Criminal Application No.3517 of 2013

13th November, 2013

Petitioner Counsel: Shri S.S. KAZI
Respondent Counsel: Smt. B.B. GUNJAL, Mr. A.G. KANADE

Cases Cited:
Father Thomas Vs. State of U.P. & Anr., 2010 DGLS (Cri.) Soft 1747 [Para 8]
R. P. Kapur Vs. State of Punjab, 2009 ALL SCR (O.C.C.) 80=AIR 1960 SC 866 [Para 10]
State of Haryana Vs. Ch. Bhajanlal, 1992 SCC (Cri.) 426 [Para 10]
Inder Mohan Goswami Vs. State of Uttaranchal, 2007 ALL MR (Cri) 3302 (S.C.) =2008 (1) SCC (Cri.) 259 [Para 11]
Devendra & Ors. Vs. State of U.P. & Anr., (2009) 7 SCALE 613 [Para 11]
Kishan Singh (D) through LRs. Vs. Gurpal Singh & Ors., 2010 ALL MR (Cri) 3948 (S.C.) =AIR 2010 SC 3624 [Para 12]
V.Y. Jose & Anr. Vs. State of Gujarat & Anr., AIR 2009 SCW 307 [Para 12]
Joseph Vs. State of Gujrat, 2011 ALL SCR 1601 =AIR 2011 SC 2258 [Para 12]

JUDGMENT

K. U. CHANDIWAL, J. :- Heard.

2. Rule. Rule made returnable and heard forthwith with the consent of learned Counsel for the parties.

3. The petitioners question prosecution vide RCC No.383/2013, which culminated into FIR vide Crime No First I-16/ 2013 for the offense under Sections 420, 464, 468, 471 and 120-B read with Section 34 of IPC, registered at City Chowk Police Station, at Aurangabad.

4. Respondent Manish has filed the prosecution, asserting to be General Power of Attorney Holder, without naming such persons in his complaint in title clause, making allegations against the applicants and several Government authorities; Talathi, Tehsildar, Superintendent. It is quite clear, respondent Manish has no personal knowledge of the transaction.

5. Record illustrate, Gulam Inshaullah Khan entered into an agreement of sale with Samad Kha Yarkha in respect of 4 Hectors of land from Gut No.119 for consideration of Rs.26,000/- out of which he received Rs.10,000/- as earnest on July, 26th, 1971, under agreement. That agreement is not challenged in any civil proceedings. Our attention is invited by the applicants to revenue record; particularly, 7/12 extract showing entries in respect of the said agreement of sale having flashed in "other rights column". Samadkha Yarkha died on 17.5.2001, at Aurangabad. After his death, names of his legal representatives are recorded / mutated by specific mutation entries (No.2989), and the names of legal representatives i.e. the applicants are emerging in the revenue record since long.

6. After 1971, or after 2001, there is no civil litigation initiated by Gulam Inshaullah Khan or after his death by Jakaullah Khan. M.A.R.J.I. No.794/2012 was filed before learned Civil Judge, Senior Division, Aurangabad, by Hamidullah Khan s/o Zakaullah Khan, Hafijullah Khan s/o Zakaulliah Khan, Ubaidullah Khan s/o Faratullah Khan, and Sameeullah Khan s/o Faratullah Khan. In the said proceedings, they have knowingly and consciously excluded 4 Hectares of land from Gat No.119 of village Tisgaon, which has been purchased by Samadyar Kha. Thus, for a period of more than 30 years, the original owners or their successors remained in slumber and now the power of attorney has come forward to prosecute for offense under Section 420, 467 of IPC.

7. To a specific query to Mr. Kanade, learned Counsel, as to what is the forgery, deception or cheating; either agreement of sale is in dispute or anything else; he says, the dispute emerges to the mutation entries, however, neither in the complaint petition nor in the FIR nor any annexure shows of such so called fraudulent act turning into deception to cause monetary loss to the original owners of the property.

8. Learned Counsel has placed reliance to the Full Bench judgment of the Allahabad High Court in the matter of Father Thomas vs. State of U.P. & Another ( 2010 DGLS (Cri.) Soft 1747). Paragraph No.48 thereof reads as under:

"48. An application under section 482 Cr.P.C would also not lie against an order for investigation under section 156(3) CrP.C., which is an adjunct to the police power to investigate in Chapter XII of the Code, because as held in Divine Retreat Centre v. State of Kerala & Othrs., AIR 2008 SC 1614 (paragraph 22, and Nirmaljit Singh Hoon v. State of West Bengal & Anr., AIR 1972 SC 2639, (paragraph 35), whilst conducting an investigation into a offence cognizable offence the police authorities are exercising their statutory powers under sections 154 and 156 of the Code, and even the High Court in its inherent powers under section 482 Cr.P.C cannot interfere with the exercise of this statutory power."

There cannot be and should not be a contest on legal issues. However, said judgment is not applicable to the facts of the present case as it is not that complaint moved by the complainant is questioned but it is the culmination of FIR, owing to orders of the learned Judge, lodged / registered by Police, it is questioned.

9. Though we are aware that, at the stage of FIR, if facts are hazy; there should be available adequate material; then not to interfere, however, the facts and the flashback of the events between the parties is indicated here-inabove. It will not invest the Police to further prosecute the matter as there was no material to render any criminality on the part of the applicants while dealing with the original owners of the property. Indeed, they are legal representatives.

10. The exercise of powers under Section 482 of Cr.P.C. by the High Court is dealt with by Hon'ble Supreme Court in the matter of R. P. Kapur Vs State of Punjab (AIR 1960 SC 866) : [2009 ALL SCR (O.C.C.) 80] wherein the Supreme Court summarized some of the categories of the cases where inherent power can and should be exercised to quash the proceedings. Thereafter, in the matter of State of Haryana Vs. Ch. Bhajanlal (1992 SCC (Cri.) 426), the Hon'ble Supreme Court illustrated categories in which powers could be exercised either to prevent abuse of process of Court or to secure ends of justice. Such seven categorization is eloquent for the purposes of the present controversy, and is quoted hereinbelow:

"a) 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;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;

(c) 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;

(d) 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;

(e) 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;

(f) 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;

(g) 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."

11. In the matter of Inder Mohan Goswami Vs. State of Uttaranchal reported in 2008 (1) SCC (Cri.) 259 : [2007 ALL MR (Cri) 3302 (S.C.)], the three Judges Bench of the Supreme Court observed,

"The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."

The legal position is again explained by the Hon'ble Supreme Court in Devendra and others Vs. State of U.P. and another ((2009) 7 SCALE 613) wherein the Hon'ble Supreme Court has explained the situations in which it is necessary to interfere in criminal prosecution by exercising powers under Section 482 of Cr.P.C. It was pointed out,

"When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing. ... ... When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out."

12. In Kishan Singh (D) through LRs Vs. Gurpal Singh and others (AIR 2010 SC 3624) : [2010 ALL MR (Cri) 3948 (S.C.)], again, the legal position is reiterated by the Hon'ble Supreme Court. In V.Y.Jose and another vs. State of Gujarat and another (AIR 2009 SCW 307), the Hon'ble Supreme Court cautioned, while entertaining criminal prosecution belatedly, and which are used as a vendetta, to avoid civil proceedings. The legal position was again explained by the Hon'ble Supreme Court in Joseph vs. State of Gujrat (AIR 2011 SC 2258) : [2011 ALL SCR 1601], placing reliance to Devendra's case.

13. Taking survey of above facts, this is a fit case where power under Section 482 of Cr.P.C. needs to be exercised in favour of the applicants. The prosecution apparently is motivated with other extraneous consideration

Criminal Application (No.3517/2013) is allowed.

Rule made absolute qua the applicants.

Application allowed.