Karnataka High Court
Mr. H Sunil Kumar vs State Of Karnataka on 20 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.9424 OF 2018
BETWEEN
MR.H.SUNIL KUMAR
ADVOCATE
S/O A. HAMSARAJ
AGED ABOUT 35 YEARS
NO.L2-05, 2ND FLOOR
SPLENDID PLAZA
100FT ROAD
KORAMANGALA
BENGALURU - 560 095.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR. ADVOCATE A/W
SRI NAVEED AHMED, ADVOCATE (PHYSICAL
HEARING))
AND
1. STATE OF KARNATAKA
BY AUDUGODI POLICE
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 506 001.
2. SMT.SARASWATHI SHANKARNARAYANAN
AGED ABOUT 29 YEARS
W/O SHANKARNARAYAN
RESIDING AT NO.302
COMFORT BENAKA APARTMENTS
2
ERAMMA LAYOUT, B G ROAD
AUDUGODI, BENGALURU - 560 030.
... RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., AGA FOR R1 (PHYSICAL
HEARING);
SRI AMRUTHESH N.P., ADVOCATE FOR R2 (PHYSICAL
HEARING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE PRIVATE COMPLAINT IN
PCR.NO.65/2018 PENDING BEFORE THE 70th CITY CIVIL AND
SESSIONS COURT, BANGALORE AGAINST THE PETITIONER FOR
THE OFFENCES P/U/S 420, 408, 409, 504, 506 R/W 34 OF IPC AND
SEC.3(1)(X) OF THE SC/ST (POA) ACT FILED BY SECOND
RESPONDENT VIDE ANNEXURE-A AND THE ORDER PASSED BY
THE LEARNED SESSIONS JUDGE DATED 14.11.2018 REFERRING
THE MATTER FOR INVESTIGATION U/S 156(3) OF THE CODE OF
CRIMINAL PROCEDURE TO AUDGODI POLICE STATION VIDE
ANNEXURE-B.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.11.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court calling in question the order dated 14-12-2018 passed by the learned Sessions Judge referring the private complaint in PCR No.65 of 2018 for investigation registered by the 2nd respondent/complainant for offences punishable under Sections 420, 408, 409, 504, 506 read with 34 of the IPC and under Section 3(1)(x) of the 3 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard Sri Sandesh J.Chouta, learned Senior counsel along with Sri Naveed Ahmed, learned counsel for the petitioner, Smt. Namitha Mahesh, B.G. learned Additional Government Advocate for respondent No.1 and Sri Amruthesh N.P., learned counsel for respondent No.2.
3. The petitioner is a practicing Advocate, at Bangalore.
The petitioner represents a client by name Shankarnarayan who the petitioner claims to be his close friend as well. The client of the petitioner and the complainant/respondent No.2 are husband and wife. Certain instances appear to have happened between the husband and the wife which led to several proceedings against each other. The petitioner in the episode is the Advocate representing the husband in all the cases. The relationship between the complainant and her husband is not required to be considered in the case at hand, as the present lis is not the one between the complainant and the husband, it is 4 between the wife - complainant and the husband's Advocate- the petitioner.
4. On certain allegations, the complainant approaches jurisdictional police to register a case against the petitioner. The same appears to have been refused to be registered against the petitioner which led to the complainant registering a private complaint in PCR No.65 of 2018. Since the entire issue springs from the complaint, the same is extracted hereunder for the purpose of quick reference:
"COMPLAINT UNDER SECTION 200 OF THE CODE OF CRIMINAL PROCEDURE The complainant above-named submits as follows:
1. That the address of the complainant for the purpose of court summons, notice, etc. from this Hon'ble Court is as stated in the cause title and the complainant also represented by M/s D.P.Prasanna and Associates, Advocates, No.2, 2nd Floor, 1st Cross, Gandhinagar, Bengaluru-560 009.
2. That the address of the accused for the purpose of issuing summons notice etc. by this Hon'ble Court is as shown in the cause title.
3. The complainant is the wife of the accused No.2, accused No.1 is an practicing Advocate and family advocate of the complainant and accused No.2, the 5 accused No.1 was having good relationship with the complainant and accused No.2 and he was well aware about the family affairs of the complainant family and cast backgrounds, since many years the accused No.1 only looking all legal matters, including drafting deeds, registration work and other legal aspects.
4. It is submitted that the marriage the complainant with accused No.2 is love marriage and the complainant and the accused No.2 belong to different cast. They were in love for more than four years prior to their marriage and they lived together since 2000. The complainant is belongs to Valmiki (Beda) cast which comes under scheduled tribes. The copy of the cast certificate issued by the authority concern is herewith produced and marked as Annexure-A for the kind perusal of this Hon'ble Court.
5. It is further submitted that, during the course of living relationship and on the demand of the accused No.2 to marry her, she has purchased an apartment in the help of the parents and her earnings, and registered the same in her name and accused No.2, jointly. It is pertinent to note that after the marriage the accused No.2 continued his demand and insisted the complainant to purchase one more house in his name alone, hence she has purchased an independent duplex house and registered in the name of the accused No.1 alone. The copy of the same deed dated 25-02-2016 is herewith produced and marked as Annexure-B for the kind perusal of this Hon'ble Court.
7. It is further submitted that, during the family relationship of the complainant and accused No.2,he has expressed his willingness to gift the said house standing in his name to complainant, as such the accused No.2 and complainant have invited the accused No.1 to their house and instructed to prepare and get register the gift deed in favour of the complainant, as such the 6 accused No.1 has collected all the relevant documents and fee from the complainant.
Thereafter the accused No.1 has instructed the complainant and accused No.2 to come to register office at Koramangala, as such the complainant and accused No.2 have rushed to Koramangala Sub-Registrar office, but the accused No.2 has dragged the matter till evening and reached the registrar office at 5 p.m. along with his three colleague Advocates and informed that the property is situated at Wilsongarden and Gift Deed has to be registered only in jurisdictional office at Shanthinagar and instead to executed before the Notary, even though the complainant has not agreed but the accused No.1 has convinced the accused No.2 and complainant, finally he get it notarized at Sub-Registrar Office premises at BDA complex, Koramangala, the copy of the gift deed dated 11-05-2017 is herewith produced and marked as Annexure-C for the kind perusal of this Hon'ble court.
8. It is further submitted that, due to some mis- understanding in the family the accused No.2 left the marital home, hence the complainant has filed a petition before the family court for the relief of restitution of conjugal right. The copy of the petition MC No.2749 of 2018 is herewith produced and marked as Annexure-D for the kind perusal of this Hon'ble Court.
9. It is further submitted that, to the shock of the complainant immediately after filing of M.C. petition, she has received a notice of accused No.1 issued on behalf of accused No.2 wherein he has directed the complainant to execute a divorce deed for dissolution of marriage of complainant with 2nd accused. The copy of the notice dated 30- 05-2018 is herewith produced and marked as Annexure -E for the kind perusal of this Hon'ble Court.
710. It is further submitted that, after receiving the divorce notice, the complainant has tried to contact the accused No.2, however, he has avoided her and his parents have used to pick the call and abuse the complainant by insulting that she belongs to tribes and made several allegations, by continuing their earlier character. Hence, the complainant has filed a complaint against her husband/accused No.2 herein and his parents. This Hon'ble Court after considering the allegations is pleased to refer the matter for investigation to the jurisdictional Adugodi police, in turn the said police have registered the case on 1-08-2018. The copies of the complaint and FIR are herewith produced and marked as Annexure-F and G for the kind perusal of this Hon'ble Court.
11. It is further submitted that, the 1st accused being the family advocate has represents the accused by filing bail petition before this Hon'ble Court, however, the said bail petition is dismissed by this Hon'ble Court, the copy of the order dated 22-09-2018 is herewith produced and marked as Annexure-H for the kind perusal of this Hon'ble Court.
12. It is further submitted that, the accused have not chosen to challenge the order of rejection, however, they have approached the Hon'ble High Court under Section 482 Cr.P.C. and succeeded staling the investigation by obtaining stay order. The copy of the stay order is herewith produced and marked as Annexure-J for the kind perusal of this Hon'ble Court. In the meantime one more complaint is allegedly filed in the name of the 2nd accused against the complainant by making serious allegations about her chastity, however the said complaint is not bearing the signature of the accused No.2, the copy of the same is herewith produced and marked as Annexure-K for the kind perusal of this Hon'ble Court.
813. It is further submitted that, the accused No.1 has represents the other accused in all the proceedings, in further he has filed two more petitions against the complainant herein for the relief of Divorce and Custody of the child. The copies of the M.C. petition in 4654 of 2018 and petition in G & WC 273 of 2018 are herewith produced and marked as Annexures L and M for the kind perusal of this Hon'ble Court.
14. It is further submitted that, the complainant has suspects the attitudes of the accused, as such she has filed an original suit in O.S.No.277 of 2018 before the family court, against her husband for the relief of injunction for not to alienate the properties, since the suit schedule properties are standing in the name of the 2nd accused/ husband the Hon'ble Court is pleased to issue the summons to the defendant/accused No.2, hence the complainant has written the case number on the wall of the house. The copy of the plaint is herewith produced and marked as Annexure-N for the kind perusal of this Hon'ble Court. It is pertinent to note that by knowing the same the 1st accused has succeeded in get register the property to his name from the name of accused No.2 by way of gift. The copy of the gift deed is herewith produced and marked as Annexure-P for the kind perusal of this Hon'ble Court.
15. It is further submitted that, immediately after execution of the gift deed the accused No.2 rushed to the house and tried to dispossess the complainant from her house where is residing, hence she has rushed to the jurisdictional police station and shown the gift deed executed in favour of the complainant by the accused No.2, which is drafted by the accused No.1, at that juncture the accused No.1 came with his rowdy elementary supporter and stated abusing the complainant by calling her cast that too in the Adugodi 9 police station premises as "Beda Jathiyavale Bedada Jagakke Kaluhisuthene", hence the complainant has requested the said police to register a criminal case and take necessary action. But, the said police also not obliged the complainant, however they have insisted to maintain status quo. Hence, the complainant has filed the complaint before the higher authorities through registered post, the copies of the complaint and postal acknowledgment are herewith produced and marked as Annexures R to T series, but regularly the 1st accused has threatening the complainant through the tenants and directed them not to pay the rents to the complainant, but till this day no action is taken on the complaint of the complainant hence this complaint before this Hon'ble Court.
16. It is further submitted that, by accused No.1 being an family Advocate knowing fully aware that the property belongs to the complainant, and fraudulently not register the gift deed executed by the 2nd accused in favour of the complainant and only notarizing the said gift deed and with an dishonest intention to cheat the complainant has taken the same under gift from the accused No.1 to himself and abused the complainant by calling her cast and abused in filthy language and the accused No.2, being a husband has lodged a false complaint and executed the gift deed, even though knowing fully that property belong s to the complainant has executed the gift deed in favour of the accused No.1 and knowingly the complainant is belongs to Scheduled Tribes has got married and after leading the lift for 7 years has thrown her in footpath. Thereby the accused have committed an offence punishable under Section 420, 406, 409, 504, 506 r/w 34 of IPC and u/s 3(1)(x) of the Prevention of Atrocities (SC & ST) Act.
Wherefore, the complainant above named pray that this Hon'ble Court be pleased to register the complaint against the accused for the aforesaid offences and refer the same to the jurisdictional ACP, Adugodi Police for 10 the investigation of the offence punishable under Section 420, 408, 409, 504, 506 r/w 34 of IPC and under Section 3(1)(x) of the Prevention of Atrocities (SC & ST) Act, in the interest of justice."
(Emphasis added) The afore-extracted complaint generated certain allegations against the petitioner. The purport of the complaint though noticed in its entirety narrates against the husband, insofar as it concerns the petitioner, the allegation is that the husband of the complainant had expressed his willingness to gift the house standing in his name and the petitioner was invited to the house and instructed to get a gift deed registered. The petitioner appears to have collected all the documents and the fee required for such registration and ultimately the property was gifted to the complainant.
5. The grievance of the complainant is that the petitioner has prevailed upon the husband not to part with any property.
The next allegation against the petitioner is that due to misunderstanding between the couple the husband claims to have left the marital home, due to which, the complainant filed a 11 case before the Family Court seeking restitution of conjugal rights in M.C.No.2749 of 2018 in which, after issuance of notice, the petitioner represents the husband. The further allegation is that the petitioner has issued a notice on behalf of the husband that the husband desires to dissolve the marriage. In every proceeding the petitioner defended the husband, is the crux of the allegation against the petitioner by the complainant. All these facts are iced with a further allegation that the petitioner had hurled certain abuses taking the name of the caste of the complainant and has incurred trial for offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Atrocities Act' for short).
6. Based upon the said complaint an investigation is ordered for offences punishable under Sections 420, 408, 409, 504, 506 read 34 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Atrocities Act' for short). On the investigation being directed by the learned Magistrate, the 12 petitioner has knocked the doors of this Court with the subject petition.
7. The learned Senior Counsel appearing for the petitioner would vehemently argue and contend that the squabble between the husband and wife has led to the petitioner being dragged into these proceedings by making baseless and unnecessary allegations. If the husband who incidentally is the client of the petitioner does not intend to part with any property belonging to him and the petitioner has drafted the gift deed or represented the husband in all the proceedings between the parties that cannot result in the allegations levelled against the petitioner.
The allegations levelled are for offences which cannot be imagined to be linked to any of the facts narrated in the said complaint.
8. Insofar as the allegations with regard to hurling of abuses, two instances are narrated in the complaint viz., (i) that abuses were hurled over phone and (ii) before the Police in the police station. The learned counsel would submit that such 13 instance cannot but be false and the entire dispute between the husband and the wife is now given a colour of crime and petitioner's reputation has incurred a dent due to such frivolous complaint and would submit that any further continuance of trial would be an abuse of the process of law.
9. On the other hand, the learned counsel representing the 2nd respondent-complainant would contend that the husband of the complainant has cheated the complainant and the reason behind all the litigations generated by the husband is the petitioner. The petitioner has acted beyond his brief and entered into the personal life of the couple and is, therefore, guilty of offences alleged and the complaint being still at the stage of investigation, this Court should not interfere at this stage and permit investigation to be completed and a report by the Police to be filed before the competent Court.
10. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
1411. The complaint which is the basis for the impugned proceedings is as extracted hereinabove. The instances that the complainant alleges on the acts of the petitioner are also noticed supra. The entire squabble between the husband and the wife is with regard to certain properties not being gifted to the complainant/wife. If the petitioner has been an Advocate for the husband it is ununderstandable as to how an offence under Section 420 of IPC can be alleged against the Advocate who represents his client in the cases against the complainant.
12. Several cases have been filed by the complainant/wife against her husband and the husband against the wife. In all the cases the petitioner has defended the husband. In the case registered by the wife in M.C.No.2749 of 2018 against the husband seeking restitution of conjugal rights, the petitioner defends the husband. The husband has filed M.C.No.4654 of 2018 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking dissolution of marriage. The petitioner represents the husband in the said case. The complainant/wife has preferred 15 O.S.No.277 of 2018 seeking injunction against the husband not to alienate the suit properties to third parties. The petitioner represents the defendant/husband in the said suit also. The husband has filed G & WC No.273 of 2018 for custody of the child against the complainant in which the petitioner represents the husband. After all these proceedings the husband has also registered a complaint against the wife on 8-01-2019. An FIR is registered against the wife based upon the said complaint registered by the husband for offences punishable under Section 463, 464, 465, 468, 469, 420 and 506 of the IPC.
13. The other allegation is that the petitioner has received a property as a gift from the hands of the husband of the complainant, this the complainant alleges that ought to have been gifted to her. After and during the pendency of few of the proceedings, the subject complaint is registered by the complainant alleging several acts against the petitioner. As observed hereinabove, the entire complaint is that the petitioner has drafted petitions; drafted complaints; drafted written 16 statement and has appeared against the complainant and on behalf of her husband in all the cases. Further allegation under Section 3(1)(x) of the Atrocities Act is also alleged against the petitioner.
14. The stage at which the petitioner has knocked the doors of this Court is when the investigation is ordered under Section 156(3) of the Cr.P.C. on a private complaint registered by the 2nd respondent/complainant. In the light of peculiar facts obtaining in the case at hand, the learned Magistrate before whom the complaint is registered ought to have applied his mind before directing investigation to be conducted against the petitioner. All that the learned Magistrate orders while registering the complaint is as follows:
"Complainant present. Complaint presented through Sri DPP, Advocate on this 14-12-2018 at 3.05 p.m. I heard on the side of counsel for complainant and perused the complaint and documents and affidavit of complainant.
Register as PCR. This case is referred Under Section 156(3) of Cr.P.C.to A.C.P. of Adugodi Sub- Division for investigation. Await report on 31-01-2019."17
On the afore-quoted direction for investigation, the submission of the learned Senior Counsel is that the order directing investigation bears no application of mind which is imperative while the learned Magistrate directs investigation. It is germane to notice the law as laid down by the Apex Court with regard to necessity of application of mind by the learned Magistrate while directing investigation under Section 156(3) of Cr.P.C.
15. The Hon'ble Apex Court in the case of ANIL KUMAR v.
M.K. AIYAPPA1 holds as follows:
"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the 1 (2013) 10 SCC 705 18 complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
(Emphasis supplied) This is later reiterated in the case of PRIYANKA SRIVASTAVA v.
STATE OF U.P.2 by the Apex Court as follows:
"22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705: (2014) 1 SCC (Cri) 35], the two-Judge Bench had to say this: (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 :
(2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 2 (2015) 6 SCC 287 19 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
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30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have 20 already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
(Emphasis supplied) If the order directing investigation is considered on the touchstone of the law laid down by the Apex Court in the afore-
quoted judgments, it would be rendered unsustainable as it bears no application of mind.
16. It is germane to notice the judgment of the Apex Court in the case of PEPSI FOODS LTD. AND ANOTHER v. SPECIAL JUDICIAL MAGISTRATE AND OTHERS3 wherein it is held as follows:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only 3 (1998) 5 SCC 749 21 two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
(Emphasis supplied) The Apex Court in the afore-extracted judgment holds that summoning of the accused or initiation of criminal trial is a serious matter and any order passed by the learned Magistrate which sets the criminal law in motion should bear application of mind.
17. The law in the case of PEPSI FOODS is reiterated by the Apex Court in the case of RAVINDRANATHA BAJPE -
(Criminal Appeal No.1047-48 of 2021 decided on 22 27-09-2021) and SUNIL TODI AND ANOTHER - (2021) SCC Online SC 1174. Therefore, the direction of the learned Magistrate directing investigation would stand vitiated as it bears no application of mind.
18. Insofar as the allegation with regard to Section 3(1)(x) of the Atrocities Act, the said allegation would also hold no water. Section 3(1) (x) stood deleted from the statute book with effect from 01-01-2016. Therefore, no offence as alleged under Section 3(1)(x) of the Atrocities Act would have been even directed for investigation. It is here the order of the learned Magistrate directing investigation required application of mind.
Even otherwise, the complaint narrates instances of hurling abuses by the petitioner on two occasions - firstly over mobile phone and secondly in the police station before the Police. Over the mobile phone cannot be said to be an allegation which would become an offence punishable under the Atrocities Act as it is neither in a public place nor in a place of public view.
2319. Insofar as hurling abuses in the police station is concerned, the further narration in the complaint is that the police refused to register a complaint under the Atrocities Act on the abuses being hurled by the petitioner before the Police. This allegation in the complaint cannot even be believed on the face of it, as, if abuses were hurled before the Police, a complaint ought to have been immediately registered. Therefore, the very allegation of hurling abuses is only glazed with the provisions of the Atrocities Act, the content of which is a squabble between the husband and the wife and the petitioner representing the husband in all the cases. It is for this reason, the act of wrecking vengeance against the petitioner is writ large in the nature of offences alleged.
20. It is in the aforesaid circumstances, it becomes germane to notice the law laid down by the Apex Court in identical cases where the Apex Court has observed that the Atrocities Act has led to its misuse. The Āpex Court in the case 24 of GORIGE PENTAIAH v. STATE OF ANDHRA PRADESH4 holds as follows:
"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5- 2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.
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Scope and ambit of courts' powers under Section 482 CrPC
12. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. 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 CrPC can be exercised:
(i) to give effect to an order under the Code;4
(2008) 12 SCC 531 25
(ii) to prevent abuse of the process of court; and
(iii) to otherwise secure the ends of justice.
Inherent powers under Section 482 CrPC 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.
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Discussion of decided cases
19. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426] this Court in the backdrop of interpretation of various relevant provisions of CrPC 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 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that 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 to myriad kinds of cases wherein such power should be exercised: (SCC pp. 378- 79, para 102) "(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.
26(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 Act concerned (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 Act concerned, 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 27 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
... ... ... ....
23. This Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283] observed thus: (SCC p. 128, para 8) "8. ... It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
... ... ... ...
26. A three-Judge Bench of this Court in Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259 : AIR 2008 SC 251] has examined scope and ambit of Section 482 of the Criminal Procedure Code. The Court in the said case observed that inherent powers under Section 482 should be exercised 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 fully justified in preventing injustice by invoking inherent powers of the court."
28The afore-quoted judgment is reiterated by the Apex Court in the case of HITESH VERMA v. STATE OF UTTARAKHAND5 wherein it is held as follows:
"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008)8SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn distinction between the expression "public place"
and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed. : This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view."] . The Court held as under: (SCC pp. 443-44, para 28) "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate 5 (2020) 10 SCC 710 29 of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
(emphasis in original)
15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] , it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.
30 ... ... ... ...
17. In another judgment reported as Khuman
Singh v. State of M.P. [Khuman Singh v. State of M.P., (2020) 18 SCC 763: 2019 SCC OnLine SC 1104] , this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:
"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."
18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a 31 person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."
(Emphasis supplied) Thus, the law laid down by the Apex Court in the aforesaid cases if applied and considered to the facts of the case at hand, it would become unmistakably clear that Atrocities Act is only invoked to wreck vengeance against the petitioner and generate a dent in his reputation.
21. The entire facts, if taken into consideration viz., the proceedings pending before various competent judicial fora with regard to the squabble between the husband and the wife, it cannot but be held that a proceeding which is purely civil in nature has been given a colour of crime that too against the Advocate who represents the husband, alleging offences punishable under sections as aforesaid. It, therefore, becomes necessary to consider the latest law laid down by the Apex Court wherein the Apex Court considers entire spectrum of facts where civil litigation is given a colour of crime in the case of MITESH 32 KUMAR J. SHA v. STATE OF KARNATAKA AND OTHERS6 -
where it is held as follows:
"Whether the necessary ingredients of offences punishable under Sections 406, 419 and 420 are prima facie made out?
27. In order to ascertain the veracity of contentions made by the parties herein, it is imperative to firstly examine whether the relevant ingredients of offences which the appellants herein had been charged with, are prima facie made out. The relevant sections read as follows:--
"405. Criminal breach of trust--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation
2.--A person, being an employer, who deducts the 6 2021 SCC Online SC 976 33 employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
406. Punishment for criminal breach of trust--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
419. Punishment for cheating by personation--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420. Cheating and dishonestly inducing delivery of property-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
28. In the instant case, the complaint levelled against the Appellants herein is one which involves commission of offences of criminal breach of trust and cheating. While a criminal breach of trust as postulated under section 405 of the Penal Code, 1860, entails 34 misappropriation or conversion of another's property for one's own use, with a dishonest intention, cheating too on the other hand as an offence defined under section 415 of the Penal Code, 1860, involves an ingredient of having a dishonest or fraudulent intention which is aimed at inducing the other party to deliver any property to a specific person. Both the sections clearly prescribed 'dishonest intention', as a pre-condition for even prima facie establishing the commission of said offences. Thus, in order to assess the relevant contentions made by the parties herein, the question whether actions of the Appellants were committed in furtherance of a dishonest or fraudulent scheme is one which requires scrutiny.
29. Coming to the facts of the case at hands, the contested contention between the parties is that the builder company had sold four excess flats beyond its share, in terms of the JDA and supplementary agreement entered into between the parties. Respondent No. 2 contends that builder company which was entitled to sell only 9 flats in its favour, has instead executed sale deed for 13 flats in total. Thus, the company simply could not have sold the flats beyond 9 flats for which it was authorized and resultantly cannot evade criminal liability on a mere premise that a civil dispute is already pending between the parties.
30. The Appellants on the other hand contend that in terms of a subsequent MoU dated 19.02.15, it was mutually agreed between the parties, that partial payment for a loan amount borrowed by Respondent No. 2 from Religare Finvest Ltd., would be paid out from the sale proceeds of the said development project undertaken by both the parties. Pursuant to this MoU, the Appellants had agreed to get an NOC for 15 flats by making payment of Rs. 40,00,000/- for each flat.
31. The key contention, and also the central point of dispute, made by the Appellants is that, it was specifically agreed between the parties that the Appellants would be entitled to sell additional flats beyond their share, as adjustments for payment made to 35 Religare Finvest Ltd. on behalf of Respondent No. 2. It is further contended that Respondent No. 2 had also agreed to execute a ratification deed to the JDA and GPA eventually, which would have formally authorised the Appellants to sell additional apartments.
32. Nonetheless, the ratification deed was never made and Respondent No. 2 subsequently even revoked the GPA unilaterally, contending that the terms of JDA were not followed.
33. It was only after revocation of GPA that the company filed an application for arbitration seeking interim orders to restrain the Respondent No. 2 from alienating the disputed property. Simultaneously, while this dispute was pending adjudication before the arbitrator Respondent No. 2 filed a criminal complaint against the Appellants.
34. At this juncture, it further becomes pertinent to mention that eventually though both the parties partly succeeded before the arbitrator, in terms of their respective claims, the arbitrator observed that GPA indeed could not have been revoked unilaterally at the instance of Respondent No. 2. Aggrieved, Respondent No. 2 thereafter even preferred a challenge to the award passed by the arbitrator. Moreover, pending arbitration proceedings issue regarding selling of excess flats at the instance of Appellants, was also withdrawn by Respondent No. 2 seeking liberty to pursue his claim with regard to selling of four excess flats in pending civil proceedings.
35. Upon a careful assessment of such facts, by no stretch can it be concluded that the Appellants herein have deceptively or intentionally tried to sell excess flats if any, as contended by Respondent No. 2. Here, it must also be borne in mind that subsequent to the revocation of GPA, it was the Appellants herein who had first resorted to arbitration proceedings on 02.03.16 for redressal of dispute between the parties, to which Respondent No 2 had accordingly filed his statement of objections dated 36 09.03.16. It was only on 29.03.16 that Respondent No. 2 had filed the FIR in question bearing Crime No. 185/2016 against the Appellants. Moreover, it was Respondent No. 2 who had withdrawn his prayer with respect to selling of four excess flats by the Appellants, only to pursue the same in civil proceedings.
36. At this stage, by placing reliance on the judgment of this Court in Priti Saraf v. State of NCT of Delhi (Supra) and Sri Krishna Agencies v. State of Andhra Pradesh (Supra), it has been further submitted by Respondent No. 2 that Appellants cannot evade a criminal case by merely contending that the person whose property has been sold has filed a civil suit for recovery of the property, or that the dispute had been referred to arbitration.
37. Although, there is perhaps not even an iota of doubt that a singular factual premise can give rise to a dispute which is both, of a civil as well as criminal nature, each of which could be pursued regardless of the other. In the instant case, the actual question which requires consideration is not whether a criminal case could be pursued in the presence of a civil suit, but whether the relevant ingredients for a criminal case are even prima facie made out. Relying on the facts as discussed in previous paragraphs, clearly no cogent case regarding a criminal breach of trust or cheating is made out.
38. The dispute between the parties, could at best be termed as one involving a mere breach of contract. Now, whether and what, is the difference between a mere breach of contract and an offence of cheating has been discussed in the ensuing paragraphs.
Whether sale of excess flats even if made amounts to a mere breach of contract?
39. This Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar6, has observed:--
37"15. ....that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise..."
40. Applying this dictum to the instant factual matrix where the key ingredient of having a dishonest or fraudulent intent under sections 405, 419 and 420 is not made out, the case at hand, in our considered opinion is a suitable case necessitating intervention of this Court. Whether the dispute is one of entirely civil nature and therefore liable to be quashed?
41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of Indian Oil Corporation v. NEPC India Ltd.7, as under:--
"14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being 38 fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."
42. It was also observed:--
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors....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."
43. On an earlier occasion, in case of G. Sagar Suri v. State of UP8, this Court has also observed:--
"8. 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."39
44. Furthermore, in the landmark judgment of State of Haryana v. Ch. Bhajan Lal9 regarding exercise of inherent powers under section 482 of CrPC, this Court has laid down following categories of instances wherein inherent powers of the can be exercised in order to secure the ends of justice. These are:--
"(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 F.I.R. 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 40 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."
45. Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under section 482 CrPC. We find that there has been attempt to stretch the contours of a civil dispute and thereby essentially impart a criminal color to it.
46. Recently, this Court in case of Randheer Singh v. The State of U.P.10, has again reiterated the long standing principle that criminal proceedings must not be used as instruments of harassment. The court observed as under:--
"33. ....There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the 41 dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above."
47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety."
In the light of the afore-extracted judgment of the Apex Court, for the allegation between the husband and the wife which is purely civil in nature, allegation of cheating or criminal breach of trust cannot even remotely link the petitioner to the facts in the complaint, as merely because the petitioner receives the property as a gift from the husband, it cannot amount to cheating the complainant-
wife.
22. It is, therefore, a fit case to interfere with the trial against the petitioner in the light of the legal postulates laid 42 down by the Apex Court in the case of STATE OF HARYANA v.
BAJANLAL7, the seven postulates of interference read 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 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 7 (1992) Supp.(1) SCC 335 43 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."
(Emphasis supplied) 44 The afore-quoted postulates determine the interference at the hands of this Court invoking its jurisdiction under Section 482 of the Cr.P.C. to set the wrong right and obliterate such proceedings which if continued would generate into harassment, be an abuse of the process of the law and result in miscarriage of justice.
23. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings in P.C.R.No.65 of 2018 pending before the LXX Additional City Civil and Sessions Judge at Bangalore stands quashed qua the petitioner.
Sd/-
JUDGE bkp CT:MJ