Madhya Pradesh High Court
Sajid Khan vs The State Of Madhya Pradesh on 14 May, 2020
Author: Rohit Arya
Bench: Rohit Arya
1
Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Mis. Cr. Case No.3969/2020
Sajid Chandanwala
Vs.
State of Madhya Pradesh and others
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Shri Gulab Sharma, Advocate for the applicant.
Shri R.S.Chabra, Additional Advocate General & Ms. Sadhana
Pathak, Public Prosecutor for the respondent No.1/State.
Shri G.S.Desai, Advocate for the respondents No.2 and 3.
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&
Mis. Cr. Case No.1029/2020
Sajid Khan
Vs.
State of Madhya Pradesh
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Shri Sunil Kumar, Advocate for the applicant.
Shri R.S.Chabra, Additional Advocate General & Ms. Sadhana
Pathak, Public Prosecutor for the respondent No.1/State.
Shri G.S.Desai, Advocate for the complainant
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Reserved on: 19/03/2020
ORDER
(14/05/2020) Rohit Arya, J., This order shall govern disposal of Mis. Cr. Case No.3969/2020 seeking quashment of first information report No.0272/2019 registered for the offence punishable under sections 384, 387 and 448 IPC at Police Station Central Kotwali, Indore & Mis. Cr. Case No.1029/2020 filed under section 438 Cr.P.C., seeking protection against arrest by the applicant.
2Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 Regard being had to the similitude of the controversy involved in the aforesaid cases, both applications have been heard analogously and disposed of by this singular order.
For the sake of convenience, facts in Mis. Cr. Case No.3969 of 2020 have been considered.
2. This is an application under section 482 Cr.P.C., seeking quashment of first information report No.0272/2019 registered for the offence punishable under sections 384, 387 and 448 IPC at the Police Station Central Kotwali, Indore against the applicant.
3. Before commenting upon the FIR, it is expedient to reiterate the facts as adumbrated in the instant application.
One Sukhram s/o Nathulal is owner of house No.348, Jawahar Marg, Indore. He rented out the first floor (for short, 'the suit premises') and residing in the ground floor of the house. Initially, civil suit for eviction of Vijay Kumar Rege vide civil suit No.6582A/1994 for 'bona fide need under section 12(1)(f) ' of the Madhya Pradesh Accommodation Control Act, 1961 (for short, the Act') was filed in the civil Court of competent jurisdiction at Indore. The said suit was dismissed on 19/01/1996. Thereafter, second civil suit being civil suit No.77A/2004 on the grounds of 'arrears of rent' & 'sublettting' of the suit premises to the present applicant by the original tenant under sections 12(1)(a) & (b) of the Act was filed. The said suit was dismissed on 08/04/2004. An appeal arising therefrom also met dismissal vide judgment and decree dated 25/02/2008 by the first appellate Court.
In the aforesaid civil proceedings, it has been concurrently found that the original tenant Vijay Kumar Rege has not parted with possession of the suit premises to the applicant instead, both run a partnership business in the suit premises. There was no subletting. Since then, the applicant is in peaceful possession and running the business in the suit premises.
After over 11 years, Jagdish Binjwa s/o Sukhram, owner of the house lodged the instant FIR on 30/12/2019 at Police Station Central Kotwali, Indore alleging that his father has rented out to the tenant the first floor and the applicant had threatened his father and tenant, Vijauy Kumar Rege with dire consequences as 3 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 without seeking his consent, how the suit premises was rented out to Vijay Kumar Rege. Thereafter, the applicant has been harassing the tenant Vijay Kumar Rege and issued threats to vacate the suit premises. Under the circumstances, the tenant has handed over the suit premises to the applicant. Since then, the applicant is in unauthorized and illegal possession of first floor of the suit house. Despite repeated complaints, no action has been taken by the police for dispossession of the applicant. The complainant and his father are facing constant threat from the applicant. It has also been alleged that the applicant gave threat to put on fire the entire house. The complainant apprehends untoward incident due to unauthorized and illegal occupation of the suit premises by the applicant.
Lastly, it is stated that the State Government and the police administration has initiated the drive for demolition and eviction of the residential and commercial premises from unauthorized occupants and anti social elements. Therefore, the complainant sought indulgence being covered under the drive of eviction of the applicant from the suit premises through the police force.
The allegations are jettisoned under sections 384, 387 and 448 IPC are mentioned in the FIR.
2. Learned counsel for the applicant submits that
(a) a bare perusal of FIR clearly suggests that concocted, omnibus and false allegations have been made even without mentioning the dates and period of alleged threats allegedly issued by the applicant to the owner and the tenant;
(b) there is deliberate suppression of facts of dismissal of civil suit No.6582/1994 on 19/01/1996 and that of civil suit No.77A/2004 on 08/04/2004 as well as dismissal of first appeal arising therefrom on 25/02/2008 with ulterior motive to file the FIR and to achieve the collateral purpose of forcible eviction of the applicant through police;
4Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020
(c) Vijay Kumar Rege himself has sworn affidavit on 25/02/2020 filed as a document in Mis. Cr. Case No.1029/2020 whereunder he has stated that courier and parcel business in the name and style of "Pawan Travels and Rijendra Transport" is run from the office situated on the first floor of house No.348, Jawahar Marg, Indore; a partnership firm with partner Sajid Khan s/o Dawood Khan (applicant). It is a written partnership firm and running the business since the year 1985 till date. The rent upto the month of February 2020 has been deposited with the owner of the suit premises, Sukhram. In paragraph 5 thereof, he has stated as under:
";g fd] mDr fdjk;k/khu LFkku esa vHkh Hkh gekjk vkf/kiR; oS/kkfud :i ls fdjk;snkj crkSj gSA eq>s esjs Hkkxhnkj lkftn [kku }kjk fdlh Hkh izdkj ls u rks Mjk;k&/kedk;k gS u gh fdjk;k/khu LFkku dk eSusa vkf/kiR; R;kxk gSA eq>s Kkr gqvk gS fd edku ekfyd ds iq= }kjk ,d >wBh f'kdk;r esjs Hkkxhnkj Jh lkftn [kku ds f[kykQ Fkkuk lsUVzy dksrokyh] bankSj ij bl vk'k; dh gS fd Jh lkftn [kku }kjk eq>s Mjk&/kedk dj ;k vU;Fkk izHkkfor dj fdjk;k/khu LFkku ij tcjnLrh dCtk dj fy;k gS] tks furkUr vlR; gS] Jh lkftn [kku us u rks eq>s Mjk;k /kedk;k gS u gh eq>ls fdjk;k/khu LFkku dk vkf/kiR; tcjnLrh gfFk;k;k gS okLro esa lnj fdjk;k/khu LFkku ij vkt Hkh esjk gh vkf/kiR; gS vkSj Jh lkftn [kku ogka esjs Hkkxhnkj ds :i esa lg;ksx djrs gSA "
As such, the allegations that the applicant had taken strong exception to the tenancy by Sukhram in favour of Vijay Kumar Rege and that the applicant threatened both of them with dire consequences ex facie are false and concocted;
5Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020
(d) the wife of applicant, Ms.Premlata Khan had submitted a complaint dated 26/02/2020 addressed to the Inspector General of Police, Indore with a copy to the Superintendent of Police (East), Indore apprehending forcible eviction from the suit premises at the instance of Sukhram under the pretext of drive for demolition of residential and commercial premises undertaken by the State government. She had also annexed copies of the judgments and decrees passed by the Courts (supra) referred above. She has stated that the suit premises is used legally for running business by the applicant. Therefore, the continuous peaceful possession of the applicant by virtue of partnership firm, the same cannot be said to be illegal or unauthorized or for that matter a trespasser. The complaint was though received on the same date but, without considering the complaint and without verification of the facts made therein & the judgments and decrees passed by the Courts (supra), the instant FIR has been registered. Hence, the same is contrary to the settled principle by the Hon'ble Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others (2014) 2 SCC 1 (paragraph 120.6).
Learned counsel further submits that apart from concoction and falsity of allegations; the dispute, if any; as sought to be created in the FIR is that of civil nature and no action, muchless; forcible dispossession or damage to the property or interference in the possession or demolition of staircase used for access to the suit property by the tenant, by the complainant with 6 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 connivance and collusion of the police under the cover of FIR can be permitted.
The highhandedness of B.D.Tripathi, Station House Officer, Central Kotwali, Indore and his associates; constables for facilitating damages to the staircase leading to the suit premises and putting a lock at the collapsible iron gate leading to the suit premises on 26/02/2020 despite order passed by this Court dated 06/02/2020 directing that "until further orders, no coercive measure shall be taken against the petitioner." is highly contemptuous and cannot be sustained in the eyes of law. Therefore, liable to be dealt with sternly.
During the course of hearing, learned counsel passed on Board the photographs and taken on record, submits that the photographs clearly reflects demolition of staircase and side wall and putting lock in collapsible gate. B.D.Tripathi, Station House Officer and his associate sitting on chair as meek observers giving tacit approval for illegal action of demolition of staircase, side wall and also ensuring lock in the collapsible iron gate. Their conduct speaks volumes about direct involvement of police force in the unauthorized and illegal actions.
In fact, the restraint order passed by this Court (supra) was flung away by the Station House Officer and his associates while resorting to the aforesaid unauthorized action. He has also referred to the print media coverage of such incident.
Learned counsel relied upon the judgments of the Hon'ble Supreme Court in the cases of State of Haryana Vs. Bhajanlal, AIR 1992 SC 602, Shiji @ Pappu and others Vs. Radhika and another, (2011) 10 SCC 705; Preeti Gupta and another Vs. State of Jharkhand, (2010) 7 SCC 667, Joseph Salvaraj A. Vs. State of Gujarat and others (2011) 7 SCC 59, Lakhwinder Singh Vs. State of Punjab, 2004 (4) RCR (Criminal) 104, Prabhatbhai Vs. State of Gujarat (2017) 9 SCC 641, Varala Bharath Kumar Vs. State of Telangana, AIR 2017 SC 4434 & Paramjeet Batra Vs. State of Uttarakhand (2013)(11) SCC 673 to bolster his submissions.
3. Learned counsel appearing for the applicant in Mis. Cr. Case No.1029/2020 seeking a direction against arrest submits 7 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 that a detailed complaint was submitted to the Inspector General of Police, Indore on 26/02/2020 bringing to his notice the total anarchy by station house officer and other police personnel, disrespect to the Court order, willful disobedience of interim order passed by this Court on 06/02/2020 but, no action was taken thereon.
That apart, Vijay Kumar Rege has filed civil suit bearing No.RCSA/1707/2020 in the civil Court at Indore against the complainant Jagdish Bhinjwa s/o Sukhram Bhinjwa & Station House Officer, Central Kotwali, Indore seeking relief that the defendants be restrained from forcible dispossession of the plaintiff and not to interfere in the possession as well as not to put seal or lock obstructing use of the suit premises, besides cost. Notices have been issued and the suit is pending consideration.
It is submitted that the applicant has been made a victim with active connivance of the complainant with the local police which has remained undeterred despite, judgments and decrees passed in civil litigation and interim order passed by this Court (supra) brought to their notice.
In view of the above, the complainant and the erring police officials deserve to be dealt with sternly including penal action against them. Learned counsel submits that the applicant has filed Cont. Case No.735/2020 before this Court and the same is pending consideration.
5. Per contra, learned Additional Advocate General for the State submits that the allegations made in the FIR fulfill the requirements of prima facie case and, therefore, FIR was registered for the offence punishable under sections 384, 387 and 448 IPC. The veracity of allegations are not required to be seen at the time of registration of the complaint even if the accused protest the same with onerous allegations viz., the judgments & decrees and order of the Court as in the instant case. The case is under investigation.
Learned Additional Advocate General fairly admits that the applicant is in possession of the suit premises as on 26/02/2020. He is at loss to state that there is no authority of law or Court order under which the suit premises has been put under lock on 8 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 26/02/2020 by the police authorities. However, he submits that no coercive measure has been taken against the applicant in person and looking to the law and order problem, the suit premises was put under lock. No other FIR except the one in hand has been filed or is on record related to the suit premises.
With the aforesaid submissions, learned Additional Advocate General prays for dismissal of the applications filed by the applicant for quashment of FIR and grant of anticipatory bail.
6. Heard.
7. Before adverting to rival contentions, it is considered apposite to reiterate the settled law as regards the scope and ambit of interference under section 482 Cr.P.C; the jurisdiction to do real and substantial justice or to prevent abuse of the process of the Court or otherwise to secure ends of justice.
The Hon'ble Supreme Court in Bhajanlal's case (supra) though has reiterated that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised but, has catalogued some instances; for quashment of FIR to secure the ends of justice. Relevant are quoted below:
"(i) ... ... ...
(ii) ... ... ...
(iii) 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.
(iv) ... ... ...
(v) ... ... ...
(vi) ... ... ...
(vii) 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."
The aforesaid judgment has been followed in catena of decisions by the Hon'ble Supreme Court and various High Courts uptill now.
9Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020
8. Now turning to the facts of the case;
(i) Vijay Kumar Rege and the applicant Sajid Khan (Chandanwala) are running courier and parcel business in the name and style of Pawan Travels and Rijendra Transport in the suit premises. The partnership is continuous and alive since the year 1985. Rent of the suit premises upto the month of February 2020 has been paid;
(ii) Vijay Kumar Rege has falsified the allegation of threat being issued to him by the applicant for vacating the rented suit premises as alleged in the FIR (paragraph 5 of his affidavit quoted above). In fact, he has clearly stated that a false and concocted FIR has been lodged. The allegation of threat to take forcible possession has been emphatically denied as false and concocted. The suit premises continued to be in their possession wherefrom the applicant runs the partnership business;
(iii)Sukhram, father of the complainant had sought eviction of the suit premises by filing civil suit No.6582/1994 on the ground of 'bona fide need' under section 12(1)(a) of the Act but, the same was dismissed on 19/01/1996. Another suit No.77A/2004 was filed on the grounds of 'arrears of rent' & 'subletting' under sections 12(1)(a) & (b) of the Act and the same was also dismissed on 08/04/2004. First appeal arising therefrom was also dismissed on 25/02/2008. The civil Courts below have taken note of the fact that the suit premises is being used for partnership business being run by Vijay Kumar Renge and the applicant, Sajid Chandanwala. There is no dispute of their possession of the suit premises and running business.
The aforesaid facts were brought to the 10 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 notice of the Inspector General of Police, Indore and the concerned Station House Officer by the wife of the applicant in the complaint dated 26/02/2020 with due acknowledgment of its receipt but, no efforts were made by them to verify the allegations made in the FIR either by the Station House Officer or the Investigating Officer running counter to the judgments and decrees passed by the Courts below (supra) and falsity of allegations;
(iv) deliberate omission of non-mentioning of the alleged place, date and time of incident with omnibus allegations is of significance in the context of the requirement to hold preliminary enquiry for ascertaining abnormal delay/laches in initiation of criminal action as contemplated by the Hon'ble Supreme Court under paragraph 120.6(e) in the case of Lalita Kumari (supra). Relevant part of paragraph 120.6 is quoted below:
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) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) ... ... ...
(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.
As such, the police authorities failed to inquire with due regard to the complaint filed by the wife of applicant with documents for 11 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 sustainability of allegations;
(v) that apart, despite interim order passed by this Court on 06/02/2020 to the following effect:
"Until further orders no coercive measure shall be taken against the petitioner."
The Station House Officer and his associates; constables / police personnel have tacitly approved demolition of stair case, side wall and physically locked the entrance collapsible iron gate obstructing access to the suit premises undermining the mandate of the Court order.
(vi) if there was law and order problem as asserted by learned Additional Advocate General, the State could have approached this Court seeking clarification or modification of the interim order dated 06/02/2020. That has not been done.
(vii) the words "no coercive measures" have wide amplitude and include not to obstruct access to suit premises by the applicant and not to put a lock or otherwise restrain the applicant in any manner whatsoever regard being had to the substance of the FIR under challenge before this Court for quashment;
(viii) obviously, the complainant on the strength of the fabricated allegations with tacit approval of the police force, even destroyed the stair case and a side wall leading to the suit premises in their presence as is evident from the photographs brought on record;
(ix) in fact, in all fairness; the concerned Station House Officer ought to have verified the facts before registering the complaint.
It is observed that the dispute between parties predominantly is that of civil nature. The 12 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 institution of criminal proceedings through FIR is malicious with ulterior motive for wreckage of vengeance or personal grudge with the applicant;
(x) the allegations contained in the FIR are vague and omnibus as there is no details of place, date and time where the allegations of threat was given to the complainant by the applicant. It assumes importance for the reason that after having lost civil court battle in the year 2008, the plaintiff did not take any action instead the tenant including the applicant running partnership business in the suit premises smoothly and peacefully doing their business for the last 11 years. Hence, the instant FIR is certainly on false allegations with ulterior motive.
This Court may hasten to observe that the rule of law; bedrock of our constitution, does not permit forcible entry in the premises even by the owner of the house to dislodge or throw away the occupant/tenant forcibly except by due process of law.
Even otherwise, once a complaint has been filed by the applicant and his wife on 26/02/2020 with material documents, viz., Court judgments and decrees and orders (supra) addressed to the Inspector General of Police, Indore with a copy to the Superintendent of Police (East) Indore against highhandedness and disorderly behaviour of the police personnel, the Inspector General of Police ought to have looked into the complaint and checkmate the illegal action of concerned police personnel in the teeth of protective order passed by this Court on 06/02/2020. If not veracity of the allegations but, for occurrence of the incident for which preliminary enquiry would be inevitable upon the material placed before the concerned Police Station. That has not been done. Hence, it is really unfortunate that an official of the rank of Inspector General of Police did not pay any heed to the seriousness of the complaint and apparently acquiesced anarchy and unruly state; demolition in the suit premises etc., 13 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 With the aforesaid discussion, this Court is of the considered view that illegal actions have been resorted to by the complainant with active collusion and connivance of the police force resulting into demolition of wall, staircase and locking of the entrance collapsible iron gate obstructing access to the suit premises by the applicant.
9. Resultantly, the instant FIR at crime No.272/2019 registered at Police Station Central Kotwali, Indore for the offence punishable under sections 384, 387 and 448 IPC is motivated with ulterior motive to achieve collateral purpose of eviction for which no recourse to criminal proceedings can be initiated. The same is hereby quashed and the action of the police locking the entrance collapsible iron gate of the suit premises is also held to be unauthorized and illegal.
Upon revocation of lock down and lifting of curfew imposed in Indore city due to escalated Pandemic of Covid-19, the competent police authority after ensuring objectively all relevant considerations and that there is no threat to law and order shall visit the suit premises with due notice to the applicant and the complainant to open the lock put up on the entrance collapsible iron gate and prepare a panchnama. A copy of the report (panchnama) in that behalf shall be submitted before the Principal Registrar of this Court for placing the same on record with due information to this Bench.
The applicant may also file an application in the context of the aforesaid direction after restoration of normalcy.
It is made clear that the facts considered and conclusions reached are only in relation to the instant FIR and shall have no bearing in any other proceedings pending between the parties.
10. Consequently, Mis. Cr. Case No.3969/2020 is allowed. As a result, no orders are necessary in Mis. Cr. Case No.1029/2020. Both Mis. Cr. Cases stand disposed of.
11. Learned Public Prosecutor is directed to send an e-copy of this order to all the concerned including the concerned Station House Officer of the police station for information and necessary 14 Mis. Cr. Case Nos.3969/2020 & Mis. Cr. Case No.1029/2020 action.
It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time to time.
12. Registry is directed to send an e-copy of this order immediately to all concerned, for necessary compliance.
Photocopy of the order be placed in the connected Mis. Cr. Case.
13. Let a copy of this order be placed on the record of Cont. Case No.735/2020 and the same be listed for orders before the appropriate Bench on 20/05/2020.
(Rohit Arya)
Judge
b/- 14 -05-2020
Digitally signed by M
V R BALAJI SARMA
Date: 2020.05.15
11:33:08 +05'30'