Gauhati High Court
Rajib Lunthani @ Rajib Longthulu & Anr vs The State Of Assam And Anr on 30 January, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIOZRAM AND ARUNACHAL PRADESH)
Criminal Petition 923/2015 & I.A.(Crl)53/2016
Criminal Petition 923/2015
1.Rajib Lunthani alias Rajib Longthulu, son of late Biren
Lunthani, Lokhra Khepinjal village, Lokhra in Kamrup(M)
district(Assam).
2.Sahi Lunthani alias Nandeswar Lunthani alias
Nandeswar Longthulu, son of Birandi Lunthani, Lokhra
Khepinjal village, Lokhra in Kamrup(M) district(Assam).
Petitioners .
-Versus-
1.State of Assam
2.Sarada Devi, wife of Megh Prasad Upadhay, Lokhra
Betkuchi village, Lokhra, Kamrup(M) district(Assam).
R espondents .
I.A.(Crl)53/2016
Sarada Devi, wife of Megh Prasad Upadhay,
R/O vill- Lokhra Betkuchi, P.S.Garchuk,
Dist-Kamrup,(Assam).
...Petitioner/opposite party no.2.
-vs-
2
1. The State of Assam, represented by the Public
Prosecutor, Gauhait High Court, Assam.
2.Rajib Lunthani alias Rajib Longthulu, son of late Biren
Lunthani, Lokhra Khepinjal village, Lokhra in Kamrup(M)
district(Assam).
3.Sahi Lunthani alias Nandeswar Lunthani alias
Nandeswar Longthulu, son of Birandi Lunthani, Lokhra
Khepinjal village, Lokhra in Kamrup(M) district(Assam).
Respondents/Accused.
PRESENT HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the appellant : Mr KN Choudhury Sr.Advocate Mr T Deuri,Advocate Mr P Dutta, Advocate.
For respondent 1 : Mr B Sarma, Addl.PP.
For respondent 2 : Mr B Islam, Advocate.
Date of hearing : 19.1.2017
Date of judgment : 30.1.2017
JUDGMENT AND ORDER(CAV)
Both the petitions arisen out of same case, hence they are taken together for disposal by this common order.
2. Smti Sarada Devi, wife of late Megh Prasad Upadhyay of Lakhara Chariali was earning her livelihood by running a Hotel in the name and style of Sarada Hotel with GMC holding No. 208 in Ward No.17 in Lakhara Chariali nearby the National Highway
47. She used to reside in another room by the side of the Hotel with her maid servant. On 6.4.2008 she went to market by closing the Hotel along with the maid servant and on return she found her hotel and house were set fire by two persons namely Rajib 3 Lunthun and Nandeswar Lunthun. Though she reported the matter but police made no response. Thereafter, Smti Sarada Devi having no alternative continued to reside in the said place by raising one tent house but on 10.4.2008 those two persons again entered into their land and occupied the said land by damaging her property and assaulted her and because of assault she had to leave the property and filed the Complaint Case against the above two accused persons vide C.R.Case No. 3388C of 2008.
3. The learned trial court by order dated 4.6.2010 took cognizance u/s 447/427/354/323/34 of the IPC against petitioners and directed to appear before the court. Petitioners appeared before the trial court. Respondent 2 examined 5 witnesses in support of the charge. Defence denied the charge. Petitioners are convicted and sentenced to s/i for one month u/s 447 of the IPC and s/i for 6 months u/s 427 of the IPC and directed to pay Rs 5,000 compensation to complainant u/s 357(3) of the CrPC and restore possession of the complainant within one month u/s 456(1) of the CrPC.
4. Accused filed an appeal(criminal appeal 45/2010) before the learned Additional Sessions Judge, Kamrup(M). Respondent 2 appeared in the case. The learned appellate court by order dated 30.7.2011 modified the sentence to fine of Rs 2,000 and in default to s/i for 3 months u/s 427/34 of the IPC and a fine of Rs 300 and in default to s/i for 15 days u/s 447/34 of the IPC and directed the accused to appear before the trial court by 1st September 2011 to deposit the said Rs 5,000 compensation.
5. In pursuance of the order passed by the learned Appellate Court the accused person deposited the amount of fine and compensation but the possession of the land was not restored to the complainant as directed by the trial Court. The complainant/respondent no.2 filed a petition before the trial Court for enforcement of the order passed by the learned trial Court U/S 456(1)CrPC. The accused/petitioner 4 herein raised objection against the said petition stating that the order was not executable because the description of the property was not given in the complaint or in evidence. After hearing the parties, the learned trial Court rejected the petition of the complainant/respondent no.2 with the observation that the order for restoration of possession made in the aforesaid C.R.Case No. 3388C/2008 was not an executable order as there was no demarcation of the aforesaid land.
6. Challenging legality of the said order dated 10.1.2012 complainant/respondent filed a revision before the learned Sessions Judge, Kamrup(M), which is registered as criminal revision 35/2012. The learned revisional court by the order dated 8.9.2014 allowed the revision holding that the court which once passed an order u/s 456(1) of the CrPC cannot review or refuse to enforce the said order on the ground that it is inexecutable because of absence of evidence with regard to identification of the land or any other deficiency in the order.
7. Accused/petitioners filed a criminal petition(91/2015) before this Court and later on the said petition was withdrawn in motion stage on 9.2.2015
8. Thereafter the complainant/respondent no.2 again preferred an application seeking restoration of possession of the property involving C.R.Case No. 3388C/2008. On the basis of such application Misc.Case No. 31/2015 was registered .
9. Being aggrieved by initiation of such proceeding the accused petitioner has approached this Court with the present petition U/S 482 CrPC seeking quashment of Misc.Case No. 31/2015 on the ground that the initiation of such proceeding is sheer violence of the provision of Section 456(1) CrPC which requires that necessary proceeding for restoration of property involved in a criminal case is to be initiated within one month from the date of final judgment and such prescription was not 5 followed in initiating Misc.Case No. 31/2015. The contention of the present petitioner is that the direction given in the judgment dated 4.6.2010 in C.R.Case No.3388C/2008 can never be executed since the land involved in the aforesaid proceeding was already held by the learned trial Court in its order dated 10.1.2012 as unidentifiable.
10. This Court issued notice to respondents and stayed further proceeding of the said misc case by the order dated 21.11.2015. Respondent 2 filed an interlocutory application, registered (IA(crl.) 53/2016, for vacating the said order contending that the order dated 8.9.2014 in criminal revision 35/2012 was obtained by suppressing the fact that the criminal petition 91/2015 was withdrawn by the accused.
11. Heard Mr KN Choudhury, learned senior counsel for petitioner. Also heard Mr B Sarma, learned additional public prosecutor for respondent 1 and Mr B Islam, learned counsel for respondent 2.
12. Due consideration has been made to the submission made by the learned counsel for both the parties. It emerges from the findings of the revisional Courts that the order passed by the trial Court directing restoration of possession of land in question to the complainant in C.R.Case No.3388C/2008 was not interfered by the revisional Courts and such an order held the field. It is also noted that the aforesaid order was passed on the very date of passing of the order and as such there is no further requirement for passing an order U/S 456(1) CrPC and hence no question of violation of prescription under the said proviso.
13. The learned revisional Courts in Criminal Revision Petition No. 35/2012 by its order dated 8.9.2014 has categorically dealt with the matter regarding the provisions of Section 456 CrPC and has held that when the learned trial Court being satisfied with the facts and circumstances of the case and in exercise of its judicial discretion made a 6 direction for restoration of possession of the complainant there is no need or scope for any subsequent proceeding in the nature of execution nor the same Court of Magistrate or the Court which pass the order has the power or jurisdiction to rethink or recall such order. Subsequently, if the enforcing agency fails to enforce the order for some valid reason or other, the parties always have the civil remedy as is evident from Sub-Section 4 of Section 456 CrPC. It was also held that it is the onerous duty of the Court to enforce its own order, there is also no scope for the accused challenge such order on the ground of not executory before the same Court. The Court which pass an order U/S 456(1) CrPC for restoration of possession has no jurisdiction to review its own order have to say that order is not enforceable or non-executable for want of description or identification of the property in dispute or for any other deficiency in evidence of pleadings.
14. The aforesaid findings of the revisional Courts still in force and accordingly, the petitioner cannot resist due execution of the aforesaid order. By the said order the learned revisional Court has set aside the subsequent finding of the learned CJM that the order is unexecutable in law and the matter has been sent back to the learned trial Court to carry out its own order. It is to be noted that only after passing of the aforesaid order by the revisional Court the respondent/complainant filed the aforesaid petition praying for execution for restoration of the property as per the judgment and order dated 4.6.2010 passed by the learned trial Court which has been registered as Misc. Case No. 31 of 2015. In the meantime it is also found that the petitioner herein preferred the Criminal Petition 91 of 2015 which was however withdrawn on 9.2.2015.
15. It has been contended by the learned counsel for the petitioner Mr. Choudhury that the respondent cannot claim for execution of the aforesaid order by giving a new description and boundary of the property which was not furnished in course of trial. 7 The said submission of the learned counsel deserves consideration. Obviously, the learned trial Court can look and act upon the matters already on record and cannot go by new facts that have been given by the other side. The execution of order U/S 456(1) CrPC is far distinct from that of execution of civil dispute and the trial Court has to enforce its order within the parameter which is already on record.
16. It is quite evident that the respondent is not yet restored to the possession of the property as directed by the trial Court on the different pretext here and there by the petitioner and the grievances of the respondents is not yet redressed nor the order of the Court has been executed. In such backdrop the filing of petition by the respondent no.2 can no way be held as illegal so as to interfere by this Court by invoking of provision of Section 482 CrPC. In this connection leaned counsel for the petitioner has also relied the judgment in the case of Binod Kumar and others -vs- State of Bihar and another, reported in (2014) 10 SCC 663, wherein at paragraphs 11 and 18 of the aforesaid Judgment it was held as follows:
"11. Referring to the growing tendency in business circles to convert purely civil disputes into criminal cases, in paragraphs (13) and (14) of the Indian Oil Corporation's case (supra), it was held as under:-
"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. Such a tendency is seen in several family disputes also, [pic]leading to irretrievable breakdown of marriages/families. 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 through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., , this Court observed: (SCC p. 643, para 8) '8 ...It is to be seen if a matter, which is essentially of a 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 8 great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the 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."
"18. In the present case, looking at the allegations in the complaint on the face of it, we find no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust."
17. Further the petitioner relied the case law in the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others, reported in (2016) 1 SCC 348 paragraphs 13 to 15. For ready reference, the same are extracted below:
"13. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 CrPC should not be exercised to stifle a legitimate prosecution. The power under Section 482 CrPC is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon the facts and circumstances of each case (Vide State of Haryana v. Bhajan Lal , State of T.N.v. Thirukkural Perumal and CBI v. Ravi Shankar Srivasava.)
14. In the light of the well-settled principles, it is to be seen whether the allegations made in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Section 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating.9
15. The essential ingredients to attract Section 420 IPC are (i) cheating;(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant."
18. In the given background of the present case where the matter has already been decided by the trial Court and the revisional Court has also upheld the same there is no scope for quashing the aforesaid petition filed by the petitioner with a prayer for restoration of possession of the property as directed by the Court. The above case laws referred by the learned counsel for the petitioner cannot assist his case.
19. The poor litigants have knocked the door of the Court to get its due relief granted under the order of the Court, which however was not executed even after lapse of years of passing of the order, for which the petitioner came forward again and again for execution of the same. Such an lawful prayer on the part of the respondent cannot be struck down as illegal. The purpose of provision of Section 482 crPC is to ensure justice but not to prevent the same.
20. In view of all above, the Criminal Petition filed by the petitioners stands dismissed. However, I.A.(Crl.)No.53/2016 is allowed. The learned trial Court shall proceed with the Miscellaneous Case No. 31m/2015 pending before the Court without however taking into account the new scheduled given by the petitioner in the said case.
21. With the findings above, both the cases disposed of.
JUDGE 10 Nandi/na 11