High Court
Case Details
Neutral Citation No. - 2023:AHC:133549 Court No. - 90 Case :- APPLICATION U/S 482 No. - 37894 of 2022 Applicant :- Dhiraj Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Chandra Gupta Counsel for Opposite Party :- G.A.,Amit Kumar,Brij Raj Hon'ble Dinesh Pathak,J. 1. Heard learned counsel for the applicants, learned AGA and perused the record.
Facts
2. The present applicant has invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of entire proceedings of Case No. 1887 of 2022 (State Vs. Dhiraj Singh), under Sections 420, 467, 468, 471 IPC arising out of Case Crime No. 441 of 2022 including charge sheet dated 22.9.2022 as well as cognizance order dated 15.10.2022, Police Station Khurja Nagar, Bulandshahar pending in the court of Additional Chief Judicial Magistrate, (Bulandshahar). Khurja 3. As per FIR version, the present applicant has got registered sale deed dated 19.3.2021 executed in his favour by one Jagdish Singh, who is missing since last 24-25 years and there is no existence of vendor. Informant is sister of the vendor. The vendee (accused-applicant) has got the sale deed executed in his favour through an imposter of Jagdish Singh. 4. It is submitted by the learned counsel for the applicant that the land owner Jagdish Singh himself appeared before the Registrar through his relevant documents i.e. Aadhar Card as well as Pan Card and executed the registered sale deed in favour of the present applicant. It is further submitted that the sale consideration was made through check, which has been drawn in the account of Jagdish Singh, therefore, it cannot be said that there is no existence of vendor. It is further submitted that till date no application has been filed on behalf of the first informant (opposite party No. 2) to declare the civil death of Jagdish Singh. It is further submitted that the first informant has already filed a suit for the cancellation of the registered sale deed dated 29.3.2021, therefore, present criminal prosecution has been launched only to pressurize the present applicants by dragging the civil litigation into the criminal proceeding. In support of his case, learned counsel for the applicant has relief upon the case of Hira Lal and others Vs. State of UP and others, 2009 (2) JIC 353 (SC) and Syed Yaseer Ibrahim decided by Hon'ble Supreme Court on 28.2.2022 in SLP (Crl.) No. (s). 7955 of 2021. 5. Per contra, learned counsel for the opposite party No. 2 has vehemently opposed the submissions as raised by the learned counsel for the applicant and contended that the alleged vendor has not been seen since last 24-25 years and by playing fraud through an imposter the alleged sale deed has been got executed. It is further submitted that, in case, Jagdish Singh is alive, he may be produced or he may appear on his own before the civil court as well as criminal court to verify his living status. After thorough investigation, the Investigating Officer has rightly filed the charge sheet on the basis of evidence on record considering the missing status of the vendor. It is further submitted that, at this juncture, this Court is not required to decide as to whether the criminal proceeding was malicious or not, which requires proper appraisal of evidence adduced by the parties during the trial.
Legal Reasoning
17. Having considered the rival submissions advance by learned counsel for the applicant and learned AGA and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused. 18. However, it is provided that in case applicant moves an appropriate application for discharge along with a certified copy of this order before the concerned Court below, the same shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court. 19. If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
Arguments
6. Record reveals that learned counsel for the applicant has raised disputed question of fact qua involvement of present applicant in the incident in question. 7. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court. 8. It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge- sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception. 9. In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court." 10. In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another. 11. In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows: "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge- sheet and other documentary evidence, if any, on record. 12. The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bur engrafted in any of the provisions of the Code on 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 10 private and personal grudge." 13. It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length. 14. Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted. 15. Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. 16. In the given circumstances, the main allegation with respect to the forgery is alleged to have been committed by the present applicant thorough an imposter whereas the alleged missing person has been shown to be executant of the registered sale deed, on the contrary, as per the FIR, the vendor, who is the brother for the informant, is missing since last 24-25 years. It is a very serious issue. The living status of the vendor is the core issue, which is true genesis of the crime and the same can be ascertained by proper investigation. Even assuming for the sake of argument, as submitted by the learned counsel for the applicant that Jagdish Singh, the vendor is still alive and has executed the registered sale deed in the presence of the Registrar, the vendor, in this eventuality, may personally appear before the criminal court as well as civil court concerned to prove his living status that he is alive and falsify the case put up by the informant.
Decision
20. With the aforesaid observation, this application is disposed of. Order Date :- 6.7.2023 vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad