Himachal Pradesh High Court
Arjun Kalia vs Ashok Kumar And Another on 5 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MMO No.186 of 2014.
Judgment reserved on :29.09.2016.
Date of decision: October, 5th ,2016.
Arjun Kalia .....Petitioner.
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Versus
Ashok Kumar and another ..... Respondents.
Coram
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The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioner : Mr.George, Advocate.
For the Respondents : Mr. N.K.Thakur, Senior Advocate with Ms.Jamna, Advocate, for respondent No.1.
Ms.Meenakshi Sharma, Additional Advocate General with Mr. J.S.Guleria, Assistant Advocate General, for respondent No.2.
Tarlok Singh Chauhan, Judge.
By medium of this petition under Section 482 Cr.P.C. readwith Article 227 of the Constitution of India, the petitioner has sought quashing of proceedings initiated against him in Complaint No.210-1/07, titled 'Ashok Kumar vs. Arjun Kalia', under Sections 451 and 380 IPC pending before the learned Judicial Magistrate 1st Class, Amb (Court No.1), District Una, H.P. and the orders passed by Judicial Magistrate 1st Class, dated 14.10.2008, in Criminal Complaint No.210-1/07 and subsequent order dated 17.05.2014 of the learned Additional Sessions Judge II, Una, in Criminal RBT No.4/13/12.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 2
2. It is averred that exactly after three days of having instituted civil proceedings against the petitioner, respondent No.1 has filed the .
instant complaint on verbatim the same allegations which amounts to abuse of process of the Court and has been filed with a view to spite the petitioner because of private and personal grudge.
3. Shri N.K.Thakur, Senior Advocate, assisted by Ms.Jamna, of Advocate, appearing for respondent No.1, has raised preliminary objection regarding maintainability of the petition in view of the alternate remedy of rt revision available to the petitioner and on merits he would justify the maintenance of the criminal proceedings.
I have heard the learned counsel for the parties and gone through the records of the case.
4. As regards the question of maintainability of the petition, the question is no longer res integra in view of the recent judgment of the Hon'ble Supreme Court in Criminal Appeal No.842 of 2016 and other connected matters, titled 'Prabhu Chawla versus State of Rajasthan and another, decided on 05.09.2016. The Hon'ble three Judges' Bench of the Hon'ble Supreme Court was dealing with a reference as to whether the availability of remedy under Section 397 Cr.P.C. would make a petition under Section 482 Cr.P.C. not maintainable and it was held as under:-
"5. Mr. P.K. Goswami learned senior advocate for the appellants supported the view taken by this Court in the case Dhariwal Tobacco Products Ltd. (supra). He pointed out that in paragraph 6 of this judgment Justice S. B. Sinha took note of several earlier judgments of this Court including that in R.P. Kapur v. State of Punjab 1960 AIR (SC) 866 and Som Mittal v. Govt. of Karnataka 2008 3 SCC 574 for coming to the conclusion that "only because a revision petition is maintainable, the same by itself, would not constitute a bar for entertaining an application under Section 482 of the Code." Mr. ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 3 Goswami also placed strong reliance upon judgment of Krishna Iyer, J. in a Division Bench in the case of Raj Kapoor and Ors v.
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State and Ors.1980 1 SCC 43. Relying upon judgment of a Bench of three Judges in the case of Madhu Limaye v. The State of Maharashtra 1977 4 SCC 551 and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in paragraph 10 which runs as follows:
of "10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict rt this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.
In Madhu Limaye v. The State of Maharashtra this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction".
In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 4 extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, .
should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category of where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10) rt "The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."
6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the process of the Court or ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 5 other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." We venture to add a .
further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.
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7. As a sequel, we are constrained to hold that the Division Bench, particularly in paragraph 28, in the case of Mohit alias Sonu and another (supra) in respect of inherent power of the rt High Court in Section 482 of the Cr.P.C. does not state the law correctly. We record our respectful disagreement."
5. Having answered this question, it would now be necessary to advert to the relative merits of the case. It is not in dispute that respondent No.1 on the same allegations had filed a civil suit in the Court of learned Civil Judge (Senior Divisi on), Court No.1, Amb and during the pendency of this petition, the suit has been dismissed vide judgment and decree dated 25.07.2014 and appeal against the said judgment and decree as per respondent No.1 is pending before the learned appellate Court at Una. It is also not in dispute that on the same and rather verbatim allegations, the petitioner without even approaching the police authorities has filed this criminal complaint that too within three days of having instituted civil proceedings against the petitioner.
6. The only allegation in the complaint so as to give a criminal flavour to the dispute is that the petitioner is alleged to have committed criminal trespass in the month of December, 2006 and illegally taken possession of 22 bags of cement and 2 quintals of 'Saria' from the building by committing house trespass and have also put iron shutter on the building. Whereas, insofar as the suit is concerned, respondent No.1 has claimed a decree for permanent injunction against the petitioner from ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 6 raising construction etc. and such claim is laid on the basis of some agreement which has not even culminated into a document of title.
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7. In view of the above, the pivotal issue which arises for consideration is as to whether the FIR in question in the given facts and circumstances can be quashed.
8. It is evident from the facts narrated above that the dispute of between the parties is primarily of a civil nature and proceedings initiated by respondent No.1 apparently appear to be nothing but a ploy to rt subjugate the petitioner, who admittedly is residing in United States of America and visits his native place only once in a year to see his family only for a short period.
9. The Hon'ble Supreme Court has time and again taken notice of the growing tendency of the complainants attempting to give a cloak of criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Therefore, criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes.
10. Having regard to the nature of allegations set out in the complaint, I have no hesitation in concluding that an attempt has been made by respondent No.1 to convert a case of a civil nature into a criminal prosecution. As already observed above, the Courts must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused.
11. In addition to the above, it would be noticed that complaint submitted by respondent No.1 to the Magistrate is nothing but a 'cut, copy, ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 7 paste version' of the suit, which as observed earlier, already stands dismissed.
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12. Learned counsel for respondent No.1 would rely upon the judgment rendered by the Hon'ble Supreme Court in Amit Kapoor versus Ramesh Chander and another (2012) 9 SCC 460 and referred to the principles enumerated therein for proper exercise of jurisdiction with regard of to quashing of charge either under Section 397 or Section 482 Cr.P.C. or together as the case which have been summarized as follows:-
rt "1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 8 an accused.
6. The Court has a duty to balance the freedom of a person and the .
right of the complainant or prosecution to investigate and prosecute the offender.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give of rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, rt the Court would not embark upon the critical analysis of the evidence.
9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and ::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 9 reliability of the documents or records but is an opinion formed prima facie.
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14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to of be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. rt {Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869];
Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v.
Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."
::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 1013. A strong reliance is placed upon paras No.9 and 10 (supra) to contend that taking the case of respondent No.1 at its best, even then, the .
allegations of trespass etc. are essentially criminal offence and, therefore, powers of this Court cannot be invoked to stifle or scuttle the illegitimate prosecution.
14. In addition to that strong reliance is placed upon another of decision of the Hon'ble Supreme Court in Arun Bhandari versus State of Uttar Pradesh and others (2013) 2 SCC 801 wherein rt the Hon'ble Supreme Court has held that mere pending of the civil proceedings cannot taken to be a bar to criminal proceedings in case the same prima facie made out.
15. There can be no quarrel with the aforesaid proposition, but as noticed, respondent No.1 instituted the criminal proceedings after three days of institution of the civil proceedings obviously with intent of pressurizing the petitioner to succumb to some unlawful demand.
16. As observed earlier, it is not the case of respondent No.1 that he had approached the police authorities and being compelled by the circumstances, more particularly, because of non-cooperati ve attitude of the investigating agency that he had to approach the learned Magistrate by filing a complaint under Section 156(3) Cr.P.C. Though, this is not to suggest that the complaint filed by respondent No.1 was not maintainable, but these observations are only made so as to see the bonafides of respondent No.1 and whether the course followed by him was normal and natural. Unfortunately, this is not the fact situation obtaining in the present case and I have no difficulty in concluding that the proceedings were initiated simply with malafide and ulterior motive of wrecking vengeance against the petitioner.
::: Downloaded on - 15/04/2017 21:21:39 :::HCHP 1117. Apart from what has been observed above, I otherwise see no justification for the continuance of the proceedings which are pending .
against the petitioner for the last eight years. Therefore, I have no difficulty in concluding that the complaint has been filed by respondent No.1 to spite the petitioner because of private and personal grudge and to enmesh the petitioner in a long and arduous criminal proceedings and thus is an abuse of of the process of law.
18. Having said so, I have no option but to allow the petition and rt consequently Complaint No.210-1/07, titled 'Ashok Kumar vs. Arjun Kalia', under Sections 451 and 380 IPC pending before the learned Judicial Magistrate 1st Class, Amb (Court No.1), District Una, H.P. and the orders passed by Judicial Magistrate 1st Class, dated 14.10.2008, in Criminal Complaint No.210-1/07 and subsequent order dated 17.05.2014 of the learned Additional Sessions Judge II, Una, in Criminal RBT No.4/13/12, are ordered to be quashed.
19. The petition is allowed in the aforesaid terms. Pending application, if any, also stands disposed of.
October, 5th, 2016. (Tarlok Singh Chauhan), (krt) Judge.
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