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2017 DIGILAW 674 (ALL)

Amarjeet Singh v. State of U. P.

2017-03-02

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Nazrul Islam Jafri along with Sri R.V. Pandey, for the applicant and Sri Dr. S.B. Singh, for opposite party-2. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order of Additional Sessions Judge, Chandauli dated 23.12.2016, passed in Criminal Revision No. 42 of 2014, Kulwant Singh Vs. State of U.P. and others, allowing the revision and setting aside the summoning order of Chief Judicial Magistrate, Chandauli dated 30.07.2014 passed in Complaint Case No. 1993 of 2013, Kulwant Singh Vs. Amarjeet Singh and others, under Section 420 IPC, PS Chandauli, district Chandauli. 3. Background facts, leading to this application, in short, are as follows: - (a) Amarjeet Singh (the applicant), Kulwant Singh (opposite Party-2) and Avtar Singh are real brothers. Kulwant Singh filed an application (registered as Misc. Case No. 489 of 2012) (Later on as Case No. 94 of 2013) under Section 156 (3) Cr.P.C. for direction to concerned police to register an FIR and investigate against Amarjeet Singh, Avtar Singh, Sunil Kumar Jaiswal, Simaranjeet Singh and Jai Prakash Jaiswal, under Section 419 , 420, 467, 468, 471 IPC. It has been alleged in this application that Kulwant Singh and Amarjeet Singh had jointly purchased plots 117/2 (area 4-7/8 decimal) and 117/8 (area 11-3/8 decimal) (total area 16-1/4 decimal= 7068.75 Sq. feet) situated at village Bechupur, district Chanduali through sale deed dated 14.04.1960. Amarjeet Singh has constructed his house over the entire area of land falling in his share and residing in it. Kulwant Singh executed a sale deed dated 07.12.1988 of an area of 2280 Sq. feet, from aforesaid land in favour of Smt. Veena Gupta. Amarjeet Singh, knowing that no land of his share was remained, fraudulently executed a sale deed dated 28.09.2012, in favour of Sunil Kumar Jaiswal and Jai Prakash Jaiswal. Avtar Singh and Simaranjeet Singh also shared in sale consideration. (b) Chief Judicial Magistrate, vide order dated 12.04.2013, dismissed this application. Kulwant Singh filed Criminal Misc. Writ Petition No. 10040 of 2013 against aforesaid order, which was dismissed by this Court vide order dated 24.05.2013, giving liberty to Kulwant Singh to file a complaint case. (c) Kulwant Singh then filed Complaint Case No. 1993 of 2013 on 10.06.2013, on the same allegations. Kulwant Singh filed Criminal Misc. Writ Petition No. 10040 of 2013 against aforesaid order, which was dismissed by this Court vide order dated 24.05.2013, giving liberty to Kulwant Singh to file a complaint case. (c) Kulwant Singh then filed Complaint Case No. 1993 of 2013 on 10.06.2013, on the same allegations. Chief Judicial Magistrate recorded statements of Kulwant Singh under Section 200 Cr.P.C., Ashok Kumar Singh and Achal Bihari under Section 202 Cr.P.C. and by order dated 30.07.2014 summoned Amarjeet Singh under Section 420 IPC. Amarjeet Singh filed Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014, for quashing summoning order dated 30.07.2014 as well as entire proceeding of Complaint Case No. 1993 of 2013. (d) Kulwant Singh, feeling aggrieved that Amarjeet Singh was not summoned in remaining Sections 419, 467, 468, 471 IPC and other opposite parties were not summoned at all, filed Criminal Revision No. 42 of 2014, before Sessions Judge, Chandauli. Sessions Judge, Chandauli, by judgement dated 30.06.2015, allowed the revision, set aside the order dated 30.07.2014 and remanded the matter to Chief Judicial Magistrate, with direction to give opportunity of hearing to the complainant and pass summoning order in the light of observations made in the judgement. (e) Amarjeet Singh filed a revision (registered as Criminal Revision No. 2737 of 2015) before this Court from the order dated 30.06.2015. This Court, after hearing both the parties, by order dated 07.08.2015, allowed the revision, set aside the order dated 30.06.2015 and remanded the matter to Sessions Judge to decide the revision afresh, after giving opportunity of hearing to Amarjeet Singh. After remand, Additional Sessions Judge, vide order dated 26.04.2016, postponed hearing of the revision till pendency of Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014. (f) Kulwant Singh filed Criminal Application under Section 482 Cr.P.C. No. 23204 of 2016, against the order dated 26.04.2016. This Court, without any notice to Amarjeet Singh, allowed this application by judgement dated 04.08.2016 and directed Court below to decide the revision on merit in compliance of the order dated 07.08.2015. In this judgement, this Court has also observed that Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014 has become infructuous as after the order of this Court dated 07.08.2015, Amarjeet Singh has already been impleaded as opposite party-2 in Criminal Revision No. 42 of 2014. In this judgement, this Court has also observed that Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014 has become infructuous as after the order of this Court dated 07.08.2015, Amarjeet Singh has already been impleaded as opposite party-2 in Criminal Revision No. 42 of 2014. (g) Amarjeet Singh filed an application for recalling the order dated 04.08.2016 passed in Criminal Application under Section 482 Cr.P.C. No. 23204 of 2016. In the meantime, Additional Sessions Judge/Fast Track Court No. 2, Chandauli, by judgement dated 23.12.2016 allowed the revision, set aside order dated 30.07.2014 and remanded the matter to Chief Judicial Magistrate to pass fresh summoning order, in the light of observations made in the judgement. Hence, Amarjeet Singh filed present Criminal Application under Section 482 Cr.P.C. No. 2682 of 2017. (h) When this case was put up for hearing as a fresh case on 06.02.2017, Kulwant Singh put appearance through Dr. S.B. Singh, Advocate. After hearing the parties, this Court, by order dated 06.02.2017, directed for listing Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014, Recall Application No. 1633 of 2017, filed in Criminal Application under Section 482 Cr.P.C. No. 23204 of 2016 and Criminal Application under Section 482 Cr.P.C. No. 2682 of 2017, after getting nomination from Hon'ble the Chief Justice in one and the same Court. (i) Chief Justice, by order dated 13.02.2017 nominated this Court to hear all the three matters. As the pleadings and documents relied upon by the parties are on records of these cases as such all the three matters were proposed to be decided finally with the consent of the parties. Criminal Application under Section 482 Cr.P.C. No. 34787 of 2014 was dismissed as infructuous, holding that summoning order dated 30.07.2014 was set aside as a whole by order dated 23.12.2016, giving liberty to Amarjeet Singh to challenge, maintainability of Complaint Case No. 1993 of 2013, in Criminal Application under Section 482 Cr.P.C. No. 2682 of 2017. Recall Application No. 1633 of 2017, filed Criminal Application under Section 482 Cr.P.C. No. 23204 of 2016 was also rejected as infructuous. 4. The counsel for the applicant submitted that Complaint Case No. 1993 of 2013 did not disclose any cognizable offence. Additional Sessions Judge, Chandauli has illegally allowed Criminal Revision No. 42 of 2014 Kulwant Singh Vs. Recall Application No. 1633 of 2017, filed Criminal Application under Section 482 Cr.P.C. No. 23204 of 2016 was also rejected as infructuous. 4. The counsel for the applicant submitted that Complaint Case No. 1993 of 2013 did not disclose any cognizable offence. Additional Sessions Judge, Chandauli has illegally allowed Criminal Revision No. 42 of 2014 Kulwant Singh Vs. State of U.P. and others, by judgement dated 23.12.2016 and remanded the matter to Chief Judicial Magistrate, Chandauli for passing summoning order in Complaint Case No. 1993 of 2013, Kulwant Singh Vs. Amarjeet Singh and others, without application of mind. In the complaint, Kulwant Singh alleged that he and Amarjeet Singh had jointly purchased plots 117/2 (area 4-7/8 decimal) and 117/8 (area 11-3/8 decimal) (total area 16-1/4 decimal= 7068.75 Sq. feet) situated at village Bechupur, district Chanduali through sale deed dated 14.04.1960. Amarjeet Singh has constructed his house over the entire area of land falling in his share and residing in it. Kulwant Singh executed a sale deed dated 07.12.1988 of an area of 2280 Sq. feet, from aforesaid land in favour of Smt. Veena Gupta. Amarjeet Singh, knowing that no land of his share was remained, fraudulently executed a sale deed dated 28.09.2012, in favour of Sunil Kumar Jaiswal and Jai Prakash Jaiswal. Avtar Singh and Simaranjeet Singh also shared in sale consideration. Even if the allegations made in the complaint is taken to be true, then the act of the applicant is that he had executed sale deed dated 28.09.2012, of the land in excess of his share, as admittedly the applicant was co-sharer in the disputed land. Supreme Court in Mohammed Ibrahim Vs State of Bihar, 2009 (8) SCC 751 and this Court in Abdul Bari Sekh v. State of U.P., 2016 (92) ACC 572, held that mere execution of sale deed in excess of his share by a co-sharer is no offence. In the complaint, Kulwant Singh has admitted, execution of sale deed dated 07.12.1988 of an area of 2280 Sq. feet, from aforesaid land in favour of Smt. Veena Gupta. A copy of sale deed dated 07.12.1988 has been filed as Annexure-11. A perusal of this sale deed shows that Kulwant Singh has sold total area of 2356 Sq. feet land (i.e. 100 feet x 22 feet 8 inch) (not 2280 Sq. feet, from aforesaid land in favour of Smt. Veena Gupta. A copy of sale deed dated 07.12.1988 has been filed as Annexure-11. A perusal of this sale deed shows that Kulwant Singh has sold total area of 2356 Sq. feet land (i.e. 100 feet x 22 feet 8 inch) (not 2280 Sq. feet) to Smt. Veena Gupta through this sale deed, which was falling in his 1/3 share in family settlement between three brothers, namely Kulwant Singh, Amarjeet Singh and Avtar Singh. In this sale deed boundary of the land sold was also mentioned, in which in east, west and north, land of third persons were shown and in south land falling in family settlement in share of Amarjeet Singh and Sardar Singh (incorrectly typed instead of Avtar Singh) was shown. From this boundary also it is clear that Kulwant Singh had left with no land at this place after execution of sale deed dated 07.12.1988. Now after 25 years of execution of this sale deed, Complaint Case No. 1993 of 2013 was filed, concealing the family settlement between three brothers. He also relied upon judgement of Supreme Court in Kale Vs Deputy Director of Consolidation, AIR 1976) SC 807, and argued that oral family settlement between member of joint family is permitted under the law. So far as the arguments that the disputed land was purchased by Kulwant Singh and Amarjeet Singh alone and Avtar Singh had no share in it, is concerned, Kulwant Singh has already filed O.S. No. 276 of 2013 before Civil Court, for cancellation of sale deed dated 28.09.2012, in which issue relating to family settlement between three brothers has to be decided. Criminal prosecution is an abuse of process of the Court and is liable to be quashed. 5. In reply to the aforesaid arguments, the counsel for opposite party-2 has stated that present application be dismissed only on the ground that at present no adverse order has been passed against the applicant. Additional Session's Judge has merely remanded the matter to Chief Judicial Magistrate, where the matter will be heard afresh. This application is not maintainable. He relied upon judgement of Supreme Court in U.P. Pollution Control Board Vs. Dr. Additional Session's Judge has merely remanded the matter to Chief Judicial Magistrate, where the matter will be heard afresh. This application is not maintainable. He relied upon judgement of Supreme Court in U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi, (2009) 2 SCC 147 , in which it has been held that while exercising jurisdiction under Section 482 Cr.P.C., High Court could not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it, the accusation would not be sustained. He submitted at initial stage of criminal proceeding, Magistrate can proceed, if he suspects that offence has been committed. Mere pendency of civil litigation in respect of same issue is no ground for quashing criminal proceeding. 6. I have considered the arguments of the counsel for the parties and examined the record. So far as maintainability of this application is concerned, Supreme Court in Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 , held once the complaint is dismissed by the Magistrate under Section 203 Cr.P.C. and order of dismissal is challenged by the complainant, then opportunity of hearing is required to be given to the opposite party. Relying upon that judgement, Criminal Revision No. 2737 of 2015 filed by Amarjeet Singh was allowed by this Court by judgement dated 07.08.2015 and Session's Judge was directed to decide the revision after hearing him. Now after hearing him, Additional Session's Judge passed fresh order dated 23.12.2016, allowing Criminal Revision No. 42 of 2014, Kulwant Singh Vs. State of U.P. and others and remanding the matter to Chief Judicial Magistrate, Chandauli for passing fresh summoning order. At this stage, Amarjeet Singh can maintain this application, not only for setting aside the order dated 23.12.2016 but also for quashing entire proceeding of the complaint case. 7. Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , held that it is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. 8. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. 8. Supreme Court again held that although it is not possible to give exhausting categories of cases, in which criminal proceeding can be quashed at the initial stage but some of the categories have been enumerated in State of Haryana v. Bhajan Lal, (1992) Supp 1 SCC 335, holing that in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure 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 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, making it clear that it may not be possible to lay down any precise, clearly-defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: - (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 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. (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.' Supreme Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised ''very sparingly and with circumspection and that too in the rarest of rare cases'. 9. Supreme Court in State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 , held that so far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. Similar view has been taken in Mahavir Prashad Gupta v. State of National Capital Territory of Delhi, (2000) 8 SCC 115 , State of Karnataka Vs. M Devendrappa, (2002) 3 SCC 89 and Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy, 2011 (3) JIC 465 (SC). 10. Similar view has been taken in Mahavir Prashad Gupta v. State of National Capital Territory of Delhi, (2000) 8 SCC 115 , State of Karnataka Vs. M Devendrappa, (2002) 3 SCC 89 and Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy, 2011 (3) JIC 465 (SC). 10. In Bobbili Ramakrishna Raja Yadad v. State of A.P., (2016) 3 SCC 309 , held that when a prosecution at the initial stage was asked to be quashed, the test to be applied by the Court was as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. It was also for the Court to take into consideration any special feature which appears in a particular case to consider whether it was expedient and in the interest of justice to permit a prosecution to continue. This was so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. 11. In the present complaint, Kulwant Singh has admitted execution of sale deed dated 07.12.1988 of an area of 2280 Sq. feet, in favour of Smt. Veena Gupta in the complaint. A copy of sale deed dated 07.12.1988 has been filed as Annexure-11. A perusal of this sale deed shows that Kulwant Singh has sold total area of 2356 Sq. feet land (i.e. 100 feet x 22 feet 8 inch) (not 2280 Sq. feet) to Smt. Veena Gupta through this sale deed, which was falling in his 1/3 share in family settlement between three brothers, namely Kulwant Singh, Amarjeet Singh and Avtar Singh as mentioned in it. In this sale deed boundary of the land sold was also mentioned, in which in east, west and north, land of third persons were shown and in south land falling in family settlement in share of Amarjeet Singh and Sardar Singh (incorrectly typed in stead of Avtar Singh) was shown. From this boundary also it is clear that Kulwant Singh had left with no land at this place after execution of sale deed dated 07.12.1988. From this boundary also it is clear that Kulwant Singh had left with no land at this place after execution of sale deed dated 07.12.1988. Now after 25 years of execution of this sale deed, Complaint Case No. 1993 of 2013 has been filed, concealing family settlement between three brothers. This is an abuse of process of the Court. This is fifth round of litigation in High Court by one or other party, arising out of this criminal proceeding. 12. Even if the allegations made in the complaint is taken to be true, then the act of the applicant is that he had executed sale deed dated 28.09.2012, of the land in excess of his share, as admittedly the applicant was co-sharer in the disputed land. Supreme Court in Mohammed Ibrahim Vs State of Bihar, 2009 (8) SCC 751 and this Court in Abdul Bari Sekh v. State of U.P., 2016 (92) ACC 572, held that mere execution of sale deed in excess of his share by a co-sharer is no offence. Thus the complaint does not disclose any cognizable offence and liable to be quashed. 13. In view of the aforesaid discussions, the application succeeds and is allowed. The order of Additional Session's Judge, Chandauli dated 23.12.2016, passed in Criminal Revision No. 42 of 2014, Kulwant Singh Vs. State of U.P. and others, is set aside and entire proceeding of Complaint Case No. 1993 of 2013, Kulwant Singh Vs. Amarjeet Singh and others, pending in the Court of Chief Judicial Magistrate, Chandauli, is hereby quashed.