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Rajasthan High Court · body

2021 DIGILAW 1944 (RAJ)

Anil Choudhary v. State of Rajasthan

2021-10-05

PANKAJ BHANDARI

body2021
ORDER 1. The petitioners have preferred this Miscellaneous Petition for quashing of FIR No.264/2021 dated 5.8.2021 registered at Police Station, Chopasani Housing Board for the offence under Sections 420,447, 467, 468, 471 and 120-B IPC. 2. Factual matrix of the case are that a complaint was lodged on 8.7.2021, by Shri Prem Prakash Mirdha, Power of Attorney of respondent No.2, which was sent at the Police Station under Section 153(3) Cr.P.C. for registration of FIR. FIR was registered on 5.8.2021. The allegation in the FIR is that father of the complainant and accused No.2 - Bhanu Prakash Mirdha were real brothers. Father of the complainant expired in 1993. After sad demise of Ram Prakash Mirdha and his wife Smt. Veena Devi, Smt. Jyoti Mirdha and Hemsweta Mirdha have become their legal heirs. On 23.5.1988, Bhanu Prakash Mirdha sold Khasra Nos.103 and 106, the total area being 4 bighas and 17 biswa, situated at Village Suthala, Tehsil and District Jodhpur to one Shri Bhanwar Lal. Bhanu Prakash Mirdha had no authority to sell half of the share of Ram Prakash Mirdha. The accused moved an application with the Jodhpur Development Authority (hereinafter referred to as "the JDA") in the year 2017 for changing of the land use. An acceptance letter dated 26.1.1993 alleged to be written by Ram Prakash Mirdha was also filed wherein, Jagdeesh Sihag and Govind Ram Phiroda were the attesting witnesses. The complainant was not aware that accused has grabbed the property and it is only in the year 2018, when a suit for partition was filed, this fact came to the knowledge of the complainant. It is also mentioned that conversion order dated 26.6.2018 was challenged before the Divisional Commissioner, wherein a status-quo order was passed. A suit under Section 53 of the Rajasthan Tenancy Act was also filed and a preliminary decree has been passed on 2.3.2021 for partition of the disputed property by meets and bounds. 3. It is contended by learned counsel for the petitioners that the petitioners are bonafide purchasers, who have purchased the property from Shri Bhanwar Lal, who has purchased the property from Ram Prakash Mirdha by a registered sale deed dated 23.5.1988. It is also contended that the registry is of the year 1988 and the present FIR has been lodged after an inordinate delay of 33 years. It is also contended that the registry is of the year 1988 and the present FIR has been lodged after an inordinate delay of 33 years. It is further contended that in the partition suit filed by the complainant in the year 1999, it was mentioned that the disputed property has been sold and that it cannot be partitioned and that the purchasers are in possession. It is also contended that pattas were issued in favour of the petitioners by the JDA in the year 2017. 4. Counsel for the petitioner argues that if FIR does not disclose commission of a cognizance offence or, if the dispute is of civil nature or, if continuation of proceedings would tantamount to abuse of process of law, the High Court can quash the proceedings. In support of his argument, learned counsel has placed reliance on the judgment of the Apex Court in State of Haryana & Ors. Versus Bhajan Lal & Ors., 1992 Supp (l) SCC 335. Further reliance has been placed on the judgments in Mrs. Arnavaz (Anu) & Ors. Versus Alcobex Metals Ltd. & Anr.: 2005(1) WLC (Raj.) 239, Indian Oil Corpn. Versus NEPC India Ltd. & Ors., (2006) 6 SCC 736 , A P Mahesh Cooperative Urban Bank Shares holders Welfare Association Versus Ramesh Kumar Bung & Ors., Special Leave Petition (Criminal) No. 3869 of 2021 and Nitu Agarwal Versus State of Rajasthan & Anr.: S.B. Criminal Miscellaneous (Petition) No.2864/2019 decided by a Coordinate Bench of this Court on 6.8.2019. It is also contended that in the partition suit, the complainant had admitted that the property has been sold and it cannot be partitioned. The suit for partition was filed in the year 1999 and the present FIR has been lodged after 22 years of the knowledge of transfer of the disputed property. It is further contended that the FIR does not disclose the ingredients of any offence as far as the present petitioners are concerned, as they have not purchased the property from Bhanu Prakash Mirdha and thus, they are bonafide purchasers. 5. Learned counsel appearing for respondent No.2 has vehemently opposed the miscellaneous petition. It is contended that in the documents submitted before the JDA, it was mentioned that Ram Prakash Mirdha has consented to the transfer of the property, which document is a forged document. 5. Learned counsel appearing for respondent No.2 has vehemently opposed the miscellaneous petition. It is contended that in the documents submitted before the JDA, it was mentioned that Ram Prakash Mirdha has consented to the transfer of the property, which document is a forged document. It is also contended that the proceedings can be quashed only in rarest of the rare cases. A No Objection Certificate was obtained from Ram Prakash Mirdha on 26.1.1993 and society pattas were got issued in 1992. Counsel for respondent No.2 has placed reliance on the judgments in S.P. Gupta Versus Ashutosh Gupta: (2010) 6 SCC 562 , State of Karnataka Versus M. Devendrappa & Anr.: (2002) SCC (Cri.) 539, T. Vengama Naidu Versus T. Dora Swamy Naidu & Ors., 2007 (1) JCC 877, Shri Mahavir Prashad Gupta & Anr. Versus State of National Capital Territory of Delhi & Ors.: 2000Cr.L.J. 4665, Alka Mishra Versus NCT to Delhi: 2011 (184) DLT 560 , M/s. Neeharika Infrastructure Pvt. Ltd. Versus The State of Maharashtra: 2021 SCC Online SC 315, Ranu Kumari Versus Sanjay Kumar & Ors.: 2008 (2) JCC 1032, M.L. Bhatt Versus M.K. Pandita & Ors.: JT 2002 (3) SC 89, B. Jagdish Versus State of A.P. & Anr.: (2009) 1 SCC 681 , State of Madhya Pradesh Versus Awadh Kishore Gupta & Ors.: (2004) 2 CRJ 161, M. Narayandas Versus State of Karnataka & Ors.: 2004 SCC (Cri.) 118, State of Karnataka & Anr. Versus Pastor P. Raju: (2006) 3 JCC 1398 , Syed Askari Hadi Ali Augustine Versus State (Delhi Admn.) & Anr: (2009) 5 SCC 528 , Mosiruddin Munshi Versus Md. Siraj & Anr.: 2014 Cri.L.J. 4180, Maratt Rubber Ltd. Versus Marattukalam: (2001) SCC (Cri.) 646, State of Maharashtra Versus Som Nath Thapar & Ors.: (1996) 4 SCC 659 and Aizaz & Ors. Versus State of U.P.: (2008) 4 JCC 2274. 6. Siraj & Anr.: 2014 Cri.L.J. 4180, Maratt Rubber Ltd. Versus Marattukalam: (2001) SCC (Cri.) 646, State of Maharashtra Versus Som Nath Thapar & Ors.: (1996) 4 SCC 659 and Aizaz & Ors. Versus State of U.P.: (2008) 4 JCC 2274. 6. From the catena of judgments cited by the counsel for the parties, the following principles/guidelines can be derived: A. It is only in cases where a non-cognizable offence or offence of any kind is not disclosed in the first information report that the Court will not permit an investigation to go on; B. Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; C. The power of quashing should be exercised sparingly with circumspection; D. Quashing of a complaint and FIR should be an exception rather than an ordinary rule; E. Criminal proceedings ought not to be scuttled at the initial stage. 7. In the backdrop of the law laid down by the Apex Court in various pronouncements, this Court is going to deal with the matter in hand. The uncontroverted facts of this case are that the present FIR pertains to Khasra Nos.103 and 106 measuring 4 bighas and 17 biswa situated at Village Suthala, Tehsil and District Jodhpur. The property in question belonged to uncle and father of the complainant. The complainant's mother filed a suit for partition of the properties jointly owned in the year 1999. The property in question was sold by uncle of the complainant - Bhanu Prakash Mirdha by registered sale deed dated 23.5.1988 to Bhanwar Lal and further, Bhanwar Lal sold the same property to the petitioners in the year 1992 and the land use was converted from agriculture to residential. 8. Both the counsel for the petitioners and the respondents have not disputed that a partition suit was filed, reference to this effect also finds place in the FIR. In Para 1 of the revenue suit, the entire property, which was jointly owned by father and uncle of the complainant, is detailed out. 8. Both the counsel for the petitioners and the respondents have not disputed that a partition suit was filed, reference to this effect also finds place in the FIR. In Para 1 of the revenue suit, the entire property, which was jointly owned by father and uncle of the complainant, is detailed out. In Para 6 of the complaint, it is specifically mentioned that Khasra Nos.103 and 106 measuring 4 bighas and 17 biswa has already been transferred and the transferee is in possession of the land and therefore, partition of this property is not sought for meaning thereby that the disputed property for, which the present complaint has been lodged, was sold in the notice of the complainant prior to filing of the partition suit in the year 1999 and no objection whatsoever was raised with regard to this property in the partition suit. Now, after a lapse of 33 years dispute is being raised with regard to the same property, which admittedly was sold prior to the date of filing of the revenue suit for partition in year 1999. 9. The case now made up by the complainant is that without notice of the complainant's father, the property was sold by her uncle, which fact stands disproved by the revenue suit filed in the year 1999. The complainant was knowing about the sale of the property. The present complaint has been lodged after an inordinate delay and the explanation given in the FIR for the delay is that the fact of committing forgery and selling of the disputed property came to the notice of the complainant only in the year 2018 during the proceedings in the partition suit. This assertion in the FIR at the face of it is untrue, as in the partition suit itself, it is mentioned that the disputed property has been sold and the purchasers are in possession and for that reason, the prayer for partition of Khasra Nos.103 and 106 is not being made. 10. Challenge to the sale deed executed way back in the year 1988 and which was in notice of the complainant when the partition suit was filed in the year 1999, is clearly an abuse of process of law. 10. Challenge to the sale deed executed way back in the year 1988 and which was in notice of the complainant when the partition suit was filed in the year 1999, is clearly an abuse of process of law. It is true that powers under Section 482 Cr.P.C. are to be exercised sparingly and in rarest of the rare case and the Court should not thwart investigation, but this Court is of the view that this is an exceptional case where non-interference would result in miscarriage of justice. The complaint is clearly a misadventure on the part of the complainant to claim half share in the property sold by her uncle way back in the year 1988 and which was in her notice prior to filing of the suit for partition. Since, the father of the complainant and her mother had not objected to the sale deed executed in the year 1988, the said sale deed should be construed to be with the consent of the complainant's father. The complainant in the partition suit itself had given her right to claim partition of Khasra Nos.103 and 106as is evident from a bare reading of Para 6 of the revenue suit. The allegations in the FIR, even if taken on their face value, neither prima-facie constitute any offence nor it discloses the commission of any offence and makes out a case against the accused. In such circumstances, no prudent person can ever reach to just conclusion that there is sufficient ground to proceed against the accused. This Court is of the firm view that permitting proceedings in this case would tantamount to grave injustice to the bonafide purchasers, who had purchased the property way back in the year 1992. 11. The Criminal Misc. Petition therefore deserves to be allowed and the same is accordingly allowed. FIR No.264/2021 dated 5.8.2021 registered at Police Station, Chopasani Housing Board for the offence under Sections 420,447, 467, 468, 471 and 120-B IPC deserves to be and is, accordingly, quashed.