Criminal Misc. No. M-7661 of 2009 v. Raj Kumar

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

5. The Counsel for the petitioner, submitted that, the petitioner, is related to Bishni, in the manner, that he is the son of Munshi/Munni Devi, who is the daughter of Nathu, elder brother of Partapa, husband of Bishni. He further submitted that, the petitioner, is, thus, cognate of Bishni under the Hindu Succession Act, and, heir of Bishni. He further submitted that, three fraudulent decrees dated

09.11.72, 17.02.79, and, 04.03.82, were obtained by Raj Kumar, respondent, claiming that, he was the adopted son of Bishni. He further submitted that, Raj Kumar, respondent, was, never adopted by Bishni. He further submitted that, Sardara Singh, petitioner, filed a Civil Suit bearing No. 184 dated 30.04.91/07.02.98, against the Criminal Misc. No. M-7661 of 2009 3 respondent and two other defendants, for possession of the land, on the basis of Will dated 25.04.71, executed by Bishni, in his favour, and, for declaring the decrees, aforesaid, as illegal and void ab-initio. He further submitted that, the suit, was decreed, by the Court of Civil Judge (Senior Division), Ambala, holding that, the Will, was a legal and valid document. He further submitted that, an appeal, was preferred, by the respondent, against that judgement and decree, which was accepted by the first Appellate Court, holding that, the Will, was a forged and fabricated document. He further submitted that, a Regular Second Appeal, against the judgement and decree of the first Appellate Court, is already pending, in this Court. He further submitted that, a complaint, was submitted before the Judicial Magistrate, by the respondent, in pursuance whereof, he sought a report, from the Police, under Section 202 Cr.P.C., and, ultimately, in the complaint, the petitioner alongwith his co-accused, was summoned, for the offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. He further submitted that a revision- petition, was filed, in the Court of Sessions, for discharge, but, the same, was dismissed. He further submitted that, the question, as to whether, the Will, is a legal and valid or forged document, is, yet to be decided, in the Regular Second Appeal, and, no criminal proceedings simultaneously, could be continued, against the petitioner and his co-accused. He further submitted that the criminal complaint, and the summoning order, as also the orders, referred to above, are nothing but an abuse of the process of the Court. Criminal Misc. No. M-7661 of 2009 4

6. On the other hand, the Counsel for the respondent, submitted that, the criminal and civil proceedings, if arising out of the same gamut of facts, can continue together. He further submitted that, Atul Kumar Singla, Hand-Writing Expert, compared the questioned thumb-impression of Bishni, on the Will, set up, by the petitioner with her standard thumb-impressions, appearing on the statements, made by her, in the Court, which passed the decrees, in favour of the respondent, and, came to the conclusion, that the same did not tally. He further submitted that the continuance of complaint and further proceedings, do not amount to abuse of the process of the Court.

7. 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 Criminal Misc. No. M-7661 of 2009 5 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 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 Criminal Misc. No. M-7661 of 2009 6 by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and Criminal Misc. No. M-7661 of 2009 7 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. 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.

8. 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 decrees, set up by the respondent and the Will, set up by the petitioner, alleged to have been executed and suffered by Bishni, were the subject matter of Civil Suit, which was decided, in favour of the petitioner, by the trial Court, but, the first Appellate Court, accepted the appeal, and, thus, decision went, in favour of the respondent. Atul Kumar Singla, Hand Criminal Misc. No. M-7661 of 2009 8 Writing Expert, was examined, by the trial Court, in the Civil Suit, who compared the questioned thumb-impression, on the alleged Will of Bishni, with her standard thumb-impressions, on the statements, made in the Court, which passed the decrees, in favour of the respondent, and, came to the conclusion, that the thumb-impression, on the Will, alleged to be of Bishni, did not tally with her thumb- impressions, on her statements, made in the Court, admitting the claim of the respondent, in the suits, in which, the decrees were passed. Regular Second Appeal, with regard to the legality and validity of the decrees and the Will is still pending. However, it does not mean, that criminal proceedings, arising out of the same gamut of facts, cannot be instituted or continued. In Pratibha Rani Vs. Suraj Kumar & another, 1985(1), RCR, 539 (SC), it was held, as under:- “There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his Liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quire different in content scope and import.”

9. In Hans Raj Vs. State of Punjab, 1998(1), RCR (Criminal), 636, a Civil Suit, was filed, relating to the liability of the Criminal Misc. No. M-7661 of 2009 9 accused, to pay the amount of penalty, whereas, an FIR, was registered for theft of electricity. In these circumstances, a petition, was filed, for quashing the criminal proceedings. This Court, in Hans Raj's case (supra), held that, criminal and civil proceedings, can go on simultaneously. It was further held, that High Court, will not normally quash the proceedings, unless there are forensic exigencies and compelling justification. In this view of the matter, continuation of complaint, the summoning order, the orders dated

27.03.08 and 05.02.09 (Annexures P5 and P8), and, all the subsequent proceedings, arising therefrom, shall not amount to abuse of the process of Court. The petition, is, thus, liable to be dismissed.

10. For the reasons recorded above, Criminal Misc. No. M-7661 of 2009, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

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

25.05.2010 Amodh (SHAM SUNDER) JUDGE