Punjab-Haryana High Court
Shri S.S. Bose And Another vs State Of Punjab And Others on 29 November, 2010
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
Crl. Misc. No.M-24462 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of Decision: November 29th, 2010
1. Crl. Misc. No. M-24462 of 2010
Shri S.S. Bose and another
.....Petitioners
Vs.
State of Punjab and others
.....Respondents
2. Crl. Misc. No. M-29145 of 2010
Parmod Bhardwaj
.....Petitioners
Vs.
State of Punjab and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. K.T.S. Tulsi, Sr. Advocate with
Mr. Ashish Kapoor, Advocate for the petitioners
in Crl. Misc. No. M-24462 of 2010.
Crl. Misc. No.M-24462 of 2010 [2]
Mr.J.S. Virk, Advocate for the petitioner
in Crl. Misc. No. M-29145 of 2010
Mr.Abhishekh Chautala, AAG, Punjab.
Mr.T.S.Sangha, Sr. Advocate with
Mr.Narinder Singh, Advocate for the complainant.
-.-
M.M.S. BEDI, J.
Through this common judgment, I intend to dispose of two petitions bearing Criminal Misc. Nos.M-24462 and M-29145 of 2010 one filed by S.S. Bose, posted as Deputy General Manager, Indian Oil Corporation and Sanjeev Kumar, Assistant Manager (Retail Sales) and another filed by Parmod Bhardwaj, Approved Valuers, invoking the inherent jurisdiction under Section 482 Cr.P.C. for quashing of FIR No.213 of August 8, 2010 under Sections 454, 465, 468, 120-B IPC registered at Police Station Rajpura.
For adjudication, Crl. Misc. No. M-24462 of 2010 has been taken as the main petition for referring to the facts and documents.
The FIR was registered at the instance of Brij Mohan Mahajan- respondent No.4, Director of Nimitiya Properties Limited (for short 'the NPL'). The FIR was registered on the basis of a complaint dated May 18, 2010 received in the office of DGP on May 20, 2010. The contents of the compliant on the basis of which the FIR has been registered, reads as follows:-
"To Crl. Misc. No.M-24462 of 2010 [3] The Director General of Police, Punjab, Chandigarh.
Sub:- Regarding taking legal action against Sh.Parmod Bhardwaj, B.E. (Civil), Government Approved Valuer, Resident of Opp. Govt. Girls Higher Sec. School, Nehru Garden, Jalandhar, Punjab and some other errant officials of Indian Oil Corporation.
Most Respected Sir, The complainant submits as under:-
1. That complainant Sh.Brij Mohan Mahajan, Director Nimitaya Property Limited is the R/o Farm No.2A, Avenue Cassia, Westend Greens, Rajokari, New Delhi-110038.
2. That complainant purchased plot measuring 13467.6 sq. yards situated at Pehar Khurd Tehsil Rajpura, District Patiala, on dated 27.3.2006 from M/s Indian Oil Corporation Ltd. at price of Rs.2,11,000,00/-.
Copy of the sale deed dated 27.3.2006 is attached. The sale of the said plot is completed in all respect and is free from all encumbrances.
3. That when the complainant started construction on the said plot as per the rights envisaged in the sale deed then complainant received a letter dated 8.8.2007 from OCL Office and shocked to know about the contents of Crl. Misc. No.M-24462 of 2010 [4] the letter that he is prohibited to construct any building or any other structure etc. on the said land in question.
4. That it is worth while to mention here that at the time of executing the sale deed in favour of the complainant party the owner of the land namely the M/s Indian Oil Company kept concealed a fact regarding the oil pipe lines laid under the ground by the Indian Oil Company which is running through the same land which was sold to the complainant party. The oil pipe lines laid by the Indian Oil Company was within the knowledge of the company and company knowingly cheated the complainant fraudulently and dishonestly executed the sale deed in the favour of complainant.
5. That the complainant approached to the S.S.P., Patiala against the misdeeds and fraud committed by the IOCL who marked the inquiry to the SHO, P.S. Sadar Rajpura and the S.H.O. concerned after taking the opinion of DA, Legal reached to the conclusion that above said officials of IOCL have cheated Nimitaya Properties Limited, New Delhi (complainant Firm) and on the direction of the Inspector General of Police Zonal-1, Punjab Patiala, a FIR No. 211 dated 7.10.2008 under Sections 420, 120-B IPC was registered at P.S. Crl. Misc. No.M-24462 of 2010 [5] Sadar Rajpura against the IOCL officials at etc. Copy of the said FIR is attached herewith.
6. That the IOCL official are high handed persons despite of the fact that FIR has been registered against them they are running scot free. The complainant was shocked to know that Sh.Parmod Bhardwaj, a valuer on the penal of IOCL alongwith IOCL officials intentionally and deliberately went to the said plot of the complainant without the prior permission of the complainant forcibly entered and trespassed into the said plot, demarcated and prepare the valuation report of entire plot.
7. That the report prepared by the valuer on the direction of the IOCL is false and baseless there is no truth behind this and same is being prepared just to escape the IOCL officials from the hands of law. The present report of the valuer is not based on the Petroleum and Minerals Pipelines Act, 1962. As per the report of the valuer the area in question was being used for storage of tanks. But in reality the aforesaid act does not allow such type of usage like storage of tanks on the said plot in question. So, if the complainant used this area for the storage of tank which is ultimately barred by the relevant statute and as per the public policy, the same usage may invite any mishap or tragedy which could cause danger Crl. Misc. No.M-24462 of 2010 [6] to life in large number in the vicinity, there are so many example of such type of tragedy and loss of life for example recently in IOCI Depot in Jaipur and many other place in India Abroad.
8. That the act and the conduct of the valuer and IOCL officials are come under the preview of offences related with trespass, loss to property and misuse of their post, position and duties. So stern legal action may kindly be taken against the Parmod Bhardwaj, valuer and some erring officials of the IOCL and they may kindly be brought to book under the provisions of Criminal Law and justice may kindly be done to the complainant.
NOTE: Photocopies of relevant documents are attached.
Submitted by: Sd/-
(Brij Mohan Mahajan), Director Nimitaya Property Limited, Is the R/o Farm No.2A, Avenue Cassia, Westend Greens, Rajokari, New Delhi-110038 Ph.: 9810100786."
The allegations in the abovesaid complaint were enquired into by DSP Sub Division, Rajpura and a report was submitted to SSP, Patiala, vide letter No. 491/C DSP Rajpura dated July 19, 2010. DSP had recorded the statements of Chowkidar Arjan Dev, S.S. Bose, Sanjeev Kumar and Brij Mohan and submitted the same to the SSP. The report prepared by DSP forms part of the report under Section 173 (2) Cr.P.C. The said report was sent by SSP, Patiala to District Attorney, Legal. District Attorney observed Crl. Misc. No.M-24462 of 2010 [7] that the DSP had not given any finding in his report regarding the trespass, loss of property or the misuse of the position and duties. The report of District Attorney, (Legal) reads as follows:-
"I have examined the application of Brij Mohan Mahajan dated 18.5.2010, report of DSP Sub Division, Rajpura bearing NO.491/C/DSP/Rajpura dated 19.7.2010 and other papers under consideration.
Brij Mohan has levelled allegations in his application dated 18.5.2010 against Parmod Mahajan and other erring officials of the IOCL for offences related with trespass, loss to property and misuse of their post, position and duties. But no findings have been given by DSP Sub Division, Rajpura, in his report dated 19.7.2010.
I am of the view that for proper legal opinion, DSP Sub Division, Rajpura, may be directed to give specific findings on the allegations levelled by Brij Mohan in his application dated 18.5.2010 pl.
W/SSP Sd/-D.A. (Legal)
21.7.2010".
Thereafter DSP vide his report No.491/C/DSP
Rajpura dated July 31, 2010 stated that on the basis of the statements of Chowkidar Arjan Dev, S.S. Bose, Sanjeev Kumar and Parmod Bhardwaj and that of the owner of the property Brij Mohan Mahajan, it is apparent Crl. Misc. No.M-24462 of 2010 [8] that in the absence of Brij Mohan Mahajan, the said persons had entered the building by breaking open the locks and obtained report from Parmod Bhardwaj, Valuer with an objective to cause loss to the owner and report of District Attorney, Legal, should be obtained for necessary action by SHO, Police Station, Sadar, Rajpura. The application of DSP was sent to D.A., Legal for legal opinion who without application of mind or any personal opinion passed the following orders on August 6, 2010:-
"I have examined the application of Brij Mohan Mahajan dated 18.5.2010, reports of DSP Sub Division Rajpura dated 19.7.2010 and 31.7.2010 and other papers under consideration.
Brij Mohan has levelled allegations in his application dated 18.5.2010 against Parmod Mahajan and other erring officials of IOCL for offences related with trespass, loss to property and misuse of their post, position and duties.
As per findings of DSP Sub Division, Rajpura, dated 31.7.2010, S.S. Bose and Sanjiv Goyal had entered the building of applicant- owner Brij Mohan in his absence after breaking the lock and in order to cause loss to applicant Brij Mohan had got prepared the documents from Parmod Kumar Bhardwaj, a valuer.
I am of the view that from the findings of DSP Sub Division, Rajpura, dated 31.7.2010 and application of Crl. Misc. No.M-24462 of 2010 [9] Brij Mohan Mahajan, act of S.S. Bose , Sanjiv Goyal and Parmod Kumar Bhardwaj prima facie attracts the provisions of Sections 454/ 465/ 468/ 120-B IPC. Pl.
W/SSP. Sd/-D.A. (Legal)
6.8.2010."
The petitioners have sought the quashing of FIR and all the criminal proceedings emanating therefrom on the ground that the FIR has been lodged with malafide intention with an objective to pressurize the petitioners as petition for quashing of earlier FIR No. 211 of 2008 registered at Police Station Sadar, Rajpura, has been challenged before this Court and to pressurize the Indian Oil Corporation Limited (for short 'IOCL') to repurchase land sold to the complainant at higher price at the valuation assessed by the complainant. During the pendency of the quashing proceedings in earlier FIR, to amicably settle the dispute, as the chances of amicably settlement were not apparent, the High Court in order dated July 27, 2010 in quashing petition observed that valuation of property was not necessary. No offence is made out from the submissions in the FIR even if the unrebutted allegations are presumed to be correct. There has neither been preparation of any false document nor the offence of lurking trespass or house breaking is made out under Section 454 IPC.
In order to substantiate the malafide, the few facts as enumerated in the petition are that:-
the Central Government vide notification No. S.O. 73 dated December 16, 1981 acquired the right of user in the lands specified in its Crl. Misc. No.M-24462 of 2010 [10] schedule for laying Mathura- Jalandhar pipeline. The Central Government vested the right of user in the pipelines Division of the Indian Oil Corporation Limited. The Marketing Division of IOCL purchased the land bearing Khasra Nos.276, 279 measuring 13 bigha 6 biswa (approximately 2.38 acres) falling in Village Pahar Khurd, Tehsil Rajpura, District Patiala from its erstwhile owners for its use as its Oil Depot vide its sale deed dated January 30, 1990. The pipeline ran beneath one corner of the said plot. The pipeline Division of IOCL, with an objective to prevent activities regarding the construction, excavation etc. on a part of the land under which the pipeline was passing, addressed communication to various District Collectors including the District Collector, Patiala on September 2, 1993 to enter the Right of User/ Right of Way acquisition details in revenue records/ jamabandi maintained by the Revenue officials/ Tehsildars etc. to ensure that subsequent/ potential buyers are aware of the limited encumbrance on the property. On December 6, 2005, the Marketing Division of IOCL engaged Metal Scarp Trading Corporation (MSTC), a public sector enterprise of the Government of India for disposal of the land measuring 13 bigha 6 biswa. Namitaya Properties Limited (NPL) participated in the tender process and being highest bidder purchased the same vide sale deed dated March 27, 2006 for a sum of Rs.2.11 crores from Marketing Division of IOCL. While NPL was in process of developing the said land, pipeline Division of the IOCL wrote to NPL on August 8, 2007 stating that by virtue of provisions of Petroleum and Minerals, Pipelines (Acquisition of Right of User Land) Act, 1962 (for short 'PMP Act'), raising construction, Crl. Misc. No.M-24462 of 2010 [11] excavation etc. on the acquired part of the land is prohibited and advised NPS to clear encroachment on that part of the land. While the total area of the land in question is 2.38 acres, the area affected was only 0.07 acres i.e. roughly 3% of the total area. NPL issued a legal notice to IOCL for removal of the pipeline. IOCL negotiated with NPL but no amicable settlement could be reached. Thereafter NPL preferred Writ Petition (Civil) No. 1456 of 2008 before the High Court of Delhi praying for removal of pipeline which is pending adjudication. NPL had also filed an FIR against the officials of IOCL alleging that the complainant had been cheated. FIR No.211 dated October 7, 2008 under Sections 420, 120-B IPC stands registered against the officials of the IOCL at Police Station Sadar, Rajpura. A petition for quashing of the said FIR is pending in the High court bearing Crl. Misc. No. M-27995 of 2008. IOCL had offered three alternatives for amicable settlement of the dispute vide their letter dated February 23, 2008. Copy of the letter dated February 23, 2008, has been appended as annexure P-4. The following three alternatives had been offered by the IOCL:-
"a) IOCL buys back the land for the same consideration, bears expenses incurred for registration and pays interest as per PLR of SBI from such date of sale till re-purchase;
b) the parties appoint a Government approved valuer with mutual consent. The price of land he values is the price of land IOCL pays to NPL.Crl. Misc. No.M-24462 of 2010 [12]
c) IOCL helps NPL to sell the land through MSTC and also bears expenses for registration etc."
It appears that NPL did not respond to the offer but had obtained valuation report dated March 1, 2008 for the said land from M/s Arun Mittal and Associates and M/s Avinash Khosla and Associates, who valued the land at Rs.18.04 crores. Copy of the valuation regarding the property in dispute i.e. 13 bigha 6 biswa got prepared by the respondent- complainant is attached herewith as annexure P-5. Another report was got prepared by NPL through M/s Avinash Khosla and Associates valuing the property at Rs.43.56 crores. The said valuation report dated March 5, 2008 is attached as annexure P-6. In petition i.e. Crl. Misc. No. M-27995 of 2008 for quashing FIR No. 211 of 2008 registered at Police Station Sadar Rajpura, under Sections 420, 120-B IPC the High Court had granted stay of the investigation vide order annexure P-8 dated October 24, 2008 but vide order dated February 18, 2010, the order was modified to the effect that the prosecution agency would be entitled to continue with the investigation, however, in case the prosecution agency opts to present report under Section 173 (2) Cr.P.C., the Court will not frame charges against the petitioners. Besides this, an interim direction was issued that in case the investigating officer intended to arrest any of the accused, 7 days clear notice in writing would be given to enable them to avail the legal remedy available to them adopting the guidelines of Supreme Court in Joginder Kumar Vs. State of U.P., (1994) 4 SCC 260. As attempt was made to arrest the accused on the basis of the order dated February 18, 2010, the Crl. Misc. No.M-24462 of 2010 [13] officials obtained the orders of pre-arrest bail from the High Court. The petitioners claimed that while adjourning the matter, the High Court had advised the parties to settle the matter and desired to know the price that IOCL would be willing to pay to re-purchase the land in question. The IOCL officials had written a letter dated March 8, 2010 to SSP, Patiala, alleging malafides and bias against the investigating officer and requested that investigating officer should be changed. Copy of the said letter has been appended herewith as annexure P-12. The petitioners claimed that IOCL was willing to repurchase the land which was sold to the complainant at the price valued by Sh.Parmod Bhardwaj, approved valuer who had valued the land at Rs.4.3 crores whereas this property had been sold by IOCL for Rs.2.11 crores. Sh.Parmod Bhardwaj, Government Approved Valuer had prepared his report annexure P-14 and the same was produced before the court on April 8, 2010 in Crl. Misc. No. M-27995 of 2008. Copy of the letter dated May 7, 2010, annexure P-15, has been placed on record which was sent by Brij Mohan Mahajan, Director of NPL wherein he has levelled allegations that Parmod Bhardwaj had trespassed in his property. In para 6 b of his letter, he has stated that as per the report of Chowkidar, no one had visited the property for valuation.
In reply filed by the DSP, Rajpura, on behalf of respondents No.1 to 3, it has been submitted that complaint dated May 18, 2010, addressed to DGP, received from complainant Brij Mohan Mahajan against the petitioners that they had broken locks and entered the property of NPL in the month of April 2010, was enquired into by DSP, Rajpura. The Crl. Misc. No.M-24462 of 2010 [14] allegations were substantiated and after seeking legal opinion of DA, Legal, Patiala, SSP had ordered registration of case. All the accused have prepared the valuation report by entering in the property of NPL Village Pahar Khurd, without the permission of the Court and without the consent of the owner namely, Brij Mohan Mahajan of NPL as such the police has taken action on the basis of offence committed by S.S. Bose, Rajiv Goel, Parmod Bhardwaj. Pendency of petition for quashing another FIR in Crl. Misc. No.M-27995 of 2008 has been admitted but it is stated that the orders passed by the High Court in said petition has no impact upon the merits of the present FIR. The complainant- respondent No.4 has also filed similar reply reiterating that the petitioners have prepared valuation report by entering the property of NPL without the permission of the owner of the property and prepared a false valuation report.
I have heard counsel for the petitioners and gone through the reply. It is an admitted fact that complainant- Brij Mohan Mahajan, Director of NPL is the owner of the property measuring 13 bigha 6 biswa of land with a dilapidated building and boundary wall thereof, as is apparent from the valuation report prepared by his own Architect, annexure P-5. There appears to be a controversy regarding the valuation of the property in view of the offer of the seller IOCL to re-purchase the same for which purpose annexures P-5 and P-6, valuation reports have been got prepared by complainant from M/s Arun Mittal and Associates and M/s Avinash Khosla & Associates, valuing the property to the tune of Rs.18.04 crores. The officials of the IOCL have got the valuation of the property made by Crl. Misc. No.M-24462 of 2010 [15] appointing Parmod Bhardwaj of Parmod Bhardwaj and Associates who has prepared the valuation report annexure P-14. Parmod Bhardwaj has assessed the value of the property as approximately Rs.4,03,98,055/-. The complainant had admittedly sent a letter annexure P-15 addressed to Parmod Bhardwaj in para 6 (b) that he had made the valuation report either sitting in the office of IOCL or in his office as his chowkidar had reported that no one had visited the property for the purpose of valuation. The letter annexure P-15 dated May 7, 2010 is an admitted document and the respondent has not denied, in his reply, to have sent letter annexure P-15. The FIR No.213 of 2010 was registered on August 8, 2010 under Sections 454, 465, 468, 120-B IPC, by filing this petition in the month of August challenging the FIR on the ground that prima facie the FIR did not disclose commission of any cognizable offence as such Court should interfere with the investigation and quash the same. Though the Court had a jurisdiction to interfere in the investigation and quash the same in case the FIR did not disclose commission of any cognizable offence as per the law laid down in State of West Bengal and others Vs. Swapan Kumar Goha and others, reported in (1982) 1 SCC 561, but while issuing notice of motion on August 23, 2010, the status of the investigation was ordered to be intimated to the Court. On September 8, 2010, the investigating officer informed that the investigation would be completed within few days as such time was granted to the prosecution agency to complete the investigation and present the challan on the basis of the material gathered. As the State counsel informed on September 24, 2010 that report under Section 173 (2) was ready to be Crl. Misc. No.M-24462 of 2010 [16] filed as such the investigating agency was required to produce a complete copy of the report under Section 173 (2) Cr.P.C., in order to enable this Court to arrive at a conclusion that whether on the basis of the allegations in the FIR and the material collected during investigation, any offence under Sections 454, 465, 468, 120-B IPC was made out or not. However, the trial Court was directed not to frame charges against the petitioners during the pendency of this petition. The entire report has been made available alongwith the statements of the witnesses, the valuation report of M/s Avinash Khosla and Associates prepared by the complainant and the valuation report prepared by Parmod Bhardwaj, on the instructions of IOCL pertaining to the land purchased by complainant regarding which civil and criminal litigation is pending.
The principles governing the authority of High Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. have come up before the Apex Court in number of cases. The parameters for quashing of FIR have been enumerated in State of Haryana Vs. Bhajan Lal, AIR 2004 SC 604. It has been laid down that in following category of cases, the High Court may in exercise of powers under Article 226 or under Section 482 Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases:-
"1) Where the allegations made in the First Information Report or the complaint, even if they are Crl. Misc. No.M-24462 of 2010 [17] 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.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 F.I.R. 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 S.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.
Crl. Misc. No.M-24462 of 2010 [18]
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."
In C.B.I. Vs. Ravi Shankar Srivastava, IAS and another, (2006) 7 SCC 188, a word of caution had been given by the Apex Court to the effect that the exercise of power under Section 482 Cr.P.C., is an exception and not the rule. Section 482 does not confer any new power on the High Court. It only saves the inherent powers which the Court possessed before the enactment of the Code. It was emphasized that under three circumstances, the inherent jurisdiction may be exercised, namely; (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. The Apex Court observed that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may Crl. Misc. No.M-24462 of 2010 [19] possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. The observations of the Apex Court in Ravi Shankar Srivastava's case (supra) which are necessary to be kept in mind at the time of quashing of FIR are reproduced as under:-
"While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.
In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. It is important to bear in mind the distinction Crl. Misc. No.M-24462 of 2010 [20] between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge."
Keeping in mind the abovesaid principles, an attempt has been made to determine, (i) whether the allegations made in the complaint lodged by the complainant on the basis of which FIR has been registered, if taken at their face value and accepted in their entirety, prima facie constitute any offence or make out any case against the petitioners; (ii) whether the allegations in the FIR and other materials, accompanying the FIR disclose any cognizable offence against the petitioners justifying investigation and continuation of criminal proceedings and (iii) whether the uncontroverted allegations in FIR and evidence collected disclosed commission of any offence and made out any case against the accused; and (iv) whether the proceedings have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to any personal grudge; whether the petitioners S.S. Bose, DGM, Operations of IOCL, Delhi and Sanjeev Kumar, Assistant Manager, (Retail Sales), Crl. Misc. No.M-24462 of 2010 [21] alongwith Parmod Bhardwaj, Approved Valuer had broken the locks and entered the premises of NPL at Pahar Khurd in the month of April 2010 and the valuation report dated April 5, 2010 prepared by him is a false document, making the petitioners liable for offence under Sections 454, 465, 468, 120-B IPC, on the basis of the allegations in FIR and the material collected during investigation. Section 454 IPC reads as follows:-
"454. Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment: Whoever commits lurking house- trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine ; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years."
The necessary ingredients of Section 454 IPC are (i) lurking house trespass or house breaking and accused should have done so in order to commit an offence punishable with imprisonment under Section 454 IPC is aggravated form of the offence under Section 453 IPC which provides punishment for lurking house trespass or house breaking. Section 453 IPC reads as follows:-
"Section 453. Punishment for lurking house-trespass or house-breaking:- Whoever commits lurking Crl. Misc. No.M-24462 of 2010 [22] house-trespass or house-breaking, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine."
The necessary ingredients which are required for punishment for lurking house trespass have been explained in Section 442 IPC. Section 442 IPC reads as follows:-
"442. House trespass: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass."
The definition of house trespass has to be read in context to the definition of Criminal trespass defined in Section 441 IPC which reads as follows:-
"Section 441: Criminal trespass:- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to Crl. Misc. No.M-24462 of 2010 [23] intimidate, insult or annoy any such person, or with intent to commit an offence, Is said to commit "criminal trespass".
The essential ingredients are necessary to bring the act of a person in the definition of criminal trespass (i) enters into or upon property in the possession of another; (ii) if such entry is lawful commits removal upon such property; (iii) such entry or unlawful remaining must be with intent; (i) to commit an offence; or (ii) to intimidate, insult or annoy the person in possession of property.
In case it is a case of house trespass under Section 452 IPC, besides establishing the ingredients of criminal trespass, there should be allegations that the house trespass was committed after making preparation for causing hurt, or for assaulting or for assaulting or for wrongfully restraining some person, or for putting some person in fear of hurt, or of assault, or of wrongful restraint. In order to bring the mischief within the ambit of lurking trespass punishable under Section 454 IPC, the act of lurking trespass has to be for the purpose of committing any offence which is punishable with an imprisonment.
The allegation against the petitioner is that when an objective to prepare valuation report, the petitioners have trespassed into the house of the complainant. The allegations in the FIR do not indicate that the petitioners had entered in the property in possession of the complainant with some intention to commit an offence or to intimidate insult or annoy any person in possession of the property. It is not established that there exists Crl. Misc. No.M-24462 of 2010 [24] any house in which the petitioners had entered in any of the six ways mentioned in Section 445 IPC. The most important ingredients of Section 454 IPC is that there has to be an intention to commit an offence after house trespass which is punishable with imprisonment. The intention of a property valuer could only be to prepare a valuation report. There is not even an allegation against any of the petitioners that there was any intention on part of the petitioners to commit any offence or to intimidate or insult or annoy any person or that any offence was committed or intimidation done causing insult or annoyance to a person in possession. The allegation that the lock was broken is not substantiated by the statement of Chowkidar Arjan Dev who was examined at the time of enquiry or during investigation. Besides this, the admitted document of the complainant annexure P-15, a letter written by complainant to Parmod Bhardwaj on May 7, 2010 that he had made valuation report without visiting the property as per the report of his chowkidar is sufficient enough to arrive at a conclusion that the allegation of trespassing is not only false but is apparently not made out even from the averments in the FIR and the material collected during the course of investigation.
The Apex Court in Mohd. Ibrahim Vs. State of Bihar, 2009 (4) RCR (Crl.) 369, while dealing with the matter in which the accused had sold the plot of another person claiming himself the owner, by executing a sale deed and he having been charged under Sections 467, 471, 464 IPC, the Apex Court held that execution of such document is not execution of false document under Section 464 IPC holding that when a document is executed Crl. Misc. No.M-24462 of 2010 [25] by a person claiming that he is owner of the property (though he is not the owner), and not impersonating the owner, the document so created is not false document within the meaning of Section 464 IPC. It was observed that if what is executed is not a false document, there is no forgery within the meaning of Sections 467 and 471 IPC. The Apex Court was pleased to quash the charges under Sections 467 and 471 IPC. It was observed in the said judgment that a person can be said to make a false document under Section 464 IPC, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
In the present case, the property valuer Parmod Bhardwaj has prepared a valuation report and signed the same for IOCL under the instructions of officers of the IOCL. The value of the property has been assessed as Rs.4.11 crores by him. The property is owned by the complainant. As per the complainant, the value of the property, as per his valuer, is Rs.43.56 crores. No claim of any of the parties regarding the exact value of the property is in issue. The document i.e. valuation report executed by Parmod Bhardwaj is thus not a false document within the meaning of Section 464 IPC. No offence is thus made out. FIR No. 213 dated August 8, 2010 under Sections 454, 465, 468, 120-B IPC is liable to be quashed.
I have gone through the entire report under Section 173 (2) Cr.P.C. including the report of July 19, 2010 prepared by DSP, Rajpura, on Crl. Misc. No.M-24462 of 2010 [26] the basis of compliant submitted by the complainant. He had recorded the statement of Chowkidar Arjan Dev who had specifically in un equi vocal terms stated that he was not present when the valuer had entered into property owned by the complainant. He was told by someone that inspection had been conducted by some officials of IOCL after opening the lock. The opinion was given by District Attorney on July 21, 2010 that no finding has been given by DSP of Division Rajpura, in his report dated July 19, 2010. Subsequently, on the basis of same material he gave an opinion that prima facie offence under Sections 454, 465, 468, 120-B IPC was made out. The report of District Attorney, Legal dated August 6, 2010 is apparently a procured report with sole objective to facilitate the launching of prosecution. The report of District Attorney is misconceived and is not based upon the proper appreciation of the facts before him. Such a practice of District Attorneys to succumb to the pressure of the mischievous elements is deprecated. An officer of the rank of District Attorney is expected to apply his independent mind and fairly express his opinion justifying the launching of prosecution. It is not understood as to what changed the mind of District Attorney from July 21, 2010 to August 6, 2010. Even otherwise, a perusal of the statement of Arjan Dev, a 70 years old chowkidar recorded under Section 161 Cr.P.C. during enquiry on August 12, 2010 does not indicate that he had seen anyone breaking the locks open. Even if his statement under Section 161 Cr.P.C. is taken to be gospel truth, it does not even attribute the act of breaking of locks to any of the petitioners. He had neither seen the petitioners breaking open the locks Crl. Misc. No.M-24462 of 2010 [27] nor he mentions the names of the persons who had informed him about the breaking of the locks. The statement of complainant recorded on September 12, 2010 under Section 161 Cr.P.C. does not even indicate as to who at what time in what manner had entered into his property for any specific intention. Neither the allegations in the FIR nor in any of the statements or documents, a reference has been made as to how the petitioners can be said to have trespassed in the property of the complainant. Thus no offence is made out against the petitioners under Section 454 IPC, on the basis of the report under Section 173 (2) Cr.P.C.
Whether the preparation of a valuation report by Parmod Bhardwaj on April 5, 2010 by visiting the property can be said to be an act of forgery and an act of forgery for the purpose of cheating. In order to appreciate whether offence under Sections 465 and 468 IPC are made out, the definition of forgery as mentioned in Section 463 IPC, making of false documents under Section 464 IPC, punishment for forgery under Section 465 IPC and punishment for forgery for the purpose of cheating under Section 468 IPC are required to be referred to. Sections 463, 464, 465 and 468 IPC are reproduced as under:-
"Section 463. Forgery:- Whoever makes any false documents or Electronic Record1 part of a document or Electronic Record1 with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent Crl. Misc. No.M-24462 of 2010 [28] to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document "A person is said to make a false document or false electronic record-
First-Who dishonestly or fraudulently-
(a) Makes, signs, seals or executes a document or part of a document;
(b) Makes or transmits any electronic record or part of any electronic record;
(c) Affixes any digital signature on any electronic record;
(d) Makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, Crl. Misc. No.M-24462 of 2010 [29] whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alterations;
465. Punishment for forgery: Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
468. Forgery for purpose of cheating Whoever commits forgery, intending that the document or Electronic Record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
A perusal of Section 464 IPC indicates that a person makes a false document if he (i) dishonestly or fraudulently makes, signs, seals or executes a document or part of a document or makes any mark denoting the execution of a document or the authenticity of the digital signature, and (ii) Crl. Misc. No.M-24462 of 2010 [30] does as above with an intention of causing it to be believed that such document or part of document was made, signed, sealed or executed; (a) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed or executed, or (b) at a time at which he knows that it was not made, signed, sealed or executed. The second clause comes into operation when a person without any lawful authority or dishonestly with and fraudulently by cancellation or otherwise alters a document or any material part thereof after it has been made. The third clause explains that if a person causes any other person to sign or alter a document knowing that such person on account of unsoundness of mind or intoxication cannot or by reason of deception practiced upon him, does not know the contents of the document. It is not understood from the allegations in the FIR as to how petitioners No.1 and 2-S.S. Bose and Sanjeev Kumar have got a false document prepared from the approved valuer with an intent to cause damage or injury to the public or any person or to support any claim or title or to cause any person to part with property. If it is believed that the valuation report has been got prepared to support a claim that value of the property is Rs.4.11 crores, this will not tentamount to an act of forgery or making a false document as it is not the case of the complainant that the value of the property assessed by Parmod Bhardwaj has, in any manner, prejudiced his right or claim in any civil or criminal proceedings as valuation of the property is neither the subject matter of any criminal case nor it is the subject matter of any civil case. Another interesting aspect of the matter is that two valuation reports have already been got prepared by Crl. Misc. No.M-24462 of 2010 [31] the complainant as admitted by him. The said reports have been produced by the complainant before the investigating agency. The report of M/s Avinash Khosla and Associates indicates the valuation of the property as Rs.43.56 crores for the purpose of assessment of the assets of the complainant. If the complainant can get the property evaluated from an approved valuer, the similar act having been done by the petitioners will not bring the act within the ambit of forgery or forgery for the purpose of cheating. In order to establish forgery for the purpose of cheating, Section 468 IPC, comes into operation if a document has been forged in terms of Section 463 IC and has been used for the purpose of cheating. It is not understood as to how complainant or any other person has been cheated and as to how the preparation of a report by Parmod Bhardwaj, valuer can be said to be a false document made with an intent to cause damage and injury to the public, or to the complainant or to support any claim or title especially when the valuation of the property is not the subject matter of any civil or criminal litigation. It is not even the allegation of the complainant that the valuation of the property has been done for any oblique motive bringing the report of the valuation within the mischief of a forged document prepared for the purpose of cheating. No offence is thus made out from the bare perusal of the allegations in the FIR and the material collected during investigation, as such the case for quashing falls within the parameters laid down in Bhajan Lal's case (supra). Crl. Misc. No.M-24462 of 2010 [32]
It is not out of place to mention here that the complainant has earlier lodged an FIR of cheating against the officials of IOCL. No opinion is being expressed regarding the malafide of the prosecution agency though an attempt was made by the petitioners to establish that a complaint has been filed against the investigating officer for acting in an unfair manner by making a request to change the investigating officer. There is an indication of partial attitude and malafide of the prosecution agency, for instance, the opinion of the District Attorney, (Legal) to register FIR is not based upon any sufficient material warranting launching of prosecution; the act of the investigating agency in presentation of challan without there being any sufficient material are indicative of the oblique motive but since FIR is being quashed on the basis of insufficiency of material and vagueness of the allegations and unrebutted allegations not constituting an offence, no finding on malafide is being given.
Petitions are allowed. FIR No. 213 dated August 8, 2010 under Sections 454, 465, 468, 120-B IPC registered at Police Station Rajpura, and all the criminal proceedings emanating therefrom are hereby quashed.
November 29, 2010 (M.M.S.BEDI) sanjay JUDGE