Jammu & Kashmir High Court
Kuldeep Raj And Ors. vs State And Ors. on 19 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 415/2015
MP No. 01/2015
Date of decision: 19.08.2017
Kuldeep Raj & ors. V. State & ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing Counsel:
For the petitioner(s) : None.
For the respondent(s) : Mr. S.S.Nanda, Sr. AAG.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners have filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment of FIR No. 175/2014 dated 12.09.2014 under Section 379, 411, 427, 454, 504, 506 & 120-B RPC registered by respondent No.3 against the petitioners.
2. In the petition, it has been stated that petitioners have joint relief to be claimed, as such, petition being filed through petitioner No.1. It is submitted that petitioner No.2 is the wife of petitioner No.1, petitioner Nos. 3 & 4 are sons of Kuldeep Raj but are wrongly mentioned as sons of some Chuni Lal in impugned FIR and petitioner No.5 is the brother-in-law of petitioner No.1. It is further submitted that petitioner No.1 has inherited land measuring 27 kanals 6 marlas in Khewat No. 50, Khata No. 301 and Khasra No. 1298 in Revenue Village Badran Kalan of Tehsil Akhnoor in addition to his sister. Succession certificate to that extent was issued in favour of the petitioner and his sister which eventually came to be relied upon for entering mutation Nos. 1172 and 1161 dated 26.05.2003. It is submitted that vide a mutation No. 937 dated 05.08.1995 father of 561-A Cr.P.C No. 415/2015 Page 1 of 9 respondent Nos. 4 to 6 was, with consent of deceased father of the petitioner No.1, entered during correction of revenue records. It is submitted that the petitioner appealed against this mutation and the appellate authority set aside the said mutation on 15.10.2004. Thereafter, the respondent Nos. 4 to 6 preferred review and appeal later on. It is further submitted that the appeal filed by the respondents was decided against the petitioner against which OWP No. 846/2015 titled 'Kuldeep Raj v. Settlement Officer & ors.' wherein this Hon'ble Court was on 25th June, 2015 pleased to grant status quo on the spot. It is submitted that during the subsistence of appeal, the respondents made efforts to get the petitioner implicated in false and frivolous criminal cases but their attempts did not yield any result till 12.09.2014 when the respondents obtained an order from the court of learned CJM, Jammu under section 156(3) Cr.P.C for registration of the FIR.
3. The petitioners seek to invoke inherent powers of this Hon'ble Court under Section 561-A Cr.P.C amongst other on the following grounds:
a) that the respondents, during the fag end of the pendency of the appeal before Settlement Commissioner, filed a complaint directly to the CJM , Jammu for registration of FIR against the petitioners to coerce him into withdrawing from the proceedings and to made a statement before the appellate authority conceding the right, even if the respondents were not entitled, of the respondents over the property in question.
b) that the respondents, sensing that they would obtain a favourable order, did not bother to pursue the said FIR and it was only after the petitioners got status quo order in the OWP No. 846/2015 that the respondents restarted their efforts to pursue the impugned FIR. It is on this initiative of the respondents that respondent No.3 is bent upon arresting the petitioners to again coerce them into withdrawing the said petition.
c) that the SHO/respondent No.3 has not bothered to file charge sheet in the said FIR against the petitioners even after one year of registration of the FIR against them.561-A Cr.P.C No. 415/2015 Page 2 of 9
d) that the respondents, after a lapse of about one year have reignited their efforts to vociferously pursue and exert pressure upon the respondent No.3 to harass the petitioners in connection with the impugned FIR.
e) That respondent No.3, before registration of the FIR impugned, was fully aware of the factum of the litigation between the petitioner and the private respondents and he deliberately deflected from considering this aspect of the case before registering the FIR impugned against the petitioner. Hence, the instant petition.
4. I have considered the grounds and law on the subject.
5. The FIR in questions reads as under:-
Complainants/respondents 4 and 5 herein moved a complaint before CJM Jammu on 12.9.2014 against (1) Kuldeep Raj S/o Sh.
Chuni Lal (2) Smt. Vandana W /o Kuldeep Raj (3) Shimo (4) M aunna both sons of Sh. Chuni Lal all r/o Bandral Kaln Teh. Akhnoor District, Jammu (5) Roshal Lal son of Girdhari Lal R/o M awa Karoda Tehsil Akhnoor, District Jammu stating there in
1)That the complainant is owner and in cultivating possession of land measuring 24 kanals bearing No. 937 having Khasra No. 1298 min at Village Bandral Kalan Tehsil Akhnoor, Jammu, (2) that complainant No.1 deceased husband (Khushal Chander Dubey) and father of complainant No.2 was in cultivating possession of the aforesaid land since 1991 and has raised the boundary wall since then and has constructed 1 room, 1 store, varandah and water tank in the aforesaid land since then and has installed a gate in the aforesaid land after the demise of Khushal Chander Dubey complainant is in cultivating possession of the aforesaid land without an interruption from and sides. 3) that the complainant has kept the water pipe 4 ganthee 4 balachas 2 daratis 1 gross cutter 2 parathis 4 iron balties 10 tokries and 2 folding beds in the room constructed in the aforesaid land and the seed used in the cultivation and have also installed some fruits tress in the aforesaid land. 4 that the accused Nos. 1 to 5 with criminal conspiracy on 10.09.2014 at about 5 AM have mischievously intentionally and with malafide intention broken the bricks from 561-A Cr.P.C No. 415/2015 Page 3 of 9 the boundary wall of the applicant land comprising of Khasra No. 1298 min measuring 24 kanals situated at Bandral kaln Tehsil Akhnoor District Jammu thereby causing damage to the applicant property which was witness by number of passersby.
5) That on 10.09.2014 when the applicant went to her land at 6 AM . She found broken bricks from the boundary wall of the applicant land and the passersby told to the applicant that the boundary wall of the applicant land has been broken by all the accused. 6) That the applicant reported the matter to the SHO police Station Akhnoor on 10.09.2014 for lodging of FIR against the accused but the SHO Akhnoor was dilly delaying the matter. 7) that when the applicant went to the aforesaid land on 12.09.2014 at 7 AM , the applicant saw that all the accused were breaking boundary wall of the land and were removing bricks from the aforesaid land and have stolen water pipe 4 ganthies 4 balachas 2 daratis 1 gross cutter 2 parathis 4 iron balties 10 tokries and 2 folding beds and seed used in the cultivation from the rooms constructed as the aforesaid land and have also cut the fruit tress from the aforesaid land , the applicant requested them not to do so all the accused started abusing the applicant and threaten her to kill her. 8. That the complainant immediately again approached to the SHO( police Station, Akhnoor on 12.09.2014 at 8 AM but police is delaying the matter and has not registered FIR till date. 9) that all the accused in connivance with each other and with criminal conspiracy have the boundary wall and have committed house breaking and have cut the fruit trees and have committed the theft and thus have committed offence u/s 379, 411, 427, 436-A, 454, 506 & 120-B RPC.
6. This complaint was sent to P/S Akhnoor for investigation u/s 156(3) Cr.P.C. Police, accordingly, registered the FIR No. 175/2014 dated 12.09.2014 under Section 379, 411, 427, 454, 504, 506 & 120-B RPC against accused - petitioners.
7. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under:-
561-A Cr.P.C No. 415/2015 Page 4 of 9"11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two- Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of W est Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], M adhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that 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 cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
"(1) W here 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) W here 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 Section 156(1) of the Code except under an order of a M agistrate within the purview of Section 155(2) of the Code.
(3) W here 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) W here, 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 561-A Cr.P.C No. 415/2015 Page 5 of 9 order of a M agistrate as contemplated under Section 155(2) of the Code.
(5) W here 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) W here 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) W here 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."
8. Keeping in view above law into consideration, now I will appreciate as to whether FIR has been lodged with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge and also in order to settle civil litigation pending between parties.
9. There is a photocopy of order passed by Settlement Officer, Jammu dated 18.5.2015 in two appeals filed by respondents 4 to 6 against petitioner no.1 herein. Bare perusal of above order of Settlement officer, it is evident that there is long drawn litigations between parties with regard to land measuring 24 k under kh. no. 1298 min situated at Badran Kalan Akhnoor. There is no clear finding as to which party is in possession of land in question. By virtue of above order, SO has remanded the case back to Tehsildar Akhnoor, for fresh inquiry.
11. So averments made in complaint that complainants/ respondents 4-6 are in exclusive possession of land in dispute, does not inspire confidence of court.
561-A Cr.P.C No. 415/2015 Page 6 of 912. In 2013 (11) SCC 673 in case titled Paramjeet Batra v State of Uttrakhand, it is held as under;-
"8. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by respondent 2 against him alleging offence under Section 406 of the IPC. Possession of the shop in question has also been handed over by the appellant to respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise.
9. In the circumstances, the impugned order dated 29/9/2011 passed by the Uttarakhand High Court is set aside. The entire proceedings of Criminal Case No. 723/2005 (charge-sheet No. 32/2005), and the order of cognizance dated 22/3/2005 passed thereon by the Judicial Magistrate, Khatima, District Udham Singh Nagar against the appellant, respondents 3and 4 and against accused Rajpal for the offences punishable under Sections 406, 420, 467, 468, 471, 447, 448 read with Section 34 of the IPC are quashed and set aside. This order will however have no effect on the pending civil suit between the parties. Needless to say that the court, seized of the said suit, shall decide it independently and in accordance with law.
10. The appeal is disposed of in the afore stated terms."
13. In 2010 (1) CRIM ES 81 in case titled Bijay Kumar Sahoo and other v State of Orrisa and another, it is held as under :-
"9. In the case of Suneet Gupta v. Anil Trilokhnath sharama and others ( 2008) 40 OCR (SC) ,THE SUPREME COURT confirmed the finding of High Court by holding that High Court was right in coming to conclusion that civil dispute pure and simple between the parties was sough to be converted into criminal case only by resorting to pressure tactis and by taking police help 561-A Cr.P.C No. 415/2015 Page 7 of 9 which was indeed abuse of process of law and has been rightly prevented by High Court.
10. It is common knowledge that when the parties are litigating over dispute which are purely civil in nature, the tendency of the litigants in such dispute always leads to setting the criminal law into motion against the adversary by way of pressure tactics and as an outcome of vengeance. This may be result of wrong advice given to any of parties or with the sole intention of harassing the adversary.
11. Examining the facts of this case in the touch stone of the ratio of above case laws , the inevitable conclusion would be that the dispute between the parties in nature and the is purely civil in nature and the complaint petition filed by the opp. Party no.2 undoubtedly amounts to abuse of the process of law. The tenor of averments made in the complaint petition also supports the fact that the dispute is purely civil nature.
12.This court , therefore has no hesitation to quash the complaint case being ICC no. 4482 of 2008 and consequent issuance of process against the petitioner by the learned S.D.JM Bhubneswar ,therefore set aside."
14. In present case also private respondents have filed two appeals against petitioner on 22.1.2013 and 12.5.2014 respectively, and during pendency of appeals have filed impugned complaint and got registered FIR no.175/2014 on 12.9.2014 with allegations that on 10.09.2014 when the applicant went to her land at 6 AM. She found broken bricks from the boundary wall of the applicant land and the passersby told to the applicant that the boundary wall of the applicant land has been broken by all the accused. That the applicant reported the matter to the SHO police Station Akhnoor on 10.09.2014 for lodging of FIR against the accused but the SHO Akhnoor was dilly delaying the matter. That when the applicant went to the aforesaid land on 12.09.2014 at 7 AM, the applicant saw that all the accused were breaking boundary wall of the land and were removing bricks from the aforesaid land and have stolen water pipe 4 ganthies 4 balachas 2 daratis 1 gross cutter 2 parathis 4 iron balties 10 tokries and 2 folding beds and seed used in the 561-A Cr.P.C No. 415/2015 Page 8 of 9 cultivation from the rooms constructed as the aforesaid land and have also cut the fruit trees from the aforesaid land , the applicant requested them not to do so all the accused started abusing the applicant and threaten her to kill her. That the complainant immediately again approached to the SHO( police Station, Akhnoor on 12.09.2014 at 8 AM but police is delaying the matter and has not registered FIR till date. That all the accused in connivance with each other and with criminal conspiracy have the boundary wall and have committed house breaking and have cut the fruit trees and have committed the theft and thus have committed offence u/s 379, 411, 427, 436-A, 454, 506 & 120-B RPC.
15. From bare perusal of these allegations, it is evident that these are vague and omnibus of the criminal tress pass and other allied offences. Complainant in complaint has no where stated that litigation between parties are pending before Settlement officer with regard to land in question. So these criminal proceedings are manifestly attended with mala fide and 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 and in order to settle civil dispute.
16. This petition, accordingly, is allowed and FIR No. 175/2014 dated 12.09.2014 under Section 379, 411, 427, 454, 504, 506 & 120-B RPC is quashed, while exercising the power vested in this Court under Section 561-A Cr.P.C.
(Sanjay Kumar Gupta) Judge Jammu 19.08.2017 Pawan Chopra 561-A Cr.P.C No. 415/2015 Page 9 of 9