Allahabad High Court
Smt. Sita Devi & Another vs State Of U.P. & Others on 13 February, 2018
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 20 Case :- APPLICATION U/S 482 No. - 827 of 2006 Applicant :- Smt. Sita Devi & Another Opposite Party :- State Of U.P. & Others Counsel for Applicant :- H.N. Shukla,R.R. Shukla Counsel for Opposite Party :- Govt. Advocate,Prasant Mishra Hon'ble Amar Singh Chauhan,J.
Heard Sri H.N. Shukla, learned counsel for the applicants, learned AGA for the State and Sri Prasant Mishra, learned counsel for the opposite party no. 3.
The applicants, Smt. Sita Devi and one other, through this application moved under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the further proceedings of Criminal Case No. 990 of 2005 (State vs. Dhani Ram and others), under Sections 420, 467, 468, 406, 120B I.P.C., Police Station Sadar Bazar, District Mathura, pending in the court of Additional Chief Judicial Magistrate-IV, Mathura and further prayed to stay the aforesaid proceeding against the applicants.
Brief facts which are requisite to be stated for adjudication of this application are that the opposite party no. 3 moved an application under section 156(3) Cr.P.C. with the allegation that she has purchased land in consideration of Rs. 3,10,000/- on 29.3.2004 from the applicant no. 2 in the presence of his elder brother, Gopal Das. After executing the sale deed, the wife of the opposite party no. 2 in order to usurp the consideration malafidely obtained the certificate from Dr. Anil Gaur with effect that applicant no. 2 is unsound mind. By hatching conspiracy with Dr. Anil Gaur, the applicants have wrongfully taken a sum of Rs. 3,10,000/- and filed a suit for cancellation of dale deed. The application was allowed and concerned Police Station was directed to register and investigate the case accordingly. Against which revision was filed which was disposed of with the direction that the applicants shall not be arrested till submission of the report under section 173(2) Cr.P.C.. The Investigating Officer, after concluding the investigation, submitted the charge sheet under Sections 420, 467, 468, 471, 406, 120B I.P.C against the applicants, Gopal Das and Dr. Anil Gaur but subsequently re-investigation was ordered by the Police Officer cancelling the earlier charge sheet. The charge sheet was filed only against the applicants and exonerated Dr. Anil Gaur. The Additional Chief Judicial Magistrate took cognizance and fixed the case for compliance of section 207 Cr.P.C.
It is submitted by learned counsel for the applicants that the sale deed is alleged to have been executed on 29.3.2004 while the application under section 156(3) Cr.P.C. was moved on 1.4.2005 near about after one year and there is no reasonable explanation for filing the application at such a belated stage. Dhani Ram is mentally unfit and was under treatment of District Hospital Agra since 1.1.2004 and also got treatment from Dr. Anil Gaur. Dr. Gaur has also issued a certificate that Dhani Ram is suffering from Bipolar Mood disorder for which he is under his treatment. Thereafter a suit being No. 290 of 2004 was filed on 6.7.2004 for the cancellation of the sale deed on the ground that since Dhani Ram is not mentally fit how he can execute the alleged sale deed. It is further submitted that firstly the charge sheet was submitted after investigation and thereafter the Senior Police Officer directed another Investigating Officer to re-investigate the matters and subsequently another charge sheet was submitted. It is settled law that re-investigation cannot be done by the order of the Police Officer but further investigation can be done only by the permission and the order of Magistrate. Thus, the submission of the charge sheet cancelling the first charge sheet is absolutely illegal, unwarranted and against the law and is nothing but an abuse of the process of the court and is liable to be quashed. It is also submitted that applicants have filed two suits for cancellation of sale deed being no. 290 of 2004 and 505 of 2004 relating to land situated in District Agra and Mathura with the allegation that the application no. 2 Dhani Ram was unsound mind despite opposite party no. 3 fraudulently got a sale deed said to have been executed by applicant no. 2. During the proceeding of the suit, applicant no. 1 (Sita Devi) being wife of applicant no. 2 was appointed guardian (next friend) of Dhani Ram (applicant no. 2) for the reason that he was unsound mind, with this regard under Order 32 Rule 15 CPC the order has become final and binding. So far as the suit relating to District Agra is concerned an order was passed on 20.5.2011 by Additional Civil Judge, Court no. 5, Agra allowing the application of plaintiff/applicant appointing Smt. Sita Devi as guardian of applicant no. 2 under Order 32 Rule 15 of Civil Procedure Code. That order was challenged by the contesting respondent no. 3 before this Court by way of Writ Petition No. 48465 of 2011 which was dismissed by this Court by order dated 25.8.2011. So far as the order dated 31.5.2008, passed in Civil Suit No. 290 of 2004 relating to District Mathura, is concerned was challenged by applicants before the learned District Judge, Mathura which was allowed and set aside the order dated 31.5.2008 by order dated 6.5.2013. In this connection, the Trial Court has proceeded and asked the report from Director Mental Hospital, Agra in which the Director has submitted report to the Civil Judge (J.D.) Mathura on 19.1.2017 to the effect that Dhani Ram is a man of unsound mind. Thus, it has been confirmed that Smt. Sita Devi has been appointed a guardian of applicant no. 2 (Dhani Ram) who is unsound mind, under Order 32 Rule 15 of C.P.C.
Learned counsel for the applicants relied upon a case law in Paramjeet Batra vs. State of Uttarakhand and others, (2013) 11 SCC 673 in which the Hon'ble Apex Court has held as under:
"While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court."
Applicants also placed reliance upon a case law in K Chandrasekhar vs. State of Kerala, 1998 Law Suit (SC) 502 wherein the Hon'ble Supreme Court has held that from Section 173 Cr.P.C. it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right of "further" investigation under the sub-section (8) but not "fresh investigation" or "re-investigation".
Per contra learned counsel for the opposite party contends that the opposite party no. 3 brought on record the copy of O.P.D. Registration Register of patients, who visited the District Hospital Agra for their treatment on 01.01.2004 and on 05.2.2004 and from perusal of the aforesaid registration dated 01.01.2004 at Serial No. 275, the name of patient Durga Dash 30 is mentioned and similarly registration dated 05.2.2004 at Serial No. 19345 the name of patient Durga 57 is mentioned, therefore, registration of patient Dhani Ram (applicant no. 2) on registration dated 01.01.2004 at Serial No. 275 and on registration dated 05.02.2004 at Serial No. 19345 are forged papers and the same have been fabricated and manipulated for the purpose of the filing civil suit. The opposite party no. 3 also brought on record the copy of medicine purchasing bills dated 30.4.2004 and 25.5.2004 whereby the applicant no. 2 (Dhani Ram) purchased medicine on the prescription of Dr. Anil Gaur from the shop Dimag Chemist and Surgicals 43/4 Bilochpura, Mathura Road, Agra (near Mental Hospital). The aforesaid shop was registered as U.P.T.T. No. A.B 0175950 on 28.8.2004, therefore, the applicant no. 2 (Sri Dhani Ram) could not purchase the aforesaid medicine on 30.4.2004 and 25.5.2004 from the aforesaid shop. Thus, the aforesaid bills are forged documents prepared by the applicant no. 2 for the purpose of filing the civil suit and the same are part of diary of the police case. The opposite party no. 3 also brought on record her objection dated 06.4.2017 in Civil Suit No. 290 of 2004 (Dhani Ram vs. Rukmani) against the medical report dated 19.1.2017 addressed to learned Civil Judge (Junior Division), Fast Track Court, Mathura by Medical Superintendent, Mental Health Institution and Hospital, Agra and the same is pending for disposal. It is further contended that the opposite party no. 3 also lodged FIR against the applicants in Case Crime No. 421 of 2006, Police Station Achhnera, District Agra under sections 420, 467, 468, 471, 120-B IPC and during the course of investigation, the I.O. collected letter dated 4.1.2007 issued by Manager, Shreyas Gramin Bank, Rambag, Agra wherein it is mentioned that on 12.5.2004, the applicants opened their joint Accounts No. KDR/141/04 and deposited Rs. 50,000/- and the applicant no. 2 also opened his individual Account No. KDR/143/04 on 12.5.2004 and deposited Rs. 25,000/- which clearly indicates that the applicant no. 2 is not of unsound mind whereas he stated in the aforesaid Civil Suit No. 290 of 2004 that he was unsound mind at the time of sale deed and his treatment was continuing since 1.1.2004 in District Hospital Agra by Dr. S.C. Jain and later on by Dr. Anil Gaur.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or 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 uncontraverted 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, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".
In the case in hand, the grounds for invoking the inherent jurisdiction of this Court are of three folds. Firstly, the Civil Suit No. 290 of 2004 has been filed for cancellation of the sale deed in respect of the agricultural land situated in Mathura. Therefore, it is absolutely a civil nature case and it is the Civil Court who has to see whether the sale deed has been executed by Sri Dhani Ram and was he competent to execute the sale deed after taking evidence in this respect and the criminal court cannot decide the matter. Therefore, the complaint proceeding is nothing but an abuse of the process of the court. Secondly, the seller Dhani Ram is mentally unfit and was under treatment in District Hospital Agra since 1.1.2004 but in what manner he can execute the sale deed. In support medical certificate issued by Dr. Anil Gaur was attached. Thirdly, charge sheet has been submitted twice being a fresh investigation while it is barred under section 173 Cr.P.C. which provides that further investigation can be made but fresh or re-investigation cannot be ordered.
In the instant case, the civil suit was filed by Smt. Sita Devi (applicant no. 1) as a next friend of applicant no. 2 for cancellation of the sale deed after obtaining the consideration of the transaction to the tune of Rs. 3,10,000/- and applicant no. 1 also not disclosed the condition of the applicant no. 2 that he is unsound mind whereas applicant no. 1 is marginal witness of the sale deed. The applicant no. 2, after obtaining sale deed, opened the bank account in the Shreyas Gramin Bank, Rambag, Agra and deposited the sum which indicates that he is a man of sound mind.
Hon'ble Supreme Court in case of Kamala Devi Agarwal vs. State of West Bengal, 2001 Law Suit (SC) 1391 held that "Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."
The controversy in respect of execution of sale deeds is a disputed question of fact which cannot be made basis for quashing the proceedings in exercise of inherent power under section 482 Cr.P.C.
So far as re-investigation or further investigation is concerned the Superior Officer of the police before submitting the charge sheet can give instruction to the Investigating Officer as per provision of Section 158 of the Code of Criminal Procedure 1973, which is reproduced as under:
158. Report how submitted.
"(1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate."
As the first charge-sheet was not submitted in the court below, therefore, the Circle Officer was competent to pass the order for re-investigation or further investigation. It is the continuation of the earlier investigation and not a fresh investigation wiping out of the earlier investigation. In the first charge-sheet, presented before the Circle Officer, the complicity of the accused-applicants were found and the charge sheet subsequently submitted before the Magistrate, the complicity of the accused-applicants were also found. Therefore, it cannot be said that re-investigation was done.
From the perusal, it appears that on the basis of the material collected by the I.O. the prima facie offence is made out, therefore, there is no irregularity or illegality in filing the charge-sheet. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in cases where the court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.
In view of the above discussion, I find no reason to interfere in the proceedings and refuse to quash the proceedings in the aforesaid case. No illegality or demerit is found in the cognizance order and in the impugned charge sheet.
The application has no substance and is, accordingly, rejected.
Interim order dated 20.1.2006 stands vacated.
Communicate this order to the court concerned.
Order Date :- 13.2.2018 Puspendra