HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL PETITION Nos. 1532 and 3347 of 2018
COMMON ORDER :
Criminal Petition No.1532 of 2018 is filed under Section 482
Cr.P.C., seeking to quash the investigation in Crime No.48 of 2018 on
the file of Moinabad Police Station, Cyberabad, registered against the
petitioners/accused Nos.2 and 3 and another, for the offences
punishable under Sections 120-B, 406, 419, 420, 468 and 471of I.P.C.
Criminal Petition No.3347 of 2018 is filed under Section 482
Cr.P.C. seeking to quash the proceedings in C.C.No.689 of 2018 on the
file of the XXIII Metropolitan Magistrate, Cyberabad at Rajendranagar,
registered against the petitioners/A-1 and A-2 and another for the
offences punishable under Sections 447, 427, 506 and 188 read with
Section 34 of I.P.C.
Since the issues involved in both the petitions are inter-
connected, they are being disposed of by this common order.
The facts in brief are as under:
The averments in the report in Crime No.48 of 2018 of Moinabad
Police station and the charge sheet in C.C.No.689 of 2018 on the file of
the XXIII Metropolitan Magistrate, Cyberabad at Rajendranagar, would
show that the son of the third respondent by name late Mohd. Javed
Ahmed Siddiqui (hereinafter referred to as “the deceased”) had
acquired total land to an extent of Ac.15.33 Gts., in Sy.Nos. 288/1, 289,
2
299, 300 and 301, situated at Chilkur Village, Moinabad Mandal, Ranga
Reddy District, through four separate sale deeds vide document Nos.
6705/1998, dated 02.09.1998, 11202/1993 dated 17.12.1993, 3873/1994,
dated 06.05.1994 and 9552/1993 dated 25.10.1993 and since then he
claimed to be in possession and enjoyment of the same. Later, the
deceased-Javed Ahmed Siddique made a lay-out in the name of
“Golden Meadows” and sold away several plots. It is said that about
95% of plots in the lay-out were in his exclusive possession and
enjoyment till his death and after his demise the third respondent
continued in possession of the same. The original owner i.e., the son of
the 3rd respondent died on 28.01.2016, leaving behind the third
respondent (mother), his wife Mrs.Rizwana Begum and his minor son
Mohd. Fahed Ahmed Siddiqui as his Class-I legal heirs. During his life
time, the deceased married to the accused No.1 and due to strong
differences, they took divorce on 28.06.2013 before the office of the
Government Kazi, Golconda, Hyderabad. After death of the deceased,
accused No.1 visited the house of the third respondent for sympathy
and during that period she committed theft of the original documents
of the above property, jewellery, cash along with bank locker keys and
also kidnapped the minor son of the deceased. A case was registered
against accused No.1 vide Crime No.76 of 2016 of Chaderghat Police
Station, Hyderabad and the same is pending. The police, however,
took the custody of the minor son but the original documents were in
the custody of accused No.1. Taking advantage of custody of the said
documents, accused No.1, criminally conspired with the
3
petitioners/accused Nos.2 and 3, handed over the registered sale deeds
to them and also created an agreement of sale. On the basis of the said
documents, the petitioners filed a collusive suit vide O.S.No.45 of 2016
before the XII Additional District Judge, Vikarabad, and got it referred
to Lok Adalath and a settlement was arrived at. Under the guise of
compromise decree, the petitioners tried to trespass into the property
and a complaint was also registered before the Moinabad Police Station,
vide Crime No.91 of 2017 and the same is pending. Basing on the
collusive decree, the petitioners filed E.P.No.4 of 2017 before the XII
Additional District and Sessions Judge, Vikarabad, Ranga Reddy
District, and obtained possession warrant. However, the third
respondent filed a Claim-Petition vide E.A.No.3 of 2017. In spite of
pending the said Claim-Petition, the said Court issued warrant of
delivery of possession. Aggrieved by the same, the third respondent
and other legal heirs of the deceased filed C.R.P.No.2429 of 2017 before
this Court. By an order, dated 09.06.2017, this Court while disposing of
the said revision, observed that “the executing Court ought not to have
directed re-issuance of the delivery warrant while ordering notice in the stay
petition in the Claim-Petition filed by the petitioners as the same would result
in rendering the Claim-Petition itself infructuous. That part of the order is
accordingly set aside. The executing Court shall proceed with the hearing of
the Claim-Petition and dispose of the same in accordance with law
expeditiously.” While so, on 27.10.2017 around more than 50 un-social
elements along with the petitioners came to the land, trespassed over
the land and threatened the watchman of the third respondent with
4
dire consequences. The third respondent lodged a complaint before
the Moinabad Police Station, for criminal trespass and the same came to
be registered as Crime No.467 of 2017. In the said crime, the police
filed charge sheet, which was taken on file as C.C.No.689 of 2018 on the
file of the XXIII Metropolitan Magistrate, Cyberabad at Rajendranagar.
Criminal Petition No.3347 of 2018 came to be filed seeking
quashing of the proceedings in the above C.C. It is also stated that the
petitioners tried to obtain possession of the property through Court
though the Claim-Petition is still pending. The illegal act of trespass by
un-social elements at the instigation of the accused persons is creating
law and order problem and the third respondent and the other legal
heirs of the deceased are facing threat to their life. It is further stated
that accused No.1 impersonating herself as a sole surviving legal heir of
the deceased, had entered into an agreement of sale with the
petitioners, who are very much having knowledge of the fact that the
deceased was the absolute owner of the property and accused No.1
being a divorced wife of the deceased do not have any right over the
property. Therefore, the Class-I heirs of the deceased filed the
complaint for criminal conspiracy in obtaining the collusive decree by
misrepresenting the factual aspects before the Court, criminal breach of
trust and impersonating as the sole surviving legal heir to the deceased
by forging false and fabricated agreement of sale, receipts and also
trying to interfere with the possession of the third respondent and that
the petitioners have assisted and conspired with accused No.1 while
fabricating the false agreement of sale and receipts.
5
Reiterating the averments made in the charge sheet, the third
respondent filed counter opposing the petitions. Apart from that it is
stated in the counter that the contention of the petitioners that the sum
and substance of the contents of F.I.R.No.48 of 2018 and the charge
sheet in C.C.No.689 of 2018 are one and the same is not correct. In fact,
both the complaints are totally different. The complaint in C.C.No.698
of 2018 is filed in respect of an act of criminal trespass by the petitioners
where as the complaint in Crime No.48 of 2018 was filed for cheating
and creating false and fabricated documents such as agreement of sale
and cash receipts. It is also stated that the investigation done by the
police in the complaint in C.C.No.689 of 2018 clearly established the
illegal act of trespass made by the petitioners. Since the matter requires
evidence and trial to decide the offences committed by the petitioners,
the proceedings cannot be quashed. Only to drag on the matters and to
prolong the litigation, the petitioners filed the quash petitions.
Heard Sri Vedula Srinivas, learned Senior Counsel appearing for
the petitioners and Sri Damodar Mundra, learned Counsel appearing
for respondent No.3 in both the cases and the learned Public Prosecutor
appearing for the State.
Learned Counsel for the petitioners would submit that the
deceased executed an agreement of sale in favour of the petitioners
much prior to his death and also received the entire sale consideration
except an amount of Rs.5.00 lakhs (Rupees five lakhs only). After his
demise, when the wife of the deceased demanded further amount,
6
the petitioners were constrained to file O.S.No.45 of 2016 for specific
performance of sale agreement. Pending suit, the petitioners and the
wife of the deceased arrived at a compromise and a compromise decree
was passed on 13.08.2016. Subsequently, the Court executed a
registered sale deed vide document No.12672 of 2017. The petitioners
filed E.P.No.4 of 2017 seeking delivery of possession of property, which
was ordered and the bailiff proceeded to execute the decree. At that
stage, the third respondent along with two others filed E.A.No.3 of 2017
claiming right over the property and also filed E.A.No.4 of 2017 seeking
stay of all further proceedings. They also filed C.R.P.No.2429 of 2017
before this Court alleging that without passing orders in the stay
petition, the trial Court passed order for issuance of delivery warrant.
The said C.R.P. was disposed of on 09.06.2017. Thereafter, the wife of
the deceased has voluntarily handed over the possession of the
property to the petitioners dated 16.10.2017 and since then they are in
possession and enjoyment of the same. The third respondent filed
W.P.No.17494 of 2017 before this Court to set aside the Lok Adalath
Award passed in O.S.No.45 of 2016. The said Writ Petition was
disposed of on 16.04.2018. Against the said order, the third respondent
filed SLP (C) No.21972 of 2018 before the Apex Court, which was
disposed of on 24.08.2018 observing that the third respondent has
already chosen a remedy under Order XXI Rule 97 of C.P.C. and all the
questions can be gone into by the lower Court including questions
relating to title. He further submits that Claim-Petition is filed in
O.S.No.45 of 2016 raising the same pleas on 28.04.2017 whereas the
7
present complaint is filed on 12.01.2018 seeking prosecution of the
petitioners and the wife of the deceased with identical allegations. It is
also stated that the offence under Section 406 IPC is not maintainable
against the petitioners since the ingredients of said section require
breach of trust as defined under Section 405 IPC. There is no
entrustment of any property or dominion over the property by the
complainant in favour of the accused hence the FIR is liable to be
quashed insofar as Section 406 IPC is concerned. Similarly Section 420
IPC is also liable to be quashed for the reason that the ingredients of the
said Section are totally absent and are not even pleaded in the
complaint. There is no allegation in the complaint that the accused
have dishonestly induced the complainant with reference to the
schedule property. It is also stated that there are no pleadings that the
accused have induced the complainant with deceptive intention basing
on forged documents, hence, the ingredients of Section 468 IPC are not
constituted. It is also stated that in the year 2012 itself the petitioners
entered into an agreement of sale with the deceased and they filed a
suit for specific performance of agreement in the year 2016 and the
same was decreed before the Lok Adalath. This Court as well as the
Apex Court observed that the third respondent had already filed a
Claim-Petition and the trial Court will have to decide all the issues
including title of the schedule property. Since the allegations are
similar in the Claim-Petition as well as the present complaint,
prosecuting the petitioners under Section 471 IPC is an abuse of process
of law.
8
Insofar as the allegations in the charge sheet in C.C.No.689 of
2018, the learned Senior Counsel submits that the offence alleged
against the petitioners is that they have trespassed into the schedule
property and took illegal possession of the same on 27.10.2017 despite
the stay orders of this Court in C.R.P.No.13894 of 2017. It is further
submitted that on the same allegations, the complainant filed
C.C.No.1814 of 2018 before this Court, which was dismissed on
13.02.2019 on the ground that the petitioner therein has approached the
Court without clarity with regard to the allegation of the possession of
the property being taken by the respondent therein. At one stage, the
petitioner therein claimed that the respondents have taken possession
on 27.10.2017 by threatening the watchman and on the other hand she
filed W.P.No.36787 of 2017 asserting that the S.H.O., Moinabad Police
Station has taken possession of the schedule property from them. In
view of the contradictory versions pleaded by the complainant in the
affidavits filed in different proceedings, this Court held that there is no
clarity in her version. In the light of the above, the complaint and the
charge sheet stating that the petitioners herein have forcibly taken
possession of the schedule property on 27.10.2017 cannot stand to logic
and the charge sheet is liable to be quashed. Since there are no
allegations that the petitioners have caused destruction of any property
intentionally, the ingredients under Section 427 IPC are not made out.
It is also stated that as the petitioners have filed a suit, obtained a
decree through the competent Court, filed E.P. in which orders were
passed by the trial Court and thereafter the judgment debtor has
9
handed over possession to them, the offence under section 447 IPC i.e.,
Criminal trespass is not maintainable against the petitioners. The
allegations in the complaint and the charge sheet do not support the
commission of offence under Section 506 IPC Criminal Intimidation
and Section 188 IPC disobedience to the order duly promulgated by
public servant, the charge sheet is not maintainable. In support of his
contention, he relied on the judgment of this Court in Koruvada
Nageswara Rao and another v. State of A.P.1
Sri Damodar Mundra, learned Counsel appearing for the third
respondent/complainant would submit that the documents are forged,
fabricated and created by the petitioners for the purpose of getting
favourable order from the Court in collusion with accused No.3, as
such the accused are liable for punishment. It is also stated that the
said forged and fabricated agreement of sale and cash receipts are in
the custody of the accused as they have taken back from the Court after
getting favourable order from the Court. It is also stated that
continuation of investigation in Crime No.48 of 2018 cannot be said to
be abuse of process of law on the guise of civil litigation pending
between the parties. In support of his contention, he relied upon the
following judgments.
1. K.G.Premshanker v. Inspector of Police and others2
2. Iqbal Singh Marwah and another3
3. P.Swaroopa Rani v. M.Hari Narayana4
1
(2018) 2 ALD (Crl.) 643
2
(2002) 8 SCC 87
3
(2005) 4 SCC 370
4
(2008) 5 SCC 765
10
In Criminal Petition No.3347 of 2018, he submits that the police
filed charge sheet in the above case after due investigation and after
examining LWs.1 to 14. Once it is established that the accused have
trespassed into the property, the date of trespass and other issues will
be decided during the criminal prosecution. It is further stated that the
act of trespass and punishment thereon will be decided only by the
criminal proceedings but not in the civil proceedings.
In the light of the submissions of the learned Counsel for the
respective parties, the following case laws are necessary to be referred:-
In Harshendra Kumar D. vs Rebatilata Koley and others5 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, 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
5
(2011) 3 SCC 351
11to 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 Anita Malhotra vs. Apparel Export Promotion Council and
another6, 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 another7
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:
6
(2012) 1 SCC 520
7
(2009) 7 SCC 495
12There 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 another8 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 the8
(2005) 1 SCC 122
13right 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 others9 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 committed9
(2011) 7 SCC 59
14by 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.
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 by the 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 another10
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 a10
(2009) 8 SCC 751
15criminal 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.
In V. Y. Jose and another vs. State of Gujarat and another11 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 of11
(2009) 3 SCC 78
16Section 483 of the Code of Criminal Procedure to supervise the
functioning of the trial courts.”
Reliance has been placed by the learned Counsel for the
petitioners in Mahar Jahan and others v. State of Delhi and others12, wherein
the Honourable Supreme Court, while dealing with a proceeding under
Section 145 of the Code of Criminal Procedure, observed as under:
“This Court noticed that a civil dispute was given the
colour of a criminal case. As therein a proceeding under Section
145 of the Code of Criminal Procedure was pending, when a
civil suit was also pending before a competent Court of law, it
was opined:
It is not disputed by the learned Counsel for the parties
that this very property which is the subject-matter of these
criminal proceedings is also the subject-matter of the civil suit
pending in the civil Court. The question as to possession over
the property or entitlement to possession would be determined
by the civil Court. The criminal proceedings have remained
pending for about a decade. We do not find any propriety
behind allowing these proceedings to continue in view of the
parties having already approached the civil Court. Whichever
way proceedings under Section 145 Cr.P.C. may terminate, the
order of the criminal Court would always be subject to decision
by the civil Court. Inasmuch as the parties are already before
the civil Court, we deem it proper to let the civil suit be decided
and therein appropriate interim order be passed taking care of
the grievances of the parties by making such arrangement as
may remain in operation during the hearing of the civil suit.
It was furthermore observed:
We have simply noted the contentions raised by the
parties. The civil Court, in our opinion, would be the most12
(2004) 13 SCC 421
17appropriate forum to take care of such grievances and pass such
interim order as would reasonably protect the interests of both
the parties. The civil Court may issue an ad interim injunction,
may appoint a Commissioner or Receiver or may make any
other interim arrangement as to possession or user of the
property which is the subject-matter of proceedings in the civil
Court exercising the power conferred on it by Sections 94 and
151 of the Code of Civil Procedure.”
Learned Counsel appearing for the 3rd respondent/complainant
has relied upon the following case laws:
In the case of K.G.Premshanker v. Inspector of Police and others
{(Crl.A.No.935 of 2002 dated 12.09.2002), MANU/SC/0771/2002}, the
Honourable Supreme Court in Paragraph Nos.32, 33 and 34 observed
as under:
“32.In the present case, the decision rendered by the
Constitution Bench in M.S.Sheriff and another v. State of
Madras and others, MANU/SC/0055/1954 {1954} 1 SCR 1144,
would be binding, wherein it has been specifically held that no
hard and fast rule can be laid down and that possibility of
conflicting decision in civil and criminal Courts is not a relevant
consideration. The law envisages “such an eventuality when it
expressly refrains from making the decision of one Court
binding on the other, or even relevant, except for limited
purpose such as sentence or damages.”
“33. Hence, the observation made by this Court in
V.M.Shah v. State of Maharashtra and another,
MANU/SC/0087/1996 (AIR 1996 SC 339) that the finding
recorded by the criminal Court stands superseded by the
finding recorded by the civil Court is not correct enunciation of
law. Further, the general observations made in M/s Karam
18Chand Ganga Prasad and another v. Union of India and others,
MANU/SC/0058/1970: (1971 CriLJ 1072) are in context of the
facts of the case stated above. The Court was not required to
consider the earlier decision of the Constitution Bench in
M.S.Sheriff’s case as well as Sections 40 to 43 of the Evidence
Act.
“34. In the present case, after remand by the High Court,
civil proceedings as well as criminal proceedings are required to
be decided on the evidence, which may be brought on record by
the parties”.
In P.Swaroopa Rani v. M.Hari Narayana, {(Civil Appeal No.1734 of
2008), MANU/SC/7280/2008}, it was observed by the Honourable
Supreme Court at Paragraph No.16 as under:
“It goes without saying that the respondent shall be at
liberty to take recourse to such a remedy which is available to
him in law. We have interfered with the impugned order only
because in law simultaneous proceedings of a civil and a
criminal case is permissible.”
I have considered the respective submissions made by both the
learned counsel appearing for the parties and I have also gone through
the relevant case laws and also the case laws cited by both the parties.
In the light of the above contentions raised by both the learned counsel
appearing for the parties and in the light of the decisions in the
aforesaid case laws, the following are the main points for consideration
by this Court.
1. 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 or not?
19
2. Whether the complaint filed by the de facto complainant
has been moved due to personal vendetta and whether
personal vendetta can be made an instrument to initiate the
criminal proceedings?
3. Whether the third respondent had any locus-standi to
lodge the first information report because the land belongs
to the son of the third respondent or whether any fraud
was committed on her?
4. Whether a criminal colour has been given to a dispute of
civil nature, which is not permitted under the provisions of
law?
The scope and exercise of powers under Section 482 Cr.P.C. has
time and again came before the Apex Court. It is settled postion 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 v. State of Punjab13 the Hon’ble 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.
13
AIR 1960 SC 866
20
In this regard, the land mark judgment is the State of Haryana v.
Bhajan Lal14 in which Hon’ble 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.
14
(1992) SCC (Crl.) 426
21
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 the present case, the respondent No.3, who is the mother of
the deceased Mohd. Javed Ahmed Siddiqui, filed some applications
resisting delivery of possession of the property to the present
petitioners ie., accused Nos.2 and 3 on the ground that the lok adalat
award was obtained by fraud etc. and is not binding on her. It is on
record and as has been fairly contended during arguments by counsel
for both the sides, there is scramble for possession that resulted in the
Executive Magistrate issuing orders under Section 145 of Cr.P.C. and
in separate W.P.Nos. 36787 and 37116 of 2017, this Court held that the
F.I.R.No.467 of 2017 is illegal. This Court observed in this regard
22
“Having regard to stand of Assistant Government Pleader that the
mode and manner of registration of FIR particularly under Section 145
of Criminal Procedure Code by the Inspector of Police does not
conform to the requirements of law, this Court need not examine
either rival contentions and thereafter quashing of criminal
proceedings”.
I have gone through the material on record meticulously. There
is absolutely no dispute that when the civil proceedings are pending
and both the parties are contesting those civil proceedings by teeth
and nail, then only these criminal proceedings have been initiated by
the complainant/third respondent against the petitioners and the wife
of the deceased Mohd. Javed Ahmed Siddiqui, claiming that she is the
divorcee of her son, who divorced her much prior to his death ie., in
the year 2013. No doubt, as rightly argued by the learned counsel for
the third respondent, supported by the arguments of the learned
Public Prosecutor, if during the pendency of criminal proceedings and
investigation, the accused raised a dispute of civil nature, then the
High Court cannot quash the criminal proceedings, but in this case
obviously after civil proceedings are initiated and are being
persistently contested by the parties including the third respondent,
the criminal law was set into motion on the self-same facts which have
already raised in the civil proceedings. In that view of the matter, it is
open to this Court to examine whether the case is fit to be quashed
under Section 482 of Cr.P.C.
23
Now, I refer to the allegations made in both the complaints
raised by the third respondent with reference to the dates and events.
F.I.R.No.48 of 2018 is registered under Sections 120-B, 406, 419, 420,
468 and 471 of I.P.C. on the basis of the complaint filed by the third
respondent under Section 200 of Cr.P.C. and forwarded by the
Magistrate under Section 156 (3) of Cr.P.C.
A bare perusal of the F.I.R. and complaint show that the third
respondent while referring to the pending civil litigation, alleged that
the first accused is the divorced wife of her deceased son Mohd. Javed
Ahmed Siddiqui and she has stolen away the divorce documents and
stealthily suffered a collusive decree in favour of the present
petitioners from the Lok Adalat and obtained the warrant of decree.
This decree is now subject matter of adjudication before the Executing
Court. To reach to a conclusion about the executability of the decree,
the Executing Court will have to come to a finding whether the widow
of Mohd. Javed Ahmed Siddiqui is the legal heir of her deceased
husband and whether the complainant’s right as legal heir of her
deceased son are violated; if so, to what extent the respondent No.3 is
entitled to the share of the deceased; it may also in all probabilities to
come to a conclusion that at least to that extent of un-divided share of
accused No.1, the sale is valid and accused Nos.2 and 3 may take that
share. The Executing Court also will have to come to a finding that
after the death of Javed Ahmed Siddique, who was/were in
possession of the suit property. All these questions are obviously
within the domain of the civil Court. At any rate, both the
24
proceedings are factually based on these facts which are sub-judiced
before the civil Court and the alleged offence of trespass cannot be
independent of the said civil dispute.
So far as the other offences are concerned, there is absolutely no
material in the complaint/F.I.R., showing commission of any offence
much less to say that the offences under Sections 120-B, 406, 419, 468
and 471 of I.P.C. As observed above, the Hon’ble Apex Court in
several of judgments held that where the ingredients of certain
offences are not made out in the F.I.R./complaint, such criminal
proceedings are liable to be quashed under Section 482 of the Cr.P.C.
While holding that, it was observed that, where the ingredients require
to constitute a criminal offence are not made out from a bare reading
of the complaint, the continuation of criminal complaint is an abuse of
process of law.
In Indian Oil Corporation v. NEPC India Limited and others15
the Apex Court reviewed the precedents on the exercise of jurisdiction
under Section 482 of Cr.P.C. and formulated guiding principles in the
following terms.
“(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
15
(2006) 6 SCC 736
25assessment 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.”
In Criminal Appeal No.834 of 2017 decided on 08.08.2019, the
Hon’ble Apex Court has laid down as under, ie. “the complainant
himself paid the mortgaged money and got the mortgage redeemed
26
and thereafter he got the sale deed executed in his name and filed the
complaint alleging cheating by the sellers”. The Hon’ble Supreme
Court held that the criminal proceedings initiated by the complainant
are nothing but an abuse of process of law for settling a civil dispute.
In Prof. R.K.Vijayasarathy and another v. Sudha Seetham and
another16 the Apex Court held that “where the averments in the
complaint read on its face, do not disclose the ingredients necessary to
constitute offences under the Penal Code, it amounts to abuse of
process of law”.
On over all consideration of entire material placed on record
and the contentions urged before this Court by the learned counsel for
the petitioners and learned counsel for the third respondent, the law
declared by the Apex Court in the judgments referred supra, it is
suffice to conclude that the contentions raised by the learned counsel
for the third respondent are without any substance and the material
produced before this Court, directly indicates the mala fides in
prosecution of criminal proceedings against the petitioners, so also, by
abuse of process of the Court, as an arm-twisting method to bring the
petitioners to the terms of the third respondent and to cloak a civil
dispute with criminal nature, has resorted to criminal litigation.
In view of my foregoing discussion, I find that it is a fit case to
exercise inherent jurisdiction under Section 482 Cr.P.C. to quash the
proceedings against the petitioners in Crime No.48 of 2018 of P.S.
16
(2019) 3 Scale 563
27
Moinabad, Cyberabad, for the offences punishable under Sections
120-B, 406, 419, 420, 468 and 471 IPC and C.C.No.689 of 2018 on the file
of the XXIII Metropolitan Magistrate, Cyberabad, for the offences
punishable under Sections 447, 427, 506 and 188 read with Section 34
of I.P.C.
Accordingly, both the Criminal Petitions are allowed and the
proceedings against the petitioners/accused Nos.2 and 3 in Crime
No.48 of 2018 of Moinabad Police Station, Cyberabad, for the offences
punishable under Sections 120-B, 406, 419, 420, 468 and 471 of I.P.C.
and the proceedings in C.C.No.689 of 2018 on the file of the XXIII
Metropolitan Magistrate, Cyberabad at Rajendranagar, against the
petitioners/ accused Nos.1 and 2 for the offences punishable under
Sections 447, 427, 406 and 188 read with Section 34 of I.P.C. are hereby
quashed. Miscellaneous petitions, if any, pending shall stand closed.
JUSTICE G. SRI DEVI
01.10.2019
gkv/Gsn
28
