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2019 DIGILAW 555 (UTT)

Amish @ Umesh Duggal v. State of Uttarakhand

2019-11-02

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. This criminal miscellaneous application has been filed under Section 482 of Cr.P.C. for quashing the charge sheet dated 08.06.2019, cognizance order dated 08.07.2019 as well as proceedings of criminal case no.3650 of 2019, State Vs. Pradeep Duggal and others under Sections 419,420,467,468,471 and 120(B) IPC pending in the Court of 1st Additional Chief Judicial Magistrate, Dehradun. 2. Crux of the matter is that respondent no.2- Mahendra Singh submitted an information on 27.07.2018 to DIG (SIT) Garhwal Range with the allegation that Bishamber Singh and Madan Lal were co-tenure holders of the land situated in the Village Pithuwala, Mehuwal and Sevlakalan Tehsil and District Dehradun. The applicants in connivance with the concerned Authorities at the relevant time prepared forged documents in order to show that they are grandsons of Bishamber Singh and got the entire land of Bishamber Singh mutated in their names in the revenue records and deleted the name of Bishamber Singh whereas the son of Bishamber Singh is alive and the applicants had transferred the land to the other co-accused by way of sale deeds and gift deeds. 3. On the basis of said information Special Investigation Team (SIT) was constituted which submitted its report on 04.12.2018. After receiving the said report, Sub-Inspector Brijesh Naithani (SIT) submitted his report to DIG (SIT) Garhwal Range on 15.01.2019. Accordingly, an FIR was lodged on 17.01.2019. After completion of the investigation, charge sheet under Sections 419,420,467,468,471 and 120(B) IPC was filed against the present applicants and concerned Court summoned the present applicants on 08.07.2019 under the aforesaid offences. Aggrieved by it, both the accused namely, Amish @ Umesh Duggal and Pradeep Duggal filed the present criminal misc. application under Section 482 Cr.P.C. for quashing the impugned charge sheet and summoning order. 4. The first objection raised by the learned counsel for the applicants is that respondent no.2- Mahendra Singh had no power to get the FIR lodged against the present applicants because the aggrieved person was Surjeet Singh who did not submit any information to police regarding it. 5. Perusal of the FIR reveals that the informant Mahendra Singh has clearly stated that Surjeet Singh had executed a Power of Attorney in his favour. On the basis of Power of Attorney, he is giving this information. 5. Perusal of the FIR reveals that the informant Mahendra Singh has clearly stated that Surjeet Singh had executed a Power of Attorney in his favour. On the basis of Power of Attorney, he is giving this information. In this regard, respondent no.2-Mahendra Singh has filed the counter affidavit in which it is stated that Surjeet Singh had already executed the Power of Attorney in his favour. 6. Section 154 Cr.P.C. deals with the information given to police in cognizable cases, while Section 155 Cr.P.C deals with the information in non-cognizable cases. 7. From the perusal of Section 154 Cr.P.C., it is clear that the information relating to commission of a cognizable offence can be given to police by any person whether he is aggrieved or not. 8. In the present case, although the aggrieved person is Surjeet Singh but he had executed a Power of Attorney in favour of respondent no.2-Mahendra Singh. Hence, Mahendra Singh was the right person to submit an application to DIG (SIT) for proper investigation in the matter. 9. Second objection raised by learned counsel for the applicants is that a civil suit has already been filed by Surjeet Singh against the applicants regarding the disputed property. Hence, no criminal case can be initiated against the present applicants. In this regard, learned counsel for the applicants drawn attention of this Court on the ruling of Hon'ble Supreme Court in the case of Heera Lal Vs. State of Uttar Pradesh and others, (2009) 3 SCC(Cri) 1247 and vehemently argued that no criminal proceedings can be initiated against the applicants. 10. From the perusal of the record, it is clear that Dr. Rajender Singh has filed an application under Section 229-B/176 of U.P. Z.A. and L.R. Act before the Assistant Collector, Dehradun against the present applicants as well as other persons in which Surjeet Singh S/o Bishamber Singh has been arrayed as respondent no.36 by the order of the Court, which shows that the said application was filed by Rajender Singh against the present applicants and not by Surjeet Singh and respondent no.2-Mahendra Singh. 11. I have carefully gone through the ruling laid down by the Hon'ble Apex Court in Heera Lal's case (supra). In that matter a civil suit was also pending regarding the same matter and the Hon'ble Apex Court held that the second complaint on the same facts and similar allegations is not tenable. 11. I have carefully gone through the ruling laid down by the Hon'ble Apex Court in Heera Lal's case (supra). In that matter a civil suit was also pending regarding the same matter and the Hon'ble Apex Court held that the second complaint on the same facts and similar allegations is not tenable. The Hon'ble Apex Court quashed the criminal proceedings on the ground that in the same matter a civil suit was filed, which was dismissed and appeal was pending. 12. While in the present matter, it is clear that no civil suit is pending between the parties regarding the same matter and no revenue suit was filed by Surjeet Singh against the applicants. Hence, the law laid down by the Hon'ble Apex Court in the above case is not applicable in the present case. 13. The third objection raised by the learned counsel for the applicants is that inquiry was not conducted by the SIT as per law laid down by the Hon'ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh, (2014) 2 SCC 1 . Para no.120.6 and 120.7 is reproduced hereinunder:- "120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry." 14. In the present case initially information was submitted to DIG (SIT) by Mahendra Singh (respondent no.2) against the present applicants and other persons for conducting the inquiry. On the basis of the information, DIG (SIT) Garhwal Range wrote a letter to District Magistrate, Dehradun on 20.09.2018 for conducting thorough inquiry. In the present case initially information was submitted to DIG (SIT) by Mahendra Singh (respondent no.2) against the present applicants and other persons for conducting the inquiry. On the basis of the information, DIG (SIT) Garhwal Range wrote a letter to District Magistrate, Dehradun on 20.09.2018 for conducting thorough inquiry. Thereafter, an inquiry team was constituted and the inquiry committee submitted its report on 04.12.2018. On the basis of said inquiry report Inspector (SIT), Shri Brijesh Naithani submitted a detailed report to DIG (SIT) on 15.01.2019 and accordingly, the present FIR was lodged against the applicants. 15. From the perusal of the Hon'ble Apex Court's judgment in Lalita Kumari's case (supra), it is clear that the Hon'ble Apex Court has given guidelines regarding preliminary inquiry. Although in the present matter the first information was given by Mahendra Singh on 27.07.2018 to DIG (SIT) Garhwal Range and inquiry report was submitted on 04.12.2018. Although the inquiry was not completed within a period of seven days but the charge sheet as well as summoning order cannot be quashed on the basis of this sole ground. 16. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise. 17. The Hon'ble Apex Court in State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of Cr.P.C. Para 102 thus reads: "102. 17. The Hon'ble Apex Court in State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of Cr.P.C. Para 102 thus reads: "102. In the backdrop of the interpretation of the various relevant provisions of the Code 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 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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 of 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 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. (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." 18. Inquiry report shows that Bishamber Singh and Madan Lal were co-tenure holders of the land situated in the Village Pithuwala, Mehuwal and Sevlakalan Tehsil and District Dehradun. Shri Madan Lal during his lifetime executed a family arrangement deed on 26.09.1991 which was registered on 09.10.1991 regarding his share in which he also disclosed and admitted the share of Shri Bishamber Singh, who is the father of Surjeet Singh. Share of Bishamber Singh was 9.26 acre in the total area of the land situated in the aforesaid three villages under cotenancy. Apart from the said land, there is 2 acre land recorded solely in the name of Bishamber Singh in village Pithuwala. The applicants in connivance with the concerned revenue authorities prepared forged documents in order to show that they are the grandsons of Bishamber Singh and accordingly got mutated the entire land of Bishamber Singh in their names in the revenue record deleting the name of Bishamber Singh and thereafter transferred the land to others by way of sale deed and gift deed. While Surjeet Singh, who is son of Bishamber Singh is alive. During the course of argument, this fact is admitted by the learned counsel for the applicants that the applicants are not the son of Bishamber Singh. He also admitted that Surjeet Singh is the son of Bishamber Singh and Surjeet Singh is alive. 19. While Surjeet Singh, who is son of Bishamber Singh is alive. During the course of argument, this fact is admitted by the learned counsel for the applicants that the applicants are not the son of Bishamber Singh. He also admitted that Surjeet Singh is the son of Bishamber Singh and Surjeet Singh is alive. 19. After hearing learned counsel for the parties and perusing the material on record, this Court came to the conclusion that a prima facie case is made out against the present applicants under Sections 419,420,467,468,471 and 120(B) IPC. The learned 1st Additional Chief Judicial Magistrate, Dehradun has also gone through the evidence collected during the investigation and passed the summoning order as per law. There is no illegality or perversity in the impugned order. The present criminal misc. application filed under Section 482 Cr.P.C. is liable to be dismissed and the same is, accordingly, dismissed. 20. No order as to costs.