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2019 DIGILAW 548 (JHR)

Pramod Narang v. State of Jharkhand

2019-02-25

RAJESH SHANKAR

body2019
ORDER : 1. The present criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding arising out of Complaint Case No.1877 of 2007, including the order dated 04.01.2008 passed by Sri S.K Upadhyay, Judicial Magistrate, Ranchi whereby the cognizance of the offences under Sections 420/468/471/34 of the Indian Penal Code has been taken against the petitioners and two other persons and they have been summoned to face the trial. 2. The brief fact of the case is that one complaint being Complaint Case No. 1877 of 2007 has been filed by the opposite party no. 2 stating inter alia that the complainant is the owner of a house constructed over a piece of land, pertaining to plot no. 968, Khata No.198, area 10 kathas 3 chhataks, situated at Chaibasa Road, Hinoo, P.S Doranda, District – Ranchi, wherein the petitioner no.1 was inducted as a tenant. However, even after the expiry of the term of the tenancy, he did not vacate the house and as such an eviction suit was filed by the complainant. It has been alleged that the petitioner no.1 also filed a title suit in the court of learned Sub-Judge, Ranchi on the basis of the forged agreement of sale, seeking specific performance of the contract against the complainant. It has also been alleged that the signature on the purported agreement of sale is forged and fabricated in order to grab the land of the complainant. 3. The learned senior counsel for the petitioner submits that though the opposite party no. 2 received Rs.1,80,000/- as earnest money for the sale of the said land, yet he failed to execute the sale deed, as someone offered higher price to the complainant and as such Title Suit No.252 of 2007 was filed by the petitioner no.1. The present complaint has been filed in counterblast of Title Suit No.252 of 2007 on concocted grounds. The matter is civil in nature and no criminal liability can be fastened against the petitioners. In absence of any declaration by the court of the learned Sub-Judge, Ranchi in T.S No. 252 of 2007 to the effect that the said agreement of sale is a fabricated document and also in absence of any step taken by opposite party no. The matter is civil in nature and no criminal liability can be fastened against the petitioners. In absence of any declaration by the court of the learned Sub-Judge, Ranchi in T.S No. 252 of 2007 to the effect that the said agreement of sale is a fabricated document and also in absence of any step taken by opposite party no. 2 to get the said document cancelled by a court having competent jurisdiction, no criminal case is made out against the petitioners on this issue. 4. The learned counsel for the opposite party no.2 submits that the petitioners have been delaying the case before the court below on the ground of getting the signature verified. In fact, the petitioner no.1 does not want to get the signature verified so as to continue with the possession of the premises of the opposite party no.2. It is further submitted that the pendency of the suit for specific performance would not be a bar in continuance of the criminal case against the petitioners. The complaint sufficiently discloses the criminal liability of the petitioners and hence the proceeding is not liable to be quashed at this stage, rather it would be appropriate for the petitioners to take all the points in their defence before the court below. 5. Heard the learned counsel for the parties and perused the materials available on record. The allegation against the petitioners is of preparation of forged agreement for sale in order to grab the house of the complainant. The thrust of the argument of the learned senior counsel for the petitioners is that the present dispute is of civil nature and as such the criminal case is liable to be quashed. 6. To appreciate the aforesaid contention of the learned senior counsel for the petitioners, it would be appropriate to go through the judgment of the Hon’ble Supreme Court rendered in the case of Indian Oil Corporation vs. NEPC India Limited & Ors., reported in (2006)6 SCC 736 , wherein it has been held as under:- “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [ (1988) 1 SCC 692 : 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [ (1995) 6 SCC 194 : 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [ (1996) 5 SCC 591 : 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [ (1996) 8 SCC 164 : 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [ (1999) 3 SCC 259 : 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [ (2000) 3 SCC 269 : 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [ (2000) 4 SCC 168 : 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [ (2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 7. It would thus emerge that even if a civil remedy is available to an aggrieved person, it does not oust the jurisdiction of a criminal court to proceed with the complaint if the same prima facie discloses commission of criminal offence by an accused on the given facts. The complaint may, however, be quashed if the same is completely bereft of even the basic facts which are absolutely necessary for making out an offence. 8. The case of the complainant is that the petitioners prepared forged agreement for sale in order to grab his house whereas the petitioners have claimed that the complainant after execution of the agreement for sale, has also received earnest money but has refused to execute the sale deed and as such the suit for specific performance of the contract has been filed in the court of learned Sub-Judge Ranchi which is still pending. 9. It would, thus, appear from the aforesaid contentions that both the sides have their own points to contest. 9. It would, thus, appear from the aforesaid contentions that both the sides have their own points to contest. However, while hearing a petition under Section 482 Cr.P.C., this court cannot conclusively adjudicate the said rival contentions. All the aforesaid factual averments are required to be examined by the court below at appropriate stage of the case. 10. Learned court below has passed the order of cognizance taking into consideration the averments made in the complaint as well as the statements of the opposite party no.2 and her enquiry witnesses on oath and, thus, the same does not require any interference at this stage, as prima facie offence is made out against the petitioners. 11. In the case of Rajiv Thapar Vs. Madan Lal Kapoor, reported in (2013) 3 SCC 330 , the Hon’ble Supreme Court has held as under :- ”28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. 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 charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. 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 charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.” 12. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.” 12. It has been held in the aforesaid judgment that 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, as the same 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. 13. The very purpose of Section 482 Cr.P.C. is to prevent an abuse of process of court and to secure the ends of justice. The power of quashing of a criminal proceeding should be exercised by the High Court sparingly with circumspection and that too in the rarest of rare cases. The High Court while hearing a quashing petition is not supposed to embark upon the enquiry as to the veracity of the allegations. Moreover, the learned Judicial Magistrate, at the stage of cognizance is only required to go through the complaint, peruse the statements of the complainant and the enquiry witnesses on oath and, thereafter, to pass an order of cognizance if the said allegation prima facie makes out a case against an accused. The defence of an accused is, however, to be taken into consideration at subsequent stage in terms with the provisions of Cr.P.C. 14. It is a settled proposition of law that while considering the case seeking quashing of a criminal proceeding, the High Court should not put an appropriate prosecution to an end prematurely unless there are compelling reasons to do so. 15. Since a prima facie case is made out against the petitioners on the basis of the material brought on record by the opposite party no.2 before the learned court below, I see no reason to quash the order of cognizance dated 4th January, 2008 as well as criminal proceeding arising out of Complaint Case No.1877 of 2007. The present petition is, accordingly, dismissed. 16. The petitioners are, however, at liberty to raise all the points available with them in their defence at appropriate stage before the learned court below. The present petition is, accordingly, dismissed. 16. The petitioners are, however, at liberty to raise all the points available with them in their defence at appropriate stage before the learned court below. It is also made clear that the observations made herein above are confined to the present proceeding itself and the same will not prejudice the case of the petitioners before the learned court below.