Himachal Pradesh High Court
Sudhir Kumar And Others vs State Of Himachal Pradesh on 23 June, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 366/2015
Reserved on: June 20, 2016
Decided on: June 23, 2016
.
_________________________________________________________________
Sudhir Kumar and others ...........Petitioners
Versus
State of Himachal Pradesh ..........Respondent
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 yes.
of
For the petitioners : Mr. M.S. Thakur, Advocate.
For the respondent :
Mr. Parmod Thakur, Additional
rt Advocate General.
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Rajiv Sharma, Judge (oral)
This petition is directed against Order dated 3.7.2015 rendered by the learned Additional Sessions Judge-I, Shimla, HP in Criminal Revision Petition No. 26-S/10 of 2010.
2. "Key facts" necessary for the adjudication of the present petition are that the complainant Sadrick Sohan Lal, in the capacity of Secretary, Amritsar Diocesan Trust Association (in short 'ADTA'), filed a private complaint against Mehraj Masih, Gopal, Gopal Krishan, Sudhir Kumar, Harish and Sewa Ram under Sections 419, 420, 465, 467, 468, 471 and 120B IPC. Complaint was further forwarded to the SHO, Police Station, Sadar, Shimla for investigation and registration of case under Section 156 (3) CrPC, on the basis of which FIR No. 370/2000 dated 21.12.2000 was registered. Investigation was 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 2completed and the accused were charged for the commission of aforesaid offences. According to the prosecution, amongst other properties in the name of ADTA, the property measuring 645-11 .
square metres, being a part of land having total area measuring 1323-32 square metres comprised in Khata/Khatauni No. 52 min./69 min. Khasra No. 145 situate at Up Mohal Station Ward, Bara Shimla, Tehsil and District Shimla was also in the of effective management, control and administration of ADTA through the complainant Sadrick Sohan Lal. Accused had no rt right, title, interest or authority to deal or alienate the aforesaid property but the accused Gopal Krishan and Mehraj Masih have leased out the aforesaid property for a period of 99 years to accused Sh. Sudhir Kumar with the active assistance and connivance after hatching a criminal conspiracy with accused Harish Kumar and Sewa Ram. Accused, have prepared false and forged lease document, with the intent to cause damage and loss to ADTA and also committed fraud by impersonating being the persons concerned with the said property. Harish and Sewa Dass were stated to be the witnesses of the alleged forged lease deed and Gopal Krishan is the General Power of Attorney holder of accused Mehraj Masih, on the basis of which he has executed the said lease deed in favour of accused Sudhir Kumar.
3. Learned Judicial Magistrate passed order dated 31.8.2010 maintaining that the allegations levelled by the prosecution against accused persons, even if presumed to be ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 3 true, accused could not be held liable for offences under Sections 419, 420, 465, 467, 468, 471 and 120B IPC. Accused were discharged. State filed Criminal Revision Petition No. 26- .
S/10 of 2010 against order dated 31.8.2010 before the Additional Sessions Judge. Learned Additional Sessions Judge allowed the Criminal Revision vide order dated 3.7.2015. Hence, this petition.
of
4. Mr. M.S. Thakur, Advocate, has vehemently argued that the dispute between the parties was a civil dispute and the
5. rt same has wrongly been converted into criminal case.
Mr. Parmod Thakur, Additional Advocate General has supported the order dated 3.7.2015.
6. I have heard the learned counsel for the parties and also gone through the record carefully.
7. Complaint was filed initially before Judicial Magistrate 1st Class on 19.12.2000. Complaint was forwarded to SHO Police Station, Sadar, Shimla for investigation. FIR No. 370/2000 dated 21.12.2000 was registered at Police Station, Sadar, Shimla. IO has already recorded the statements of Ayub Danial, Vinod Kumar Randhir Kumar, Sadrick Sohan Lal, Pratap Singh, Smt. Sushila Sharma and Arun Wilson. According to the statements of these witnesses, accused have transferred the property in question in favour of Sudhir Kumar through forged sale deed. Mr. M.S. Thakur, Advocate has failed to point out any legal authority vested in his clients to lease out the ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 4 property of ADTA in favour of accused Sudhir Kumar. It is evident from the plain reading of the contents of Challan that prima facie case is made out under Sections 419, 420, 465, .
467, 468, 470, 471 and 120B IPC against the accused. Learned Judicial Magistrate 1st Class has erred in law in concluding that the accused could not be held liable for offence under these sections, at the threshold itself. The learned trial Court has mis-
of directed itself by coming to the conclusion that it was a civil dispute between the parties. It can not be said that a civil
8. rt dispute has been converted into criminal matter.
Their Lordships of the Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, have held that where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. Their lordships have further held that the power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. Their lordships have also held that mere existence of a civil dispute between the ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 5 parties would not by itself alter the status of the allegations constituting the criminal offence. Their lordships have held as under:
.
[25] Having examined the inter-relationship of these two very significant provisions of the Code, let us now examine the scope of interference under any of these provisions in relation to quashing the charge. We have already indicated above that framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record and documents placed therewith before the Court. Taking cognizance of an offence has been stated to necessitate of an application of mind by the Court but framing of charge is a major event where the Court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the Court may not proceed with the rt trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the Court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the Court may discharge the accused.
There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions.
[26] This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In the case of Indian Oil Corporation v. NEPC India Ltd. & Ors., 2006 6 SCC 736, this Court took the similar view and upheld the order of the High Court declining to quash the ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 6 criminal proceedings because a civil contract between the parties was pending.
[27] Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code .
and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section of 482 of the Code or together, as the case may be :
27.1 Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in rtinvoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 7
27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' .
with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end of in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10.
rt It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal.
The Court has to consider the record and documents annexed with by the prosecution.
27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 8 justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
9. Their lordships of the Hon'ble Supreme Court in the .
case of State of M.P. v. Surendra Kori, reported in (2012) 10 SCC 155, have held that the High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more of so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true rt perspective without sufficient material. It has been held as follows:-
"14. The High Court in exercise of its powers under Section 482 CrPC does not function as a Court of Appeal or Revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."
10. In the present case, there are factual foundation and ingredients of the offence under which the petitioners have been booked.
11. There is neither any perversity nor any illegality in Order dated 3.7.2015 rendered by the learned Additional Sessions Judge-I, Shimla.
::: Downloaded on - 15/04/2017 20:39:45 :::HCHP 912. Accordingly, there is no merit in the present petition and the same is dismissed. Pending applications, if any, are disposed of. Since, matter is old one, learned trial Court is .
directed to conclude the trial itself within a period of six months from today.
(Rajiv Sharma) Judge June 23, 2016 (vikrant) of rt ::: Downloaded on - 15/04/2017 20:39:45 :::HCHP