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Jurisdiction under section 482/483 Cr.P.C

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR
Reserved
Court No. – 25

Case :- U/S 482/378/407 No. – 1402 of 2007

Applicant :- Hamid Hasan
Opposite Party :- State of U.P. Through Secy, Home Department, Civil Sectt, Lko.
Counsel for Applicant :- Maharaj Baksh Singh, Syed Irfan Ahmad
Counsel for Opposite Party :- Govt. Advocate, R.P.Yadav

AND

Case :- U/S 482/378/407 No. – 981 of 2007

Applicant :- Syed Masoodul Hasan
Opposite Party :- State Of U.P.Through Principal Secretary Home, & Another.
Counsel for Applicant :- Amarjeet Singh Rakhra
Counsel for Opposite Party :- Govt. Advocate, J.Mishra, Syed Irfan Ahmad

AND

Case :- U/S 482/378/407 No. – 3003 of 2010

Applicant :- Ahmad Hasan [Objection Filed]
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another
Counsel for Applicant :- Amarjeet Singh Rakhra
Counsel for Opposite Party :- Govt. Advocate,S Irfan Ahmad

Hon’ble Aditya Nath Mittal,J.
All these petitions under sections 482 Cr.P.C. read with section 483 Cr.P.C. relate to the same issue, therefore, they are taken together for decision.
These petitions have been filed with the prayer to quash the charge-sheet bearing no.38 of 2006 dated 23.11.2006 arising out case crime no.619 of 2006 under sections 420, 467, 468, 471, 504 IPC, P.S. Baskhari, District Ambedkar Nagar.

The brief facts of the case are that the opposite party no.2 had filed an application under section 156(3) Cr.P.C. alleging that he being the posterity of Great Sufi Sant Hazrat Makhdoom Asraf had moved an application for construction of “Public Toilet” (lqy ‘kkSpky;) at Gata No.567 but he came to know that the accused persons in connivance with the officers of Nagar Panchayat had taken the lease about five years ago. Upon the inspection of the file, it came to his knowledge that the accused persons have wrongly mentioned themselves to be the original resident of Rasoolpur Dargah and have also declared themselves as landless agricultural labourer and thereby filed a wrong affidavit along with the application and got the lease of Gata No.567 while Syed Masoodul Hasan and Ahamad Hasan are advocates by profession and Hamid Hasan is running a Large Arabic Madarsa & Fakruddin Asraf is doing his business at Bombay and they are original residents of Baskhari. Thus, by making fraud, the petitioners have got the land of Nagar Panchayat valued Rs.10.00 lacs.

The then Panchayat Officer believing upon the contents of the accused persons had granted lease to them and thereby the petitioners have committed fraud and forgery. Subsequently, the said lease was canceled. The information was given to the Superintendent of Police, Ambedkar Nagar but no action was taken and upon knowing about the complainant, the petitioners are threatening the complainant and they are abusing the complainant. Therefore, first information report should be lodged. Upon this application, the first information report was lodged and after investigation, the charge-sheet has been filed against the petitioners for the offences punishable under sections 420, 467, 468, 471, 504 and 506 IPC.

Learned counsel for the petitioners has submitted that the said application under section 156 (3)Cr.P.C. was moved due to personal vendetta with the petitioners because the petitioner Syed Masoodul Hasan had lodged a case at case crime no. 159 of 1998 under sections 406, 420 IPC against the father of the opposite party no.2 in which the charge-sheet has been filed and they are facing trial. It has also been submitted that the alleged forgery was committed with the officers of the Nagar Panchayat. Therefore, the officers of the Nagar Panchayat could have lodged the first information report, if they come to the conclusion that some forgery has been committed but the officers of the Nagar Panchayat have not come to any of such conclusion. Therefore, the application under section 156 (3) Cr.P.C. was barred by section 195 Cr.P.C. It has also been submitted that it was a dispute of civil nature and if some lease has been taken by committing fraud, then that could have cancelled in the proceedings before the competent authority but a criminal colour has been given to the dispute of civil nature. It has also been submitted that under the provisions of Section 293 of the Municipalities Act, there is no requirement of filing any affidavit and there is no provision for granting any lease under section 293 of the Municipalities Act but the said land has been allotted to the petitioners upon one time fees of Rs.2000/- subject to the condition of paying requisite yearly fees. The petitioners are paying the requisite yearly fees. Therefore, they have not committed any offence. It has also been submitted that the petitioners have no concern with the land in dispute and no fraud has been committed with him and no injury has been caused to the opposite party no.2. Therefore, he has no locus standi to lodge the first information report. It has also been submitted the proceedings before the Nagar Panchayat have already been decided in favour of the petitioners by Additional District Magistrate (Finance) by judgment and order dated 10.06.2015, who has come to the conclusion that the agreement can only be cancelled by Civil Court and the Revenue Court cannot cancel the agreement executed under section 239 (1) of the Nagar Panchayat Act. It has also been submitted that the wrong facts have been mentioned in the application under section 156 (3) Cr.P.C. because the petitioners had not stated in their affidavit that they are the original residents of Rasoolpur Dargah but they have stated that they are the permanent resident of Rasoolpur Dargah. Therefore, the said affidavit cannot be said to be false. It has also been submitted that in exercise of power under section 482 Cr.P.C., the court is competent to look into the matter and come to the conclusion that whether any cognizable offence is made out or not. It has also been submitted that Hon’ble the Apex Court in various judgments has deprecated the tendency to give criminal colour in the matters of civil dispute and this court in exercise of power under section 482 Cr.P.C. can quash the charge-sheet.

In support of his submissions, the learned counsel for the petitioners has relied upon the following case laws:

In Harshendra Kumar D. vs Rebatilata Koley and others; (2011) 3 SCC 351, Hon’ble the Apex Court has held as under:

“In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, 7 (2004) 1 SCC 691 materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents – which are beyond suspicion or doubt – placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.

Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant’s resignation from the post of Director of the Company.”

In Inder Mohan Goswami vs. State of Uttaranchal; (2007) 12 SCC 1, Hon’ble the Apex Court has held as under:

“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

Discussion of decided cases Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.”

In Anita Malhotra vs. Apparel Export Promotion Council and another; (2012) 1 SCC 520, Hon’ble the Apex Court has held as under:
As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merit of the accusation, but if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under section 482 of the Code.

In Devendra and Others vs. State of Uttar Pradesh and another; (2009) 7 SCC 495, Hon’ble the Apex Court has held as under:

We may, however, notice that the said decision has been considered recently by this Court in Mahesh Choudhary v. State of Rajasthan & Anr. [2009 (4) SCC 66] wherein it was noticed:

“Recently in R. Kalyani v. Janak C. Mehta and Ors. 2008 (14) SCALE 85, this Court laid down the law in the following terms:
Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the 15 provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.

The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken.

We, therefore, do not find any legal infirmity in the impugned orders.
There is no dispute with regard to the aforementioned propositions of law. However, it is now well-settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.

In Zandu Pharmaceutical Works Limited and others vs. Mohd. Sharaful Haque and another; (2005) 1 SCC 122, wherein Hon’ble the Apex Court has held as under:

“Exercise of power under section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which 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. 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 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. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). 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. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. 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.”

In Joseph Salvaraja vs. State of Gujarat and others; (2011) 7 SCC 59, Hon’ble the Apex Court has held as under:

“Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant’s FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant’s FIR, charge sheet, documents etc. or not.

In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495, relevant part thereof is reproduced hereinbelow:

“A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.”

The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant-Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 – the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecast “GOD TV” in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellant’s prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.

In Mohammed Ibrahim and others vs. State of Bihar and another; (2009) 8 SCC 751 Hon’ble the Apex Court has held as under:

This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a 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. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. Let us examine the matter keeping the said principles in mind.
Sections 467 and 471 of the Penal Code :

Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under section 467 or section 471 of Penal Code.

Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

Section 470 defines a forged document as a false document made by forgery. The term “forgery” used in these two sections is defined in section 463. Whoever makes any false documents 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Section 464 defining “making a false document” is extracted below :

“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 a 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, whether such person be living or dead at the time of such alternation; 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 alteration.

Explanation 1 – A man’s signature of his own name may amount to forgery.

Explanation 2 – The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature’ wherever it occurs were substituted by the words `electronic signature’ by Amendment Act 10 of 2009].
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.

An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:
(1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
(2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document’, 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.

Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of “cheating” are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property:”

Lastly, learned counsel for the petitioner has relied upon V. Y. Jose and another vs. State of Gujarat and another; (2009) 3 SCC 78 wherein Hon’ble the Apex Court has held as under:

The said principle has been reiterated in All Carogo Movers (I) Pvt. Lted. vs. Dhanesh Badarmal Jain and another [2007 (12) SCALE 391], stating :

“For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.”

A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functioning of the trial courts.”

On the other hand, learned counsel for the opposite party no.2 has submitted that the separate affidavits were filed by the petitioners that they are landless labourers and such affidavits were the sole basis of allotment. During the course of arguments, learned counsel for the opposite party no.2 has clearly conceded that the offence of forgery is not made out against the petitioners but the offence under section 193 IPC as well as other offences are made out.
Learned counsel for the opposite party has relied upon the following case laws:
In M/s Indian Oil Corporation vs. M/s NEPC India Ltd. and others; AIR 2006 Supreme Court 2780, Hon’ble the Apex Court has held as under :

“The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few – Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

Section 425 IPC provides : “Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. The three ingredients of the Section are : (i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person; (ii) causing destruction of some property or any change in the property or in the situation thereof; and (iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of Section 425 ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to section 425. The complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of ‘mischief’. Here again, we are not concerned with the proof or ultimate decision.

Conclusion :

In view of the above discussion, we find that the High Court was not justified in quashing the complaints/criminal proceedings in entirety. The allegations in the complaint are sufficient to constitute offences under Section 415 and 425 of IPC. We accordingly allow these appeals in part and set aside the order of the High Court insofar it quashes the complaint under Sections 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC in so far as offences under sections 415 and 425 of IPC. Parties to bear their respective costs.”

In K. Neelveni vs. State represented by Inspector of Police and others; (2010) 11 SCC 607 Hon’ble the Apex Court has held as under :

It has to be borne in mind that while considering the application for quashing of the charge sheet, the allegations made in the First Information Report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. Essential ceremonies of the Marriage were gone into or not is a matter of trial.
From what we have said above, we are of the opinion that the High Court erred in holding that the charge sheet does not reveal the ingredients constituting the offences under Section 494 and 406 of the Indian Penal Code.

It seems that accused persons approached the High Court for quashing of the charge sheet even before any order was passed by the Magistrate in terms of Section 190 of the Code of Criminal Procedure. In our opinion, when a report is submitted to the Magistrate he is required to be prima facie satisfied that the facts disclosed therein constitute an offence. It is trite that the Magistrate is not bound by the conclusion of the investigating agency in the police report i.e. in the charge sheet and it is open to him after exercise of judicial discretion to take the view that facts disclosed in the report do not constitute any offence for taking cognizance. Quashing of Section 494 and 406 of Indian Penal Code from the charge sheet even before the exercise of discretion by the Magistrate under Section 190 of the Code of Criminal Procedure is undesirable. In our opinion, in the facts and circumstances of the case, quashing of the charge sheet under Section 406 and 494 of the Indian Penal Code at this stage in exercise of the power under Section 482 of the Code of Criminal Procedure was absolutely uncalled for.

In the case of Lakhwant Singh vs. Jasbir Singh and others; (2009) 2 SCC (Cri) 873, Hon’ble the Apex Court has held as under:

Exercise of power under Section 482 Cr.P.C. in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which 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. 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 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. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). 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. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. 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.

In R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
In dealing with the last case, it is important to bear in mind the distinction 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. Judicial process no doubt should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:

“(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 F.I.R. 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.

(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.”

As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 Cr.P.C. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996(7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR 1999 SC 1216).

These aspects were highlighted in State of Karnataka v. M. Devendrappa and another (2002 (3) SCC 89).
In Jehan Singh v. Delhi Admn. (1974 (4) SCC 522) while considering a case under Section 561-A of the Code of Criminal Procedure, 1898 (in short “the Old Code”) corresponding to Section 482 CrPC, it was observed as follows: (AIR p.1146) “Where at the date of filing the petition under Section 561-A, no charge-sheet or a complaint has been laid down in court and the matter is only at the stage of investigation by police, the court cannot, in exercise of its inherent jurisdiction under Section 561-A, interfere with the statutory powers of the police to investigate into the alleged offence, and quash the proceedings. Even assuming that the allegations in the FIR are correct and constitute an offence so as to remove the legal bar to institute proceedings in court, the court cannot at that stage appraise the evidence collected by the police in their investigation. Any petition under Section 561-A at such a stage is, therefore, premature and incompetent.”
It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 Cr.P.C, it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal (1992 (3) SCC 317), it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 CrPC, which cannot be termed as evidence without being tested and proved.

These aspects are highlighted in State of Orissa v. Saroj Kumar Sahoo (2005 (13) SCC 540).
Practically non-reasoned order of the High Court does not reveal that the parameters relating to exercise of power under Section 482 Cr.P.C. were kept in view. The inevitable conclusion is that order of the High Court deserves to be set aside. We direct accordingly.”

In Mahesh Chaudhary vs. State of Rajasthan and another; (2009) 4 SCC 439, Hon’ble the Apex Court has held as under:

The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the Complaint Petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence.

It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused.

While saying so, we are not unmindful of the limitations of the court’s power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole.

In Kamaladevi Agarwal vs. State of W.B. & ors. [(2002) 1 SCC 555], this Court opined:
“This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.”
It was furthermore observed that the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there would always be some element of civil nature.

The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders. We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled.”

In Central Bureau of Investigation vs. V. K. Bhutiani; (2009) 10 SCC 674, Hon’ble the Apex Court has held as under:

“The ruling of P.S. Rajya (supra) was considered by this Court in State through SPE & CBI, Andhra Pradesh Vs. M. Krishna Mohan and Another (2007) 14 SCC 667 wherein this Court, after elaborate discussion, found that where the fact situation was different, the reliance could not be made all together on the report of the Central Vigilance Commission. Relying on the ruling of State of Haryana Vs. Bhajan Lal 1992 Suppl.(1) SCC 335, this Court reiterated the position that where there could be some material found in the charge sheet, then it would not be the function of the court to examine the charge-sheet with a view as to whether the accused could be convicted or not. That would be a pre-mature exercise.

The judgment in the case of M.Krishna Mohan (supra) was against acquittal and reliance on behalf of the defence was placed on the report of the Central Vigilance Commission. In para 32 of the said judgment, this Court has made a clear reference that there was a clear cut finding by the High Court to the effect
“we have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued.”
We do not find any such reasoning having been given in the present case by the High Court. On the other hand, a perusal of the impugned order suggests that the High Court did not examine the material available by way of charge-sheet and has proceeded to follow the ruling of P.S. Rajya (supra). We are, therefore, satisfied that this appeal has to be allowed by setting-aside the impugned order passed by the High Court.”

I have considered the respective submissions made by the learned counsel for both the parties and I have also gone through the case laws cited by both the parties.
The following are the main points for consideration:

i. Whether in exercise of power under section 482 Cr.P.C., this court can enter into the controversy that any case is made out against the petitioners are not?
ii. Whether the said application under section 156 (3) Cr.P.C. has been moved due to personal vendetta and whether personal vendetta can be made an instrument to initiate the criminal proceedings?
iii. Whether the opposite party no. 2 had any locus-standi to lodge the first information report because neither the land belongs to the opposite party no. 2 nor any fraud was committed with him?
iv. Whether the opposite party no.2 was competent to file any such application in view of the provisions of Section 195 Cr.P.C.?
v. Whether the lease has been granted to the petitioners or an agreement has been executed with the petitioners subject to payment of one time fees as well as yearly charges?
vi. Whether a criminal colour has been given to a dispute of civil nature, which is not permitted under the provisions of law?

The scope of exercise of powers under section 482 Cr.P.C. has time and again came before Hon’ble the Apex Court. It is settled position of law that the power under section 482 Cr.P.C. has to be exercised sparingly, carefully and with great caution. It is also settled position of law that if any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

In R.P. Kapoor vs. State of Punjab; AIR 1960 SC 866, Hon’ble the Apex Court has specifically held that if there is legal bar against the institution or continuance of the proceedings or there is no legal evidence to prove the charge, then the power under section 482 Cr.P.C. can be exercised.
In this regard, the land mark judgment is the State of Haryana vs. Bhajan Lal; 1992 (SCC) Crl. 426 in which Hon’ble the Apex Court has laid down the following guidelines:

“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 extra-ordinary 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 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 channelised 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 F.I.R. 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 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 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.”

In view of above guideline no.7, it is clear that where a criminal proceedings is provisionally contained with mala fide or where the proceedings is maliciously institute with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, then the court will be justified in quashing the such proceedings.

In the present case, there are specific allegations that Syed Masoodul Hasan had lodged a case under section 406 and 420 IPC at case crime no. 159 of 1998 against the father of the opposite party no.2 in which after the investigation, the charge-sheet has been filed and the father of the opposite party no. 2 is facing trial.
It is relevant to mention that the land in dispute was given to the petitioners in the year 1995 and the case against the father of the opposite party no.2 was lodged in the year 1998. Un-disputedly, the said land do not belong to the opposite party no.2 or his family members. The said land is also not the property of Waqf of Sufi Sant Hazrat Makhdoom Ashraf. In the application under section 156 (3) Cr.P.C., it is admitted to the opposite party no. 2 that he had talked with Nagar Panchayat Adhikari for construction of “Public Toilets” (Sulabh Sauchalaya) at Gata No.567 and then he came to know that the part of the said land has been allotted to the petitioners five years ago and then he had made the inspection of file, upon which it came to his knowledge that the petitioners have filed a wrong affidavit before the Nagar Panchayat Adhikari and thereafter had committed fraud. Therefore, admittedly, the opposite party no. 2 is not the owner of the said land and at the most he can be said to be a prospective allottee of the said land. It is also not disputed that the said pieces of land have been given to the petitioners upon executing an agreement for paying one time fees as well as yearly fees under the provisions of Section 293 (1) of the U.P. Municipalities Act. The said proforma of allotment letter dated 01.06.1995 makes it clear that the said land has been given for construction of house subject to payment of Rs.2000/- and Rs.100/- per year and the said persons cannot transfer the said land and it was required to execute an agreement on stamp paper. Although, the said proposal of Nagar Panchayat was cancelled on 24.07.2000 by the resolution No.4 of the Board, which was further challenged before the competent authorities and the execution officer by his order dated 17.07.2012 came to the conclusion that the said cancellation of allotment by resolution no.4 of 24.07.2000 was against the spirit of law and was based on wrong interpretation of the words, which was in complete violation of the procedural law as laid down in agreement dated 01.06.1995. Therefore, by order dated 17.07.2012, the said resolution no.4 dated 24.07.2000 has been declared as void. By subsequent proceedings in case no.5/5/5/7/7/13 under section 198(4) of the Zamindari Abolition Act before the Additional District Magistrate (Finance and Revenue) and the Additional District Magistrate (Finance and Revenue) came to the conclusion that the agreement granted under section 293 (1) of the Municipalities Act 1916 can only be canceled by a Civil Court relying upon SCC 2005 632; AWC 2008 129; AIR 1971 SC 2147; AIR 1987 579; AIR 1953 375 SC; AWC 2011 523 HC; UPLBEC 2011 1956 (HC) RD 1985.

From the perusal of the aforesaid orders, which have been filed by the learned counsel for the petitioners by way of supplementary affidavit makes it clear that it was a civil dispute.

As far as using the word ”permanent resident’ and ”landless labourer’ is concerned, a perusal of the application moved for the allotment of the said land reveals that the petitioners have not stated in their application that they are original residents of Rasoolpur Dargah Town Area but they have stated that they are permanent resident of Village Rasoolpur Dargah Town Area Asharfipur Kichhaucha. Needless to mention that there was vast difference between a domicile and permanent resident. The petitioners have nowhere stated in their application that they are domicile of village Rasoolpur Dargah Town Area. Therefore, prima-facie, it appears that a wrong fact has been mentioned in the said application under section 156 (3) Cr.P.C.

As far as the allegation that they have shown themselves to be the landless agricultural labourers is concerned, in the application, they have not stated that they are landless agricultural labourer but they have stated that they come within the definition of landless agricultural labourer. Certainly, it was the prerogative of the Nagar Panchayat Asharfpur Kichhaucha to have satisfied themselves that whether the petitioners fulfill the requisite conditions or not. Certainly, in this case, the Nagar Panchayat Authorities have come to the conclusion that the petitioners fulfilled the requisite requirements. Therefore, the agreement has been executed with the petitioners.

From the above, it is clear that that the land in dispute do not belong to the opposite party no. 2 and admittedly, no fraud, cheating or forgery has been committed with the opposite party no.2. Therefore, the question arise as to whether the opposite party no.2 was competent to lodge the first information report in view of section 195 Cr.P.C or not. Section 195 Cr.P.C. reads as under:

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any kind abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term” Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:

Provided that-
a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

From the perusal of the aforesaid provisions make it clear that if any of the offences described in Section 195 Cr.P.C. has been committed with regard to lawful authority of public servants for offences against public justice or if any document has been furnished as evidence in a proceeding in any court, then such officer of the court or of some other court to which that court is subordinate can file a complaint before the competent court. The court has been defined in sub-section (3) to Section 195 which means a Civil, Revenue or Criminal Court and includes a Tribunal constituted by or under a Central, Provincial or State Act. Admittedly, at the time of allotment of the land in question, officers of the Nagar Panchayat were not holding any court nor they were proceeding to accept evidence or in any proceedings before the court and the action of the concerned Nagar Panchayat authorities in no way be treated to be a proceeding before the court. Therefore, even if the false affidavit has been given to obtain the alleged agreement, that cannot be termed as a false evidence in a proceedings before any court.

In the present case, the cognizance has also been taken for the offence punishable under section 471 IPC and admittedly no false evidence was produced in the proceedings before any court. Therefore, the main ingredients of Section 471 IPC were not made out and the opposite party no.2 not being a public officer had no authority to lodge the first information report. Therefore, I find substance in the submissions of the learned counsel for the petitioner that there was legal embargo under section 195 Cr.P.C.

For constituting the offence punishable under section 420 IPC, cheating is necessary and thereby he should dishonestly inducing the person deceived to deliver any property to any person. In the instant case, the opposite party no.2 has neither delivered any property to the petitioners nor he has been deceived in any way, if at all the deceived person concerned that may be Nagar Panchayat but not the opposite party no.2., Therefore, the main ingredients of section 420 IPC are also not made out.

As far as the provision of sections 467 and 468 are concerned, learned counsel for the opposite party no.2 has fairly admitted that in the present case there was no forgery. Therefore, the offence punishable under sections 467 and 468 are also not made out.
As far as the offence under section 471 IPC is concerned, in this case no document, believing to be a forged document, has been fraudulently or dishonestly used as genuine by the petitioners. Therefore, the main ingredients of section 471 IPC are also not made out.

As far as the offence punishable under section 504 IPC is concerned, a perusal of the application under section 156 (3) Cr.P.C. reveals that no date, time or place has been mentioned in the complaint that when the said abuses were given. There is general averment that upon knowing the fact that the opposite party no.2 is doing pairvi for cancellation of lease, therefore, they are abusing the opposite party no. 2. It has not been mentioned that before whom or where and when such abuses were made. It has also not been mentioned in the application under section 156 (3) Cr.P.C. that such abuses were given to the opposite party no.2 in his presence. Therefore, the offence punishable under section 504 IPC is also not made out.

From the aforesaid discussions, I am of the view that the said application under section 156 (3) Cr.P.C. has been moved due to personal vendetta because the petitioner Syed Masoodul Hasan had lodged the case under section 406 and 420 IPC at Crime no.159 of 1998 against the father of the opposite party no.2. Therefore, in the year 2005 such application has been moved, otherwise, there was no reason to have lodged such application regarding the allotment of the land, which was allotted in the year 1995. Therefore, it appears that the said application has been moved due to personal vendetta.

I also find substance in the submissions of the learned counsel for the petitioners that there was legal embargo under section 195 Cr.P.C. because the opposite party no.2 was neither a public servant nor he was conducting any judicial proceedings. It is also clear from the subsequent cancellation proceedings that it was a civil dispute, regarding which the civil suit could be filed by the competent authority and by judgment and order dated 10.07.2012 passed in Suit No.5/5/5/7/7/13 under section 198 (4) of Zamandari Abolition Act, it is clear that the Civil Court is only competent to cancel the agreement executed under section 293 (1) of the Municipalities Act. Accordingly, the proceedings were purely of civil nature and it has been given a criminal colour just to harass the petitioners.
From the aforesaid discussions, it is clear that the present application under section 156 (3) Cr.P.C. has been moved with an oblique motive to pressurize the petitioners because admittedly, the opposite party no.2 was not concerned in any way with the land in dispute and the land in dispute has been given upon the agreement, which has been executed by the Nagar Panchayat in favour of the petitioners. It is also clear that the proceedings of allotment of the land in dispute were in no way the judicial proceedings. The opposite party no.2 in his application under section 156 (3) Cr.P.C. has misused/misinterpreted the word ‘domicile’ with the word ‘permanent resident’.

In Zandu Pharmaceutical works ltd. (supra), Hon’ble the Apex Court has already held that the criminal litigation should not be used as a weapon for resolving the personal vengeance. It is admitted case that the case of forgery is not made out.

As discussed above, the applications made in the complaint do not constitute such offences and the opposite party no.2 had no locus standi to file the said complaint regarding the alleged fraud with the Nagar Panchayat, although, the Nagar Panchayat was competent to lodge the such complaint.
From the aforesaid discussions, I am of the view that it was the abuse of the process of the law in filing the such complaint as it was a pure dispute of civil nature, which cannot be allowed to be the subject matter of the criminal offence. Thus, the petitions are liable to be allowed and the proceedings are liable to be quashed.

Accordingly, all the petitions are allowed. The charge-sheet bearing no.38 of 2006 dated 23.11.2006 arising out case crime no.619 of 2006 under sections 420, 467, 468, 471, 504 IPC, P.S. Baskhari, District Ambedkar Nagar, are hereby quashed.

[Justice A. N. Mittal]
Dated: 28th September, 2015
VNP/-

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