Jammu & Kashmir High Court
Prem Lal Verma & Anr vs Ut Of J & K & Anr on 7 February, 2023
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CRM(M) No. 640/2021
Reserved on: 02.02.2023
Pronounced on:07.02.2023
Prem Lal Verma & Anr. .....Petitioner(s)
Through :- Mr. Sheikh Najeeb, Advocate
v/s
UT of J & K & Anr. .....Respondent(s)
Through :- Mr. Pawan Dev Singh, Dy AG for R-1
Mr. Mohd Amir Awan, Advocate for R-2
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. This petition has been filed under Section 482 CrPC seeking quashment of the FIR No. 296/2021 dated 06.09.2021 registered at Police Station, Bahu Fort, Jammu, at the behest of respondent No.2, wherein the petitioners- accused persons were found involved in the commission of offences punishable under Sections 427, 504, 506, 447 IPC.
2. Petitioner/accused pleaded following facts:-
a) That the petitioner No.l is owner in possession of land measuring 01 Kanal 6½ Marlas comprised in Khasra No. 138 min situated at Channi Bija, Jammu and the said land was purchased by petitioner No.l from one Suresh Kumar on 19.05.2003, sale deed was executed and mutations were also attested in favour of the petitioner No. l by the revenue agencies.
After obtaining the possession of the land from the seller, the petitioner No.l raised boundary walls and installed gate over the said land. In the year 2007, the petitioner No. l out of 01 Kanal and 6 ½ Marlas of land gifted 07 Marlas of land to his wife namely, Lata Verma by virtue of Gift Deed dated 21.07.2017 2 CRM(M) No. 640/2022 and thereafter obtained permission from JMC for the construction of the house in the aforesaid land on 19.01.2008.
b) That one Late Krishan Chand Gupta, who happened to be the husband of the respondent No.2 with intention to grab the land of the petitioner No. l got executed a fraudulent sale deed from one Rakesh Kumar in respect of land measuring 12 Marlas on 24.05.2003 and started filing frivolous cases against the petitioner No.l and his wife before the civil/revenue courts.
c) That in the year 2012 the late husband of respondent No.2 initially filed a suit before the Learned Excise Magistrate, Jammu against the petitioner No.l and his wife seeking the following relief; -
"Suit for permanent prohibitory injunction restraining the defendants and their agents from interfering into the lawful and peaceful possession and ownership of the plaintiff over the land measuring 12 Marlas (50'x65') comprising in Khasra No. 138, Khewat No.l- min and Khata No.3-min situated at Channi Bija, Tehsil and District Jammu in any manner whatsoever. And also restraining them from trespassing or attempt to trespass upon the said plot and forcibly change the physical possession of the said plot by any illegal act of construction thereupon.
The petitioner No. 1 filed a written statement in the said suit and contended that the husband of the respondent No.2 is not in possession of the suit land and the suit for injunction without possession does not lie and after the filing of the written statement the husband of the respondent No.2 filed another suit before the Learned Additional District Judge, Jammu by concealing the factum of pendency of earlier suit before the Court of Excise Magistrate, Jammu. In the subsequent suit the following relief was sought by the late husband of respondent No.2:-
"Suit for declaration that the plaintiff is absolute owner and in possession of a plot of land measuring 12 marlas (50' x 65') comprising of Khasra No. 138 min, Khewat No.l min, Khata No. 30 min situated at Chhanni Bija, Jammu, which is bounded on the East by the plot allegedly owned by the defendants; the West road: the North by house possessed by Ashwani Gupta S/O Lt. Sh. Bakshi Ram Gupta & Smt. Chanchal Gupta 3 CRM(M) No. 640/2022 W/O Lt. Sh. Bakshi Ram Gupta both R/O 319 Lane No. 3 Adarshan Enclave, Trikuta Nagar Ext. Jammu and the South by a vacant plot, which the plaintiff has purchased from Rakesh Kumar S/O Krishan Lai R/O Village Gorat Tehsil Mendhar vide sale deed executed on 24.05.2003 registered on 24.05.2003 before Sub- Registrar-III Municipal Magistrate Jammu for brevity this 12 Marlas of land shall hereinafter be referred to as the said land) further for declaration that the defendants have not acquired any right, title or interest in the said land; for confirmation of possession of the plaintiff over the said land and in case the plaintiff is found out of possession then for recovery of the possession of the said land and its delivery to the plaintiff; for mandatory injunction directing the defendants to fill up the foundation whatsoever extent dug so far in the said land and to pull down and remove any construction work which is being done by the defendants forcibly, unauthorizedly and illegally in the said land or part thereof, directing the defendants not to lock the plaintiffs gate existing and installed in the western wall of the said land and to remove the lock which the defendants have or any one of them has illegally and unauthorizedly placed locking the gate to remove pebbles (Bajri) and bricks stacked in the suit land; and for permanently prohibitory injunction restraining the defendants, their men, agents from, in any manner interfering in the said land, raising any sort of structure thereon, changing the nature and user of the said land or alienating the same or any part thereof and also restraining them from trespassing or attempt to trespass upon the said land."
d) That the Court of Additional District Judge, Jammu initially passed status quo order on 20.12.2012 and after filing of the written statement by petitioner No.l, the court below by virtue of order dated 04.02.2013 dismissed the application for grant of interim relief filed by the husband of respondent No.2 by holding him out of possession and also vacated the interim order dated 20.12.2012.
e) That the late husband of the respondent No.2 then filed an appeal against the order dated 04.02.2013 before the Hon'ble High Court by virtue of CIMA No.95/2013 titled Krishan Chand V/s Prem Lal Verma and Anr., the said appeal was listed for consideration before this Hon'ble Court on 27.04.2016 and after arguing the case for a while and not been able to make out a case, the learned counsel for the appellant withdrew the appeal. 4 CRM(M) No. 640/2022
f) That prior to the dismissal of the appeal, the late husband of the respondent No.2 also filed an appeal before the Court of Commissioner, Survey and Land Records, J&K Jammu challenging the mutations No.2128 and 2772 attested in favour of petitioner No.l and his wife with regard to aforesaid land and the Commissioner, Survey and Land Records, J&K Jammu set aside the said mutations ex-parte vide order dated 22.05.2015 and against the said order an appeal was preferred by the petitioner No.l and his wife in the Court of Joint Financial Commissioner (Revenue) J&K which came to be decided vide order dated 17.03.2021 by setting aside the order dated 22.05.2015 and the concerned Tehsildar was directed to pass fresh orders on the basis of possession on spot and keeping in view the dimensions/boundaries. It is submitted that the respondent No.2 and his son Ritesh Gupta and her daughter Payal Gupta were party before the appellate court in view of demise of Sh. Krishan Chand Gupta.
g) That the afore-narrated facts demonstrates that the respondent No.2 and her late husband filed multiple litigations before the Civil/Revenue Courts against the petitioner No.l and to this date had remained unsuccessful in proving their title/possession over the land in question and infact have been held to be not in possession by the Court of Additional District Judge, Jammu and time and again they alongwith their son namely Ritesh Gupta and others hired musclemen/goons tried to illegally hold possession of the land. It is submitted that only few days passing of order dated 17.03.2021 by the Learned Joint Financial Commissioner, Mr. Ritesh Gupta (son of respondent No.2) on 20.03.2021 at about 4:00 AM in the morning with musclemen/goons tried to enter into the land with force and also tried to install sheds. Not only this, they also beat up the Jhugiwalas which are kept by the petitioner over the land for caretaking and in this regard the petitioner No.l got FIR No.97/2021 dated 22.03.2021 registered against Ritesh Gupta under Section 447/323/505 IPC at Police Station, Bahu Fort, Jammu.
5 CRM(M) No. 640/2022
h) That after the registration of the aforesaid FIR No.97/2021, Ritesh Gupta started operating against the petitioners through his henchmen and one such incident was played on 04.07.2021 by Ritesh Gupta through one Raman Preet Wazir as he trespassed into land alongwith gang of anti-social elements and tried to install sheds and also threatened the petitioners and whole family to the extent of elimination in-case they don't vacate the land. In this regard also an FIR No.257/2021 dated 17.07.2021 was got registered by the petitioner No.l against the said Raman Preet Wazir under Sections 447/505 IPC at Police Station, Bahu Fort, Jammu.
i) That thereafter the respondent No.2 got the impugned FIR No.296/2021 dated 06-09-2021 registered against the petitioners which is utterly frivolous and counter to the FIR No.97/2021 and FIR No.257/2021 which were got registered against Ritesh Gupta and his henchman Raman Preet Wazir.
3. Respondent No.1 in his counter has stated that the present petition is not maintainable as the petition involves factual disputes which can be adjudicated after full-fledged trial by leading evidence before the competent court of law. It is contended that a complaint u/s 156(3) had been received from Padma Gupta W/O Lt. Sh. Krishan Chand Gupta, R/O H.No. 402, Shastri Nagar, Jammu through Dak, which was duly endorsed by the Hon'ble Court of Special Mobile Magistrate (Electricity) Jammu, to register an FIR against the accused persons namely 1. Prem Lal Verma, S/O Jai Dayal, 2. Unknown S/O Prem Lal Verma both R/O H.No.27, Sector-7,Trikuta Nagar Jammu under relevant provisions of law, as both the accused persons with common criminal intention encroached the land measuring 12 Marlas under Khasra No. 138 situated at Village Channi Bija (Channi-Himmat),Jammu. In her complaint, she had stated that she is an owner in peaceful possession of a piece of land measuring 12 Marlas under 6 CRM(M) No. 640/2022
Khasra No. 138, Khata No. 30, Khewat No. 01, situated at Village Channi Bija (Channi-Himmat), Jammu, the above said land was purchased by her husband during life time through duly executed Sale Deed which was registered by the competent court of law on 24.05.2013, her husband had died on 09.04.2019, however, after the demise of her husband, the above said land has devolved upon her and her daughters and son, a mutation of inheritance was also attested by the competent Revenue Agency. The complainant had bounded her land with the iron shuttering and poles, but the accused persons are time and again making attempt to grab the land owned and possessed by her and on 16.08.2021, accused persons after making preparation to cause hurt has trespassed into the land owned and possessed by the complainant and broke down the boundary of the land thereafter, they openly threatened her that what may come in their way they will grab the land of the complainant and in case she resists the said attempt they will eliminate her. On this information a case FIR No. 296/2021 U/Ss 427, 447, 504, 506 IPC dated 06.09.2021 stands registered with Police Station Bahu Fort, Jammu and accordingly the investigation of the case was entrusted to ASI Manzoor Ahmed No. EXJ-876315.
4. During the course of investigation, the investigating officer visited the spot, prepared a site plan and recorded the statements of witnesses U/S l6l Cr.PC. During investigation Tehsildar Rakh Bahu has been requested for demarcation of land measuring 12 Marlas under Khasra No. 138 Khata No. 30 Khewat No. 01 which the complainant is claiming, but so far report from Revenue Authorities is awaited. It is contended that FIR No 97 /2021 U/Ss 447/323/506 IPC and FIR No 257/2027 U/S 447/506 IPC have already being registered before the Police Station Bahu-Fort, Jammu, on the written complaint of Prem Lal Verma S/o Jai Dyal R/o H. No. 27 Sec. 7 CRM(M) No. 640/2022 07 Trikuta Nagar. Jammu against l. Ritesh Gupta S/O Krishan Chand Gupta, 2. Payal Gupta D/O Krishan Chand Gupta, 3. Padma Gupta W/O Krishan Chand Gupta all R/O H.No. 402, Shastri Nagar, Jammu and 4. Raman Preet Singh R/O Sainik Colony Jammu over the same piece of land situated near NIA Office Trikuta Nagar, Jammu. During the course of investigation, Tehsildar Rakh Bahu has forwarded report to Naib Tehsildar in which it has been mentioned that the dispute of parties on the piece of land was settled by Financial Commissioner Revenue, J&K and has been sent to Tehsildar Bahu as a Remand Case and is still lying pending. The investigation of all the above said cases is lying pending for want of demarcation of the land by Revenue Authorities i.e Tehsildar Bahu, thus present petition deserves to be dismissed.
5. Heard learned counsel for the parties and considered the matter. I have also perused the material available on record.
6. According to learned counsel for petitioners, the allegations leveled are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioners and despite such facts, petitioners are being harassed by respondent No.2 by lodging the impugned FIR, which is counter blast to the FIRs already got registered by petitioner No.1 against the son of respondent No.2, to implicate the petitioners in a false case. It is averred that respondent No.2 is abusing the process of law solely to wreck vengeance upon the petitioners and to victimize them, the same deserve to be quashed.
7. Before analyzing the facts emanating from the record of the trial court, it would be apt to notice the legal position as regards the scope of powers of 8 CRM(M) No. 640/2022 the High Court under Section 482 of the Code of 1973, to interfere with the proceedings/complaint filed before a Magistrate.
8. The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice.
9. The Supreme Court in the case of State of Haryana & Ors. vs. Ch.
Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC 1973 in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted 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 channelized 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 9 CRM(M) No. 640/2022 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 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."
10. From the foregoing survey of law on the subject, it is clear that this Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required 10 CRM(M) No. 640/2022 to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court. An attempt has been made by the complainant to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence.
11. Having considered the relevant arguments of the parties I am of the considered view that existence of dishonest or criminal intention has not been made out against the petitioners. There is admitted fact that the parties involved in this petition have number of litigations (civil/criminal) against each other. The dispute involves in the present case certainly determination of issues which are of civil nature, pursuant to which husband of respondent No. 2 had even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour.
12. The Allahabad High Court in case titled "Randheer Singh Vs The State of U.P. & Ors." reported in 2021 SCC Online SC 942, wherein it has been held that criminal proceedings must not be used as instruments of harassment. Para 33 is extracted 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 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."11 CRM(M) No. 640/2022
13. Having regard to the in-disputed facts that there are civil cases in courts with regard to declaration and injunction, besides cases before the Revenue Officers with regard to mutations, between the parties and that land alleged to have been trespassed is yet to be demarcated, it can be safely held that the real dispute between the petitioners and respondent No.2 is essentially civil in nature. Petitioner No.1 lodged two FIRs at the same police station early in point of time than the impugned FIR lodged by respondent No.2, which appears to be counterblast to the FIR lodged against him. Therefore, it seems to be a classic case of abuse of legal process and is required to be quashed to secure the ends of justice.
14. For the reasons discussed hereinabove, the instant petition is allowed and the impugned FIR No. 296/2021 registered at Police Station, Bahu Fort, Jammu, at the behest of respondent No.2, for the commission of offences punishable under Sections 427, 504, 506, 447 IPC against the petitioners is hereby ordered to be quashed.
15. Petition is thus disposed of, accordingly.
(M A Chowdhary) Judge JAMMU 07.02.2023 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No