Criminal Misc. No. M-25902 of 2008 v. State of Punjab

Judgment

2. Versus State of Punjab. Sukh Ram son of Waryam, r/o village Taharpur, P.S. Behram, Tehsil and District Nawanshahr. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vikas Behl, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. Mr. Gurcharan Dass, Advocate, for the complainant/respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the

FIR No. 39, dated 23.06.08, under Sections 120-B, 200 and 420 IPC, and, Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter to be called as the 'Act' only), Police Station Behram, District Nawanshahr, and, all the subsequent proceedings, arising therefrom, has been filed by the petitioner.

2. The facts, in brief, are that, the petitioner, is the attorney of Criminal Misc. No. M-25902 of 2008 2 Jasbir Singh and Balbir Singh, who are residing in foreign Country. He has been cultivating their land for the last 30 years. It was stated that the petitioner, encroached upon the land of the Gram Panchayat, and, as such, became unauthorized occupant thereof. He statedly, at the time of filing his nomination papers, for contesting the election of Panch, Gram Panchayat, Taharpur, swore a false affidavit, testifying therein, that he was not in unauthorized possession of the land, belonging to the Gram Panchayat, and, as such, committed fraud. Ultimately, on the basis of the aforesaid facts, the FIR, was lodged.

3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioner, submitted that, the petitioner, is only the attorney of Jasbir Singh and Balbir Singh. He further submitted that, Jasbir Singh and Balbir Singh, filed Civil Suit No. 457 of 2005, on 24.02.03, through the petitioner, as attorney, for declaration, that they were the owners in possession of the property, measuring 0-8 marlas, comprising Khewat No. 260, Khatauni No. 375, Khasra No. 182/1(0-8), as per jamabandi, for the year 2000-01, which was dismissed. He further submitted that, even Gram Panchayat, filed a petition, under Section 7 of the Act, regarding the dispossession of Jasbir Singh and Balbir Singh, through the petitioner, as attorney. He further submitted that, no doubt, Jasbir Singh and Balbir Singh, are settled, in foreign Country. He further submitted that, if any illegal act, was committed, by Jasbir Singh and Criminal Misc. No. M-25902 of 2008 3 Balbir Singh, the petitioner, being their attorney, has nothing to do with the same. He further submitted that, the FIR, was registered, against the petitioner, under Sections 420, 200 and 120-B IPC, as also Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961, on the ground that, when he filed the form, for contesting the election of Panch, he did not disclose that, he was in illegal possession of the property, in dispute, and, as such, committed the offence of cheating. He further submitted that, the FIR, is nothing but an abuse of the process of the Court.

5. On the other hand, the Counsel for the respondents, submitted that, Jasbir Singh and Balbir Singh, have been residing in foreign Country, for the last 30 years. They further submitted that, it is the petitioner, who is cultivating their land, and, is in possession thereof. They further submitted that, the petitioner, encroached upon the passage (rasta), which vested in the Gram Panchayat, and, included the same, in the land, which he was cultivating. They further submitted that, Balbir Singh and Jasbir Singh, simply appointed, the petitioner, as their attorney, but they did not authorize him, to encroach upon the land of the Gram Panchayat. They further submitted that, as such, the act of the petitioner, in encroaching upon the land of the Gram Panchayat, was his personal act, for which, he could be prosecuted, under the relevant provisions of law, and, he could not claim shelter, that he was only an attorney of Jasbir Singh and Balbir Singh. They further submitted that, the Court, is only required to look into the allegations, contained in the FIR and the Criminal Misc. No. M-25902 of 2008 4 documents, attached therewith, and, if it comes to the conclusion, that criminal offences, are disclosed, then the proceedings, cannot be quashed.

6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in Criminal Misc. No. M-25902 of 2008 5 the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case Criminal Misc. No. M-25902 of 2008 6 against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Criminal Misc. No. M-25902 of 2008 7 accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. No doubt, the petitioner, was appointed, by Balbir Singh and Jasbir Singh, as their attorney. It is also evident, from the allegations, contained in the FIR, that he has been cultivating their land, for the last 30 years, as they (Balbir Singh and Jasbir Singh), have settled, in foreign country. Balbir Singh and Jasbir Singh, never authorized, the petitioner, to allegedly encroach upon the land of the Gram Panchayat. From the allegations, it is evident, that it was the petitioner, who, in his personal capacity and not, at the asking of Balbir Singh and Jasbir Singh, allegedly encroached upon the land of the Gram Panchayat, and, came into possession thereof. This fact, is also evident, from the order dated 23.12.02, passed by District Development and Panchayat Officer, exercising the powers of Collector, Panchayat, Nawanshahr. The petitioner, while contesting the election of Panch, filled in the Criminal Misc. No. M-25902 of 2008 8 form, wherein, he allegedly concealed the factum, that he was in unauthorized possession of the Gram Panchayat land. It is, for the trial Court, to see, as to which offences, are constituted, from the allegations, contained in the FIR. Even if, the offences, under the wrong provisions of the IPC, or other Statutes, are mentioned, in the FIR, either by the Investigating Agency, or by the complainant, that cannot prohibit the trial Court, from coming to the conclusion, that some other offences, were also disclosed, for which, the accused, should be charged for facing trial. It is, for his individual act, that the petitioner, is being prosecuted, and, not for any act, done by him, on behalf of his principals. Even, in this petition, under Section 482 Cr.P.C., in which, the proceedings, are of summary nature, the disputed questions of fact and law, cannot be decided. What is the probable defence of the petitioner, shall be taken into consideration, by the trial Court during the trial of the case. The annexures, annexed, by the petitioner, with this petition or the affidavits, submitted by him, cannot be treated, as evidence, by this Court, in the proceedings, under Section 482 Cr.P.C. Similar principle of law, was laid down, in State of Bihar and another etc. etc. Vs. Shri P.P. Sharma and another etc. etc., AIR, 1991 (SC), 1260. The challan, has already been presented. This Court, stayed the framing of charge, vide order dated 19.03.09. Continuation of proceedings, shall not amount to the abuse of the process of the Court. The petition, is, thus, liable to be dismissed.

8. For the reasons recorded above, Criminal Misc. No. Criminal Misc. No. M-25902 of 2008 9 M-25902 of 2008, being devoid of merit, must fail, and the same stands dismissed. The petitioner, shall, however, be at liberty, to take all the pleas, which may be available, to him, before the trial Court, at the appropriate time.

9. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

26.05.2010 Amodh (SHAM SUNDER) JUDGE