Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 137 (JK)

Romesh Singh v. Bir Singh

2022-03-30

JAVED IQBAL WANI

body2022
JUDGEMENT/ORDER : 1. The instant petition filed by the petitioners under Section 482 Cr.P.C. arises out of a complaint titled as, "Bir Singh Vs. Romesh Singh and ors." filed by the respondent herein against the petitioners, as also the order dated 20.03.2017 passed therein by the Court of learned Chief Judicial Magistrate, Jammu (hereinafter referred to as the "trial Court"). 2. The case set up by the petitioners in the instant petition is that the father of the respondent herein, namely, Suram Singh had filed a civil suit for permanent prohibitory injunction against the petitioner No. 1 and his brothers in respect of the land measuring 04 Kanals and 18 Marlas falling under Khasra No. 470 situated at village Malpur, Tehsil and District Jammu on the ground that he being the successor-in-interest of one-Gairath Singh is in physical possession of the land and its possession thereof is being interfered with by the petitioner No. 1 herein along with his brothers. An interim order of status-quo dated 01.08.2014 is stated to have been passed in the application for interim relief, accompanying the said suit. 3. In the written statement filed to the suit by the petitioners herein, it is contended to have been stated that the father of the respondent herein and the father of petitioner No. 1, namely, Bhag Singh were the cosharers of a parcel land having been left behind by their common ancestor, namely, Gairath Singh and after his death, the land is stated to have been partitioned among all his successors-in-interest and by way of family partition, the land falling under Khasra No. 470 along with other parcels of the land is stated to have fallen to the share of the father of petitioner No. 1 and after his death, vested unto to the petitioner No. 1 and his brothers by way of family settlement. The respondent herein is stated to be neither the owner of the said land nor in possession thereof. The respondent herein is stated to be neither the owner of the said land nor in possession thereof. It is contended to have been further stated in the said written statement by the petitioner No. 1 herein that the village Patwari had wrongly entered the name of the father of the respondent herein in Khasra Girdawari in respect of the said land and for correction of the same, an application came to be filed before the Tehsildar Assistant Collector 1st Class and Tehsildar, Bhalwal, who has passed an order under Mutation No. 1777, making necessary corrections incorporating the name of petitioner No. 1 instead of the father of respondent herein. 4. It is being stated further in the instant petition that the respondent herein filed false and frivolous impugned complaint, alleging commission of offences under Sections 447, 427 and 379 RPC by the petitioners herein on false and frivolous grounds. The said impugned complaint is stated to have been entertained by the trial Court and also the statements of the complainant and his witness, namely, Gulab Singh recorded. However, issuance of process of law is stated to have been deferred by the trial Court while referring the matter to the SHO, Police Station, Kanachack for inquiry/investigation in terms of Section 202 Cr.P.C. A report is stated to have been furnished by the SHO, Police Station, Kanachack to the trial Court and the trial Court is stated to have not agreed with the said report and instead proceeded to not only record a finding with regard to the possession of the land in question held by the father of the complainant/respondent herein and the complainant/ respondent herein, but also issued a process thereof. Heard learned counsel for the parties and perused the record. 5. According to the learned counsel for the petitioners, the question of possession of the land in question has been subject matter of the suit filed by the father of the respondent herein and an issue thereof, has also been framed by the civil Court in this regard and in presence of the same, the trial Court ought not to have recorded a finding about the possession of the land held by the father of the respondent herein and that as such, the impugned complaint, as also the impugned order passed thereon, are misuse of process of law. 6. 6. Learned counsel for the petitioners would further contend that the impugned complaint, as also the impugned order passed thereon are, per-se, illegal and not sustainable in the eyes of law, in that, the trial Court though forwarded the complaint for investigation in terms of Section 202 Cr.P.C. to SHO, yet it could not have thereafter passed the impugned order, overlooking the report of SHO. The impugned order is contended to have been passed with material illegality. 7. It is further contended by the learned counsel for the petitioners that otherwise as well, the allegations made in the complaint, if taken on their face value and accepted in entirety, do not prima-facie constitute any offence or else make out a case against the petitioners. The proceedings instituted by way of impugned complaint are contended to be manifestly attended with malafides with an ulterior motive to wreck vengeance on the petitioners, that too, during the pendency of the civil suit filed by the father of the complainant/respondent herein against the petitioners herein. 8. Per contra, learned counsel for the respondent would controvert the contentions raised by the learned counsel for the petitioners. According to the learned counsel for the respondent, the instant petition is not maintainable in its present form and that the respondent herein has been well within his right to institute the present complaint during the pendency of the suit filed by his father and that the trial Court rightly entertained the complaint and initiated the proceedings thereupon. 9. Having regard to the facts and circumstances of the case, the fundamental issue emerging for consideration of this Court would be as to whether the exercise of inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of the case is warranted. 10. 9. Having regard to the facts and circumstances of the case, the fundamental issue emerging for consideration of this Court would be as to whether the exercise of inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of the case is warranted. 10. Admittedly, the respondent herein has filed the impugned complaint against the petitioners, alleging therein that the accused persons-petitioners herein on 08.10.2015 with a criminal intention harvested crop sown by the complainant on land measuring 04 Kanals and 18 Marlas belonging to his father covered under Khasra No. 470 situated at village Malpur, Tehsil and District Jammu and that upon reaching his place on 11.10.2015 and after verification, he came to know that the accused had stolen the crop, caused damage to the same after committing trespass in the land in question and that the complainant was apprehending mischief qua the land in question by the petitioners in view of the filing of civil suit by his father, wherein status-quo was ordered to be maintained on spot by the civil Court vide order dated 01.08.2014. It is also alleged in the impugned complaint that a mutation had been got attested by the petitioner No. 1 herein in his favour on 25.02.2015 in respect of the land in question in connivance with the revenue officials without any notice to the father of the petitioner in presence of the order of status-quo while playing fraud upon the father of the complainant/respondent herein. It is further alleged in the complaint that the accused-petitioners herein had committed trespass over the land in question earlier as well and despite reporting the matter to the authorities, no action was taken against them and that the police had not registered a case upon reporting the incidence of 08.10.2015, compelling institution of the impugned complaint. 11. Indisputably, the trial Court after recording the statement of the complainant, as also one of his witnesses on 02.11.2015 referred the matter for investigation for the purpose of ascertaining the truth or falsehood of the complaint to SHO, Police Station, Kanachack while deferring the issuance of process. 12. 11. Indisputably, the trial Court after recording the statement of the complainant, as also one of his witnesses on 02.11.2015 referred the matter for investigation for the purpose of ascertaining the truth or falsehood of the complaint to SHO, Police Station, Kanachack while deferring the issuance of process. 12. Perusal of the record would reveal that report dated 11.08.2018 has been furnished to the trial Court by the SHO, Police Station, Kanachack, which report provided that upon verification and inquiry, the land in question presently has been found to be in cultivating possession of the petitioner No. 1-Romesh Singh S/o Sh. Bhag Singh and further that the applicant-Bir Singh and Romesh Singh are the real cousin brothers, whereas Bir Singh is serving in the Army and Romesh Singh had retired from BSF and that the land in question had been recorded in the revenue records in their joint possession and had been mutually partitioned, whereafter they have been in cultivating possession of their respective shares and that they have been not satisfied with the family partition and have been initiating process against each other and that in the land in question, no trespass, theft or damage to anything was found and that no cognizable offence has found to have been committed. 13. Though the said report dated 11.08.2018, seemingly, has been before the trial Court on the date of passing of the impugned order, yet the trial Court surprisingly has overlooked the same and has fallen back upon the contents of the complaint, as also the preliminary statements of the complainant and his witnesses while passing the impugned order. 14. Law is clear that the nature of cases dealt with under Section 202 Cr.P.C. are the cases, where material available before the trial Court is not clear and sufficient to proceed ahead in the matter. Once a report is called under Section 202 Cr.P.C., the same has to be considered and then only, further action either dismissal of the complaint under Section 203 Cr.P.C. or issuance of process under Section 204 Cr.P.C. can be taken. When the Magistrate finds the material on record insufficient and thinks necessary to have an investigation/inquiry in the matter under Section 202 Cr.P.C., the Magistrate cannot, on the same material being insufficient in the beginning, proceed to take cognizance and issue process later on, overlooking the report of the investigation/inquiry. When the Magistrate finds the material on record insufficient and thinks necessary to have an investigation/inquiry in the matter under Section 202 Cr.P.C., the Magistrate cannot, on the same material being insufficient in the beginning, proceed to take cognizance and issue process later on, overlooking the report of the investigation/inquiry. In the instant case, once the Magistrate was not convinced about the veracity or otherwise of the allegations leveled in the complaint and had decided to proceed under Section 202 Cr.P.C., there was no reason for the Magistrate to overlook the report of investigation/inquiry furnished by the SHO, Police Station, Kanachack. There has been no additional material before the trial Court after furnishing of the report of SHO, but there had been same and similar material before the trial Court after referring of the matter under Section 202 Cr.P.C. for investigation/inquiry, as such, the impugned order could not have been passed by the trial Court. 15. Law is no more res-integra that the judicial process cannot be used as an instrument of oppression or harassment. The Court has to be circumspect and judicious in exercising discretion and has to take all the relevant facts and circumstances of the case into consideration while issuing process, lest it would be an instrument in the hands of private complainants as vendetta to harass the persons unnecessarily. It is also settled position of law that summoning of an accused in criminal case is a serious matter and the order taking cognizance by the Magistrate, summoning the accused must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto. 16. In the case in hand, the facts and circumstances, prima-facie, reveals and suggests that the complainant/respondent herein has been pleading the cause of his father qua the land measuring 04 Kanals and 18 Marlas covered under Khasra No. 470 claimed to have been mutated in the name of petitioner No. 1 herein by the revenue authorities without notice to his father. It is also revealed that the complainant/respondent herein, during the pendency of the suit, filed by his father in respect of the land in question, filed the impugned complaint, alleging that despite order of status-quo, the petitioners herein got the land in question mutated in their name by playing fraud upon his father and that on 08.10.2015, harvested the crop committing theft of the same. The impugned complaint ex-facie has an overwhelming and pre-dominant element of a civil dispute relating to the land in question and, seemingly, has been instituted owing to the reason of attestation of Mutation in respect of the said land dated 25.02.2015 by the revenue officer in favour of the petitioners herein after the passing of the order of status-quo dated 01.08.2014 in the suit filed by the father of the respondent. The report of the SHO as well endorses the position that the respondent or his father had not been in possession of the land and that, in fact, the petitioners had been in possession thereof, as such, having found non-commission of any cognizable offence by the petitioners in the complaint filed by the respondent herein. 17. The ambit and scope of jurisdiction of the High Court under Section 482 Cr.P.C. (previously Section 561-A Cr.P.C.) has been discussed and deliberated upon by the Apex Court from time to time and there has been a long line of decisions rendered by the Apex Court in this regard including the celebrated judgment titled as, "State of Haryana and ors. Vs. Ch. Bhajan Lal and ors., reported in AIR 1992 SC 604 ", wherein various categories of cases by way of illustration have been laid down by the Apex Court, indicating therein that the power under Section 482 Cr.P.C could be exercised to prevent an abuse of process of a Court or otherwise to secure the ends of justice including the one, where it appears from the uncontroverted allegations made in the FIR/complaint and evidence collected in support thereof do not disclose commission of any offence or make out a case against the accused person. A reference to another judgment of the Apex Court rendered in case titled as, "State of Karnataka Vs. M. Devendrappa and Another., reported in 2002 (3) SCC 89 " would also be relevant and germane herein, wherein while dealing with the ambit and scope of Section 482 Cr.P.C., the Apex Court has laid down following at para6:- "6. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give 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 inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quande lex aliquid aliqui concedit, concedere videtur in sine que ipsa, esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised exdebite justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto". 18. Having regard to the aforesaid legal position and, inasmuch as, the facts and circumstances noticed in the preceding paras, the instant case falls within the parameters laid down by the Apex Court from time to time in regard to the exercise of inherent jurisdiction under Section 482 Cr.P.C., warranting exercise of the same in order to prevent the abuse of process of the Court, inasmuch as, to secure the ends of justice. 19. Viewed thus, what has been analyzed, observed and considered hereinabove, the petition succeeds and is, accordingly, allowed, as a corollary whereof, the impugned complaint titled as, "Bir Singh Vs. Romesh Singh and ors. and the impugned order dated 20.03.2017 are set aside. 20. Petition is, accordingly, disposed of along with connected application.