Jammu & Kashmir High Court
Sobat Ali vs State on 19 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A No.638/2015
MP Nos.1/2015,1/2016 & 1/2017
Date of order:-19.08.2017
Sobat Ali V. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. N.D.Qazi, Advocate
For the respondent(s) Mr. S.S.Nanda, Sr. AAG
Mr. I.H.Bhat, Advocate i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners invoke inherent jurisdiction of this Court under section 561-A Cr.P.C. for quashment of First Information Report No.4/2012 dated 09.01.2012 u/s 420/465/467/471/478/RPC registered in Police Station, Channi Himmat, Tehsil & District Jammu.
2. In the petition, it is stated that vide sale deed dated 19.11.1986 Devi Pushpa Jamwal D/o H.S.Jamwal and Riju Raj Singh S/o J.S.Jamwal both R/o Bugona Tehsil & Distt. Samba jointly purchased 2 kanals 13 marlas and 1 kanal respectively of land falling lunder khasra no.939 min, situated in village Upper Chowadi Tehsil Jammu from Bhagwan Singh S/o Harnam Singh R/o Chowadi. It is further stated that by an irrevocable General Power of Attorney dated 31.08.2006 above said Devi Pushpa Jamwal appointed the petitioner as her 561-A No. 638/2015 Page 1 of 12 attorney holder in respect of her land measuring 2 kanal 13 marlas, which was duly registered by Sub-Registrar- I(Sub-Judge), Jammu on 02.09.2006. On 02.09.2006, Devi Pushpa executed an agreement to sell her land to the petitioner in consideration of Rs.7.00 lacs, according to which the possession of land was admitted to have been delivered to the petitioner on spot after receiving Rs.7.00 lacs and on the same day i.e 02.09.2006, Riju Raj Singh also executed an agreement to sell his land measuring 1 kanal in favour of the petitioner after receiving Rs.3.00 lacs as consideration and according to which the possession of land was handed over to the petitioner on spot after receiving Rs.3.00 lacs. The Riju Raj singh next day appointed the petitioner as his Attorney, by deed of irrevocable General Power of Attorney dated 03.09.2006 in respect of his land measuring 1 kanal. The petitioner by virtue of the said attorney sold 1 kanal of land belonging to said Riju Raj Singh in favour of Gurpreet Singh Chawala S/o Ravinder Singh R/o Sector 14, Nanak Nagar, Jammu by Sale Deed dated 23.12.2008, on the basis of which mutation no.2234 was attested on 20.02.2009. The possession of land was handed over to the said vendee on spot. It is also contended that the said Gurdeep Singh later on sold the land to Kamaljeet Singh S/o Jodh Singh R/o Nanak Nagar and Pran Nath S/o Pratahvi Nath Koul by Sale Deed dated 16.12.2011, on the basis of which mutation No.3392 came to be attested. Both Devi Pushpa & Riju Raj Singh without cancelling the power of attorneys in favour of the petitioner, executed joint irrevocable power of attorney dated 19.12.2011, attested by Notary Public 561-A No. 638/2015 Page 2 of 12 Jammu in favour of Jai Devi Singh Samyal S/o Jagdev Singh R/o Friend Colony Patta Ploura, Jammu in respect of their land authorizing him to dispose of the same. The above said Devi Pushpa then filed a suit in the month of May, 2012 against the petitioner seeking declaration to the effect that power of attorney dated 31.08.2006 registered on 02.09.2006 executed in favour of the petitioner is null and void having been executed by impersonation on her part and forging her signature before the Sub Registrar Jammu. The petitioner was placed exparte and later on exparte decree was passed by Sub-Judge (CJM) Jammu on 25.02.2014 declaring the power of attorney registered on 02.09.2006 as null and void. The petitioner has filed application for setting aside of the exparte decree. It is also averred that above said Devi Pushpa had also executed power of attorney in favour of one Jai Deep Singh Sambyal in respect of her land measuring 2 kanals 13 marlas falling under khasra no.939min situated in Village Chowadi, which was duly registered by the Sub Registrar (Municipal Magistrate) on 12.06.2003. By document dated 31.08.2006, the attorney executed in favour of Jaideep Singh on 12.06.2003, was cancelled by the said Pushpa Jamwal before Sub Registrar (Sub Judge) Jammu. It is also contended that after a pretty long time, Jaidev Singh Sambyal attorney holder of Devi Pushpa & Riju Raj Singh, in connivance with each other, in order to wreck vengeance and built pressure upon the petitioner to come to their terms, lodged false report in Police Station Channi Himmat on 09.01.2012 seeking registration of FIR into illegal sale of land measuring 1 kanal of land belonging to Riju Raj 561-A No. 638/2015 Page 3 of 12 Singh on the basis of impersonated power of attorney upon which FIR No.04/2012 under Sections 420/465/567/468/471 RPC came to be registered.
Grounds of Challenge
i. That the FIR has been lodged by a
attorney holder who is not competent to lodge such report.
ii. That Jai Devi Singh in whose favour joint attorney has been executed by Devi Pushpa and Riju Raj Singh is not the legally appointed attorney of Devi Pushpa because the power of attorney executed by her infaour of Jai Deep Singh has not been cancelled by her. iii. That in the FIR fact of execution of an agreement to sell land measuring 1 kanal in favour of the petitioner has been suppressed and concealed intentionally. The same is the case of agreement to sell executed by Devi Pushpa in favour of the petitioner. iv. That FIR is vague one and excepting that bald allegation that share of Riju Raj Singh has been transferred on the basis of impersonated power of attorney, nothing further has been stated and there is not an iota of material to indicate how petitioner is involved in the so called allegation of forgery and as such the FIR is required to be quashed.
v. Although allegation is that power of
attorney by Devi Pushpa and Riju Raj
Singh have been executed by
impersonation but instead of filing FIR Devi Pushpa filed a suit for declaration that power of attorney has been obtained by impersonation but to the contrary Riju Raj Singh's attorney lodged FIR just to built police pressure on the petitioner whereas the fact is that genuine power of 561-A No. 638/2015 Page 4 of 12 attorneys have been executed in favour of the petitioner.
vi. That by a person impersonating before the Sub Registrar special provisions are contained in the J&K Registration Act u/s 82&83 of the said Act, according to which whoever falsely impersonate another and as such assumed character presents any document can be punished with an imprisonment for a term which may extend to 5 years or with fine or with both.
vii. That as per Section 83 of the Registration Act, prosecution for impersonation coming to the knowledge of a registering officer in his capacity as such can be commenced by or with the permission of inspector General, the Registrar or the Sub-Registrar, in whose territories District or sub District, as the case may be, the offence has been committed.
viii. That it is trite that in presence of special provisions lof law, general provision contained in general law, like the Ranbir Penal Code, the special provision have to be followed and adopted.
ix. That accordingly FIR, on the part of the attorney holder of Devi Pushpa and Riju Raj Singh is not maintainable and is required to be quashed.
x. That so far offence under Section 420 RPC, for which FIR has been register the same is not maintainable because in the FIR in question there is no allegation that the petitioner induced the proposed vendee to purchase the land of Riju Raj Singh by false representation.
xi. That in absence of ingredients of offence under Section 420 RPC, the left out offences are non cognizable 561-A No. 638/2015 Page 5 of 12 and police has no jurisdiction to make investigation in the matter except by the order of competent Judicial Magistrate.
xii. That further more registration of FIR u/s 467 RPC is not sustainable, because power of attorney executed allegedly by the petitioner, is not a valuable security.
xiii. That similarly offence u/s 471 RPC alleged in the FIR is not sustainable in the absence of any allegation against the petitioner for using the alleged power of attorney as genuine one.
xiv. That although FIR in question has been registered in the year 2012 but the petitioner came to know about the same a few days ago when the police concerned came to the house of the petitioner in his absence to arrest him. It is therefore, prayed that the aforesaid FIR may kindly be quashed.
3. This Court vide order dated 11.01.2016, issued notice to respondent and stayed the investigation in FIR No.04/2012 of Police Station, Channi Himmat.
4. On 28.07.2017, an application bearing MP No.1/2017 had been moved by the applicant/petitioner sought disposal of the main petition in light of the compromise deed which was executed between the parties dated 16.02.2017. Accordingly, this Court directed the Registrar Judicial to record the statements of the parties as well as their respective counsels, with regard to compromise deed, on 31.07.2017.
561-A No. 638/2015 Page 6 of 125. On 31.07.2017, the Registrar Judicial has recorded the statements of the complainant/injured and accused person(s), who were identified by their respective counsel. In their statements, complainant and the accused persons have stated that they have settled the dispute amicably between parties and they do not want to pursue the case and the complainant submits he has no objection, if the above said FIR is quashed.
6. Learned counsel for the petitioner submits that a Coordinate Bench of this Court has already considered a similar issue in 561-A No.345/2017 vide order dated 09.06.2017 wherein the petition was allowed and the charge sheet and the proceedings against the petitioners therein were quashed in non compoundable offence on the basis on compromise. It is apt to reproduce operative part of the said order as under:
"Offence under Section 307 RPC is also the offence relating to use of weapons by the petitioners are non compoundable.
However, it is stated that parties are next- door neighbours to each other. They have buried the hatchets and want to live as friendly neighbours. Learned counsel for the petitioners cites a judgment of the Supreme Court in the case of "Narinder Singh & ors. v. State of Punjab & anr."
2014(2) Crimes (SC) 67.
Parties having entered into a compromise, trial of the petitioners may not be fruitful. That apart, it would be in the better interest of both the parties in case they are given chance to materialise their intention to live as friendly neighbours. Allowing compensation would be profitable as compared to continuing with the trial.
561-A No. 638/2015 Page 7 of 12Viewed thus, this petition is allowed the charge sheet and the proceedings against the petitioners (supra) are quashed."
7. Learned counsel for the petitioner has also relied upon the judgment of Hon'ble the Supreme Court in case titled "Jagdish Chanana & ors. vs State of Haryana & anr." reported in 2008 AIR (SC) 1968. It is apt to reproduce paragraph 2 of the aforesaid judgment as under:
"2. This appeal is directed against the order dated 24th July, 2006 rejecting the prayer for quashing of FIR No.83 dated 12th March 2005 P.S.City Sonepat registered under Sections 419, 420, 406, 465, 468, 471, 472, 474 read with Section 34 of the IPC. During the pendency of these proceedings in this Court, Crl. Misc.
Petition No.42/2008 has been filed putting on record a compromise deed dated 30 th April, 2007. The fact that a compromise has indeed been recorded is admitted by all sides and in terms of the compromise the disputes which are purely personal in nature and arise out of commercial transactions, have been settled in terms of the compromise with one of the terms of the compromise being that proceedings pending in Court may be withdrawn or compromised or quashed, as the case may be. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transactions that had been entered into between the parties.
To continue with the proceedings, therefore, would be a futile exercise. We accordingly allow the appeal and quash FIR No.83 dated 12th March 2005 P.S.City Sonepat and all consequent proceedings."561-A No. 638/2015 Page 8 of 12
8. Whereas counsel for state has stated, under law non-
compoundable offences cannot be compounded under inherent power of High Court.
9. But I find no force in this argument. The detail law with regard to quashing of FIR in non-bailable offences on the grounds that parties have compromised has been given by Hon'ble Apex Court in 2014 (2) CRIMES SC-1 in case titled CBI ACB Mumbai vs Narendra Lal Jain & Ors. holding as under:-
"6. We have heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned counsel appearing on behalf of Respondent Nos. 1 and 4.
7. Shri Malhotra, learned Additional Solicitor General, has taken us through the order passed by the High Court. He has submitted that the High Court had quashed the criminal proceeding registered against the accused- respondents only on the ground that the civil liability of the respondents had been settled by the consent terms recorded in the decree passed in the suits. Shri Malhotra has submitted that when a criminal offence is plainly disclosed, settlement of the civil liability, though arising from the same facts, cannot be a sufficient justification for the premature termination of the criminal case. Shri Malhotra has also submitted that the offence under Section 120-B alleged against the accused-respondents is not compoundable under Section 320 Cr.P.C.; so also the offences under the PC Act. Relying on the decision of a three Judges Bench of this Court in Gian Singh vs. State of Punjab and Another[1], Shri Malhotra has submitted that though it has been held that the power of the High Court under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal Court for compounding of offence under Section 320 of the Cr.P.C., it was made clear that the High Court must have due regard to the nature and gravity of the offences alleged before proceeding to exercise the power under Section 482 Cr.P.C. Specifically drawing the attention of the Court to para 61 of the report in Gian Singh (supra) Shri Malhotra has submitted that "any 561-A No. 638/2015 Page 9 of 12 compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act .... cannot provide for any basis for quashing criminal proceeding involving such offences". Shri Malhotra had contended that having regard to the gravity of the offences alleged, which offences are prima facie made out, in as much as charges have been framed for the trial of the accused- respondents, the High Court was not justified in quashing the criminal proceedings against the accused- respondents.
8. Per contra, the learned counsel for the respondents (accused) have submitted that the High Court, while quashing the criminal proceedings against the respondents (accused), had correctly relied on the judgments of this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi vs. Duncans Agro Industries Ltd., Calcutta[2] and B.S.Joshi and Others vs. State of Haryana and Another[3]. Learned counsel has submitted that though simultaneous criminal and civil action on same set of facts would be maintainable, in Duncans Agro Industries Ltd. (supra) it has been held that the disposal of the civil suit for recovery, on compromise upon receipt of payments by the claimants, would amount to compounding of offence of cheating. No error is, therefore, disclosed in the order of the High Court insofar as the offence under Section 420 IPC is concerned. As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has held that the power under Section 482 Cr.P.C. to quash a criminal proceeding is not limited by the provisions of Section 320 Cr.P.C. and even if an offence is not compoundable under Section 320 Cr.P.C., the same would not act as a bar for the exercise of power under Section 482 Cr.P.C. As the dispute between the parties have been settled on the terms of the compromise decrees, it is submitted that the High Court had correctly applied the principles laid down in B.S. Joshi (supra) to the facts of the present case.
9. Learned counsel has further pointed out that the charges framed against the accused-respondents are under Section 120-B/420 of the Indian Penal Code and the respondents not being public servants, no substantive offence under the PC Act can be alleged against them. The relevance of the views expressed in para 61 of the judgment of this Court in Gian Singh (supra), noted above, to the present case is seriously disputed by the learned counsel in view of the offences alleged against the respondents. Learned counsel has also submitted that by the very same impugned order of the High Court the criminal proceeding against one 561-A No. 638/2015 Page 10 of 12 Nikhil Merchant was declined to be quashed on the ground that offences under Sections 468 and 471 of the IPC had been alleged against the said accused.
Aggrieved by the order of the High Court the accused had moved this Court under Article 136 of the Constitution. In the decision reported in Nikhil Merchant vs. Central Bureau of Investigation and Another[4] this Court understood the charges/allegations against the aforesaid Nikhil Merchant in the same terms as in the case of the accused-respondents, as already highlighted. Taking into consideration the ratio laid down in B.S. Joshi (supra) and the compromise between the bank and the accused Nikhil Merchant (on the same terms as in the present case) the proceeding against the said accused i.e. Nikhil Merchant was quashed by the Court taking the view that the power and the Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot be circumscribed by the provisions of Section 320 Cr.P.C. It is further submitted by the learned counsel that the correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra) were referred to the three Judges Bench in Gian Singh (supra). As already noted, the opinion expressed in Gian Singh (supra) is that the power of the High Court to quash a criminal proceeding under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal court by Section 320 Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra), therefore, was that the decisions rendered in B.S. Joshi (supra) and Nikhil Merchant (supra) are correct.
10. In the present case, as already seen, the offence with which the accused-respondents had been charged are under Section 120-B/420 of the Indian Penal Code. The civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the notice of the Court. W hile the offence under Section 420 IPC is compoundable the offence under Section 120- B is not. To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil M erchant (supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para
61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC.
11. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power 561-A No. 638/2015 Page 11 of 12 under Section 482 Cr.P.C. W e do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. W hile it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C."
10. In present case dispute is personal between parties and parties have already amicably settled the dispute; challan is yet to produced. There would be no chance of conviction of accused if challan is produced because parties have compromised. Courts are already burdened with so many cases; Trial should not be conducted as a mere of formality.
11. In view of the above law and while exercising the power vested in this court in terms of Section 561-A Cr.P.C., this petition is allowed and the proceedings against the petitioner in FIR No.4/2012 dated 09.01.2012 u/s 420/465/467/471/478/RPC registered in Police Station, Channi Himmat, Tehsil & District Jammu, are quashed.
12. A copy of this order is sent to Police Station, Crime Branch, Jammu, for compliance.
(Sanjay Kumar Gupta) Judge Jammu 19.08.2017 Vijay 561-A No. 638/2015 Page 12 of 12