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2020 DIGILAW 129 (JK)

Nathu Ram v. State of J&K

2020-02-28

ALI MOHAMMAD MAGREY

body2020
JUDGMENT : 1. In this petition, filed under section 561-A of the erstwhile J&K Code of Criminal Procedure (corresponding to Section 482 of the Central Criminal Procedure Code), the petitioner seeks the indulgence of this Court in quashing the FIR bearing No. 17 of the year 2007, registered against him at Police Station Crime Branch, Jammu, for the commission of offences punishable under Sections 420, 467, 468 and 120-B of the erstwhile RPC. 2. Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts and the grounds that compelled the petitioner to file the instant petition. It has been pleaded in the petition that the respondent No. 2, alongwith his wife-respondent No. 3, way back in the year 1997, agreed to sell their piece of land measuring four kanals falling under Khasra No. 396 Min situate at Kalu Chak, Tehsil and District Jammu in favour of the petitioner and that the sale deeds, to that respect, were also drafted. It is contended that the respondent Nos. 2 and 3, in between, also executed a sale deed in favour of one Mohammad Aslam S/o Faqir Din R/o Choudhi, Tehsil and District Jammu in respect of the same land which, as per the earlier sale deeds, was in possession of the petitioner. The respondent No. 2, in connivance with the said Mohammad Aslam, tried to forcibly interfere with the peaceful possession of the petitioner over the said land, constraining the petitioner to file a suit as early as on 19th of January, 2001. The said suit, as stated, was withdrawn by the petitioner on 20th of January, 2001 with liberty to file a fresh one. It is pleaded that the said Mohammad Aslam also filed a suit against the petitioner on 20th of January, 2001 which was dismissed vide order dated 27th of March, 2002 by the Court of learned City Munsiff, Jammu. The said Mohammad Aslam again filed a suit for permanent prohibitory injunction against the petitioner on 10th of October, 2003 before the Court of learned 1st Additional Munsiff, Jammu, which, too, came to be dismissed on 30th of September, 2001. It is further submitted that on 16th of September, 2010, the respondent Nos. The said Mohammad Aslam again filed a suit for permanent prohibitory injunction against the petitioner on 10th of October, 2003 before the Court of learned 1st Additional Munsiff, Jammu, which, too, came to be dismissed on 30th of September, 2001. It is further submitted that on 16th of September, 2010, the respondent Nos. 2 and 3 filed a civil suit thereby challenging the execution and validity of the said sale deeds executed by the petitioner with the respondent Nos. 2 and 3 in the year 1997. The petitioner, after withdrawal of the suit from the Court of learned City Judge, Jammu, filed a civil suit for permanent prohibitory injunction against the respondent Nos. 2 and 3 and the said Mohammad Aslam. It is also argued that the respondent Nos. 2 and 3 approached the revenue agency in order to get the 'fard intikhab jamabandi' issued in their favour and the 'fard intikhab' so issued bears the testimony of the petitioner, as such, the respondent Nos. 2 and 3 cannot say that the sale deeds were not executed by them in favour of the petitioner, that too in presence of the witnesses. Thereafter, as stated, a mutation was attested in favour of the said Mohammad Aslam as per the sale deed allegedly executed in his favour by the respondent Nos. 2 and 3 which was challenged by the petitioner before the Director, Land Records (Settlement Officer) Collector, Jammu on 29th of October, 2001 and the learned Director Records (Settlement Officer) Collector, Jammu, vide judgment dated 4th of February, 2005, set aside the mutation attested in favour of said Mohammad Aslam bearing No. 276, dated 9th of October, 2001. Subsequently, it is contended by the petitioner that after failing from all quarters, the respondent Nos. 2 and 3, filed a complaint before Police Station, Crime Branch, Jammu, alleging therein that they agreed to sell their piece of land measuring four kanals falling under Khasra No. 396 Min situate at Kalu Chak, Tehsil and District Jammu in favour of the petitioner. It was also stated in the complaint that the sale deeds to this respect were also drafted, but, unfortunately, before the registration of the sale deeds, the accused/petitioner herein defaulted from the agreed consideration and sale deeds were not registered before the Court and the accused/petitioner got the sale deed registered by impersonating the respondent Nos. It was also stated in the complaint that the sale deeds to this respect were also drafted, but, unfortunately, before the registration of the sale deeds, the accused/petitioner herein defaulted from the agreed consideration and sale deeds were not registered before the Court and the accused/petitioner got the sale deed registered by impersonating the respondent Nos. 2 and 3, thereby committing fraud against them. It was alleged that on preliminary enquiry, the case was found established and it was recommended that FIR be registered in the matter. Subsequently, on 11th of April, 2007, FIR No. 17/2007 came to be registered in Police Station Crime Branch, Jammu. Thereafter, the petitioner filed a petition under Section 482 of the Code of Criminal Procedure before this Court, being 561-A Cr. P.C. No. 136/2014 which was dismissed for non-prosecution vide order dated 15th of February, 2018. The petitioner filed CRMC No. 490/2018 for seeking restoration of the earlier petition bearing 561-A Cr. P.C. No. 136/2014 which was dismissed on the ground that an order passed in 482 cannot be recalled, however, liberty was given to the petitioner to file a fresh one seeking quashment of the FIR. In compliance of the said order, the petitioner has filed the instant petition for seeking quashment of FIR No. 17/2007. 3. The petitioner has assailed the registration of FIR aforesaid and subsequent investigation thereon on the grounds, inter alia, that even if the contents of the FIR are read against him in their entirety, no prudent man can conclude that the offences under Sections 420, 467, 468 & 120-B of the erstwhile RPC are made out. The Police authorities had no authority to register the FIR against the petitioner in view of the fact that the case is of a civil nature and that the police authorities cannot investigate the same. The present FIR is manifestly attended with malafides and malice. It is contended that the allegation in the FIR has no substance in it and that criminal proceedings cannot be allowed to be launched to settle the civil dispute by harassing the person. The present FIR is manifestly attended with malafides and malice. It is contended that the allegation in the FIR has no substance in it and that criminal proceedings cannot be allowed to be launched to settle the civil dispute by harassing the person. It is also the case of the petitioner that since the year 2001 the respondents kept silent when they came to know of the registration of the sale deeds, as such, the criminal proceedings initiated in the FIR and the FIR are nothing but abuse of process of law and are required to be quashed. 4. Objections stand filed on behalf of the respondent Nos. 2 and 3, wherein it is stated that that the Crime Branch, after investigation, has found the petitioner guilty of offences punishable under Sections 420, 467, 468 and 120-B RPC and has filed the Challan which is pending adjudication in the Court of learned 2nd Additional Sessions Judge, Jammu. It is stated that the petitioner got registered two sale deeds, one on behalf of respondent No. 2 and the other on behalf of the respondent No. 3, through impersonation and when the respondent Nos. 2 and 3 got the knowledge of the fraud, they filed a complaint with the Crime Branch. It is argued that the petitioner has committed fraud and forgery with regard to the land belonging to the respondent Nos. 2 and 3, thereby causing wrongful loss to the respondent Nos. 2 and 3 and wrongful gain to himself. 5. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 6. The law is that in exercise of the wholesome power vested in the High Court under Section 482 of the Criminal Procedure Code (corresponding to the now abolished Section 561-A of the J&K Criminal Procedure Code), 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 matters, 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. The saving of the High Court's inherent powers, both in civil and criminal matters, 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, 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 the laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and the 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. 7. In the law laid down by Hon'ble the Supreme Court in the case of 'State of Haryana & Ors. v. Bhajan Lal & Ors.', reported in 1992 Supp (1) SCC 335', the Supreme Court has elaborately considered the scope of Section 482 Cr. P.C. In this case the Supreme Court had the occasion to determine the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr. P.C. can be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 of the judgment provides seven categories of cases where the provisions of Section 482 Cr. P.C. can be invoked and these are extracted below : "(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. P.C. can be invoked and these are extracted below : "(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 any 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. (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." Testing the instant case on the standards of the law laid down above, what requires to be looked into at the first blush is whether the criminal proceedings initiated against the accused/petitioner are manifestly attended with malafides and devised to wreck vengeance on the accused and whether the allegations made in the FIR or the complaint, if taken at their face value and accepted in their entirety, do prima facie constitute an offence or make out a case against the accused/petitioner. The respondent Nos. 2 and 3 have contended that they agreed to sell their piece of land in favour of the petitioner on certain terms and conditions, but since the petitioner backed out subsequently from this promise, the entire process was nullified. To put it in other words, the contention of the informants, i.e. the respondent Nos. 2 and 3, is that the petitioner did not specifically perform the contract, which he executed in his favour. Such a course gives rise to civil consequences. Section 54 of the Transfer of Property Act makes it clear that an agreement to sell does not itself create any interest or title on immoveable property. Transfer of Immoveable Property by way of sale can be by a deed of convenience, i.e., sale. An agreement to sell would fall short of the requirement of Sections 54 & 55 of Transfer of Property Act and will not create any interest or charge on such property. 8. Specific performance is an equitable remedy in the law of contract, whereby a Court issues an order requiring a party to perform a specific act that is to complete the performance of a contract. It is an equitable relief which a Civil Court can grant instead of directing the payment of money. 8. Specific performance is an equitable remedy in the law of contract, whereby a Court issues an order requiring a party to perform a specific act that is to complete the performance of a contract. It is an equitable relief which a Civil Court can grant instead of directing the payment of money. Specific performance in real estate term means when either the buyer or the seller wants to complete the sale under the agreed terms and conditions in the agreement to sell. An agreement to sell is a contract between the buyer and seller of the property in which like any other contract, the deal can go wary. Therefore, it is important for both the buyer and the seller to pay due consideration while making or accepting the offer. If the deal does not materialize, one has to look into the conditions incorporated in the agreement to find out whether there is any clause in it which states that the balance money would be paid only after the buyer is satisfied with the title of the property or whether there is any clause whereby notice can be issued to the buyer for the cancellation of the agreement and seek damages, or, whether, there is any provision to issue legal notice to the seller for the cancellation of the agreement and seek damages, and, to cap it all, what was the life of the agreement. All these areas require to be determined by the civil courts. The instant case, thus, has a civil lineage and has to be determined by a Civil Court. Therefore, on the face of what has been stated above, even if the allegations made in the FIR or the complaint are taken at their face value and accepted in their entirety, these do not constitute any offence or make out a case against the accused. The respondent Nos. 2 and 3 in pursuing his claim has to knock at the doors of the civil court and he cannot set the criminal law into motion for implicating the petitioner for the commission of the offences for which the FIR has been registered against him. 9. The FIR against the petitioner is totally unwarranted, unjust and against the law for the elementary reason as stated hereinabove that the matter raises a civil dispute in between the parties. 9. The FIR against the petitioner is totally unwarranted, unjust and against the law for the elementary reason as stated hereinabove that the matter raises a civil dispute in between the parties. In 'Joseph Salvaraj A. V. State of Gujarat & Ors.', reported in 2011 (7) SCC 59 ', the Apex Court of the country has viewed that a purely civil dispute cannot be given a colour of a criminal offence to wreak the vengeance against the petitioner and it is necessary to draw a distinction between a civil wrong and a criminal one and that the petitioner cannot be allowed to go through the rigmarole of a criminal prosecution for a long number of years, even when admittedly a civil suit has been filed. The same view has also been held by Hon'ble the Supreme Court in case titled 'Sardool Singh & Anr. V. Smt. Nasib Kaur', reported as 1987 (Supp) SCC 146', referred to and heavily relied upon by the learned counsel for the petitioner. 10. Looking at the instant case from yet another angle, the law laid down in the case of 'Priyanka Srivastava & Anr. v. State of U.P. & Ors.', reported in 2015 (2) Crimes 209' is germane in the context of the decision of the instant case and the relevant excerpts thereof that have a direct bearing on the subject matter of the controversy are reproduced below, verbatim et literatim:- "115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." After so stating the Constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:- "120.6. After laying down so, the larger Bench proceeded to state:- "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." We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not." 11. Paragraph No. 115, cited above, countenances that there may be instances where preliminary inquiry is the need of the hour owing to the change in the novelty of the crime with the passage of time. It lays down that one such instance is a case where allegations leveled relate to medical negligence on the part of the doctors, where it will be unfair to prosecute the medical professional only on the basis of allegations in the complaint. It further states at Paragraph No. 120.6 that in addition to the above, the category of cases in which the preliminary inquiry may be made are matrimonial disputes/family disputes, commercial offences, corruption cases and cases where there is abnormal delay/laches in initiating criminal prosecution, i.e., over three months' delay in reporting the matter without satisfactorily explaining the reasons of delay. It also provides that these are only illustrations and not an exhaustive list of all the conditions which may warrant a preliminary enquiry. 12. Testing the instant case on the touchstone of the above, it was on 30th of May, 1997 and 31st of May, 1997 that the sale deeds in question are stated to have been executed and, the respondent Nos. 12. Testing the instant case on the touchstone of the above, it was on 30th of May, 1997 and 31st of May, 1997 that the sale deeds in question are stated to have been executed and, the respondent Nos. 2 and 3, while questioning the validity of the same, filed a suit against the same way back in the year 2001. The respondent Nos. 2 and 3, after a great lull, filed a complaint before the Court, which complaint, subsequently, landed before the Police Station, Crime Branch, Jammu, where the FIR was registered on 11th of April, 2007, i.e., much after the time laid down in the law cited above, which emphatically provides that an inquiry requires to be made where there is abnormal delay/laches in initiating the prosecution. No reason has been spelt out as to how and why this delay occurred in filing the complaint before the Court. 13. The law is that Section 482 of the Code of Criminal Procedure envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give an effect to an order under the code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have the inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. Courts are invested with all such powers as are necessary to do right and to undo a wrong in the course of administration of justice on the principle of 'Quando lex aliquid alique concedit conceditur et id Sine quo res ipsa esse non protest' (when the law gives the person anything, it gives him that without which it cannot exist). 14. The judgment relied upon by the learned counsel for the respondent Nos. 2 and 3 titled 'Md. Allauddin Khan v. The State of Bihar & Ors.', passed in Criminal Appeal No. 675 of 2019 (Arising Out of SLP (Crl) No. 1151 of 2018) : 2019 (5) JKJ 350 [SC], has been laid down in markedly different and distinguishable factual matrix and is, thus, of no help to the said respondents. 15. 2 and 3 titled 'Md. Allauddin Khan v. The State of Bihar & Ors.', passed in Criminal Appeal No. 675 of 2019 (Arising Out of SLP (Crl) No. 1151 of 2018) : 2019 (5) JKJ 350 [SC], has been laid down in markedly different and distinguishable factual matrix and is, thus, of no help to the said respondents. 15. Viewed in the context of all that has been said and done above, the petition of the petitioner merits to be allowed, as a consequence of which, FIR No. 17/2007 registered at Police Station Crime Branch, Jammu against the petitioner for the commission of offences punishable under Sections 420, 467, 468 & 120-B of the erstwhile RPC, is quashed along with all other proceedings emanating therefrom. 16. Disposed of as above, alongwith the connected IA. 17. Registry to send down the records, alongwith a copy of this order.