Allahabad High Court
Smt. Vijay Bala And 8 Others vs State Of U.P. And 2 Others on 17 January, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- CRIMINAL MISC. WRIT PETITION No. - 25469 of 2016 Petitioner :- Smt. Vijay Bala And 8 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sheo Shankar Tripathi, Adya Prasad Tewari Counsel for Respondent :- G.A., D.P. Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Adya Prasad Tewari, learned counsel for petitioners and learned Additional Government Advocate representing respondents 1 & 2.
2. None appeared on behalf of respondent-3 even though name of Sri D.P. Singh, Advocate, is printed in the cause list as counsel for respondent-3. Hence, we proceed to hear and decide their writ petition after hearing counsel for petitioners as well as learned A.G.A.
3. Present writ petition under Article 226 of the Constitution of India has been filed challenging FIR dated 16.10.2016 lodged by respondent-3 Gulab Chand and registered as Case Crime No. 0460 of 2016, under Sections 417, 418, 464, 465, 468, 461, 209, 210, 182 IPC, P.S. Badahalganj, District Gorakhpur.
4. Facts giving rise to present writ petition may be summarized in a narrow compass.
5. A family settlement dated 4.1.1982 was entered into between parties. In accordance with family settlement, which is on record as Annexure-2 to writ petition, specific properties fell in the share of parties.
6. Property which came in the share of petitioners was let out by petitioners to State Bank of India. On account of default committed by Bank in payment of rent, petitioners instituted O.S. No. 764 of 1989 (Sri Achhaiber Prasad Vs. State Bank of India and others) in the Court of Civil Judge (Junior Division), Gorakhpur. During pendency of aforesaid suit one Kirat Chand and respondent-3 Gulab Chand filed an impleadment application dated 25.3.1993 in terms of Order 1 Rule 10 C.P.C. Aforesaid impleadment application came to be rejected by Trial Court vide order dated 17.5.1993 on the ground that they had no interest in property in dispute because of family settlement dated 4.1.1982. O.S. No. 764 of 1989 (Sri Achhaiber Prasad Vs. State Bank of India and others), was ultimately decreed by Trial Court vide judgment and decree dated 21.10.1995.
7. Since there was some dispute between petitioners, petitioner no.1 Smt. Vijay Bala instituted O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others) for permanent injunction restraining defendants from undertaking any work on the land in dispute described at the foot of the plaint, not to sale the same or change the nature of the same. In the aforesaid suit parties entered into a compromise on 11.1.2011. Ultimately, abovementioned suit was decided in terms of compromise dated 11.1.2011 vide judgment and decree dated 18.1.2011.
8. Feeling aggrieved by judgment and decree dated 18.1.2011 rendered in O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others), respondent-3 filed O.S. No. 982 of 2015 (Gulab Chand and another Vs. Smt. Vijay Bala and others) for cancellation of judgment and decree dated 18.1.2011 referred to above. Plaintiffs Gulab Chand and another also prayed for a decree of permanent injunction restraining defendants from causing any interference in the peaceful possession and occupation of plaintiff over the disputed property described in Schedule A, B and C to the plaint. Aforesaid suit was instituted vide plaint dated 7.9.2015.
9. Subsequently and during pendency of O.S. No. 982 of 2015 (Gulab Chand and another Vs. Smt. Vijay Bala and others) respondent-3 filed an application under Section 156(3) Cr.P.C. praying therein that directions be issued to Station House Officer of P.S. Badahalganj to register an FIR and undertake consequential exercise. This application was allowed by the Court concerned and consequently FIR dated 16.10.2016 came to be registered as Case Crime No. 0460 of 2016, under Sections 417, 418, 464, 465, 468, 461, 209, 210, 182 IPC, P.S. Badahalganj, District Gorakhpur. In the aforesaid FIR 9 persons namely, Vijay Bala, Shyam Bihari, Shri Ram, Ghanshyam Narayan, Anant Narayan, Laxmi Narayan, Smt. Shyama Devi, Smt. Swatantra Bala and Gorakhnath were made accused.
10. Aggrieved by the aforesaid FIR, petitioners having filed present Criminal Misc. Writ Petition.
11. Instant writ petition came up for admission on 21.12.2016 and this Court passed following interim order :
"It is contended that allegations made in the F.I.R. that a conclusive suit was filed and decree by means of compromise practising fraud upon the Court was obtained, will not constitute an offence so as to proceed with the investigation inasmuch as the same has been lodged by respondent no. 3 a private party and not at the behest of the Court where the suit was filed and the compromise decree was passed. It is also submitted that till date no application has been made before the Court below for recall of the decree making the allegation which has been made in the First Information Report.
Prima facie the issue requires consideration.
Issue notice to respondent no. 3.
Petitioners shall take step for service on the said respondent within three weeks.
Office shall issue notice returnable at an early date.
List on the date fixed in the notice.
Learned A.G.A. representing State-Respondents may also file counter affidavit.
Considering the facts and circumstances of the case, further investigation in Case Crime No. 460 of 2016, under Sections 417, 418, 464, 465, 468, 471, 209, 210, 182 I.P.C., PS-Barhalganj, District-Gorakhpur shall remain stayed including the arrest of the petitioners."
12. Though this Court stayed investigation of above-noted case crime number, no counter affidavit has been filed either by learned A.G.A. or by respondent-3.
13. Mr. Adya Prasad Tewari, learned counsel for petitioners submits that in the present case, a purely civil dispute has been dragged into criminal litigation. It is an admitted fact that O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others) was decreed, on the basis of a compromise dated 11.1.2011 entered between parties, vide judgment and decree dated 18.1.2011. Aforesaid judgment and decree has been challenged by respondent-3 Gulab Chand along with Smt. Asha Devi by O.S. No. 982 of 2015 (Sri Gulab Chand and another Vs. Smt. Vijay Bala and others). It is during pendency of aforesaid suit that impugned FIR has been lodged, alleging therein that compromise decree dated 18.1.2011 in abovenoted suit has been obtained by playing fraud.
14. On the aforesaid factual premise, learned counsel for petitioners Mr. A.P. Tewari, vehemently contends that impugned FIR dated 16.10.2016 lodged by respondent-3 is not only malicious but also an abuse of process of Court. Once respondent-3 has already filed O.S. No. 982 of 2015 (Sri Gulab Chand and another Vs. Smt. Vijay Bala and others) challenging judgment and decree dated 18.1.2011 passed in O.S. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others), there was no occasion before respondent-3 to lodge the impugned FIR.
15. To buttress his submission, he has invited attention of this Court to the case of Inder Mohan Goswami Vs. State of U.P. and others, 2007 (12) SCC 1, wherein Court quashed entire criminal proceedings emanating from the FIR on the ground that no case is made out. He has relied upon para-22 of the aforesaid judgment, which is reproduced as under:
"The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and respondent no.3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court. Scope and ambit of courts powers under section 482 Cr.P.C."
16. Admittedly in the present case allegations made against petitioners is that they have fraudulently obtained compromise decree in O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others). Admittedly in O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others) in which only petitioners were parties. Respondent-3 did not file any impleadment application seeking his impleadment in aforesaid suit. Apart from above, O.S. No. 982 of 2015 (Sri Gulab Chand and another Vs. Smt. Vijay Bala and others), has been filed challenging judgment and decree dated 18.1.2011 passed in O.S. No. 222 of 2010 (Smt. Vijay Bala Vs. Shyam Bihari and others). Once respondent-3 has already availed civil remedy, he could not have initiated criminal proceedings against petitioners even otherwise also, in respect to the allegations which are foundation of the suit also.
16. For the aforesaid reasons, we are of the considered opinion that impugned FIR lodged by respondent-3 during pendency of civil dispute is not only malicious but also an abuse of process of Court. The veracity of judgment and decree passed by Civil Court cannot be examined by Criminal Court. Apart from above, matter is still engaging attention of Civil Court. On these facts there was no occasion before respondent-3 to lodge impugned FIR.
17. For the reasons given herein above, present writ petition succeeds and is allowed. Impugned FIR dated 16.10.2016 registered as Case Crime No. 0460 of 2016, under Sections 417, 418, 464, 465, 468, 461, 209, 210, 182 IPC, P.S. Badahalganj, District Gorakhpur is hereby quashed. As none of the respondents have filed counter affidavit, we make the cost easy.
Order Date :- 17.1.2020 Prajapati