Allahabad High Court
Omkar Nath Singh And 2 Others vs State Of U.P. And Another on 18 January, 2019
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 70 Case :- CRIMINAL REVISION No. - 1124 of 2017 Revisionist :- Omkar Nath Singh And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sameer Jain Counsel for Opposite Party :- G.A.,Nandini Mishra Hon'ble Sanjay Kumar Singh,J.
1. Heard Shri Sameer Jain, learned counsel for the applicant, Shri Kunwar Rahul Ji, holding brief of Ms. Nandini Mishra, learned counsel for the opposite party no.2 learned A.G.A. for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.
2. This Criminal Revision under section 397/401 Cr.P.C. has been filed by the revisionist Omkar Nath Singh, Rai Sahab Singh and Suraj Kumar Singh against the order dated 8.2.2017 passed by Judicial Magistrate Court No.1, Varanasi in Complaint Case No.1098 of 2013 (Rakesh Kumar Singh vs. Omkar Nath Singh and others) under sections 406, 420, 504, 506 I.P.C, whereby the learned Magistrate dismissed the discharge application moved by the revisionists under section 245(2) Cr.P.C.
Basic facts
3. This case has a chequered history of litigations between the parties. Factual matrix of the case are that one agreement to sell (Satta-Ikrarnama) dated 3.5.1978 was executed by the revisionists in favour of Gopal Ji Singh (father of opposite party no.2) after taking an advance amount of Rs.20,000/- from Gopal Ji Singh in respect of 1/3 share of land araji No.290 area 06 decimel, 293/1 area 19-1/4 decimel, 468 area 28 decimel, araji No.546 area 5.66 decimel situated in village Bhagwanpur, Pargana Dehat, District Varanasi and 1/3 share of land araji No.558 area 0.42 decimal, 559 area 1-14 decimal, 626 area 48 decimel, 627 area 52 decimal, 632 area 39 decimal and 631 area 46 decimel land situated in village Chhitupur pargana Amanatpur, District Varanasi.
4. At the time of execution of the agreement to sale of aforesaid land, one Case No.1558/75 was already pending in the court of second Additional City Magistrate, Varanasi under section 229B/176 L.R. Act, in respect of the land under the agreement to sale dated 3.5.1978 between the revisionist and Aditya Kunwar and another. Agreement to sale dated 3.5.1978 was conditional that on deciding the Case No.1588/75 the registered sale deed shall be executed in favour of Gopal Ji Singh (father of opposite party no.2). It is submitted that Gopal Ji Singh died in the year 2001 during pendency of the aforesaid case, therefore the sale deed could not be executed pursuant to agreement to sale dated 3.5.1978. Record indicates that the said Case No.1558/75, was ultimately decreed on 20.5.2005 on the basis of compromise dated 25.4.2005 between the parties.
5. The main grievance of the opposite party no.2 is that the revisionists by committing fraud had executed the agreement to sale dated 3.5.1978 in favour of the father of the opposite party no.2 on the assurance that on the disposal of Case No.1588/75 the sale deed will be executed and they had taken the amount of Rs.20,000/- from the father of opposite party no.2 in the year 1978, but the revisionists have not executed the sale deed in respect of the land under the agreement to sale dated 3.5.1978. On such allegation opposite party no.2 filed impugned complaint dated 08.10.2013 against the revisionists under sections 418, 419, 420,427, 406, 504, 506 I.P.C. before the Judicial Magistrate Court No.1, Varanasi. The Magistrate after recording the statement of the complainant under section 200 Cr.P.C. on 10.2.2013 and statement of the witness Lal Bahadur Yadav as PW-1 on 25.10.2013, summoned the revisionists by order dated 17.2.2014 under sections 406, 420, 504, 506 I.P.C. to face trial.
6. The revisionist aggrieved by summoning order dated 17.1.2014 passed by Magistrate, approached this Court by filing an application under section 482 Cr.P.C. No.3656/14. The said application was disposed of by order dated 6.2.2014, which is reproduced herein below:-
"Heard learned counsel for the applicants, learned AGA for the State and perused the record.
This Crl. Misc. application under Section 482 Cr.P.C. has been filed for quashing of the entire proceeding of complaint case no.1098 of 2013, under section 406, 420, 504, 506 IPC pending in the court of J.M. Court No.1, Varanasi and further prayer is to stay the proceeding of aforesaid complaint case.
Learned counsel for the applicants submitted that there was a agreement to sale in between the parties applicant and father of the applicant no.2. The suit for Specific Performance was filed, which was rejected and appeal filed against that order has also been dismissed. After death of late Gopal Ji Singh the complainant, opposite party no.2 on the basis of false allegation filed present complaint. Since the matter is of the civil nature and suit has also been filed by father has already been rejected hence present complaint is not maintainable.
Learned AGA opposed aforesaid prayer.
Considered the submission of counsel for the parties. If contention of the applicants is correct then no offence is made out, however, it requires appreciation of evidence hence at this initial stage no interference is required. The defence version of the applicants has to be considered by the court concerned at appropriate stage.
If objection/discharge application is filed on behalf of the applicant within 30 days through counsel, it is expected that the court concerned will consider and decide the same expeditiously, at appropriate stage, in accordance with law.
Till disposal of the discharge application, no coercive steps will be taken against the applicants.
However, if discharge application is rejected, applicants appear before the courts below within 30 days and apply for bail, it is expected that the same will be considered and disposed off expeditiously, in view of the principles laid down by Full Bench of this Court in case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-390 and by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. reported in 2009 (4) SCC 437.
With these observations, the present application under Section 482 Cr.P.C. is hereby finally disposed off."
7. Pursuant to above, order dated 6.2.2014 of the Co-ordinate Bench of this Court, the revisionists moved a discharge application on 4.3.2014, which was partly allowed discharging the revisionists, from the charges under section 406 I.P.C. and dismissed the discharge application in respect of offence under sections 420, 504, 506 I.P.C. by order dated 11.7.2014, appended as annexure-6 to the affidavit filed in support of the present revision. The revisionists aggrieved by the order dated 11.7.2014 preferred the Criminal Revision No.240/14 before Session Judge, Varanasi. Opposite party no.2 has also filed Criminal Revision No.256/14 against the same order dated 11.7.2014 to the extent, revisionists were discharged from the charge under section 406 I.P.C. Session Judge, Varanasi, clubbed both the aforesaid criminal revisions of revisionists as well as opposite party no.2 and decided the same by a common judgement and order dated 27.10.2014. The Criminal Revision No.240/14 filed by the revisionists has been dismissed and Criminal Revision No.256/14 filed by the opposite party No.2 has been allowed setting aside the order dated 11.07.2014 of the Magistrate with the direction to re-hear the parties on the discharge application of the revisionists and pass fresh order. The above order dated 27.10.2014 of learned Sessions Judge, Varanasi passed in Criminal Revision No.240/14 has not been challenged by the revisionists.
8. In the background of the aforesaid fact, the learned Magistrate has passed fresh order dated 8.2.2017 dismissing the discharge application dated 4.3.2014 of the revisionists, which is under challenge in this revision.
Submissions on behalf of the revisionists
9. Learned counsel for the revisionists assailing the impugned order dated 8.2.2017 passed by Judicial Magistrate Court No.6 Varanasi submitted that:-
(i) Agreement to sale dated 3.5.1978 was executed by the revisionists in favour of Gopal Ji Singh (father of opposite party no.2) but Gopal Ji during his life time upto year 2001 did not file any complaint against the revisionists in respect of the land under the agreement to sale dated 3.5.1978.
(ii) Learned counsel for the revisionist has further contended that under the agreement to sell dated 3.5.1978, there was no condition that in case of death of father of opposite party no.2, it will be obligatory on the part of revisionists to execute the sale deed to opposite party no.2.
(iii) It is submitted that agreement to sale dated 3.5.1978 was conditional that the sale deed will be executed on the disposal of the pending Case No.1588/75, but during life time of Gopal Ji Singh, the said case was pending and it was not decided, therefore, at that time there was no question to execute the sale deed in favour of Gopal Ji Singh.
(iv) Gopal Ji Singh during his life time had filed a Suit No.454/87 for specific performance but the same has been dismissed by judgement and order dated 27.7.2000, appended as annexure-8 to the affidavit. Judgement and order dated 27.7.2000 of the trial court was also challenged in the Appeal No.100/2000 before the Additional Sessions Judge Court No.6 Varanasi by Gopal Ji Singh but the same was also dismissed by order dated 24.1.2004, appended as annexure-9 to the affidavit filed in support of the revision. In the meantime on the death of Gopal Ji Singh in 2001, the opposite party no.2 substituted as legal representative and heir of Gopal Ji Singh. Thereafter opposite party no.2 alongwith his mother Amarawati Devi challenged the judgement and order dated 27.7.2000 of the trial court as well as judgment and order dated 24.1.2004 of the first appellate court by filing Second Appeal No.130/2004 before this Court, which too has been dismissed by the High Court vide order dated 25.7.2014 appended as annexure-10 to the affidavit filed in support of this revision.
(v) On the strength of the aforesaid three judgements and order dated 27.07.2000 of trial court, dated 24.01.2004 of first appellate court and date 25.07.2014 of the High Court, it is submitted on behalf of the revisionists that the civil dispute, on the basis of which complaint has been filed against the revisionists, has also attained finality and all the courts decided the issue with concurrent findings against the opposite party no.2 and his father in respect of their claim pursuant to the agreement to sale dated 3.5.1978.
(vi) It is next submitted that the findings of the civil court in respect of land in dispute and allegations against the revisionists will prevail over the findings of criminal court.
(vii) It is also submitted that the basic ingredients to constitute the offence under sections 406, 420, 504, 506 I.P.C. are lacking under the facts and circumstance of the present case, hence no prima facie offences are made out against the revisionists.
(viii) The impugned criminal proceeding against the revisionists has been initiated by the opposite party No.2 on 8.10.2013 after 35 years of execution of agreement of sale dated 03.05.1978 and after about 13 years of death of his father Gopal Ji Singh in the year 2001.
(ix) It is submitted that pure civil dispute has been given a colour criminal case, which is abuse of the process of the court.
(x) It is submitted that various judgements were cited before the court below on behalf of the revisionists, but the learned Magistrate has only mentioned the reference of the same in the impugned order dated 8.2.2017 and did not discuss the said judgements, as such the impugned order dated 8.2.2017 is also based on non application of mind and is liable to be quashed by this Court.
10. Learned counsel for the revisionist has placed reliance on the following judgment of Apex Court.
(i) The judgement of Apex Court in case of Dilawar Babu Kurane Vs. State of Maharashtra 2002 (2) SCC 135 in which the Hon'ble Supreme Court has observed that in exercise of jurisdiction under Section of Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but could not make a roving enquiry into the pros and cons of the matter and weigh the evidence, as if he was conducting a trial.
(ii) The judgement of Apex Court in case of Ajoy Kumar Ghose Vs. State of Jharkhand and others in Criminal Appeal No. 485 of 2009 (arising out of SLP (Crl.) No. 5196 of 2006), wherein it has been held if there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused even when the accused appears in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge.
(iii) The judgement of Apex Court in case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao in Criminal Appeal No. 1460 of 2012 (arising out of SLP (Crl.) No. 6975 of 2011) wherein the Supreme Court has held that if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once.
(iv) The law laid down by the Apex Court in the case of Rukmini Narvekar Vs. Vijaya Satardekar and others (2008) 14 SCC 1 is reproduced herein-below:-
"22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
23.We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted. However, in this case it cannot be said that the evidence in the Civil Suit which was produced by the defence before the trial court established convincingly that the prosecution case is totally absurd or preposterous. In our opinion this is a matter which has to be looked into by the trial Court."
(v) The law laid down by the Apex Court in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor (2013) 3 SCC 330 are reproduced herein-below:-
"27. Recently, this Court again had an occasion to examine the ambit and scope of Section 482 Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed that under Section 482 Cr.P.C., the High Court was free to consider even material that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of this case.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C. the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
Submissions on behalf of the opposite parties
11. Learned Additional Government Advocate for the State as well as counsel for the opposite party no.2 opposing the prayer of the revisionists has submitted that considering the materials on record, prima facie offence against the revisionists is made out. There is no illegality in the impugned order dated 8.2.2017 of learned Magistrate. The judgment of civil courts, though attained finality, but cannot taken into consideration by this Court at this stage, therefore, the present revision is liable to be dismissed.
Discussion
12. After hearing the learned counsel for the parties at great length and perusing the record, I find that the main grievance of the opposite party no.2 is that pursuant to agreement to sale dated 3.5.1978 executed by revisionists in favour of his father, no sale deed has been executed by the revisionists. Considering the materials on record and the main grievance of the opposite party no.2, it is apparent that the civil litigations regarding the enforcement of agreement to sale dated 3.5.1978 has traveled up to this Court. The suit for specific performance filed by the father of the opposite party no.2 in his life time was dismissed on 27.7.2000 by the trial court, but father of opposite party no.2 did not file criminal complaint against the revisionists during his life time. The first appeal filed by the father of the opposite party no.2 was also dismissed on 24.1.2004. Thereafter, the opposite party no.2 has filed impugned criminal complaint on 8.10.2013 during pendency of his second appeal before this Court, therefore the intention of the opposite party no.2 is very much clear that when opposite party no.2 and his father could not succeed in civil litigation from the competent civil court, then the opposite party no.2 in order to settle his score filed impugned criminal complaint converting the civil dispute into the color of criminal offence. The Apex Court in case of Indian Oil Corporation Vs. NEPC India Ltd. 2006 (6) SCC 736 has held that any effort to settle civil dispute and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
13. The Apex Court in case of G. Sagar Suri Vs. State of U.P. 2000 (2) SCC 636 has also observed that:-
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. In the light of law laid down by the Apex Court in case of Indian Oil Corporation and G. Sagar Suri (supra), I find that there is sufficient material on record to reject and overruling the factual assertions/allegations contained in the impugned complaint against the revisionists taking into consideration of judgments and orders passed by civil court and this Court.
15. The Apex Court in case of Kishan Singh (D) through L.Rs. Vs. Gurpal Singh and others AIR 2010 SC 3624 has observed that criminal proceedings pursuant to such FIR lodged after an inordinate delay without any plausible explanation is amount to an abuse the process of law.
Conclusion
16. In this case, the opposite party no.2 has lodged the impugned complaint on 8.10.2013 after 35 years of execution of agreement to sale dated 3.5.1978 converting the civil dispute into criminal offence, which in the opinion of this Court amounts to abuse the process of law. On the facts, circumstances and materials on record taking into consideration the judgment and orders dated 27.7.2000, 24.1.2004 and 25.7.2004 as mentioned above, this Court is of the view that the basic ingredients to constitute an offence under Section 406, 420, 504 and 506 IPC are lacking in this case, therefore, the impugned order dated 8.2.2017 is liable to be set aside by this Court. There is also bleak chance of conviction of an accused, therefore, considering the parameters as laid down by the Apex Court for invoking the power vested in the High Court under Section 482 Cr.P.C. at the stage of discharge as mentioned above, I find that it is a fit case to discharge the revisionists from the charges leveled against them, otherwise it will amount to abuse of process of the Court.
Result
17. In view of above, the impugned order dated 8.2.2017 passed by Judicial Magistrate, Court No.1, Varanasi in Complaint Case No. 1098 of 2013 (Rakesh Kumar Singh Vs. Omkar Nath Singh and others), under Sections 406, 420, 504 and 506 IPC is hereby set-aside.
18. The criminal revision is allowed.
Order Date :- 18.1.2019 Rk/akp