Allahabad High Court
Sabir Ali And 2 Others vs State Of U.P And Another on 3 April, 2023
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 70 Case :- APPLICATION U/S 482 No. - 42885 of 2022 Applicant :- Sabir Ali And 2 Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Sharique Ahmed,Manish Tandon Counsel for Opposite Party :- G.A.,Mithilesh Kumar Shukla Hon'ble Shekhar Kumar Yadav,J.
Heard Mr Manish Tandon, learned counsel for the applicants, Mr M. K. Shukla, learned counsel for the private respondent no. 2, learned AGA for the State and perused the record.
Supplementary affidavit filed by learned counsel for the opposite party no. 2 today, is taken on record.
By means of this application, applicants have prayed for quashing of the entire criminal proceedings of Criminal Case No. 199772 of 2022 (State of UP Vs Sabir Ali and others), arising out of Case Crime No. 0333 of 2022, under Sections 420,467,468,471,406,506 IPC, P.S. Chakeri, District Kanpur Nagar including the charge sheet dated 17.09.2022 as well as cognizance order dated 4.11.2022.
Initially an FIR was lodged by opposite party no. 2 against the applicants on 3.4.2022 vide Case Crime No. 0333 of 2022, alleging therein that parents of informant are said to have purchased two plots bearing 157-A & 157-B situated at Dehli Sujanpur, P.S. Chakeri, District Kanpur Nagar from Teachers Housing Society through sale deed dated 2/6/1979 registered in the office of sub registrar. It is further alleged that thereafter, mother of the informant is said to have died on 24/6/2010 and his father died on 03/1/1993. The informant is the eldest son of his parents amongst his four other brothers and three sisters, who after the death of their parents are the heirs of the said property. It is further alleged that after the death of the informant's parents, the applicant and his siblings became heirs, but the informant's brothers, namely, Sabir Ali, Zakir Ali and Akhtar Ali, conspired together and after preparing the forged documents sold the share of the property of the informant inherited by parents. It is alleged that informant and his other brothers are co-owners of the property and when the informant talked about his share from his brothers then he is said to have been threatened by his brothers that if he takes any legal action regarding the said land, he will have to lose his life. After investigation, charge sheet in the matter was filed whereupon cognizance was taken by the concerned Magistrate.
It is contended by learned counsel for the applicants that applicants and informant/opposite party no. 2 are real brothers and parents of the applicants left behind them; four properties (i) Plot No. 105/591 area 750 sq.yards; (ii) Plot No. 89/271 area 268 sq. yards; (iii) Plot No. 79/23 area 254 sq. yards; and (iv) Plot No. 157A/157-B area 1466 sq. yards. The only dispute is with regard to property no. (iv) i.e. 157-A/157-B area 1466 Sq. yards, which is mentioned in the FIR itself.
It is further contended that opposite party no. 2 had filed a suit for partition bearing Case No. 433 of 2019 with regard to Plot Nos. 157A & 157-B (area 1466 Sq. yards) with regard to his share (2/13) against his other brothers and sister, which is still pending before the competent forum and the applicants are also contesting the said suit.
It is further submitted that just to harass the applicants, the opposite party no. 2 filed an application dated 9.9.2021 under Section 156(3) Cr.P.C. which has been rejected by the court below vide order dated 21.07.2022 against which opposite party no. 2 preferred criminal revision before this Court and the same has also been dismissed by this Court vide order dated 19.12.2022 passed in Criminal Revision No. 4335 of 2022. It is further submitted that opposite party no. 2 just to harass the applicants firstly moved an application u/s 156(3) Cr.P.C. and during the pendency of the said application, again lodged an FIR on same set of allegations on 3.4.2022, which is nothing but an abuse of the process of the court.
It is further contended that there is no cheating on the part of the applicants as they have executed sale deed of their own shares and only to create a pressure to settle their shares as per wishes of the opposite party no. 2, present false FIR has been lodged by him. It is further submitted that no forgery is committed by the applicants.
The main thrust of the applicants, has been, firstly, that the criminal proceedings in question is liable to be quashed on the ground that essentially there is a dispute between the parties which is of civil nature and which is sought to be given a criminal colour, only with a view to bring to bear pressure on the applicants. Secondly, it is contended that even if it is assumed that the averments made in the FIR, which has been registered under various sections, is assumed to be correct, even then no offence under various sections, as mentioned in the FIR, is made out against the applicants. In support of his arguments, he relied upon the case of Mohd. Ibrahim and others Vs Sate of Bihar and another, 2009 (67) ACC 679; Indian Oil Corporation Limited Vs NEPC India Limited, 2006 Law Suit (SC) 488, Indra Mohan Goswami and another Vs State of Uttaranchal, 2007(12) SCC 1.
On the contrary, learned counsel for the private respondent submitted that applicants are trying to grab the share of the opposite party no. 2. However, learned counsel for the opposite party no. 2 does not dispute the fact that a partition suit is already pending between the parties.
Before analyzing the facts emanating from the record of the case, it would be apt to notice the legal position as regards the scope of powers of the High Court under Section 482 Cr.P.C. to interfere with the proceedings of the aforesaid criminal case.
The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice.
The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted as follows:-
"102. 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 which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under 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 FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no 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 FIR 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
The Hon'ble Supreme Court has taken note of the fact that sometimes there is a tendency to convert civil dispute in a criminal proceeding by giving it a criminal colour. In the case of Indra Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in 2007(12) SCC 1 the Hon'ble Supreme Court has recorded in paragraph 23 and 24 as under :-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
Thus, it is clear that this Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court. An attempt has been made by the complainant to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence.
Having considered the relevant arguments of the parties I am of the considered view that existence of dishonest or criminal intention has not been made out against the applicants. There is admitted fact that the parties involved in this petition have already contesting the partition suit with regard to property in dispute regarding their respective shares against each other. The dispute involves in the present case certainly determination of issues which are of civil nature, pursuant to which respondent No. 2 had even instituted partition suit, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour.
Having regard to the undisputed facts that there is partition suit with for declaration and injunction pending with regard to property in dispute as regards shares of the parties between them and that shares of land alleged to have been sold out is yet to be seen, it can be safely held that the real dispute between the applicants and respondent No.2 is essentially of civil in nature. Further, no iota of evidence collected by the Investigating Officer that the applicants prepared any forged documents as alleged by the opposite party no. 2 in the FIR. Record also discloses that applicants and other family members moved an application that the opposite party no. 2 is continuously threatening the applicants and other family members for implicating them in a frivolous cases and is demanding more share in the property in dispute early in point of time than the impugned FIR lodged by respondent No.2, which appears to be counterblast to the proceedings initiated by the applicants against opposite party no. 2. Therefore, it can be said to be a case of abuse of legal process and is required to be quashed to secure the ends of justice.
For the aforesaid reasons, the instant petition is allowed and the proceeding of Criminal Case No. 199772 of 2022 (State of UP Vs Sabir Ali and others), arising out of Case Crime No. 0333 of 2022, under Sections 420,467,468,471,406,506 IPC, P.S. Chakeri, District Kanpur Nagar against the applicants is hereby quashed.
Application is thus, disposed of, accordingly.
Order Date :- 3.4.2023 RavindraKSingh