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2013 (3) TMI 861
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....RE-A hereto) and all further proceedings arising of the said F.I.R. Special Criminal Application No. 1283 of 2012 : (13)(A) Your Lordships may be pleased to quash and set aside criminal complaint being C.R. No. 1-86 of 2012 registered at Patan Taluka Police Station, Dist. Patan (at ANNEXURE-A hereto) and all further proceedings arising of the said F.I.R. 1.1. So far as third petition, i.e. Special Criminal Application No. 1535 of 2012 is concerned, the petitioner is the complainant and he has prayed, inter alia, that : 14(B) Your Lordships may be pleased to transfer the investigation in the matter arising out of F.I.R. being C.R. No. 1-86 of 2012 registered at Patan Taluka Police Station, Dist. Patan by higher authority not below the rank of District Superintendent of Police or such other investigating agency as the Hon'ble Court may deem fit in the interest of justice, equity and good conscience. With reference to the said third petition being Special Criminal Application No. 1535 of 2012, it is relevant and necessary to mention that the said petition is also taken out in connection with and with reference to the very same com....
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....ed No. 2 sold ancestral land of the complainant to accused No. 1 and accused Nos. 3 and 4 have helped accused Nos. 1 and 2 by putting their signatures as witness on such false and fabricated documents. 3.1. Accused No. 1 is described as the purchaser of the land in question and accused No. 2 is described as the person who sold the land in question to accused No. 1 with help of forged and fabricated Power of Attorney allegedly granted by complainant's father and accused Nos. 3 and 4 are described as the persons who have acted as witness to the said transaction and the disputed sale-deed. 3.2. The Special Criminal Application No. 1157 of 2012 is preferred by accused No. 1, i.e. the person who is described as the purchaser and also by accused Nos. 3 and 4 who are described as witnesses, whereas the second petition, i.e. Special Criminal Application No. 1283 of 2012 is preferred by accused No. 2 in the impugned complaint who is described as the person who sold the land in question to accused No. 1. The third petition, i.e. Special Criminal Application No. 1535 of 2012 is filed by the complainant who has prayed that the investigation may be transferred to any higher authority ....
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....vestigation to higher authority may be granted. The learned Counsel for the petitioner in the said third petition, i.e. Special Criminal Application No. 1535 of 2012 also opposed the other two petition, i.e. Special Criminal Application No. 1157 of 2012 and Special Criminal Application No. 1283 of 2012. The learned Counsel for the respondent in the said two petitions (i.e. the petitioner in the third petition) relied on the reply affidavit filed by the complainant in the said two petitions being Special Criminal Application No. 1157 of 2012 and Special Criminal Application No. 1283 of 2012, wherein some of the relevant facts have been mentioned. The complainant has averred in his affidavit that : 5. I say and submit that the land in dispute was permitted to be cultivated by my maternal uncles, namely Shakrabhai Lallubhai and Mohanbhai Lallubhai. I say and submit that both of them duped my father and took illegal and improper advantage of his ignorance and illiteracy by getting up an agreement to sale in respect of the land in dispute said to have been made in favour of Mahadev Harjibhai and Amratbhai Hemabhai. I say and submit that both of them got up a Power of Atto....
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....egular Civil Suit No. 139 of 2010 against my father and my maternal uncles for perpetual injunction, which is said to have been withdrawn by the plaintiffs of the suit. Thus, the fact remains that the suit filed by the accused petitioners stands withdrawn. Copy of the plaint of the Regular Civil Suit No. 139 of 2010 is annexed hereto and marked as ANNEXURE-R6 to this reply. 14. I say and submit that my father has also filed Regular Civil Suit No 20 of 2012 against Amratbhai and Mahadev by for cancellation of the so-called sale-deed dated 12-1-2010, and the same is pending. Thus, in all the Regular Civil Suit Nos. 104 of 2007, 187 of 2011, 83 of 2008 and 20 of 2012 are pending for adjudication. Copy of the plaint of the Regular Civil Suit No. 20 of 2012 is annexed hereto and marked as ANNEXURE-R7 to this reply. 15. I further say and submit that even the revenue authorities have been pleased to cancel the revenue entries mutated on the basis of the so-called Power of Attorney and sale-deeds, inter alia on the ground of pendency of the civil litigation. I say and submit that the so-called Power of Attorney, in absence of being registered cannot be looked ....
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....t be granted. Learned Counsel for the respondent also submitted that instead of terminating the investigation as prayed for by the petitioners and the said two petitions, appropriate direction to transfer the investigation to higher authority not below the rank of District Superintendent of Police may be passed. 6. I have heard learned Counsel for the petitioners and the respondent (who is petitioner in Special Criminal Application No. 1535 of 2012) and have also considered the document and material on record. 7. It is relevant to mention that the petitioners in the said two petitions, viz. Special Criminal Application No. 1157 of 2012 and Special Criminal Application No. 1283 of 2012, seek that the investigation may not be allowed to proceed and should be terminated at its threshold. The said petitioners also seek that the F.I.R./complaint may be quashed even before the investigation is completed and relevant material is collected. 7.1. The effect of the relief prayed for by the said petitioners in the two petitions, is that in absence of relevant material and even without examining as to whether there is material to support the submissions of the petitioners or not and w....
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.... thus : 30.....In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial, and if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the F.I.R. or complaint or restraining the competent authority from investigating the allegations contained in the F.I.R. or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the F.I.R. or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against....
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.... such orders as may be necessary to prevent 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 should not embark upon and enquiry whether the allegations in the complaint are likely to be established by 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 that jurisdiction, one thing, however, appears clear and 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 the High Court 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. 9. The principles which can be deduced from the observations by Hon'ble Apex Court in various decisions, are that- (a) the High Court ought not inter....
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....t confer arbitrary jurisdiction on the High Court to act according to whims and the extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety, do not constitute the offence alleged; (l) 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 and the allegations of mala fides against the informant cannot by themselves be the basis for quashing the proceedings; (m) a proper investigation in the interests of justice becomes necessary to collect material for establishing the offence, and for bringing the offender to book and justice requires that a person who commits an offence has to be brought to book and must be punished for the same, however, if the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice would suffer; ....
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....s not appear to have collected specimen signature of the concerned persons, particularly of the donor of the alleged Power of Attorney, and therefore, it is yet not examined and prima facie ascertained as to whether the signature on the disputed Power of Attorney is actually of the donor or not. 15. Besides this, the publication of an advertisement almost 8 months after the alleged execution of so-called Power of Attorney and almost 8 months after the sale-deed was executed, justifies proper and complete investigation. 15.1. On this count, it is relevant to note that the so-called Power of Attorney was allegedly executed on 7-1-2010 and strength of such disputed Power of Attorney, the sale-deed came to be executed on 12-1-2010, whereas the advertisement in connection with the disputed Power of Attorney was published on 25-9-2010. 15.2. In these circumstances and more particularly in absence of sufficient and proper material, it would neither be just nor proper for the Court to record any conclusion, rather it would be premature for this Court to record any conclusion. 15.3. It has been submitted that the Investigation Officer has yet to collect specimen of signature/thu....
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.... go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed....Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case.... If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. (Emphasis supplied) 16.1. In the case between Dr. Monika Kumar v. State of U.P., AIR 2008 SC 2781, the Hon'ble Apex Court has observed, with regard to jurisdiction under Sec. 482, that : 30. We may reiterate and emphasise that the powers possessed by the High Court under Sec. 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 princ....
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....at this stage. 17. At this stage, it would be profitable to refer to recent decision by the Hon'ble Apex Court in case between Rajiv Thapar v. Modern Lal Kapoor, 2013 (3) SCC 330, wherein the Hon'ble Apex Court has observed that : 29. The issue being examined in the instant case is the jurisdiction of the High Court under Sec. 482 Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Sec. 482 Cr.P.C., at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Sec. 482 Cr.P.C. the High Court has to be fully satisfied that the material produced by the accused is such that would lead to th....
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....wer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Sec. 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused. 17.1. As observed by Hon'ble Apex Court, the powers vested in the High Court under Sec. 482 of the Code, when exercised, have far-reaching consequences, most important being the consequence that it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence, and that therefore, the exercise of the said powers should be with utmost caution, care and circumspection. 17.2. The material relied on by the accused to justify the request should be such which would rule out and displace the assertions contained in the charges levelled against the accused and it should be based on indubitable facts and of such character which would overrule the ver....
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....s 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 time, 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. (See: G. Sagar Suri v. State of U.P., 2000 (2) SCC 636 and Indian Oil Corporation v. N.E.P.C. India Ltd., 2006 (6) SCC 736). (Emphasis supplied) 19.2. In this context, reference may also be made to the observations by Hon'ble Apex Court in Paragraph No. 9 in the decision in the case of Mahesh Choudhary v. State of Rajasthan, 2008 (4) SCALE 85, which reads thus : 9. Propositions of law which emerge from the said decision are : (1) The High Court ordinarily woul....
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....17, this Court held : There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed. 12. Again in M. Krishnan v. Vijay Singh, (Criminal Appeal No. 1028 of 2001 decided on 11-10-2001) this Court held that while exercising powers under Sec. 482 of the Code, 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 is always some element of civil nature. In a case where the accused alleged that the transa....
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....: 8....... But at the same time, 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. (See: G. Sagar Suri v. State of U.P., 2000 (2) SCC 636, and Indian Oil Corpn. v. N.E.P.C. India Ltd., 2006 (6) SCC 736. 31. In R. Kalyani v. Janak C. Mehta, 2009 (1) SCC 516, after referring to the decisions in Hamida v. Rashid, 2008 (1) SCC 474 and State of Orissa v. Saroj Kumar Sahoo, 2005 (13) SCC 540, this Court eventually culled out the following propositions : 15. Propositions of law which emerge from the said decisions are : (a) 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. (b) For the said purpose the Court, save and except, in very exceptional circumstances, would not look to any document relied upon by the defence. ....