of Judicial Magistrate, First Class, Indore stating therein that land under dispute bearing Khasra Nos.42/1, 42/2 and 43/1 having total area of 3.127 hectares was sold to the complainant by the recorded Bhumiswami Ayodhya Bai W/o late Ramchandra and Sanjay S/o late Ramchandra by an agreement of sale on 05.08.2004, the paper publication was made on 08.08.2004 by an advocate of the complainant. In response of which, one Sushilchand S/o Kaluram raised an objection alleging that the said land was already sold to him by the recorded Bhumiswami through an agreement to sale. On this, the complainant contacted the original owners Ayodhya Bai and Sanjay who assure them that agreement to sale with said Sushilchand was duly cancelled. The complainant made payment of token amount of Rs. 21,000/- and also he paid Rs.1,00,000/- to objector Sushilchand to compensate him due to cancellation of the agreement of sale in his favour. Even after that no sale deed was executed in his favour though the complainant was always ready and willing to make the payment of remaining amount. Meanwhile, the said Ayodhya Bai and Sanjay, who were accused Nos.1 and 2 in the complaint case, sold the land to accused Nos.4 and 5, who are the petitioners before this Court. The petitioners also published a notice in the newspaper and in response of which, the complainant filed his objection. When the petitioners contacted the said Ayodhya Bai and Sanjay, they denied that they had any agreement to sale with the complainant and also refused that they received any amount from him, and thereafter, complaint was filed against the petitioners as well as against Ayodhya Bai and Sanjay and one Goving Rawat, who acted as property broker for the deal. 3. 3. It was also mentioned in the complaint that after coming to know that the land was sold to the petitioners, the complainant contacted them and asked to compensate him, but no compensation was paid, and therefore, the complaint was lodged under Sections 406 and 420 of IPC. 4. Aggrieved by this order, present application was filed interalia that even after all the facts stated in the application are taken to be true and no case under Sections 406 and 420 is made out. 5. Learned counsel for the respondent No.2/complainant vehemently opposed the application. According to him, the petitioners should have first filed a revision before the competent Court as efficacious remedy of filing revision was available to them under Cr.P.C. and for this purpose, he places reliance on judgment of Hon'ble the Apex Court in case of Prabhu Chawla v. State of Rajasthan and another passed in Cr.A. No.842/2016, judgment dated 05.09.2016. Similar question was considered in detail by this Court in M.Cr.C. No.10277/2015, where after taking into consideration the observation made by Hon'ble the Apex Court in Prabhu Chawla (supra), this Court made the following observations:- "4. The present application is filed by the applicant without first filing a revision against the order, and this, the learned counsel for the applicant relies on judgment of Hon'ble Apex Court in case of Prabhu Chawla v. State of Rajasthan and another passed in Cr.A. No.842/2016, judgment dated 05.09.2016. In this judgment, the Hon'ble Apex Court placed reliance on judgment of Madhu Limaye v. The State of Maharashtra; (1997)4 SCC 551 in which it was observed that :- "10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharashtra this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction". In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction". In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10) "The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible." I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistic, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified." 6. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified." 6. It is apparent from the above observation that self-restraint should be observed by the High Court though there is a concurrent jurisdiction to entertain an application under Section 482 Cr.P.C. directly without first availing the remedy under Section 397 Cr.P.C. The Court also observed that if from facts of the case glaring injustice stares the court in the face, the jurisdiction under Section 482 Cr.P.C. may be exercised." 7. In this case also, no revision was filed before filing of this application. The order taking cognizance against the petitioners is a revisable order and remedy of revision was available with the petitioners. In considered opinion of this Court, petitioners should have file a revision under Section 397 Cr.P.C. first before approaching this Court. 8. Even on merit, applying the principle of abuse of process of the Court, there appears to be no abuse of process of the Court in this Case as the Magistrate passed a reasoned order after taking into consideration the material available on record. The material available on record show that the original owner Bhumiswami repeatedly entered into an agreement to sale in respect of disputed land to different persons and obtained money also which they did not return back. So far as the present applicants are concerned, whether they are bona fide purchaser or they purchased the land knowing fully well that the land was first sold to the complainant is a matter of evidence which shall be determined only after recording of evidence in para-12 of complaint, which was specifically mentioned by the complainant that before filing of the complaint, he contacted the present petitioners for refund of his money, but they took no action, and thereafter only, the complaint was filed. If these facts were correct and true it would mean that the present petitioners were not bona fide purchasers and it was in their knowledge that the land was earlier sold to the complainant. At present, no interference is called for using the extraordinary jurisdiction under Section 482 Cr.P.C. as apparently there was no abuse of process of the Court. If these facts were correct and true it would mean that the present petitioners were not bona fide purchasers and it was in their knowledge that the land was earlier sold to the complainant. At present, no interference is called for using the extraordinary jurisdiction under Section 482 Cr.P.C. as apparently there was no abuse of process of the Court. In this view of the matter, the application as no force, liable to be dismissed, and dismissed accordingly.