Jharkhand High Court
Kamal Choudhary Son Of Late Mohan ... vs The State Of Jharkhand on 7 February, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 842 of 2023
1. Kamal Choudhary son of Late Mohan Choudhary, resident of
Flat No.501 & 502, Raj Villa, B Block, Haveli Apartment, PO
Dhaiya, PS & District Dhanbad.
2. Ankur Choudhary son of Kamal Choudhary, resident of Flat
No.501 & 502, Raj Villa, B Block, Haveli Apartment, PO Dhaiya,
PS & District Dhanbad.
3. Bimal Choudhary son of Late Mohan Choudhary, resident of
Flat No.1001 & 1002, Raj Villa, B Block, Haveli Apartment, PO
Dhaiya, PS & District Dhanbad.
4. Manish Shukla son of Sri S.K. Shukla, resident of Flat No.601,
Raj Villa, B Block, Haveli Apartment, PO Dhaiya, PS & District
Dhanbad.
... Petitioners
-versus-
1. The State of Jharkhand.
2. Gauri Shankar Keshri son of Raghav Prasad Keshri, resident of
Flat No.101 & 102, Raj Villa, B Block Haveli Apartment, PO
Dhaiya, PS & District Dhanbad, in capacity of President of Haveli
Residential Society.
... Respondents
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CORAM : SRI ANANDA SEN, J.
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For the Petitioners : Ms. Aparajita Bhardwaj, Advocate Mr. Vikas Gupta, Advocate Mr. Abhishek Abhi, Advocate For the Respondents : Mr. Malay Kumar Laik, Sr. Advocate Ms. Manjushri Patra, Advocate
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6/ 07.02.2024 Heard learned counsel for the petitioner and learned counsel for the respondents.
2. In the present criminal writ petition, under Article 226 of the Constitution of India, the petitioners have prayed for quashing the entire criminal proceeding including the First Information Report in connection with Dhanbad Police Station Case No.361 of 2023, registered for offences under Sections 141, 149, 336, 379, 384, 420, 468, 506, 34 and 120B of the Indian Penal Code arising out of Complaint Case No.9054 of 2023, pending before the Court of the Chief Judicial Magistrate, Dhanbad.
3. Briefly stated, the facts of the case are that the respondent No.2 (Complainant) is the President of Haveli Residential Building Society. The petitioners and the respondent No.2 are the residents of the same apartment and differences exist between both the parties with regard to use of the common space.
4. Complaint Case No.9054 of 2023 was filed before the Chief Judicial Magistrate, Dhanbad, wherein the Court directed to registered the -: 2 :- case under Section 156(3) of the Code of Criminal Procedure, whereupon First Information Report being Dhanbad Police Station Case No.361 of 2023 was registered for offences under Sections 141, 149, 336, 379, 384, 420, 468, 506, 34 and 120-B of the Indian Penal Code. The allegations in the First Information Report are as under:-
i. Respondent No.2 alleged that the petitioners illegally encroached the common area of the building, i.e., common lobby in front of their flats on 5th Floor and 10th Floor of the said building by constructing walls and placing door for personal use. When respondent No.2, along with other members of the society, requested the petitioners to remove the same, there was an argument and they started abusing the members of society. ii. It is further alleged that according to approved map/plan, pre- sale brochure and sale deed, the common space, cannot be used for personal purpose. However, the accused (petitioners herein) in an unauthorized manner, used the premises and produced false and fabricated documents claiming that they have right to occupy the common areas of floor No.5 and 10.
iii. Furthermore, it is alleged that the petitioners have misused the funds of society for personal use which were given for paying the electricity dues. The petitioners obstructed the building society members from installing necessary equipment such as CCTV and Fire extinguisher at common areas in the 5th & 10th Floor. iv. The petitioners frequently create nuisance and ruckus in the society, such as by parking vehicles at any place, not paying maintenance on time, illegally installing motor pumps with the common water tank for their personal use, not properly handling their pet dog, and misbehaving with society members and guards.
5. Ms. Aparajita Bharadwaj, learned counsel appearing for the petitioners submits that the learned Chief Judicial Magistrate mechanically, without the application of judicial mind, issued a cryptic order directing the Police to register the complaint under Section 156(3) of the Code of Criminal Procedure. She submits that from perusal of the entire complaint, it would be clear that the dispute is in respect of maintenance and management of a residential building, which cannot, by any means, come within the purview of a criminal liability. The learned Magistrate also failed to take into consideration -: 3 :- that when no criminal offence is made out, the complaint could not have been sent to the Police Station for registering a First Information Report in terms of Section 156(3) of the Code of Criminal Procedure. She submits that there is an extraordinary delay in lodging the complaint. Moreover, considering the civil nature of the disputes among flat owners, notably, where no criminality is involved and no specific overt act has been attributed, in such scenario, the application of judicial mind and reasoned order are necessary. Learned counsel for the petitioner submits that the Magistrate ought to have considered that there was an unexplained and inordinate delay of one and half years or more in making the complaint against the alleged offence, which casts doubt regarding the truth and veracity of the allegations contained in the complaint.
Moreover, the complainant has not adhered to Section 154(1) and 154(3) of the Code of Criminal Procedure. Learned counsel for the petitioner, in support of her contentions, relied on the judgment of the Hon'ble Supreme Court in the case of Priyanka Srivastava & Another versus State of Uttar Pradesh & Others reported in (2015) 6 SCC 287.
6. Learned Senior Counsel appearing on behalf of the respondent No.2, submits that the learned Chief Judicial Magistrate, after finding that a criminal offence is made out, had referred the matter to the Police under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report and investigating the same. There is no illegality committed by the learned Chief Judicial Magistrate. As per him, when a criminal offence is made out, entire criminal proceeding cannot be quashed.
7. After hearing the parties, I find that the petitioner has basically prayed for quashing the entire First Information Report.
8. The law for quashing of a First Information Report is well settled. The Supreme Court in the case of State of Haryana versus Bhajan Lal reported in 1992 Supp. (1) SCC 335 has laid down the parameters for quashing of the First Information Report. It is necessary to quote paragraph 102 of the said judgment, which reads as under: -
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to -: 4 :- prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently Channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9. The Supreme Court in the case of Salib versus State of U.P. reported in 2023 SCC OnLine SC 947 made an observation that the Court owes a duty to look into the First Information Report with care and a little more closely when proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance. The Supreme Court at paragraph 28 of the said judgment has held as under: -
"28. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the -: 5 :- inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."
10. The Supreme Court in the case of Arnab Manoranjan Goswami versus State of Maharashtra reported in (2021) 2 SCC 427 has held that the High Court is duty bound to undertake a prima facie evaluation of whether the ingredients of the alleged offence have been established in the First Information Report.
11. In recent times, there has been a concerning trend observed where the criminal justice system is being exploited through the filing of frivolous First Information Reports. This misuse often occurs in attempts to settle civil disputes, exert pressure on opposing parties, or circumvent proper dispute resoloution mechanisms. Such misuse of the criminal machinery is highly condemnable. It not only undermines the integrity of the legal system but also contributes to the significant backlog of pending cases. The Supreme -: 6 :- Court has recently in Criminal Appeal No. ..../2024 [arising out of S.L.P.(Crl.) No.2389 of 2023] [Vishal Noble Singh versus State of Uttar Pradesh & Anr.] has aptly highlighted the need for vigilance against such tendencies and held that "criminal justice is being misused by certain persons for their vested interests and for achieving their oblique motives and agenda. Courts have therefore to be vigilant against such tendencies and ensure that acts of omission and commission having an adverse impact on the fabric of our society must be nipped in the bud".
12. In the instant case, the complaint was filed, which was sent under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. The gist of the complaint is narrated in paragraph 4 above.
13. From the complaint, I find that the main grievance is in respect of managing the affairs of the residential society. There is an allegation of encroachment of common area, dispute in respect of claiming of roof-rights, alleged non-fulfilling of guidelines in building construction, non-installation of CCTV Cameras, dispute in respect of parking of vehicles, drive ways, path ways. There is also allegation of installation of motor pumps for personal use not taking care of pets like dogs and allegation of dog-bites and misbehavior and threat. There is an allegation that these accused persons have made impossible for the complainant to live peacefully in the society. Some ornamental words like, theft, cheating and forgery have been used without there being any fundamental facts. Only one instance has been given in paragraph 19 that once treasurer was giving cash amounting to Rs.20,000/- to the complainant for repair of motor pump, when the accused No.2 forcibly snatched the money from the complainant. This is the only one line in the entire complaint. Save and except this, from the entire complaint, I do not find any criminality. That one line "snatching of money" in my opinion is absolutely ornamental, just to give some colour of a criminal offence, but the entire thrust of the complaint petition relates to dispute in respect of management and maintenance of residential society without there being any criminal content.
14. The Hon'ble Supreme Court in the case of Priyanka Srivastava & Another versus State of Uttar Pradesh & Others reported in (2015) 6 SCC 287 at paragraphs 29, 30 and 31 thereof, has held as under: -
"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority -: 7 :- of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumar [(2014) 2 SCC 1 : (2014) 1 SCC (cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
15. In the instant case, from the certified copy of the complaint petition, I find that though the same is on affidavit with a prayer to invoke the power under Section 156(3) of the Code of Criminal Procedure, but, surprisingly, no allegation of any criminality has been stated in the affidavit.
-: 8 :-16. In view of what has been held above, since I have arrived at a finding that there is no criminal content in the allegations leveled by the complainant, I am inclined to allow this writ petition. The entire criminal proceeding arising out of Dhanbad Police Station Case No.361 of 2023, so far as the petitioners are concerned, is hereby quashed and set aside.
17. This writ petition is, accordingly, allowed. Pending interlocutory applications, if any, stand disposed of.
(Ananda Sen, J.) Kumar/Cp-02