Allahabad High Court
Raghvendra Singh And 3 Others vs State Of U.P. And Another on 11 August, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 2300 of 2016 Applicant :- Raghvendra Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narendra Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
1. Despite service of notice upon opposite party no.2, nobody appeared on behalf of opposite party no.2.
2. Heard Sri N.K. Singh, learned counsel for the applicants and Sri Arvind Kumar, learned AGA for the State.
3. The instant application under Section 482 Cr.P.C. has been filed by the applicants to quash the Complaint Case No. 2439 of 2012 dated 05.07.2011 under Sections 420, 468, 471, 506, 120B IPC pending in the court of Additional Chief Judicial Magistrate, Farrukhabad as well as summoning order dated 19.09.2012 and order dated 03.11.2015 passed by revisional court in Criminal Revision No. 308 of 2012.
4. The necessary facts of the case for the purpose of present application is that opposite party no.2, the complainant on 05.07.2011 filed impugned criminal complaint against the applicants and Raj Bahadur Singh (not applicant), the father of applicant no.1 with the allegation that opposite party no.2 is the son-in-law of Vijay Bahadur Singh, the brother of Raj Bahadur Singh (not applicant) and his marriage was performed with the youngest daughter of Vijay Bahadur Singh. It is further alleged in the complaint that Raj Bahadur Singh (not applicant) with intention to grab the property of father-in-law of opposite party no.2 executed a forged registered Will of Vijay Bahdur Singh (father-in-law of opposite party no.2 and brother of Raj Bahdur Singh) on 30.11.2000 in favour of his grand sons, namely Rohit Bhadauriya and Mohit Bhadauriya under the guardianship of applicant no.2 (daughter-in-law of Raj Bahadur Singh), the mother of Rohit and Mohit. In the complaint dated 05.07.2011 it is further alleged that in the registered Will dated 30.11.2000, applicant nos. 3 and 4 were witnesses and opposite party no.2 came to know about the forged Will dated 30.11.2000 only when mutation proceeding was started and when he made a request from Raj Bahadur Singh and applicants to cancel the forged Will dated 30.11.2000 of Vijay Bahadur Singh then they refused to cancel the same and when opposite party no.2 tried to lodge the FIR then police did not lodge his FIR, therefore, he filed impugned complaint on 05.07.2011.
5. In support of complaint dated 05.07.2011, opposite party no.2 was examined under Section 200 Cr.P.C. and Yogesh Pal Singh and Ghambheer Singh both sons-in-law of Vijay Bahadur Singh were examined under Section 202 Cr.P.C. as PW-1 and PW-2. On 19.09.2012 on the basis of complaint and statements recorded under Section 200 and 202 Cr.P.C., ACJM, Farrukhabad summoned the applicants and Raj Bahadur Singh (not applicant), under Sections 420, 468, 471, 506, 120B IPC.
6. Against the summoning order dated 19.09.2012 applicant nos. 1 and 2 preferred Criminal Revision No. 308 of 2012 before the Sessions Judge but on 03.11.2015 their revision was dismissed, hence the instant application has been moved challenging the complaint dated 05.07.2011, summoning order dated 19.09.2012 and lower revisional court order dated 03.11.2015.
7. Learned counsel for the applicants submitted that present dispute is purely civil dispute and opposite party no.2 has filed the impugned complaint only with intention to harass the applicants. He further submitted that the Will dated 30.11.2000 was a registered Will and on the basis of Will dated 30.11.2000, mutation proceeding was commenced, which ultimately decided in favour of applicants after hearing both the parties and opposite party no.2 neither challenged the order of mutation dated 10.04.2012 nor he ever challenged the Will dated 30.11.2000. Learned counsel for the applicants next submitted that as opposite party no.2, son-in-law of Vijay Bahadur Singh was well aware that Will dated 30.11.2000 is not forged one, therefore, he did not challenge the same before any competent civil court and without filing any suit for cancellation of Will dated 30.11.2000, he directly filed impugned complaint, which is bad in law. He further submitted that opposite party no.2 tried to negotiate the matter but when negotiation could not be finalized then ultimately he lodged the impugned complaint on 05.07.2011 on the basis of false allegation and the fact of negotiation is evident from the complaint itself. Learned counsel for the applicants further submitted that as opposite party no.2 filed impugned criminal complaint with malicious intention only to harass the applicants and impugned complaint does not disclose any criminal offence and efficacious remedy was available to opposite party no.2 before civil court, therefore, impugned complaint as well as summoning order are liable to be quashed. Learned counsel for the applicants next submitted that both the courts below failed to consider these facts and merely on the basis of averments made in the complaint, applicants were summoned and when applicant nos. 1 and 2 challenged the summoning order before the lower revisional court in revision then, their revision was also dismissed, therefore, both the courts below committed an error of law.
8. Per contra, learned AGA opposed the prayer and submitted that there is specific allegation against the applicants in the impugned complaint that on the basis of forged Will of Vijay Bahadur Singh dated 30.11.2000, the names of the sons of applicant nos. 1 and 2 were mutated over the property of Vijay Bahadur Singh, who was father-in-law of opposite party no.2 and applicant no.2 was the guardian of her sons, namely Rohit Bhadauriya and Mohit Bhadauriya in the Will dated 30.11.2000, therefore, prima facie offence under Sections 420, 468, 471, 506, 120B IPC is made out against the applicants. Learned AGA further submitted that as applicant nos. 3 and 4 are the witnesses of the forged Will and they were very well aware that Will of Vijay Bahadur Singh dated 30.11.2000 is forged one, therefore they too cannot scape from their liability and court below rightly summoned the applicants in the present matter.
9. Learned AGA next submitted that the argument advanced by learned counsel for the applicants can only be properly appreciated during the course of trial and not at this stage. He next submitted that merely on the basis of fact that dispute is civil in nature, the proceeding pending against the applicants cannot be quashed as complaint dated 05.07.2011 also discloses prima facie cognizable offences against the applicants, therefore, instant application under Section 482 Cr.P.C. is liable to be dismissed.
10. I have given thoughtful consideration on the rival submissions and perused the record of the case.
11. The power under Section 482 Cr.P.C. of this court is although wide enough but law has been settled by catena of decisions of the Apex Court that only in rarest of rare cases, the criminal proceedings should be quashed at its inception.
12. The three judge Bench of the Apex Court in the case of R.P. Kapur Vs. State of Punjab AIR 1690 SC 866 after discussing the power of this Court under Section 561A old code (pari materia with Section 482 Cr.P.C.) observed in paragraph no.6 as:-
"6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561 -A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the .proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no ques- tion of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magis- trate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. xxxxxxxx"
(Emphasis supplied)
13. Again Supreme Court discussed the power of this Court under Section 482 Cr.P.C. very elaborately in the case of State of Haryana and others Vs. Bhajan Lal and others 1992 Supp (1) SCC 335 and in paragraph 102 enumerated 7 categories of the cases where power under Section 482 Cr.P.C. can be exercised by this Court which is quoted below:-
"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 channelised 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 Section 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."
14. Recently the three Judge Bench of the Apex Court in the case of M/s. Neeharika Inrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in [AIR 2021 Supreme Court 1918] again discussed the scope of Section 482 Cr.P.C. and Article 226 of Constitution of India in detailed manner and summarised in paragraph-23 as under:-
"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied." (Emphasis supplied)
15. Therefore, the law is now settled that if a case falls under the parameters of R.P. Kapur case (supra) and State of Haryana and others Vs. Bhajan Lal and others (supra) then this Court can quash the proceedings while exercising its power under Section 482 Cr.P.C.
16. Before proceeding further it is necessary to have a glance of Section 482 Cr.P.C. which runs as:-
"482. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
17. Therefore, Section 482 Cr.P.C. deals with the inherent power of this Court to prevent the abuse of process of any Court or to secure the ends of justice.
18. The three judges Bench of the Apex Court in the case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another (2017) 9 SCC 641 held that Section 482 Cr.P.C. is prefaced with an overriding provision and this Court being a superior Court has the inherent power to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice.
19. Recently, the Apex Court in the case of Kapil Agarwal and others Vs. Sanjay Sharma and others (2021) 5 SCC 524 observed in paragraph no. 18.1 in respect of power of this court under Section 482 Cr.P.C. as:-
"As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed."
20. Applying the law laid down by the Apex Court referred to herein-above, now I will proceed to discuss the fact of the present case.
21. The impugned complaint was filed by opposite party no.2 against the applicants with the allegation that on the basis of forged Will of his father-in-law applicant no.1 and 2 mutated the name of their sons but admittedly Will in dispute dated 30.11.2000 was registered one and on the basis of registered Will after hearing both the parties, the mutation court passed the order in favour of applicants and except the bald allegation, there is no evidence on record on the basis of which, it can be said that the alleged registered Will dated 30.11.2000 was forged one.
22. The Apex Court in case of R.P. Kapur (supra) observed that if there is no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to charge then proceedings of such cases can be quashed while exercising the power under Section 482 Cr.P.C. (Section 561A of the old code).
23. In the present case except bald allegation there is no legal evidence on record which can show that either applicants prepared the forged Will or they executed the forged Will, rather there is order of mutation dated 10.04.2012 (Annexure No.9 to the affidavit filed in support of present application) which shows that after hearing both the parties, on the basis of registered Will dated 30.11.2000, the name of sons of applicant nos. 1 and 2 were mutated and opposite party no.2 did not even challenge the order dated 10.04.2012, therefore, in view of the law laid down in R.P. Kapur (supra), the instant application is liable to be succeeded.
24. Further, opposite party no.2 did not even challenge the alleged forged Will dated 30.11.2000 in any competent civil court and directly filed impugned complaint and further as per the complaint itself he tried to negotiate the matter with the applicants but when failed then he filed the impugned complaint against the applicants and Raj Bahadur Singh (not applicant). Apparently, the present dispute is of civil nature, therefore, question arises, whether in such cases, which are purely civil in nature, criminal proceedings should be permitted to continue.
25. The Apex Court in the case of G. Sagar Suri and another Vs. State of U.P. and others (2000) 2 SCC 636 observed in paragraph no. 8 as:-
"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. 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."
26. The Supreme Court in the case of Indian Oil Corporation Vs. NEPC India Limited and others (2006) 6 SCC 736 observed as:-
"13. xxxxx There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged"
27. The three judge Bench of the Apex Court in the case of M. Subramaniam and another Vs. S. Janki and another (2020) 16 SCC 728 cautioned that a civil dispute should not be given the colour of criminal offence.
28. If I apply the above principles on the facts of the case at hand then I find that opposite party no.2 has given the colour of criminal offence to a purely civil dispute. As per the allegation, on the basis of forged Will, the mutation proceeding was ended in favour of the applicants but there is no evidence that the Will dated 30.11.2000, the registered Will was forged one, therefore, only competent civil court having jurisdiction over the matter could decide the issue whether the Will in dispute dated 30.11.2000 was forged one or not but opposite party no.2 did not choose to file any suit for cancellation of Will dated 30.11.2000, therefore, it appears that he wanted to settle his score through criminal proceedings as criminal proceedings can be very easily initiated and can harass the applicants too. Therefore, from this point of view too, the present application filed on behalf of the applicants can succeed.
29. The three judge Bench of the Apex Court in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others (2007) 12 SCC 1 also deprecated the practice that if the dispute is purely of civil in nature and can only be ascertained on the basis of evidence by competent court then criminal proceedings should not be permitted to continue.
30. In case at hand, the question whether Will dated 30.11.2000 is forged could only be ascertained through evidence and documents by a civil court of competent jurisdiction but opposite party no.2 did not challenge the Will before any civil court, therefore, impugned complaint can be nipped in the bud while exercising the jurisdiction under Section 482 Cr.P.C.
31. As, the present dispute is in respect of registered Will deed of deceased and registered Will was never challenged by opposite party no.2 in any competent civil court and there is no evidence on record, which can even indicate that the Will in question dated 30.11.2000 was forged one, therefore, in my considered view, the criminal proceedings instituted by the opposite party no.2 is nothing but an abuse of the process of law and it has been used by him only as a weapon of oppression against the applicants.
32. Therefore, from the discussion made above, I find merit in the case and accordingly the proceedings of Complaint Case No. 2439 of 2012 dated 05.07.2011 under Sections 420, 468, 471, 506, 120B IPC pending in the court of Additional Chief Judicial Magistrate, Farrukhabad as well as summoning order dated 19.09.2012 and order dated 03.11.2015 passed by revisional court in Criminal Revision No. 308 of 2012, Police Station Maudarwaza, District Farrukhabad are hereby quashed.
33. The instant application stands allowed.
Order Date :- 11.08.2022 AK Pandey