Patna High Court - Orders
Suraj Narain Prasad Sinha & Ors vs The State Of Bihar on 25 November, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9959 of 2013
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1. Suraj Narain Prasad Sinha S/O Late Parmeshwar Dayal Permanent
Resident Of Village - Harpur Saidabad, P.S. Patory, District -
Samastipur At Present North Patel Nagar, P.S. Patliputra, Patna - 24
2. Dinesh Din S/O Late Bashistha Narayan Rai R/O Village -
Pachrukhi, P.S. And District - Samastipur
3. Amar Kant Lal S/O Late Devendra Lal At Mohalla - Kashipur,
Town, P.S. And District - Samastipur
4. Shashikant Mishra S/O Late Ramakant Mishra R/O Mohalla -
Bengali Tola, Town, P.S. And District - Samastipur
5. Abhay Shanker Singh S/O Late Uma Shanker Singh Permanent
Resident Of Moohalla - Kashipur, Town, P.S. And District -
Samastipur, At Present 283, Patliputra Colony, P.S. Patliputra, Patna
- 13
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Mr. Shafi Akhtar, Circle Officer, Jitwarpur, Samastipur.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Abhay Shanker Singh, (in person).
For Opposite Party/s : Mr. Sufiyan, APP.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
6 25 -11-2013Heard Mr. Abhay Shanker Singh (in person) and the counsel for the State.
2. This is an application for quashing the FIR of Samastipur Town P.S.Case No.27 of 2013 registered for the offences u/s 419, 420, 467, 468, 471, 120B IPC.
3. The First Information Report has been lodged in pursuance of letter No. 166 dated 12th February 2013 of the Circle Officer, Jitwarpur, Samastipur, O.P.No.2, addressed to the Officer In-charge, Samastipur Town Police Station annexing the letter No. 286 dated 9th Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 2 February 2013 of the Collector, Samastipur, to the Deputy Collector, Land Reforms, Samastipur and to the Circle Officer, Jitwarpur, Samastipur.
4. The subject of letter is of recovery of revenue from non-governmental institution in connection with land situated in Nagarpalika Ward No. 14 under the policy decision of the State of Bihar in connection with Bihar Khas Mahal Policy of 2011. The said letter mentioned the Government of Bihar policy decision vide letter no. 6 dated 7th April 2011 whereunder decision has been taken, if any private institution intends to use the Khas Mahal land it would have to file an application before the competent authority and thereafter under the Khas Mahal policy, land would be settled under the lease on payment of lease rent , including the arrear. Land at Municipal Ward No. 14, Khesra No. 428 (new), Area 1.855 (acre) is standing in the name of State of Bihar. The Samastipur Club is situated on certain part of the government land at Municipal Ward No. 14, vide Plot No. 428, area 1.855 acre being a private institution causing loss of revenue to the Government. It has further been mentioned that Law College and Private institutions in the name and style of Techno Mission are also standing on certain part of the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 3 aforesaid land. All the aforesaid private institutions do not pay any rent though they were required to take lease and to pay the rent under the policy decision. The letter of the District Magistrate is based upon Miscellaneous enquiry got conducted by his subordinate, Deputy Collectors, Land Reforms, Additional Collectors and the District Land Acquisition Officer, Samastipur. On enquiry it divulged that Samastipur Club is having only 6 katha of land whereas on remaining land non-governmental institutions, like Law College, Samastipur and Techno Mission have been standing on the Government land and during the enquiry, purported Honorary Secretary of the club could not produce any document showing their legal right over the said land and found that the aforesaid non-governmental institutions have been in illegal and improper occupation of land directed for recovery of the arrear of rent from the Law College in terms of policy decision of the State Government on Khas Mahal land. It also appears from the FIR that the Additional Collector, after hearing the parties stayed Jamabandi No. 21 relating to the disputed land where it has been mentioned that the Honorary Secretary could produce the documents with respect to 6 Katha of land only. In the said letter, it has been mentioned that against the stay order Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 4 passed by the Additional Collector, CWJC No. 5151 of 2012 was filed before this Court which was dismissed on 16 th January 2013 giving direction to raise all the points before the appropriate authority. Earlier Deputy Collector, Samastipur started cancellation proceeding in connection with aforesaid land, after hearing the parties, set aside Jamabandi No. 21 related to the disputed land which was again challenged before this Court in CWJC No. 5621 of 1986 and the petition filed by the Honorary Secretary was allowed vide order dated 22nd February 1998 holding that the Deputy Collector Land Reforms did not have jurisdiction to set aside the Jamabandi recorded in the name of Raiyat.
5. It has been mentioned that an application was filed in the Janta Darwar about misuse of government land whereafter the matter was referred to the Land Acquisition Officer for enquiry and the report lucidly shows that the Samastipur Club has been standing illegally on the government land as Honorary Secretary could not produce document, except 6 Katha of land. After abolition of Jamindari, the land was vested in the State of Bihar and accordingly, Register-II was created in the name of Government of Bihar. It has further been mentioned that the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 5 Samastipur Club is unregistered club and there is no provision of law for the post of Honorary Secretary and President of said club. It has further been mentioned that Samastipur Club has given the land on lease to other non- governmental institutions on lease rent illegally and recommended for institution of criminal case against the Honorary Secretary of the Club holding that by committing fraud they have been occupying the government land illegally causing loss to the Government revenue. The FIR further mentions that the offer for lease under Khas Mahal Scheme to Law College and other Private institution be extended and also initiated the process for recovery of arrear of rent.
6. On the basis of said letter, the aforesaid case has been instituted by Police vide Nagar Police Station Case No. 27 of 2013 u/s 419, 420, 467, 468, 471, 120(B) IPC. On perusal of the petition as well as the counter affidavit filed by the State, following facts emerge uncontroverted are as follows:
a) The Samastipur Club, Samastipur was established in the year 1906 by Europeans and the said club has been in possession of land for more than 100 years. The said Samastipur Club Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 6 is spread in several parts, such as, play ground and parking space. The club building is recorded in the records of Samastipur Municipality as holding No.1 of Ward No. 14 and has been paying the holding tax of the building to the Municipality. It has been mentioned that the land was standing in the name of Samastipur Municipality and before vesting of Jamindari rent receipts was issued and on that basis Jamabandi No. 21 was created in the government record and after abolition of Jamabandi the land was recorded in the name of Samastipur Club and the Club has been paying rent to the Government. It also appears that 1 bigha 16 katha and 10.34 dhurs of land was purchased from the recorded tenant and had also acquired the land through Patta through ex-intermediary. Accordingly, the total area of 2 ½ bigha, including 6 katha of land was acquired by the Samastipur Club through permanent lease and subsequently, 1 bigha 16 katha and 10 dhurs of land was acquired from Parmeshwar Tiwary and others and Prayag Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 7 Datta and it became 2 ½ bigha of land. In Mauza Karimabad, under Tauzi No. 4429 Jamabandi No. 21 was created.
b) It also appears from the record that during 1972, a request was made by the Superintendent of Police, Samastipur to the Club for providing some space temporarily for the accommodation of Police as it was rainy season, CRPF and District Force Jawans were sent to District headquarters and there was no proper place for their accomodation. The request of the Superintendent of Police, Samastipur was acceded and certain portion of the club was given on rent for their temporary accommodation with effect from 11th September 1972 and vide letter No. 904 dated 7th June 1973 the Superintendent of Police, Samastipur requested the Secretary to fix the rent of the premises for Rs.500/- per month so that proper approval could be obtained from the higher authority and also requested for approval of construction of additional toilet and kitchen. The Secretary of the club accepted the offer Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 8 and vide letter dated 7th November 2013 (Anexure-3) the then Superintendent of Police was provided certain portion of the club under the lease for rent of Rs.500/- per month. It also appears that the then Superintendent of police vide letter dated 22nd July 1976 wrote a letter to the Sub-Divisional Officer, Samastipur to fix the rent of the premises for Rs.500/- being House Controller under the Bihar Building (Rent Control and Eviction) Act as the Secretary of the Club has been putting pressure for payment of rent amount and its arrear. It has been mentioned in Para-14 of the petition that the Sub-divisional Officer cum-House Controller made the fixation of rent at the rat e of Rs.500/- per month of the leased premises vide order dated 15th November 1976 and accordingly the Police Department paid Rs.61,833.35 as total rent upto 29th March 1986. It has been mentioned in the petition that in the event of default of payment of rent by the District Administration, the then Secretary of the Club wrote a letter to the Police Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 9 Department for vacating the premises but the then Superintendent of Police, Samastipur requested for continuation of lease of premises till the construction of new Police Line and thereafter they started paying the rent but they have been still in occupation of the building allotted to them. During 1983 there was default in payment of rent the pressure was mounted on the Police Department for payment of rent in pursuance thereof the then Superintendent of Police, Samastipur vide letter No. 1716 dated 16th December 1983 wrote to the Additional Inspector General of Police, Bihar, Patna for granting special sanction for payment of arrear of rent amounting to Rs.71,344.62.
It appears from the record also that the Samastipur Club has given certain portion of the land to Bidhi Mahavidyalaya, Samastipur on the payment of rent. Accordingly, lease deed was executed between them and in this way, Bidhi Mahavidyalaya, Samastipur is one of the tenants of the Club who is in permissive possession of the land and has been paying rent Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 10 in terms of lease agreement. Position is same with Techno Mission, a private institute.
c) It also appears that the Secretary of the Officers' Club, Samastipur vide letter date d 5th July 1983 requested the then Honorary Secretary for granting permission to use the Samastipur Club along with all its facilitates by its members until some other permanent arrangement was made by the Officers' Club. Accordingly vide letter dated 5th July 1983 the members of the Officers' Club, Samastipur were allowed to use the premises of the Samastipur Club with certain terms and conditions. At subsequent stage, the Secretary of Officers' Club on the instruction of the Collector made a demand to part with and transfer some portion of vacant land of Samastipur Club in favour of Officers' Club for construction of Officers' Club building. The demand made by the Secretary of the Officers' Club was not accepted, annoyed with the reply, a proceeding vide Jamabandi Cancellation Case no. 1 of 1984-85 was initiated by the Anchal Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 11 Adhikari and the said case was referred to the Land Reforms Deputy Collector, Samastipur and accordingly order dated 25th January 1985/28th January 1985 was passed holding that Jamabadi created in the name of Samastipur Club stood cancelled. Against the cancellation of Jamabandi, Case No. 187 of 1985 was filed before the Additional Collector, Samastipur who vide order dated 30th June 1986 approved the order of cancellation. Against that order, CWJC No. 6521 of 1986 was filed before this Court and this Court vide order dated 20th February 1988 allowed the writ petition but liberty was given to the respondents of that case to claim right and title with respect to the land in question before any competent civil court and, accordingly, on the basis of the order, Jamabandi of Samastipur Club was restored vide Memo No. 1041 dated 14th December 1999 and has been paying rent of 2 bigha 2 katha 10.4 dhurs of land bearing Tauzi No.4429 for the period from 1999 - 2000.
7. During the Revisional Municipal survey the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 12 land was recorded as Anabad Bihar Sarkar in stead of Samastipur Club but has been receiving the holding tax without any break. It also appears from the letter (Annexure-
10) that the Circle Officer vide letter No. 543 dated 14th July 2006 requested the Secretary, Samastipur Club that the Law College, Samastipur and the Office of Fire Brigade, including the Office of Deputy Superintendent of Police have been standing over the premises of Samastipur Club on rent basis and requested for space for establishing Mufassil Police Station on rent basis.
8. It has been claimed in the petition that the filing of the case is due to personal vengeance of the present District Magistrate Sri Kundan Kunal who called the members of the Club for meeting in September 2011 at the Circuit House where pressure w as exerted on the Club Members to transfer the vacant portion of land of Samastipur Club in favour of the District Administration but the Club members, especially the President, requested the District Magistrate to give such proposal or request letter for exact area of land required for the District administration which caused annoyance to the District Magistrate who hurled threat to the Club members to teach lesson in case of disobedience of his order. Again the District Magistrate Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 13 called a meeting with the Officials of the Club on 9th October 2011 and he pressed the demand for eastern part of vacant land of the premises and reiterated his threat to exercise all his power to create trouble to the club and its members, in the event of their failure to obey his order . The matter was placed before the General Body Meeting of the Club on 26th November 2011 and unanimously it was resolved that unless the District administration came forward with specific proposal, no action would be taken on the oral request of the District administration and the present lodging of the FIR has been claimed as one of the steps to teach lesson to the Officers of the Club and, accordingly, Land Requisition Case No. 258 of 2011 was initiated and notices were issued to the Secretary, Samastipur Club, the Principal of Law College, Samastipur and the Principal of Techno & Mission School by their individual names and claiming in their illegal possession as the land belongs to the State of Bihar claiming to be Keshare Hind land of Bihar Sarkar and asked to appear and show cause for illegally remaining in unauthorized possession of the land along with a compliance report of handing over the vacant possession of premises and also issued show cause notice for initiation of proceeding for realization of rent at the market rate Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 14 having been in unauthorized occupation of the said land. The said notice of DCLR has been challenged before this Court in CWJC no. 3605 of 2012 and an interim relief has been granted in favour of petitioners restraining the respondents from disturbing the possession of the petitioners or tenants the same is still pending for adjudication.
9. The whole series of events caused a wrath to the present District Magistrate, Samastipur which resulted in lodging of the present FIR. It has been mentioned that Title Suit No. 65 of 2012 was filed claiming right and title of the State of Bihar and claimed recovery of possession from Suraj Narayan Singh but the Title Suit failed and that has been dismissed vide order dated 21st January 2013 by the Sub-Judge-III, Samastipur and statement at Bar has been made that the appeal is in process to be filed against the aforesaid order impugned.
10. The State has filed a counter affidavit where it has been mentioned that only 6 katha of land belongs to the Samastipur Club and not other lands as has been claimed by the petitioners. As after independence, Britishers left India without transferring the land to any person and 6 katha of land became abandon and vested in the State of Bihar in Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 15 terms of Section 87 of the Bihar Tenancy Act and as claimed that DCLR has power to declarer the right according to Bihar Land Dispute Resolution Act 2009 and also the Additional Collector has power to cancel the Jamabandi according to Bihar Jamabandi Act, 2011. It has been mentioned that Abhay Shankar Singh being a member of the Club which is apparent from the signature appearing in the proceeding of the meeting of the Club and claimed that they have been using valuable land without any locus standi as also it would appear from the report submitted by the Land Acquisition Officer. It has been stated that entries in Municipality never decides the title of the land, rather it is decided by the entry in Khatiyan as has been standing in the name of Government. The land of municipality was purchased by Dr.K.Caltart, a British National who never transferred the land to the Club and after independence left India and, accordingly, after vesting of Jamindari, it became government land. It has been mentioned that Jamabandi of the so called Club has been stayed by the Additional Collector, Samastipur in Jamabandi Case No. 102 of 2011 under the Bihar Land Mutation Act 2011 vide order dated 3rd August 2012 which has been challenged in CWJC No. 3605 of 2012 has been filed and the same is pending before Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 16 this Court and proper reply has been given.
11. On reading of the counter affidavit, it appears that the State has not controverted the basic and foundational facts mentioned in this petition but has taken only a plea that the land was purchased by the British National which was never transferred to any person and after vesting, it became the land of the State of Bihar.
12. The point that has been raised by the petitioners is that on reading of the FIR and the attending circumstances completely show that the allegation made therein do not constitute a criminal offence, rather it primarily shows a civil dispute in between the District Administration vis-à-vis members of the Club. It has been further submitted from the records that has been annexed to the petition are unchallenged documents, completely show that right from the beginning the District administration has been trying to take possession of the property by exerting pressure one way or the other and the present is one of the examples. Another point that has been raised is that it is completely a malicious institution of case as the members of the Club did not succumb to the pressure of the District Magistrate to part with certain portion of the land in favour of the District Administration for its construction and he Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 17 called the meeting where verbally hurled threat to the Officers of the club to teach them a lesson unless they would be ready to accede to the demand of the District Magistrate. It has been further submitted that the present District Magistrate has taken the present matter as his personal case and in order to teach lesson, the present case has been filed so much so that there is no allegation or averment made in the FIR against any of the accused person. It has further been submitted that Abhay Shankar Singh who is not a member of the club has been authorized to conduct the case on behalf of Samastipur Club has illegally and mala fide been arrayed as one of the accused persons in the FIR, though there is no allegation made against him. It has been mentioned that Abhay Shankar Singh has been victimized only because he has been authorized to conduct the case and has been discharging his professional duty caused annoyance to the District Administration.
13. Before going to the merit of the case, let us examine the view that has been taken by the Hon'ble Supreme Court on different occasions under what circumstance, the Superior court will interfere with the FIR or the order of cognizance in exercise of inherent jurisdiction, in down line the cases, the first case is the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 18 R.K.Kapur Vs. State of Punjab, reported in AIR 1960 SC
866.
14. The Hon'ble Supreme Court in the case of R.P. Kapur (supra) catalogued the situation and circumstance where the inherent jurisdiction can be/should be exercised to quash the criminal proceeding, where it manifestly appears that there is legal bar against the institution or continuance of criminal proceeding in respect of offence alleged in absence of requisite sanction may, for instance furnish cases under this category. In second situation where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence as alleged. Third situation where the allegation made against accused persons do constitute an offence alleged but there is no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with these cases it is important to keep in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made cases. Where there is legal evidence which on its appreciation may or may not support their accusation Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 19 in question, the Court would not embark upon an enquiry as to whether legal evidence in question is reliable or not. That function lies with the trial court and it would not be open to any party to invoke the inherent jurisdiction of the High Court and contend that on a reasonable appreciation of evidence the accusation made against the accused would not be sustained.
15. Again the occasion came before the Hon'ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi, reported in A.I.R. 1976 SC 1947 to consider the scope and parameter for exercise of inherent power. The Court analyzed four grounds for interference for embarking the inherent jurisdiction by the Higher Court are, (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused:
Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 20 (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like, Hon'ble Supreme Court has held, higher Court would exercise inherent power and quash the proceeding.
16. This issue was again considered in Madhavrao Jiwajirao Scindia and others Vs. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709= (1988)1 SCC 692 where it has been held that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It has further been held that the Court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 21 served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
17. In the case of State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604, the Hon'ble Supreme Court had an occasion to consider by and large all the cases on the point of exercise of constitutional power under Article 226 or the inherent power under Section 482 of the Code of Criminal Procedure. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code extracted the following categories of cases by way of illustration wherein such power could be exercised either to prevent the abuse of the process of Court or otherwise to secure the ends of justice, and inflexible guidelines or rigid formulae and to give an exhaustive list of cases it may not be possible to lay down any precise, clearly defined and sufficiently canalized myriad kinds of cases wherein such power should be exercised:
Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 22
1. 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.
2. 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.
3. 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.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 23 investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. 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.
6. 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.
7. 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.
Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 24
18. The power and parameter for exercise of inherent power under Section 482 of the Code came for consideration in the case of Zandu Pharmaceutical Works Ltd. V. Md. Sharaful Haque reported in 2005 Cr.L.J 92 :
(2005)1 SCC 122 where the Court has reiterated the old principle where the court can exercise inherent power. The Hon'ble Court has held that inherent power can be exercised:
i) To give effect to an order under the Code,
ii) to prevent abuse of process of court; and
iii) to otherwise secure ends of justice.
19. The Court has refrained to lay down inflexible rule which would govern the exercise of inherent jurisdiction. The Court has held that all the courts have inherent power apart from express provision of law which are necessary for proper discharge of functions and duties imposed upon them by law and further held all courts, 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 "quando lex Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 25 aliquid alicuiconcedit, conceder videtur et id sine quo res ipsae case non protest" (When the law gives a person any thing, it gives him/her that without which it cannot exist)
20. The Court has also given a rider that while exercising inherent jurisdiction 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 section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. The Court has further said that the 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 the Court to allow any action which would result in injustice and prevent promotion of justice. The Court should exercise power in the manner to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of process of court.
21. The Hon'ble Supreme Court in the case of Indian Oil Corporation V. NEPC Indian Ltd. and others (2006)6 SCC 736 has, if facts mentioned in the complaint Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 26 petition or FIR inherently show the civil dispute, but due to oblique motive, criminal case has been lodged, the High Court should exercise the inherent jurisdiction to quash the criminal proceeding for ex debito justitiae, relevant Para-12 of the judgment is as follows:
"Para- 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-- Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre1, State of Haryana v. Bhajan Lal2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill3, Central Bureau of Investigation v. Duncans Agro Industries Ltd.4, State of Bihar v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT of Delhi6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.7, Hridaya Ranjan Prasad Verma v. State of Bihar8, M. Krishnan v. Vijay Singh9 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque10. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 27 they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 28 offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
22. In the case of Om Prakash v. State of Jharkhand reported in (2012)12 SCC 72 (Para-43) The Court Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 29 has held that power under Section 482 Cr.P.C. be used sparingly with circumspection to prevent abuse of process of Court but not to stifle the legitimate prosecution.
23. The matter again came for consideration before the Hon'ble Supreme Court in the case of Inder Mohan Goswami v. State of Uttaranchal, reported in (2007)12 SCC 1 where the Court has considered the scope and area for exercise of inherent power u/s 482 of the Code and said that the power should be exercised to do ex debito justitiae or to prevent the abuse of process of court. In Para- 27 of the judgment, the Court has said that inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. The Court has said that no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
24. The Supreme Court has again considered Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 30 the scope and parameter for exercise of inherent power u/s 482 of the Code in the case of Amit Kapoor v. Ramesh Chander reported in (2012)9 SCC 460 in Para-27 has elaborately dealt with the circumstances for exercise of inherent power which is as follows:
""Para:27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 31 proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 32 threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 33 the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 34 consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution.
Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
[Ref. State of W.B. v. Swapan Kumar
Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 35
Guha; Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre; Janata Dal v. H.S. Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.; Shakson Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v. State of Rajasthan and S.M. Datta v. State of Gujarat].
25.The Hon'ble Supreme Court in recent judgment in Vinod Raghuvanshi v. Ajay Arora and others, Cr. Appeal No. 1477 of 2013 decided on 23rd September 2013 has quoted in approval the judgment in Kishan Singh v. Gurpal Singh and others, AIR 2010 SC 3624 as follows:
" ... a frustrate litigant who failed to succeed before the civil court may initiate Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 36 criminal proceeding just to harass the other side with mala fide intentions or t he ulterior motive of wrecking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law and the facts and circumstances of the case."
26.Let us apply the aforesaid principles in the present case as to whether the undisputed facts and the documentary evidences which have not been challenged rather some documents are official documents, fall within the scope and parameter for exercise of inherent jurisdiction.
27. In the present case, this Court is examining Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 37 the issue as to whether the facts mentioned in the FIR completely and inherently show civil dispute or have any element of criminal offence. Another point that has been raised is that the present case has been filed by way of personal vendetta as the Officials of the Club did not oblige the dictates of the District Magistrate, Samastipur who was asking them to part with some part of the land of the Samastipur Club to the Government.
28. Let us examine the issue whether it is a civil dispute or any element of criminality is derived from the facts mentioned in the FIR. It appears from the FIR that the Samastipur Club is situated on the Government land at Municipal Ward No.14 vide plot No. 482 area 1.855 acres. It has been mentioned that on enquiry it divulged that Samastipur Club is having only 6 katha of land and the Samastipur Club has given its certain portion of premises to the private Institutions, like Law College and Techno Mission, on rent. It also appears from the FIR that the allegation has been made about loss of revenue to the State and they could not produce any valid document, save and except of 6 katha of land. It has been submitted that CWJC No. 5151 of 2012 was filed by the Secretary of the Samastipur Club before this Court which was rejected and Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 38 asked the Club to raise its points before the authority where the proceeding has been initiated. The FIR also mentions that CWJC No. 5621 of 1986 was filed where it has been held that DCLR, Samastipur has no jurisdiction to cancel the Jamabandi and, accordingly, the writ petition was allowed and the order of the DCLR was quashed. It has been mentioned that in Janta Darwar some interested persons filed an application drawing the attention of the authority about the misuse of land by the officials of the Samastipur Club. It has been mentioned that the Club has not been registered and after enquiry by the Land Acquisition Officer, found the illegal occupation and illegal use of the Government land and by illegal manner they have misused the government fund and prima facie appears to be a case of economic offence.
29. From the documents that have been annexed by the petitioners has not been disputed by the State, as most of the documents are either courts orders, or letters written by the Police Officials and also the order passed by the Officers in the administrative side of the State. As Anexure-2 shows that a letter was written by the Superintendent of Police, Samastipur to the Secretary of the Club to provide space for temporary residence of Police Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 39 force and for that recommended for Rs.500/- (five hundred) as monthly rent and the letter dated 24th July 1976 (Annexure-4) shows that the Superintendent of Police had written letter to the Sub-Divisional Magistrate, Samastipur for fixing the rent of the premises at the rate of Rs.500/- per month on the ground that he was getting pressure from the Secretary of clubs for rent of the premises. Another letter dated 16th December 1983 (Anexure-6) shows that a request was made by the Superintendent of Police, Samastipur to the Assistant Inspector General of police to sanction an amount of Rs.27,344.62 for payment of rent to the Samastipur Club. Annexure-8 is the order of this Court passed in CWJC No. 5621 of 1986 which was filed against the cancellation of Jamabandi as it was created in favour of Samastipur Club but was cancelled by the order of the DCLR, Samastipur. The Court has considered the factual aspect of the matter and found after elaborate discussion that the land belonged to the Club and, accordingly, the writ petition was allowed holding that DCLR, Samastipur did not have jurisdiction to cancel the Jamabandi. However, liberty was given, if so advised, the respondents can file a title suit before the competent civil court for declaration of right and title over the land in question. This document shows that the primarily Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 40 the court has found that the Club was in possession of the land. If the State is of the view that the State has right, title over the land, they could have filed civil suit. Annexure-9 also shows the receipt issued in favour of the Samastipur Club and in the petition a letter dated 14th July 2006 issued by the Circle Officer, Samastipur has been annexed where a request has been made to the Secretary of Samastipur Club for providing space for establishment of Mufassil Thana on rent basis. Annexure-12 which has been issued by the Land Reforms Deputy Collector date d 23rd December 2011 where it has been mentioned that they have been in illegal possession of the land where as the land has been shown as Keshare Hind and claiming to be illegal possession of the Club asked t he Officials of the Club to pay the rent of the premises at the market rate. Another writ application was filed being CWJC No. 3605 of 2012 by the Samastipur Club against the aforesaid notice of the DCLR. The Court by order dated 22nd February 2012 passed the order for filing counter affidavit. In the mean time, the authority should not disturb the possession of the petitioners.
30. From the aforementioned facts it appears that the Samastipur Club has been in possession of the land for a long duration of time. The Government is claiming to Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 41 be Government land claiming illegal possession of the Club and claiming revenue loss as this land has been shown as Keshare Hind land. Whereas from the facts mentioned in the complaint petition and the counter affidavit show that the Club was established by the Britishers and they had purchased the land from the Raiyat which has not been disputed but claim has been made that after departure of Britishers, the lands have been vested in the State. The primary facts and attending circumstances show that it is basically a civil dispute between the State Officials and the Samastipur Club. The persons have been made accused not in individual capacity but as officials of the Samastipur Club. In whole of the FIR there is no averment against any of the petitioners but confined its narration of facts on the issue of illegal possession of the land of the State of Bihar. Aforesaid facts cannot be the basis for filing a criminal case against the persons so much so that against one Abhay Shankar Singh who is an Advocate on record of Patna High Court and is not an official of the Club, rather the fact is that he is prosecuting the case of the Club at different places, has been made an accused. On considering the aforesaid facts and circumstances, this Court feels that the dispute is primarily civil dispute and has wrongly been given a colour Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 42 of criminal case and facts mentioned in the FIR do not indicate these persons to have committed any act of criminality has wrongly been arrayed as accused persons to face criminal prosecution. This Court is not examining the factual mala fide of the District Administration, Samastipur but it can be easily gathered and conclusion is being arrived to the case of legal mala fide. This Court is not deciding other issues raised by the petitioners as there is no need to deal with the same.
31.In this view of the matter, this Court with a view to prevent the abuse of process of the court and for ends of justice, feels the FIR of Samastipur Town P.S.Case No. 27 of 2013 is liable to be quashed coming to the conclusion that it is not a real criminal case but has been given a colour of criminal case with a view to scuttle and settle the civil dispute in the garb of that the present criminal case bas been filed. It is manifestly clear that a frustrated litigant, in stead of settling the dispute in the civil proceeding, lodged an FIR.
32. This Court has considered every aspect of the matter and has come to the conclusion that the exercise of inherent power is to prevent abuse of process of court and for ex debito justitiae and it will be proper and Patna High Court Cr.Misc. No.9959 of 2013 (6 ) 43 legitimate to quash FIR of the present case, vide Samastipur Town P.S.Case No. 27 of 2013 and, accordingly, the same is quashed and the petition is allowed.
Jay/- (Shivaji Pandey, J)