Allahabad High Court
Hussain Zaidi Alias Guddu vs State Of Up And 3 Others on 12 July, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:112062-DB A.F.R. Reserved On : 03.07.2024 Delivered On : 12.07.2024 Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 9665 of 2024 Petitioner :- Hussain Zaidi Alias Guddu Respondent :- State Of Up And 3 Others Counsel for Petitioner :- M J Akhtar,Shahzad Alam Counsel for Respondent :- G.A.,Satyam Narayan,Shams Uz Zaman Hon'ble Vivek Kumar Birla,J.
Hon'ble Arun Kumar Singh Deshwal,J.
(Delivered by Hon'ble Arun Kumar Singh Deshwal, J.)
1. Pursuant to the order of this Court, learned AGA has produced the copy of the instructions which is taken on record.
2. Heard Sri V.M. Zaidi, learned Senior Advocate, assisted by Sri M.J. Akhtar and Sri Shahzad Alam, learned counsel for the petitioner, Sri Satyam Narayan, learned counsel for the informant and Sri Ratan Singh, learned AGA for the State.
3. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 15.05.2024 and the investigation of Case Crime No.152 of 2024, under Sections-420, 467, 468, 471 IPC, Police Station- Civil Lines, District- Meerut.
4. Contention of learned counsel for the petitioner is that the impugned FIR is illegal as no preliminary investigation was conducted by the police before lodging the same as directed by the Hon'ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh & Others reported in (2014) 1 SCC (Cri) 524 regarding cases being civil in nature. It is also submitted by learned counsel for the petitioner that the allegation in the impugned FIR is that a forged family settlement dated 02.11.2007 was prepared but same was not executed by the petitioner and one of the uncle of the petitioner, Sayed Muste Hasan Zaidi alias Nanhey Miyan had purchased stamp paper and prepared the family settlement dated 02.11.2007 with the consent of all his brother and their heirs in the year 2007 itself. After the death of the father of the petitioner, petitioner came to know about the settlement dated 02.11.2007 from his uncle and when respondent no.4 and his other family members did not agree for partition of the property then the petitioner filed a Civil Suit bearing No.769 of 2003 in the court of Additional Civil Judge (Senior Division)-II, Meerut for declaration and injunction on 12.07.2023 claiming his ownership and title in the family property in dispute. On the basis of family settlement dated 02.11.2007 obtained by the petitioner from his uncle Sayed Muste Hasan Zaidi (real brother of respondent no.4) which is still pending and validity of the family settlement dated 02.11.2007 is yet to be adjudicated by the civil court. But the respondent no.4 after the knowledge of the aforesaid suit instead of contesting the same before the civil court had lodged an impugned FIR on the basis of false and concocted story. It is further submitted by learned counsel for the petitioner that regarding the genuineness of the signature of the respondent no.4 and his brothers, report of hand writing expert was also filed by the petitioner before the civil court and family settlement dated 02.11.2007 was also verified by the Advocate Notary and also issued his certificate dated 25.04.2024. It was further submitted that though in FIR there is allegation that stamp used to prepare forge family settlement dated 02.11.2007 was purchased on 06.12.2007 but information given to petitioner by treasury office shows that stamp in question was purchased on 29.10.2007 not on 06.12.2007. Therefore, this allegation is absolutely false. In support of this submission learned Senior Counsel also produced copy of R.T.I. information given by the concerned treasury office.
5. It is lastly contended by learned counsel for the petitioner that dispute regarding the family settlement dated 02.11.2007 has been pending before the civil court but by the impugned FIR, the petitioner has given the colour of criminality to the civil dispute between the parties. Therefore, no offence u/s 420, 467, 468 & 471 IPC is made out and impugned FIR is liable to be quashed.
6. Per contra, Sri Satyam Narayan, learned counsel for opposite party no.4 as well as Sri Ratan Singh, learned AGA have vehemently opposed the present petition and submitted that from the perusal of the FIR, it is clear that there is specific allegation of committing forgery by preparing forged family settlement dated 02.11.2007 in which the signatures of the respondent no.4 and other co-sharer of the property have been forged.
7. The instructions were sought from the State on the issue as to whether before lodging the first information report, any preliminary enquiry was conducted or not.
8. Instructions so produced by learned AGA reflect that a preliminary enquiry was conducted before registration of the first information report.
9. After hearing the submission of learned counsel for the parties and on perusal of record on the basis of instructions of learned AGA it is clear that preliminary enquiry was conducted before the registration of impugned FIR, therefore, contention of learned counsel for the petitioner that no preliminary enquiry/investigation was conducted before registration of impugned FIR despite the dispute is of civil in nature, is misconceived.
10. So far as contention of learned counsel for the petitioner that dispute is essentially civil in nature and civil dispute is already pending regarding the alleged family settlement dated 02.11.2007 is concerned, the Hon'ble Apex Court considered this issue in the case of Paramjeet Batra Vs. State of Uttarakhand & Others reported in (2013) 11 SCC 673 and observed that High Court must not hesitate in quashing the criminal proceeding which are essentially of a civil nature and further observed that a complaint disclosing civil transaction may also have criminal texture but the High Court must see whether a dispute which is essentially of civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted, the High Court should not hesitate to quash the criminal proceeding to prevent the abuse of process. Paragraph no.12 of the Paramjeet Batra's (supra) case is being quoted as under:
"12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
11. Relying upon the decision of Paramjeet Batra (supra), the Hon'ble Apex Court in the case of Randheer Singh Vs. State of Uttar Pradesh & Others reported in (2021) 14 SCC 626 as well as in the case of Usha Chakraborty Vs. State of West Bengal reported in 2023 SCC OnLine SC 90 observed that where a dispute is essentially of a civil nature, but is given a cloak of criminal offence then such dispute can be quashed.
12. Hon'ble Apex Court again considered this issue in Mitesh Kumar J. Sha Vs. State of Karnataka & Others reported in (2022) 14 SCC 572, observed that when the civil dispute is given criminal colour then such cases is nothing but abuse of process of law. Paragraph no.44 of the said judgement is being quoted as under:
"44. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal colour 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."
13. However in the case of Vesa Holdings (P) Ltd. & Another Vs. State of Kerala reported in 2015 8 SCC 293, Hon'ble Supreme Court observed that merely because civil remedy is also available, cannot be a ground to quash the criminal proceeding. Paragraph no.13 of the said judgement is being quoted as under:
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
14. A coordinate Bench of this Court in Tuphail Ahmad and Others Vs. State of U.P. And Others reported in 2023 (12) ADJ 209, also observed that if FIR discloses cognizable offence then merely because civil suit is pending between the parties will not be a ground to quash the FIR. Paragraph no.13 of Tuphail Ahmad's (supra) case is being quoted as under:
"13. In this view of the matter and the law laid down by the Hon'ble Apex Court in the case of Trisuns Chemical Industry (supra), Paramjeet Batra (supra), Vesa Holdings (supra) as well as judgment passed by a Co-ordinate Bench of this Court in the case of Dilip Kumar Singh @ Deepu Singh (supra) and considering the facts and circumstances of the case as alleged in the first information report and the contents of the Original Suit No.191 of 2023 (Tuphail Ahmad vs. Rajesh Tandon) as already discussed in the proceeding paragraphs, we find that the argument of the learned counsel for the petitioners that as a civil dispute is pending and no criminality is attached in the act, is not sustainable in the eye of law hence, stands rejected."
15. It is also relevant to mention that Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others reported in 1992 Supp. (1) SCC 335, has laid down the guidelines for quashing the FIR or complaint and observed as under: Paragraph nos.102 and 103 of the said judgement are being quoted as under:
"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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
16. From the above analysis, it is explicit that settled position of law is that the complaint/FIR disclosing civil transaction may also have a criminal texture but if the dispute is predominantly civil in nature then merely because FIR/complaint attracts ingredients of any criminal offence will not resist the court from quashing the criminal proceeding but in those cases where there are specific allegations of committing forgery and allegations in the FIR/complaint are not predominantly civil in nature but criminal in nature, then there is no bar to continue the criminal proceeding despite the fact that civil proceeding is pending between the parties.
17. In the present case there is specific allegation of commission of forgery on the part of the petitioner by forging the signatures of first informant and his brothers and also forging the photographs. Therefore, dispute in question cannot be said to be essentially civil in nature and from the perusal of the impugned FIR, cognizable offence is made out.
18. Therefore, this court is of the view that such allegation must be investigated, therefore, petition fails and hence dismissed.
Order Date :- 12.7.2024 S.Chaurasia