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2025 DIGILAW 769 (HP)

Om Chand v. State of H. P.

2025-04-22

RAKESH KAINTHLA

body2025
Rakesh Kainthla, J. The petitioner has filed the present petition for setting aside the order dated 15.11.2022, passed by learned Judicial Magistrate First Class, Sarkaghat, District Mandi, H.P. in Cr.MA No. 129 of 2022, titled Om Chand Vs. Bipin Singh and others, vide which the prayer to send the application to the police for registration of FIR was declined. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated the facts giving rise to the present petition are that the petitioner/complainant filed an application under Section 156(3) of Cr.P.C. for the registration of the FIR for the commission of offences punishable under Sections 420 , 465, 466, 467, 468, and 471 read with Section 34 of the Indian Penal Code ( IPC ). It was asserted that accused No.1 Vipin Singh filed an application before Deputy Commissioner, Mandi under Section 14 of the National Trust Act and became the guardian of Prem Singh and Titu Ram. Titu Ram and Prem Singh were deaf and dumb. He filed a civil suit No. 142 of 2015, titled Vipin Singh Vs. General Public and became the guardian of Prem Singh and Titu Ram to maintain and look after their property. Titu Ram died on 29.11.2019 leaving behind his property which was to be inherited by his brother Prem Singh. The accused got attested Mutation No. 604 in Village Banji Mohal and mutation No. 787 in Mohin Mohal regarding the immovable property of Titu Ram. Assistant Collector, 2 nd Grade attested the mutation based on the Will stated to have been written by Kashmir Singh and witnessed by Ramesh Chand and Roshan Lal. The property was transferred in the name of Vipin Singh being the beneficiary of the Will. The deceased Titu Ram was unable to execute the Will due to his medical condition. Legal heirs were not summoned. Vipin Singh sold the land vide Sale Deed No. 337 of 2021, dated 15.7.2021 to Virender Kumar. The complainant filed the complaint before the police but no action was taken. Hence an application was filed before the Court to refer the matter to the police for registration of the FIR. 3. Learned Trial Court held that the complainant had no locus standi to file the application. The complainant filed the complaint before the police but no action was taken. Hence an application was filed before the Court to refer the matter to the police for registration of the FIR. 3. Learned Trial Court held that the complainant had no locus standi to file the application. A decree was passed by the competent Court and mutation was attested by competent authority. These allegations in the complaint do not constitute any cognizable offence. No sanction was obtained to prosecute accused No.2, 6 and 7. Hence the application was dismissed. 4. Being aggrieved from the order passed by the learned Trial Court, the petitioner has filed the present petition asserting that the learned Trial Court did not appreciate the relevant material. It was wrongly held that the petitioner/complainant had no locus standi. The concept of locus standi does not apply to criminal cases and any person can set the criminal law into motion. Accused No.1 was wrongly appointed as legal guardian. The Will of Titu Ram was forged. It was wrongly held that the allegations in the application do not constitute the commission of cognizable offence. The offences of cheating and forgery of the documents do not require sanction. The order of mutation was passed without summoning the legal heirs. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 5. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State supported the order passed by the learned Trial Court and submitted that no interference is required with it. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The present petition has been filed under Section 482 of Cr.P.C. even though the remedy of revision is available to the petitioner. It was laid down by the Hon’ble Supreme Court in Prabhu Chawla v. State of Rajasthan , (2016) 16 SCC 30 : (2016) 4 SCC (Cri) 801: 2016 SCC OnLine SC 905 that the High Court can exercise extraordinary jurisdiction in case of abuse of process of the Court even if the remedy of revision is available. It was observed at page 32:- 5. It was observed at page 32:- 5. Mr Goswami also placed strong reliance upon the judgment of Krishna Iyer, J. in a Division Bench in Raj Kapoor v. State [ Raj Kapoor v. State , (1980) 1 SCC 43 : 1980 SCC (Cri) 72] . Relying upon the judgment of a Bench of three Judges in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in para 10 which runs as follows:( Raj Kapoor case [ Raj Kapoor v. State , (1980) 1 SCC 43 : 1980 SCC (Cri) 72 ], SCC pp. 47-48) “10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is the absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution ‘would be to say that the bar provided in sub- section (2) of Section 397 operates only in the exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in the exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction’. (SCC pp. 555-56, para 10) In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situations excites the Court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are capable of being considered in the exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complains of harassment through the court's process. Can we state that in this third category, the inherent power can be exercised? In the words of Untwalia, J. : (SCC p. 556, para 10) ‘10. … The answer is obvious the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. … The answer is obvious the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for the exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.’ I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistic, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this Court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.” 6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: “ 482. Saving of inherent powers of High Court .— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more”. ( Raj Kapoor case [ Raj Kapoor v. State , (1980) 1 SCC 43 : 1980 SCC (Cri) 72 ], SCC p. 48, para 10) We venture to add a further reason in support. The limitation is self-restraint, nothing more”. ( Raj Kapoor case [ Raj Kapoor v. State , (1980) 1 SCC 43 : 1980 SCC (Cri) 72 ], SCC p. 48, para 10) We venture to add a further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation is wholly unwarranted and undesirable. 7. As a sequel, we are constrained to hold that the Division Bench, particularly in para 28, in Mohit [Mohit v. State of U.P., (2013) 7 SCC 789 : (2013) 3 SCC (Cri) 727] in respect of inherent power of the High Court in Section 482 CrPC does not state the law correctly. We record our respectful disagreement. 8. This judgment was followed in Vijay Vs. State of Maharashtra (2017) 13 SCC 317 : (2017) 4 SCC (Cri) 622 and it was held that the mere availability of alternative remedy of revision is no bar to the exercise of jurisdiction under Section 482 of Cr.P.C. It was observed:- “7. After hearing the counsel and also after perusing the impugned order, we are of the considered opinion that the order of the High Court has no legs to stand in view of the law laid down by this Court in Prabhu Chawla [ Prabhu Chawla v. State of Rajasthan , (2016) 16 SCC 30 ] . In the above referred case, in view of the divergent opinions of this Court in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 : (2009) 1 SCC (Cri) 806] and Mohit v. State of U.P. [Mohit v. State of U.P., (2013) 7 SCC 789 : (2013) 3 SCC (Cri) 727] , the matter was placed before the three-Judge Bench of this Court. The three-judge Bench took the view that Section 482 CrPC begins with a non-obstante clause to state: “ 482. The three-judge Bench took the view that Section 482 CrPC begins with a non-obstante clause to state: “ 482. Saving of inherent powers of High Court .— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” As Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation which is wholly unwarranted and undesirable. The three-judge Bench has confirmed the law laid down by this Court in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 : (2009) 1 SCC (Cri) 806 8. In view of the above-settled law, the mere availability of alternative remedy cannot be a ground to disentitle the relief under Section 482 CrPC and, apart from this, we feel that the learned Judge without appreciating any of the factual and legal position, in a mechanical way, passed the impugned order, which warrants interference by this Court. Accordingly, the order of the High Court is set aside and the matter is remanded to the High Court for reconsideration in the light of the settled legal position.” 9. Therefore, this Court has to see whether the order passed by the learned Trial Court amounts to an abuse of the process of the Court or whether it is necessary to set it aside to secure the ends of justice. 10. Learned Trial Court held that no cognizable offence was committed. This conclusion cannot be faulted. As per the application, Vipin Kumar was appointed as a guardian under Section 14 of the National Trust Act, which empowers a relative of a person with a disability to apply for guardianship and the local authority can process such an application. Therefore, no offence is committed by applying to a competent authority constituted under the law and the authority exercising its power. 11. It was further asserted that Vipin Kumar filed Civil Suit No. 142 of 2015 and obtained a decree in his favour. The decree was void. Therefore, no offence is committed by applying to a competent authority constituted under the law and the authority exercising its power. 11. It was further asserted that Vipin Kumar filed Civil Suit No. 142 of 2015 and obtained a decree in his favour. The decree was void. Obtaining a decree from a competent person is not cheating or forgery and even if the decree is incorrect, the remedy of a person is to file an appeal to get it set aside. 12. It was asserted that Titu Ram was not competent to execute the Will because he was deaf and dumb. There is no restriction in the execution of a Will by a person who is deaf and dumb. Explanation 2 of Section 59 of the Indian Succession Act clearly provides that persons who are deaf and dumb or blind are not incapacitated from making a Will if they know what they do by it. Hence, a deaf, dumb or blind person can execute a Will and the submission that Titu Ram was incapable of executing the Will is not correct. Whether Titu Ram knew about the nature of the act or not is a question of fact that cannot be determined in the criminal proceedings. 13. The allegations in the application show that the Will was stated to be written by Kashmir Singh and was witnessed by Ramesh Chand and Roshan Lal. Therefore, the Will was executed as per the provisions of Section 63 of the Indian Succession Act and merely calling the Will to be fraudulent or forged is not sufficient unless the proceedings are taken to declare to be so. 14. It was stated in the application that the mutation was attested based on the fraudulent Will and the mutation is a forgery. It is not asserted that Patwari and Kanungo were not competent to enter the mutation of the Will or that Assistant Collector 2 nd Grade was not competent to attest it. Even if the attestation was wrong, an authority having jurisdiction is not divested of the jurisdiction vested in it because a wrong decision was taken. 15. The term forgery has been defined in Section 463 of IPC as under: "463. Even if the attestation was wrong, an authority having jurisdiction is not divested of the jurisdiction vested in it because a wrong decision was taken. 15. The term forgery has been defined in Section 463 of IPC as under: "463. Forgery.--Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." 16. It is apparent from the definition that a person has to make a false document before he can be said to have committed forgery. Making a false document is defined in Section 464 of IPC . It reads as under: 464. Making a false document . It is apparent from the definition that a person has to make a false document before he can be said to have committed forgery. Making a false document is defined in Section 464 of IPC . It reads as under: 464. Making a false document . —A person is said to make a false document or false electronic record— First.—Who dishonestly or fraudulently— (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of a document, electronic record or electronic signature was made, signed, sealed, exe- cuted, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.—Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a docu- ment or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. 17. It was laid down by the Hon’ble Supreme Court in Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that the prosecution is required to prove that the accused had forged a document by creating a false document to establish the offence of forgery. A false document is when a document is executed claiming to be executed by someone else or authorised by someone else or a document is tempered or signatures are obtained by practising deception. A false document is when a document is executed claiming to be executed by someone else or authorised by someone else or a document is tempered or signatures are obtained by practising deception. It was observed:- “ [10] An analysis of section 464 of the Penal Code shows that it divides false documents into three categories: 10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not because of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. [11] In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered with a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.” 18. Therefore, the execution of a document whose contents are wrong does not constitute any forgery and assuming the allegations to be correct, no offence punishable under Sections 465 , 466, 467 , 468 and 471 of IPC is made out against the accused. 19. The application also mentions Section 420 of IPC . Nothing is stated about any misrepresentation made by any person which led another person to deliver property which he would not have delivered but for the misrepresentation made to him. Hence the ingredients of Section 420 of IPC are also not satisfied. 20. 19. The application also mentions Section 420 of IPC . Nothing is stated about any misrepresentation made by any person which led another person to deliver property which he would not have delivered but for the misrepresentation made to him. Hence the ingredients of Section 420 of IPC are also not satisfied. 20. It was laid down by the Hon’ble Supreme Court in Om Prakash Ambadkar v. State of Maharashtra , 2025 SCC OnLine SC 238 that the Magistrate must apply his mind to determine if a cognizable offence is made out before ordering an investigation under Section 156 (3) of CrPC. It was observed: “11. However, what is important to observe is that whenever any application is filed by the complainant before the Court of Judicial Magistrate seeking police investigation under Section 156(3) of the Cr. P.C., it is the duty of the concerned Magistrate to apply his mind for the purpose of ascertaining whether the allegations levelled in the complaint constitute any cognizable offence or not. In other words, the Magistrate may not undertake the exercise to ascertain whether the complaint is false or otherwise, however, the Magistrate is obliged before he proceeds to pass an order for police investigation to closely consider whether the necessary ingredients to constitute the alleged offence are borne out .” on plain reading of the complaint 21. In the present case, the learned Trial Court had rightly held that the commission of any cognizable offence was not disclosed in the application and had rightly refused to order the investigation. There is no perversity in the order passed by the learned Trial Court which can be interfered with while exercising inherent jurisdiction under Section 482 of Cr.P.C. 22. Consequently, the present petition fails and the same is dismissed, so also the pending miscellaneous application(s), if any. 23. The record of the learned Trial Court be returned, forthwith.