Jammu & Kashmir High Court
Ranjit Kalra And Others vs Romala Kapoor on 18 May, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
CRMC No. 73/2012
Reserved on: 10 .05.2023
Pronounced on: 18 .05.2023
Ranjit Kalra and others
...petitioners
Through: - Mr.Pranav Kohli Sr. Advocate
with
Mr. Sachin Dev Sigh Advocate
Vs.
Romala Kapoor
...respondents
Through: - Mr. Supreet Singh Johal Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 The petitioners have challenged the complaint filed by the respondent/complainant against them alleging commission of offences under Sections 323, 379, 380, 382, 382, 451 and 506 RPC read with Section 120-B RPC which is stated to be pending before the Court of learned Chief Judicial Magistrate, Jammu. Challenge has also been thrown to order dated 27.05.2011 passed by the learned CJM whereby the learned Magistrate has, after observing that, prima facie, offences under Sections 452, 323, 382, 506 RPC are made out against the petitioners, issued process against them.
Page 1 of 14 2 2 It appears that the respondent/complainant has filed the impugned complaint before the learned trial Magistrate against the petitioners and co-accused alleging therein that, on 22.05.2009 at around 4.30 pm, the petitioners and co-accused came to the residence of the respondent/complainant and knocked at her door. Upon opening the door, the petitioners forcibly entered into her house along with certain gunda elements and started assaulting and abusing the respondent/complainant. It is further alleged that the respondent/complainant was mercilessly beaten by the petitioners and the co-accused. The respondent/complainant was manhandled, assaulted and abused by the petitioners, who are alleged to have threatened the respondent/complainant that they would not allow her to reside in House No. 9/10 Canal Road Opposite BSF Camp, Jammu. 3 It is alleged in the impugned complaint that, upon hearing noise, the son and daughter of the complainant who were sleeping inside the house tried to rescue the respondent/complainant from the clutches of the petitioner and co-accused, but they continued to give beating to the respondent/complainant, who was made to sign certain blank papers. It is further alleged that the petitioners and co- accused took away all the documents relating to the property from the almirah of the respondent/complainant and when she resisted, she was hit with a wooden log. It is also alleged that the police was in connivance with the petitioners who managed to take away not only the important documents, but also cash and jewelry by breaking open the lock of the almirah. The respondent further goes on to allege that instead of taking 3 any action against the petitioners and co-accused, she was kept in a lock up at Women Cell, Canal Road, Jammu. According to the respondent/complainant, her house was ransacked and she was not allowed to go back inside her house. It is alleged that the respondent/complainant was thrown out forcibly from her house as the petitioners do not want her to reside in it. In short, the respondent/complainant has alleged that the petitioners have forcibly taken over possession of her house.
4 After presentation of the aforesaid complaint, it seems that the learned trial Magistrate recorded the preliminary evidence and vide order dated 08.07.2008, instead of issuing process against the petitioners/accused, the learned Magistrate forwarded the complaint to Superintendent of Police, City South, Jammu for getting the accusations levelled in the complaint verified by an officer not below the rank of Dy.SP with specific directions to enquire into the following aspects:
(i) Whether complainant has been putting up in the house;
(ii) No. 9/10 Canal Road, Opposite BSF Camp Jammu on the day she was allegedly assaulted by the accused;
(iii)Whether the accused broke open the locks of almirah and took away the original documents and further obtained the signatures of complainant forcibly on blank papers;
and,
(iv)whether accused are denying access to the complainant to the house in question after the occurrence.
45 It seems that pursuant to aforesaid directions of the Magistrate, enquiry in terms of Section 202 CrPC was conducted by the SDPO City East, Jammu and the Superintendent of Police City South, Jammu submitted his report dated 01.10.2009 to the learned trial Magistrate, who, after considering the report of enquiry submitted by the Superintendent of Police, recorded further preliminary evidence of the respondent/complainant and vide the impugned order dated 27.05.2011 observed that the report of enquiry is not reliable and that, prima facie, offences under Sections 452, 323,506 RPC are made out against the petitioners and co-accused. Accordingly, process was issued against the petitioners and co-accused.
6 The petitioners have challenged the impugned complaint and the impugned order on the ground that the allegations made in the impugned complaint are false and frivolous as was found after a detailed enquiry conducted by the Inquiry Officer. It has been submitted that the respondent/complainant, who happens to be the elder sister of petitioners No.2 & 4, has filed a civil Suit challenging the Will executed by their mother in favour of petitioner No.4. It has been averred that, vide order dated 06.08.2007 passed by the learned Munsiff (Sub Registrar) Jammu in the said suit, the parties were directed to maintain status quo with respect to the position and possession of the property which is subject matter of the Will. According to the petitioners, the property in question was in possession of petitioner No.4 at the relevant time, but, the respondent/complainant forcibly took over possession of the said property which compelled petitioner No.4 5 to file an application seeking restoration of possession. It has been submitted that the learned Munsiff (Sub Registrar) Jammu, after holding a detailed enquiry/trial, came to the conclusion that petitioner No.4 has been forcibly evicted from the property in question by the respondent and, accordingly, vide order dated 27.01.2009, the respondent was directed to hand over the possession of House No.9/10 Patta Paloura, Jammu to petitioner No.4.
7 It is averred by the petitioners that they lodged FIR No. 183/2007 for offences under section 448 RPC before the Police Station Domana which culminated in filing of challan against the petitioners. It has been further submitted that when the respondent did not comply with order dated 27.01.2009 passed by the Munsiff (Sub Registrar) Jammu, petitioner No.4 sought implementation of the said order through the Police Agency and vide order dated 16.05.2009, the civil Court directed SHO Police Station, Domana to take over possession of the House in question from the respondent and hand over the same to petitioner No.4.
8 According to the petitioners, in pursuance of the aforesaid directions of the civil Court, SHO Police Station Domana along with In-Charge, Police Station Women Cell and other police officials accompanied by the Executive Magistrate First Class, Jammu visited the property in question on 22.05.2009 and evacuated the respondent from the said property. It has been submitted that, during the process, a detailed inventory of items was prepared on spot and the entire 6 proceedings were conducted in presence of the Executive Magistrate First Class, whereafter possession of property in question was handed over to petitioner No.4.
9 It has been contended by the petitioners that the genesis of the impugned complaint is the implementation of order of restoration of possession passed by the civil Court and this fact has been clearly narrated by the Inquiry Officer in his report, but the learned trial Magistrate has brushed aside the same and issued process against the petitioners. It has been further submitted that the impugned complaint has been filed for wreaking vengeance upon the petitioners by making false and frivolous allegations. It has been submitted that initiation of criminal proceedings against the petitioners is a pure and simple case of abuse of process of law. It has been further contended that the learned trial Magistrate, while issuing process against the petitioners, has acted in a mechanical manner and has not applied his mind to the material that was available before him.
10 I have heard learned counsel for the parties and perused the record of the case including the trial Court record. 11 As already noted, the learned Senior Counsel appearing for the petitioners has vehemently contended that the respondent has filed the impugned compliant against the petitioners only to wreak vengeance upon them. It has been contended that the respondent having failed to retain illegal occupation of the property in question and having been evicted from the premises in due course of law, has chosen to file 7 a false and frivolous complaint against the petitioners with a view to harass and humiliate them and to take revenge upon them. It has been submitted that all these facts were before the learned trial Magistrate, but he has ignored to take these facts into consideration and, without assigning any cogent reason, for taking a view other than the one projected him by the Inquiry Officer, the learned trial Magistrate has issued process against the petitioners, which is not in accordance with law.
12 Per contra, learned counsel appearing for respondent has argued that the scope of powers of the High Court under Section 482 is very limited and it is not open to the High Court to embark upon an enquiry into the genuineness or otherwise of the allegations made in the complaint at this stage. It has been contended that, it is for the trial Court to ascertain veracity of the allegations made in the complaint after holding trial and this Court, in exercise of its jurisdiction under Section 482 CrPC, cannot hold a mini trial for the said purpose. The learned counsel has further argued that the order of Magistrate taking cognizance of offences and issuing process against the accused cannot be called into question in proceedings under Section 482 CrPC on the ground that, on the basis of material available before the Magistrate, a different view is also possible. It has been contended that the Magistrate is not duty bound to accept the result of an enquiry or investigation and if the Magistrate, after applying his judicial mind to the material, decides to issue process against the accused, he cannot be precluded from doing so. In order to support the aforesaid contentions, 8 the learned counsel has relied upon judgments of the Supreme Court in the cases of Nirmaljit Singh Hoon vs The State of West Bengal and Anr., (1973) 3 SCC 753, Nagawwa vs Veeranna Shivallngappa Konjalgi, (1976) 3 SCC 736, Nupur Talwar vs Cbi & Anr , (2012) 11 SCC 465 and A.V. Mohan Rao & anr vs M.Kishan Rao and anr. (2002) 6 SCC 174 .
13 In order to determine the merits of rival contentions raised by learned counsels for the parties, it would be apt to notice certain facts that have emerged from the record and that are not in dispute. 14 The respondent has filed a civil Suit against petitioners No.2 and 4 before the Court of Munsiff (Sub Registrar) Jammu. The subject matter of the said Suit is a House situated at Patta Paloura and in the said suit, the civil Court has passed an interim order on 06.08.2007 whereby the parties have been directed to maintain status quo with regard to the position and possession existing on spot over the suit property as on the said date. According to the petitioners, petitioner No.4 was in possession of the said property as on date of filing of the said suit, but, she was forcibly dispossessed by the respondent from the suit property. It is not in dispute that petitioner No.4 has lodged an FIR against the respondent in this regard which has been registered as FIR No. 183/2007 at Police Station, Domana.
15 The record further shows that petitioner No.4 made an application before the civil Court under Section 151 CPC seeking status quo ante by restoration of possession of the suit property. The said 9 application, after contest from the respondent herein and after recording of evidence, was decided by the civil Court in terms of order dated 27.01.2009. Vide the said order, the application of petitioner No.4 was allowed and the civil Court gave a finding that petitioner No.4 herein was in actual possession of the suit property on the date of filing of the suit and that he has been dispossessed forcibly by the respondent from the said property on 13.09.2007. On the basis of these findings, the learned civil Court has issued an interim mandatory injunction against the respondent herein asking her to hand over possession of the suit house to petitioner No.4 within one month. It seems that the said order was not obeyed by the respondent which compelled petitioner No.4 to file an application for implementation of the said order before the civil Court. The record further shows that, on 16.05.2009, the civil Court in presence of the parties directed SHO Police Station, Domana to take over the possession of the suit house from the respondent and to put petitioner No.4 in possession of the said house with a further direction to report compliance to the Court.
16 As per the report of enquiry submitted by the S.P City South Jammu on 22.05.2009, order dated 16.05.2009 passed by the civil Court was received by the SHO Police Station, Domana and the SHO along with In-charge Women Cell, officials of the police and the Executive Magistrate First Class Jammu proceeded on spot to implement the said order. The report indicates that the respondent was evacuated from the House in question in terms of the order of the civil Court. Inventory of the household articles was prepared and the articles 10 were handed over to the respondent and her son Munish Kumar in presence of the Executive Magistrate against proper receipt. The report further indicates that the respondent tried to create law and order problem, as such, she was taken into custody by initiating proceedings under Sections 107/151 Cr.PC and she was bound down for good behavior. The possession of the suit house was handed over to petitioner No.4 in presence of the Executive Magistrate First Class. As per the report of enquiry, neither any original documents of the respondent was taken away, nor any lock of the almirah was broken. It is further stated in the complaint that no blank papers were got signed by the respondent. The report concludes that the allegations made in the impugned complaint are baseless and that the same have been made only with a view to take revenge because the respondent/complaint had been dispossessed by virtue of order of the civil Court. 17 If we have a look at the impugned complaint, the alleged occurrence is stated to have taken place on 22.05.2009 the date on which petitioner No.4 took over the possession of the suit property from the respondent with assistance of the police pursuant to order of the trial Court. The allegations made in the impugned complaint clearly indicate that the respondent is trying to give a criminal colour to the proceedings which took place during implementation of the order of the civil Court. As per the order of the civil Court, the police as well as petitioner No.4 were legally entitled to take over possession of the suit property from the respondent, who, as a law abiding citizen, instead of resisting implementation of the Court order, was duty bound to hand 11 over possession of the suit property to petitioner No.4. As is clear from the enquiry report, the respondent, instead of doing so, created law and order problem which compelled the police to initiate the proceedings under Sections 107/151 CrPC against her. It seems that she did not stop here, but, after having failed to resist the implementation of the order of civil Court, she has chosen to file the impugned complaint which, in the facts and circumstances of the case, clearly is an act of wreaking vengeance upon the petitioners after having lost legal battle against petitioner No.4 before the civil Court 18 The learned trial Magistrate has brushed aside the enquiry report submitted by a high ranking police officer on the ground that the enquiry report is based upon the report submitted by the SHO concerned. The said observation of the trial Magistrate is factually incorrect. As is clear from the report of enquiry, the same is based upon the report of SDPO East Jammu, who is an officer of the rank of Dy.SP and not the SHO of Police Station, Domana. As per order dated 08.07.2009 passed by the trial Magistrate, S.P South was directed to get the accusations verified through an officer not below the rank of Dy. SP. The Superintendent of Police, as per the mandate of the directions issued by the learned trial Magistrate, asked the SDPO to hold an enquiry into the matter and based his enquiry report on the proceedings conducted by the SDPO, who is of the rank of the Dy. SP. Therefore, the learned Magistrate is not right in rejecting report of enquiry solely on the basis of incorrect appreciation of the facts and record. 12 19 In a case where the Magistrate, before issuing process against the accused on the basis of a complaint, decides to hold an enquiry or direct investigation under Section 202 Cr.PC, the same is done with the purpose of ascertaining the truth or falsehood of the allegations made in the complaint. It is in these circumstances that the learned Magistrate vide his order dated 08.07.2009 directed enquiry into the accusations leveled in the impugned complaint. The Inquiry Officer, as already stated, indicated in his detailed report that the accusations are false and that the same have been made by the respondent in order to take revenge against the petitioners for having been dispossessed from the suit property pursuant to the order of the Civil Court.
20 It is true that a Magistrate is at liberty to discard the report of enquiry and take an independent view on the bass of material available before him, but then, for discarding the report of enquiry, there must be some cogent reasons for the Magistrate to do so. In the instant case, admittedly, the respondent was dispossessed from the suit property in due process of law in terms of order of the civil Court and during implementation of the said order, the occurrence is stated to have taken place. The report of enquiry, when read in conjunction with the background facts emerging from the record that was available with the trial Magistrate as also with this Court, there was no reason for the Magistrate to discard the version of occurrence given by the Inquiry Officer. Unfortunately, the learned Magistrate, without assigning any plausible reason for discarding the version given by the Inquiry Officer, 13 has simply accepted the version given by the respondent/complainant as a gospel truth and proceeded to issue process against the petitioners. 21 It has to be borne in mind that, it is not a case where the Magistrate, at the very outset, after recording the preliminary evidence of the complainant issued process against the petitioners, but, it is a case where, after recording the preliminary evidence of the complainant, the Magistrate had directed enquiry as regards the veracity of the allegations made in the complaint, meaning thereby that the Magistrate was not sure about the genuineness of the allegations made in the compliant. If that was so, then once the material in the shape of enquiry report came before the trial Magistrate, there was hardly any reason for the Magistrate to proceed to issue process against the petitioners without spelling out cogent reasons as to why the report of enquiry cannot be accepted. The impugned order passed by the learned trial Magistrate is, therefore, not sustainable in law. 22 In the backdrop of aforesaid facts, it appears to be a clear cut case of brazen attempt on the part of the respondent to persecute the petitioner in order to take revenge for having lost the civil litigation against them. The respondent, it seems, has filed the impugned complaint to pressurize the petitioners to settle the civil dispute in which petitioner No. 4 has succeeded in recovering the possession of suit property. The prosecution initiated by the respondent/complainant against the petitioners is manifestly actuated with mala fides and ulterior motive for wreaking vengeance upon the petitioners due to private and personal grudge. If such prosecutions are allowed to 14 proceed, then, the litigants would be encouraged to blatantly and brazenly violate the orders of the civil Courts by resorting to frivolous criminal prosecutions against the successful parties. This is a fit case where this Court should exercise its powers under Section 482 Cr.P.C to quash the impugned complaint as also the impugned order passed by the learned trial Magistrate.
23 For the foregoing reasons, the petition is allowed and the impugned complaint and the proceedings emanating therefrom against the petitioners are quashed.
Record of the trial Court along with a copy of this judgment be sent back.
(Sanjay Dhar) Judge Jammu 18.05.2023 "Sanjeev, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes