Allahabad High Court
Irshad Khan And Others vs State Of U.P. And Another on 2 August, 2013
Author: Het Singh Yadav
Bench: Het Singh Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- APPLICATION U/S 482 No. - 23501 of 2011 Applicant :- Irshad Khan And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Hasan Ahmad,M. Mobin Ansari Counsel for Opposite Party :- Govt.Advocate Hon'ble Het Singh Yadav,J.
Shri Mohd. Akbar Shah Alam Khan advocate appearing for O. P. No. 2 has filed his power today in Court, is taken on record.
2. The applicants have moved this application invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (in short 'the Code') with a prayer to quash the Complaint Case No. 73 of 2009 (Mohd. Ansar versus Irshad Khan and others) and further to quash the order dated 15.05.2011 issuing process against the applicants under Section 204 of the Code, having taken cognizance of the offences under Sections 379, 323, 504 and 506 I.P.C.
3. The facts of the case in brief are that the applicant no. 1 is the tenant on behalf of the opposite party no. 2 (the landlord). Some tenancy dispute arose between them. The opposite party no. 2 refused to accept the rent, therefore, the applicant no. 1 started depositing the rent under Section 30(1) of U.P. Act no. 13 of 1972. The opposite party No. 2 preferred revision against the order of the prescribed authority under U.P. Act no. 13 of 1972. The revisional court, however, dismissed the revision on merits. The landlord (opposite party no. 2), thereafter, moved an application dated 12.06.2008 under Section 156 (3) of the Code, before the Judicial Magistrate-I, Allahabad, alleging therein that on 30.05.2008 the applicant no. 1 along with his wife applicant no. 2, two sons applicant nos. 3 and 4 and his daughter the applicant no. 5 had stolen Rs. 10,000/- cash and other house holds as mentioned in the application.
4. The learned Magistrate, however, vide order dated 30.08.2008, directed to register the application of the opposite party no. 2 as a complaint case. The learned Magistrate having taken cognizance in the matter followed the procedure of Sections 200 and 202 of the Code as prescribed under Chapter XV of the Code. The learned Magistrate, however, postponed the issue of process and ordered the local police officer to investigate into the matter under Section 202 of the Code. The police officer instead of initiating investigation, first registered FIR thereafter investigation was conducted and ultimately after concluding investigation he submitted closure report before the Magistrate concerned.
5. The Magistrate, however, rejected the Final Report so submitted by the Investigating Officer and again enquired into the case himself. The Magistrate further recorded the statements of the O.P. No. 2 and his witnesses under Section 200 and 202 of the Code and consequently issued process against the applicants under Section 204 of the Code for the offences under Section 379, 323, 504 and 506 I.P.C. This order is subject matter for challenge in this application under Section 482 of the Code. It is however, contended that the parties have amicably settled their inter-se dispute out of the Court and filed the compromise so arrived at in this Court through supplementary affidavit of the applicant no. 1.
6. Heard learned counsel for the parties and also perused the record.
7. The main brunt of the argument of the learned counsel for the applicants is that admittedly the applicant no. 1 is the tenant on behalf of the opposite party no. 2. The relations between landlord and the tenant (i.e. the opposite party no. 2 and the applicant no. 1) were not cordial. The tenancy dispute between them, was already pending in the court of competent jurisdiction before the institution of this criminal complaint. The opposite party no. 2 (landlord) had lost legal battle up to the revisional court then the frustrated landlord initiated frivolous criminal proceedings against his tenant (the applicant no. 1) and even involved his wife, two sons and the daughter. The learned Magistrate while issuing process under Section 204 of the Code has ignored the above facts and issued the process in the mechanical manner without applying his judicial mind. To bolster his submissions learned counsel for the applicant placed reliance upon the decision passed in the case of Chandrapal Singh versus Maharaj Singh and Another (1982) 1 Supreme Court Cases 466. In this case Hon'ble Supreme Court observed thus:
"A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.
XXXXXXXXXXXXXXXXXXXX it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr.P.C."
8. The learned counsel vehemently urged that the tenancy dispute between the parties is in genesis of this case which is civil in nature. The parties have amicably settled their dispute out of the Court. Thus keeping the criminal proceeding alive would be a futile exercise. The opposite party no. 2, settled the dispute with the applicant no. 1 and now he is not willing to adduce any evidence against the applicants and, therefore, the criminal proceedings against the applicants would be an abuse of process of the court. Therefore, the application deserves to be allowed and the criminal proceedings pending in the Court below may be quashed.
9. Learned counsel for the opposite party no. 2 did not repudiate the submissions made as above so far as it relates to the amicable settlement between the parties is concerned. It is also not disputed that the opposite party no. 2 is not interested and willing to prosecute the applicants in this case. Learned counsel for the opposite party no. 2 also accepted the deed of settlement executed between the opposite party no. 2 and the applicants which is annexed with the supplementary affidavit filed by the applicant no. 1. Learned counsel for the opposite party no. 2 further contended that the opposite party no. 2 has no objection, if the petition is allowed and his complaint case against the applicants is quashed.
10. Learned A.G.A. however, submitted that the offence under Section 379 I.P.C. is compoundable with the permission of the court where the value of the property stolen does not exceed Rs. 2,000/-. As per the complainant's version, the value of the property alleged to have been stolen is worth more than Rs. 28,000/- and, therefore, in this case the offence under Section 379 I.P.C. is not compoundable offence even with the permission of the Court. Learned A.G.A. vehemently urged that the compromise arrived at between applicants and the opposite party no. 2, thus, has no legal consequence so far as it relates to the offence under Section 379 I.P.C. is concerned. He strenuously urged that the application accordingly deserves to be dismissed.
11. I have given my careful consideration to rival submissions made by the learned counsel of either side and I have also been taken through the materials on record.
12. In connection with the submissions made across the bar, it would be useful to refer Section 190 and Section 200 to Section 203 as embodied in Chapter XV of the Code and also Section 204 of the Code which are reproduced below:
"Section 190. Cognizance of offences by Magistrate. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
"Section 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the compliant is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complaint and the witnesses, the latter Magistrate need not re-examine them.
Section 201. Procedure by Magistrate not competent to take cognizance of the case- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall-
(a) if the compliant is in writing, return if for presentation to the proper Court with and endorsement to that effect.
(b) if the complaint is not in writing, direct the complainant to the proper Court.
Section 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a compliant of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit '[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction]' postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) Where the complaint has not been made by a Court, unless the Complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks it, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant.
Section 203. Dismissal of compliant-
If , after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigtion (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Section 204. Issue of process-
(1) If the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
13. Word 'cognizance' has not been defined in the Code. It generally means application of mind in a criminal proceeding for taking action. In fact, cognizance means taking judicial notice of an offence and it may not necessarily mean that commencement of the proceedings against any one. In a complaint case on receipt of a complaint and on its perusal, if the Magistrate is satisfied that the complaint discloses a commission of offence he may proceed further. It must be held to have taken cognizance of an offence under Section 190 (1) (a) of the Code. The Magistrate is not bound to take cognizance if he is of the opinion that the complaint did not disclose commission of any offence and in such a situation the Magistrate shall dismiss the complaint at the threshold. However, once he takes cognizance he must examine upon oath the complainant and his witnesses under Section 200 of the Code.
14. The procedure followed by the learned Magistrate in this case may be summarized as under :
(i) The O.P. no. 2 moved application under Section 156 (3) of the Code before the Magistrate to direct the police concerned to lodge the F.I.R. and to investigate relating to the incident of theft in his house committed by the applicants.
(ii)The Magistrate, however, vide order dated 30.6.2008 treated the same as a complaint and followed the procedure as enumerated under Section 200 of the Code.
(iii)The Magistrate, however, vide order dated 12.8.2008 postponed the issue of process against the applicants/accused and directed an investigation to be made by SHO Khuldabad, Allahabad for the purpose of deciding whether or not there is sufficient ground to proceed in the matter.
(iv)The police officer concerned, however, first registered F.I.R. on 28.2.2009 and conducted full-fledged investigation and ultimately submitted closure report.
(v)The complainant/O.P. no. 2 filed protest petition against the closure report which was treated as a complaint vide order dated 19.8.2010.
(vi)The Magistrate again examined upon oath the complainant and his witnesses under Section 200 and 202 of the Code.
(vii)After considering the statements on oath of the complainant and his witnesses and the result of the enquiry conducted by the Magistrate himself again under Section 202 of the Code, was of the opinion that there is sufficient ground for proceeding against the applicants and accordingly vide order dated 6.12.2010 issued process under Section 204 of the Code.
15. From the scheme laid down in Chapter XV of the Code obviously Section 200 requires a Magistrate taking cognizance on a complaint to examine upon oath the complainant and the witnesses present. Section 202 (1), however, enables a Magistrate to postpone the issue of process and to inquire into the case himself, or direct an investigation to be made by a police officer or other person for the purpose of deciding whether or not there is sufficient ground for proceeding. But scope of inquiry under Section 202 of the Code is for limited purpose of deciding whether or not there is a sufficient ground for proceeding against the accused. The object of inquiry under this section is for ascertainment of the fact whether the complaint has valid foundation calling for the issue of process to the person complained against or whether this is baseless one on which no action need be taken.
16. It is manifest from bare reading of Section 202 of the Code that the learned Magistrate may either inquire into the case himself or direct an investigation to be made by a police officer or by such person as he thinks fit. Thus the Magistrate has discretionary power regarding as to whether he himself inquire into the case or direct an investigation to be made by a police officer or by such other person as he thinks fit. But certainly the Magistrate cannot resort to inquire into the case himself and also direct investigation by a police officer simultaneously.
17. In this case the learned Magistrate first inquired himself under Section 202 of the Code as appears from the record and postponed the issue of process. Thereafter, the learned Magistrate directed investigation to be made by SHO Khuldabad. It is worth mentioning here that as per scheme of Section of 202 of the Code where the Magistrate has postponed the issue of process against the accused, he either enquired into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. Manifestly, as per the scheme of Section 202 of the Code although the Magistrate has discretion either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit but certainly it is not open to the Magistrate to enquire into the case himself and thereafter direct an investigation to be made by a police officer. Word ''or' is very significant which simply mean that the Magistrate while postponing process under Section 202 of the Code may adopt only one mode either to enquire himself or direct an investigation to be made by the police officer or by such other person which certainly mean that the Magistrate cannot adopt all the three mode simultaneously.
18. In this case as discussed above the learned Magistrate first conducted enquiry himself and thereafter directed investigation to be made by SHO, Khuldabad, which is absolutely dehors to the scheme of Section 202 of the Code. The scope of investigation under Section 202 is of a limited nature and only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.
19. The investigation under Section 202 of the Code is ordered after taking cognizance of the offence but the investigation under Section 156 of the Code by the police is at a pre-cognizance stage. The scope of investigation by the police officer as referred in Section 202 of the Code is of a limited purpose and is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further on the compliant made to him under Chapter XV of the Code. Thus, on the report submitted by the police officer that no incident as alleged in the compliant had taken place or that the accused had not committed the offence, the Magistrate may take his own decision as to whether there is sufficient ground for him to proceed further or not. Certainly, on submission of report by the police officer would not give rise to any right to the complainant to file a protest petition against the report submitted by the police officer after conducting investigation under Section 202 of the Code. Thus, the report of the police officer so directed under Section 202 of the Code cannot be challenged by filing a protest petition as has been done in this case. To the utter surprise the learned Magistrate has not only allowed the complainant/O.P. no. 2 to file the protest petition like in the matter of submission of F.R. after conducting regular investigation but has again treated the protest petition as a complaint case and further repeated the process as per Section 200 and 202 of the Code then issued process under Section 204 of the Code against the applicants.
20. Thus, the procedure adopted by the learned Magistrate is not only against the scheme of Chapter XV of the Code but also unknown to law. The Magistrate as per scheme of Chapter XV of the Code is only once required to examine on oath the complainant and his witnesses and further to conduct enquiry under Section 202 of the Code and to take evidence of the witnesses on oath. Certainly, the Magistrate is not authorised to examine upon oath the complainant and the witnesses under Section 200 and further take evidence of witnesses on oath in an enquiry under Section 202 twice or thrice or as many times as he wishes.
21. Having considered the submissions made at the bar and on perusal of record, it appears that the learned Magistrate has committed gross illegality by adopting a procedure which is certainly against the scheme of Chapter XV of the Code. The manner in which the learned Magistrate having taken cognizance and conducted the inquiry U/s202 of the Code, and further issued process against the applicants is totally erroneous and illegal which vitiate the entire proceedings.
22. In Suresh Chand Jain Vs. State of Madhya Pradesh and another (2001) 2 SCC 628 Hon'ble Supreme Court held thus:
" Section 156, falling within chapter XII, deals with powers of the police officers to investigate cognizable offences. Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to "direct an instantiation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. The significant point to be noticed is that when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. A Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202 (1) Cr.P.C. would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further."
23. It is undisputed that the relations between the opposite party no. 2 and the applicant no. 1 are of landlord and tenant; a tenancy dispute at the time of filing of this criminal complaint was already pending in a competent court of civil jurisdiction. It is also a fact that the opposite party no. 2 lost that case pending before the prescribed authority under the U.P. Act no. 13 of 1972. He also lost the revision preferred by him in the revisional court. It is thereafter that the opposite party no. 2 has filed a criminal complaint levelling allegations of theft upon his tenant (applicant no. 1) his wife, two sons and his daughter. Manifestly, the tenancy dispute between the applicant no. 1 and the O.P. no. 2 is in the genesis of this criminal case. The land lord/O.P. no. 2 has lost the dispute relating to tenancy with the applicant no.1 up-to revisional court. The o.p. no. 2 filed application under Section 156 (3) of the Code after a considerable un-explained delay.
24. Thus, taking in view the nature of allegations and the background in which the criminal complaint has been filed against the applicants, it cannot be ruled out that the criminal proceeding appears to have been maliciously instituted with an ulterior motive to settle tenancy dispute by applying pressure through criminal prosecution. The criminal complaint manifestly is an abuse of the process of law. The ratio laid down in Chandra Pal's Case (Supra) is squarely applicable to the facts and circumstances of this case.
25. Moreover, the parties have already settled their inter se dispute and duly executed a deed of compromise annexed with the supplementary affidavit of the applicant no. 1. Learned counsel for the opposite party no. 2 has fairly conceded that the parties have settled their dispute out of the Court and now the opposite party no. 2 is not willing to prosecute the applicants and thus the entire proceedings of the criminal complaint, if allowed to be continued further would be an abuse of the process of the Court.
26. In Nikhil Merchant Vs. Central Bureau of Investigation & Anr, 2008 (9) SCC, 677 Hon'ble Supreme Court held thus:
"the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at should at all be exercised? ......................................................................
............. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
27. In B.S. Joshi and others vs. State of Haryana, JT 2003 (3) SC 277 : 2003 (4) SCC 675 Hon'ble Supreme Court held that the question that fell for consideration before this Court was whether the inherent powers vested in the High Court under Section 482 Cr.P.C. could not be exercised to quash non compoundable offences. It is further held that if for the purpose of securing the ends of justice, quashing of F.I.R. becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power and ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or F.I.R. or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
28. Moreover, since the tenancy dispute which is civil in nature is in the genesis of this case and the parties have already amicably settled their dispute out of the court, therefore, to keep survive the criminal case would be futile exercise, particularly in view that the o.p. no. 2 is now not interested to prosecute the applicants and further he does not want to adduce any evidence against them. Thus, there is no chance of conviction of the applicants. In case the trial of the criminal case is allowed to continue, it would be an abuse of the process of the Court. The submission of the learned A.G.A. that the offence under Section 379 I.P.C. in this case is not compoundable and, therefore, compromise arrived at between the parties is within the teeth of Section 320 of the Code, is not acceptable. Hon'ble Supreme Court in B.S. Joshi's Case (Supra) clearly held that for the purpose of securing the ends of justice quashing of F.I.R. becomes necessary, section 320 of the Code would not be a bar to the exercise of power under Section 482 of the Code for quashing. It is also held that Section 320 of the Code does not relate or effect the powers of the High Court under Section 482 of the Code. The law laid down in B.S.Joshi's Case (Supra) was re-affirmed and followed by the Hon'ble Supreme Court in catena of decisions pronounced subsequently.
29. In view of the above discussions, and law laid down by the Hon'ble Supreme Court in the cases cited as above, I am of the view that the application under Section 482 of the Code deserves to be allowed.
30. The application is accordingly allowed. The entire proceedings arising out of Complaint Case No. 73 of 2009 Mohd. Ansar versus Irshad Khan and others, under Section 379, 323, 504 and 506 I.P.C. Police Station Khuldabad, District-Allahabad, are hereby quashed.
Order Date :- 2.8.2013 A.Pt. Singh