Rajasthan High Court - Jodhpur
Khum Singh vs State on 7 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 952 / 2015
Khum Singh s/o Shri Jawahar Singh, b/c Rajpurohit, aged about
67 years, r/o Sardar Patel Nagar, Pali, District Pali (Raj.).
----Petitioner
Versus
The State of Rajasthan through the Public Prosecutor.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.Vikram Sharma for Mr.Sajjan Singh
For Respondent(s) : Mr.M.S.Panwar PP for the State.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 04/09/2017 Pronounced on 07/09/2017
1. This criminal misc. petition under Section 482 Cr.P.C.
has been preferred against the order dated 14.01.2015 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pali in Criminal Revision No.11/2013, whereby the order passed by the learned Chief Judicial Magistrate, Pali in Criminal Case No.146/2010, Police Station, Kotwali, Pali, F.R. No.110/2010 was affirmed in relation to offences under Sections 420, 467, 468, 471 and 120-B IPC.
2. Brief facts of this case, as noticed by this Court, are that a complaint was filed against accused persons, namely, Jagmohan, Virendra, Basanti, Ajit Singh, Smt.Sayar Kanwar, Kalu Khan, Farukh Khan, Iqwal, Omprakash and others. The complaint (2 of 13) [CRLMP-952/2015] was regarding a piece of land in Chak No.1, khasra No.225 Rakba 20 bighas and 2 biswa. The said land was recorded as a khatedari land in the name of one Devaram since the time of settlement and after coming into force of the Rajasthan Tenancy Act, 1955. The land remained in his cultivatory possession. Gopal Krishan, the power of attorney holder of Deva Ram sold the said land in favour of the complainant and 108 other persons by a registered sale deed dated 04.05.1985 for appropriate consideration.
3. The adjoining land of khasra No.225 of Chak No.1 bearing khasra No.222 admeasuring 11 bighas and 7 biswas (amended Rakba 10 bighas and 4 biswa) was recorded in the name of one Chhagna, who sold the same to one Nainaji, Bhanwarlal vide receipt dated 21.04.1963. The land was pertaining to parcha No.601 admeasuring 11 bighas and 7 biswa.
In pursuance of the said agreement dated 21.04.1963, a sale deed was executed by Chhagana in favour of Nainaji. The khasra number in the sale deed was mentioned as khasra No.225. On 26.07.1986, the FIR lodged was against Gopal Krishan and others, wherein they have already been acquitted by the learned trial court.
4. It is also seen from the record that that a revenue suit bearing No.12/2005 titled as "Jagmohan Vs. Deva Mali & Anr." was filed and a decree was passed on 27.09.2006, behind the back of the present petitioner. The said dispute is pending before the learned Board of Revenue at a subsequent stage. The allegation of the petitioner that the sale deed dated 10.04.1967 was forged and concocted, and therefore, was misutilized to register a land in (3 of 13) [CRLMP-952/2015] favour of Nainaji. As per the complainant, Chhagna was holding the land of Khasra No.222 and agreement to sale dated 21.04.1963 was in connection with the sale deed dated 24.05.1967 in relation to 20 bighas and 2 biswa of land, which was not in the same khasra. It is also noted that Nainaji sold some part of khasra No.222 and regarding this, a suit was instituted before the Sub Divisional Officer, Pali. Regarding the sale deed dated 04.05.1985, another criminal case was initiated on 19.02.2004.
5. It is alleged that the land was again sold with the help of Patwari Ajit Singh/accused No.4 in favour of accused No.5, the sister of accused No.1 to 3, and some land grabbers.
6. Learned counsel for the petitioner has vehemently argued that Chhagan Kumhar was never holding nor recorded the land of khasra No.225 in his favour and was only having the land of khasra No.222, therefore, the subsequent sale deed of 1967 was apparently forged and concocted.
7. Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon'ble Apex Court in Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash & Ors., reported in (2013) 7 SCC 622, relevant paras 12 to 14, 17 & 18 of which read as under:-
"12. We may now refer to a three-Judge Bench decision of this Court in K.G. Premshanker. The three- Judge Bench took into consideration Sections 40, 41, 42 and 43 of the Evidence Act, 1872 and also the decision of this Court in M.S. Sheriff and observed in paragraph 32 of the Report that:
(4 of 13) [CRLMP-952/2015] "32. . . . . . .the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration."
13. Section 40 of the Evidence Act makes it plain that:
"40. Previous judgments relevant to bar a second suit or trial.- The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.
14. Section 41 provides for relevancy of judgments passed in the exercise of probate, matrimonial admiralty or insolvency jurisdiction by the Competent Court. It reads as follows:
"41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof--
that any legal character, which it confers accrued at the time when such judgment, order or decree (5 of 13) [CRLMP-952/2015] came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
17. In K.G. Premshanker, the effect of the above provisions (Sections 40 to 43 of the Evidence Act) has been broadly noted thus:
"30. . . . . (4) if the criminal case and civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of Sections 40 to 43 are satisfied but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein."
Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the Court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether judgment, order or decree is relevant; if relevant, its effect. This would depend (6 of 13) [CRLMP-952/2015] upon the facts of each case.
18. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil suit till the decision of criminal case. Firstly, because even if there is possibility of conflicting decisions in the civil and criminal courts, such an eventuality cannot be taken as a relevant consideration. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the Defendants (Respondent Nos. 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil Court will not at all prejudice the defence(s) of the Respondent Nos. 1 to 4 in the criminal proceedings."
8. Learned counsel for the petitioner has further relied upon the precedent law laid down by the Hon'ble Apex Court in Union of India Vs. Ibrahim uddin & Anr., (2012) 8 SCC 148, relevant paras 12 to 14, 16, 22, 24, 31 and 34 of which read as under:-
"12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi; Hiralal and Ors. v. Badkulal and Ors.; A. Raghavamma and Anr. v. A. (7 of 13) [CRLMP-952/2015] Chenchamma and Anr.; The Union of India v. Mahadeolal Prabhu Dayal; Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors.; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. and Ors.; Musauddin Ahmed v. State of Assam; and Khatri Hotels Pvt. Ltd. and Anr. v. Union of India and Anr.
13. However, in Bilas Kunwar v. Desraj Ranjit Singh, a view has been expressed that it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production of documents. If he fails to do so, neither he nor the Court at his suggestion, is entitled to draw any inference as to the contents of any such documents.
14. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy and Ors., this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary.
16. In Srinivas Ramanuj Das v. Surjanarayan Das and Anr., this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn:
"28. . . . . It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce (8 of 13) [CRLMP-952/2015] the documents whose existence was admitted by one or the other witness of the Plaintiff and that therefore, strictly speaking, no inference adverse to the Plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the Respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the Respondent case."
22. Under Rule 14 of Order XI, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order XI provides for inspection of documents referred to in pleadings or affidavits. Rule 18 thereof, empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a Plaintiff, be liable to have his suit dismissed for want of prosecution and if he is a Defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect.
24. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all (9 of 13) [CRLMP-952/2015] or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment? The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI Code of Civil Procedure. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.
31. In L.I.C of India and Anr. v. Ram Pal Singh Bisen, this Court held that :
"23. . . . . .failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff . . . . ."
34. Section 58 provides that a fact may not need to be proved in any proceeding which the parties thereto agreed to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands or which they admitted by their pleading, even in that case court may, in its discretion, even if such an admission has been made by the party, (10 of 13) [CRLMP-952/2015] require the fact admitted to be proved otherwise than by such admission. In fact, admission by a party may be oral or in writing. `Admissions' are governed under Sections 17 to 31 of the Evidence Act and such admission can be tendered and accepted as substantive evidence. While admission for purposes of trial may dispense with proof of a particular fact. Section 58 deals with admissions during trial i.e. at or before the hearing, which are known as judicial admissions or stipulations dispense it with proof. Admissions are not conclusive proof but may operate as estoppel against its maker. Documents are necessarily either proved by witness or marked on admission."
9. Learned counsel for the petitioner has also placed reliance on the precedent law laid down by the Hon'ble Apex Court in Jagdish Ram Vs. State of Rajasthan & Anr., reported in (2004) 4 SCC 432, relevant paras 10 and 11 of which read as under:-
"10. The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should he issued against the appellant or not, yet entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets (11 of 13) [CRLMP-952/2015] out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. (Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors.).
11. The High Court has rightly concluded that the order passed by the Magistrate does not call for any interference in exercise of inherent powers under Section 482 of the Code."
10. Learned counsel for the petitioner has further placed reliance on the precedent law laid down by the Hon'ble Apex Court in Mahesh Chand Vs. B. Janardhan Reddy & Anr., reported in (2003) 1 SCC 734, relevant para 19 of which reads as under:-
"19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no (12 of 13) [CRLMP-952/2015] statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
11. Reliance has also been placed by learned counsel for the petitioner on the precedent law laid down by a coordinate Bench of this Court at Jaipur Bench in Ram Gopal Vs. State, reported in 2007(5) WLC (Raj.) 312.
12. Since the dispute pertained to the years 1963 and 1967, the concerned investigating authority clearly saw the delay and finding it to be a civil dispute submitted a negative final report before the competent court on 24.09.2010. A protest petition was filed, but the negative final report was accepted on 13.12.2012.
Against the acceptance of the negative final report, the petitioner (13 of 13) [CRLMP-952/2015] preferred a revision petition, which was also decided against the him on 14.01.2015.
13. Learned Public Prosecutor has opposed the submissions made on behalf of the petitioner.
14. After hearing the learned counsel for the parties and perusing the record of the case, as well as the precedent law cited at the Bar, this Court is of the opinion that both the impugned orders alongwith the negative final report are consistent and apparently, the petitioner has tried to question the land sold on 21.04.1963 by putting contradiction of the registered sale deed dated 10.04.1967. The dispute is being made to be reopened after forty five years, and on the face of the record, the dispute pertained to the years 1963 and 1967, and therefore, no relief can be granted against two consecutive orders passed by the learned courts below after due application of mind. Moreover, it will be an abuse of the process of law, if the Court starts examining the sale deed dated 21.04.1963 vis-a-vis the sale deed dated 10.04.1967, after fifty years to reopen the dispute pertaining to the settled proposition by two consecutive learned courts below, which cannot be permitted. On a careful perusal of the precedent law cited by learned counsel for the petitioner, the same are not applicable in the present factual matrix.
15. In light of the aforesaid discussion, the present misc.
petition is dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-