Criminal Misc. No. M-21455 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-21455 of 2008 Date of Decision: 18.02.2010 1. Devinder Singh Chaudhry (In complaint mentioned as Davinder Chaudhary) son of Sh. Rai Bahadur Lal Chand, r/o H. No. 36, Sector 5, Chandigarh. 2. Mrs. Kanta Dogra, wife of Late Sh. Rajinder Dogra, r/o H. No. 4, Sector 5, Chandigarh. 3. Capt. N.K. Dawar, r/o R-285, Greater Kailash-1, New Delhi. 4. P.H. Vaishnav r/o H. No. 81, Sector 10-A, Chandigarh. ... Petitioners Versus 1. Virender Singh son of Sh. Davinder Singh, r/o Dabra, District Hisar. 2. State of Haryana through Advocate General, Haryana, Chandigarh. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Cheema, Senior Advocate, with Mr. K.S. Nalwa, Advocate, for petitioners No. 2 to 4. Mr. Naresh Parbhakar, Advocate, for the complainant/respondent No. 1. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for respondent No. 2 – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Misc. No. M-21455 of 2008 2 complaint case No. 616/1, dated 15.12.07, under Sections 193, 195, 197, 500 and 506 read with Section 34 IPC, titled as, 'Virender Singh Vs. Davinder Chaudhary and others', pending in the Court of Chief Judicial Magistrate, Sonepat (Annexure P5), the summoning order dated 11.06.08 (Annexure P10), whereby, the petitioners, were summoned, under Sections 500 and 506 read with Section 34 IPC, and all the subsequent proceedings, arising out of the same, has been filed by the petitioners. 2. The facts, in brief, are that, petitioner No. 1 (now deceased), was the father of the complainant and was one of the most influential and richest persons of India and Chairman and Chief Managing Director of the Industrial Cable Limited Company, Rajpura, Punjab and other concerns of industrial company, whereas, petitioners No. 2, 3 are Directors of the Industrial Cable Limited Company, Rajpura, whereas petitioner No. 4 (now deceased) was the Director thereof. It was stated that petitioner No. 1, was involved with Sh. Sukhram, MP, in a case, under Sections 120-B IPC, 13(2) read with Section 13(1)(d) and Sections 7 and 12 of the Prevention of Corruption Act, 1988, which was widely reported by media, in news, and is facing trial, in the Special Court of CBI, at Patiala House, Delhi. It was further stated that the complainant is the real son of petitioner No. 1, and, as such, has got a coparcenary right, in the ancestral business and property. It was further stated that, however, when the complainant, demanded his share, from his father, he flatly refused to give the same to him. It was further stated Criminal Misc. No. M-21455 of 2008 3 that the complainant, being the real son of petitioner No. 1, was fully aware of his (father's) illegal activities. It was further stated that, on one occasion, the complainant accompanied petitioner No. 1, his father, to give a bribe of Rs. 50 lacs, to a former Director of the CBI, in lieu of changing an envelope, which contained the amount of bribe paid to Sh. Sukhram. It was further stated that the complainant, wanted to make a statement, before the CBI, with regard to the aforesaid episode, but he was restrained by the petitioners, on the ground that, if he dared to do so, he would be falsely involved in the criminal cases. It was further stated that, as such, the complainant, was involved, in case FIR No. 28 of 2003, P.S. Kharkhoda, on the ground, that he had executed a sale deed by way of impersonation, whereas, he had got no concern with the same. It was further stated that the Police, did not take any action, against the complainant, in the aforesaid FIR. However, the matter was taken up by it, after a lapse of two years, at the instance of the petitioners, as and when, he (complainant) demanded his share from them. It was further stated that Ajit Singh, ASI, accused No. 7, at the instance of petitioner No. 1, started harassing the complainant, and, as such, fabricated the record, stating therein, that he (complainant) was a proclaimed offender, in eight cases. It was further stated that, on account of the aforesaid act of the accused, the complainant, felt ashamed and guilty. It was further stated that, on inquiry, the complainant, came to know, that accused Nos. 1 to 6 spread a rumor among the workers and other officials of the Company, regarding his (complainant's) Criminal Misc. No. M-21455 of 2008 4 involvement, in false cases, which lowered down his status and reputation, in their estimation. It was further stated that even the mother of the complainant also neglected him, declaring him fraud, cheater and proclaimed offender. 3. It was further stated that, on 18.10.97, the complainant alongwith other people came to attend a criminal case, titled as, 'State Vs. Virender', bearing FIR No. 58, under Sections 120-B, 420, 467, 468 and 471 read with Section 34 IPC, in the Court of Judicial Magistrate 1st Class, Sonipat, where, accused Nos. 1 to 6 were also standing and started calling him bad names as Cheater, Bhagora, Natwarlal, Fraud etc. etc. and also declared that he cheated many persons, in India, besides them. It was further stated that the complainant, was even insulted, in the presence of Vijay Sansanwal and other persons. It was further stated that the accused also taunted him, by saying that he was a fraud and had cheated the Company. It was further stated that, even accused No. 7, threatened to kill the complainant, in a false encounter. It was further stated that, as such, the accused, in conspiracy with each other, tarnished the reputation of the complainant. Ultimately, the aforesaid complaint was filed. 4. After recording the preliminary evidence, the trial Court, summoned the accused, for the offences, punishable under Sections 500 and 506 read with Section 34 IPC. 5. Feeling aggrieved, the instant petition, was filed by the petitioners. 6. I have heard the Counsel for the parties, and, have gone Criminal Misc. No. M-21455 of 2008 5 through the documents, on record, carefully. 7. The Counsel for the petitioners, submitted that, during the pendency of the petition, Devinder Singh Chaudhary, petitioner No. 1, and P.H. Vaishnav, petitioner No. 4, died. He further submitted that petitioner No. 2 Kanta Dogra, is aged about 88 years. He further submitted that the petitioners, are non-acting Directors of the company. He further submitted that Virender Singh, complainant/respondent No. 1, is the son of Devinder Singh Chaudhary, petitioner No. 1 (since demised). He further submitted that the complaint, was a counter-blast, to the FIR P1, which was registered, against respondent No. 1 Virender Singh, at the instance of his father Devinder Singh Chaudhary. He further submitted that, in the complaint, Devinder Singh Chaudhary, did not name Virender Singh, respondent No. 1, but, in the supplementary statement, during Police inquiry, his name cropped up, as accused, on 15.09.06, for the first time for committing forgery of documents. He further submitted that, with a view to wreck vengeance against his father Devinder Singh Chaudhary, and the other petitioners he filed the present complaint. He further submitted that the allegations, contained in the complaint, were completely vague and improbable. He further submitted that, no inquiry, was got conducted, by the Court concerned, under Section 202 Cr.P.C, knowing fully well, that the accused, were residents of the place falling beyond its jurisdiction. He further submitted that, since the complainant/respondent No. 1, was having malice, against his father Criminal Misc. No. M-21455 of 2008 6 Devinder Singh Chaudhary, he levelled absurd allegations, against him, as also the other petitioners, being the non-acting Directors. He further submitted that the complaint, was filed with malafide intention. He further submitted that, if the complaint alongwith the summoning order and the subsequent proceedings, are allowed to continue, the same would amount to sheer abuse of the process of the Court. 8. On the other hand, the Counsel for the respondents submitted that the allegations, contained in the complaint, are not vague. They further submitted that the allegations, contained in the complaint, constituted the offences. They further submitted that, after the preliminary evidence, was led, the Court below, applied its mind, to the same, and summoned the accused, for the offences aforesaid. They further submitted that the other documents, placed by the petitioners, on record, could not be taken into consideration. They further submitted that, at the time of decision of the petition, under Section 482 Cr.P.C., the disputed facts, could also not be decided. They further submitted that the complaint, was not a counter-blast, to the FIR, which was got registered, on 10.05.03, as the complaint, was filed, in the year 2007. They further submitted that, no revision, was filed, against the summoning order. They further submitted that the complaint, the summoning order and the subsequent proceedings, arising out of the same, are not abuse of the process of the Court. 9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered Criminal Misc. No. M-21455 of 2008 7 opinion, the petition, is liable to be accepted, 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 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 Criminal Misc. No. M-21455 of 2008 8 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 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 Criminal Misc. No. M-21455 of 2008 9 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. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon Criminal Misc. No. M-21455 of 2008 10 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. 10. 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. It is, no doubt, true that, if the bare allegations, contained in the FIR or the complaint, constitute the offence, the Court, cannot direct the quashing of the same, until and unless, it comes to the conclusion, that the allegations, were absurd or vague or that the same, had been made, just with a view to wreck vengeance or out of spite or personal malice. In the complaint (Annexure P5), the quashing whereof, has been sought, in para No. 5, it was, in clear-cut terms stated, that the complainant/respondent No. 1, was falsely got involved, by the accused, in case FIR No. 58 of 2003, P.S. Kharkhoda. In that FIR, the name of the complainant/respondent No. 1, was not mentioned. However, for the first time, in the supplementary statement, dated 15.09.06, the name of the complainant/respondent No. 1, as an accused cropped up. It was found that, he impersonated his father i.e. petitioner No. 1 (since demised), and forged the sale deed of the property, and, thus, committed fraud with him. According to the allegations, contained in the complaint, when this FIR, was pending and the complainant/respondent No. 1, went to attend the Court, all the accused, abused him in filthy language 'cheater', 'bhagora', 'natwarlal' Criminal Misc. No. M-21455 of 2008 11 and 'fraud'. The allegations, on the face of it, appeared to be vague and absurd. As stated above, the name of the complainant/respondent No. 1, for the first time, cropped up in the FIR, in 2006. The complaint, was, thus, apparently a counter-blast to the FIR, which was got registered, against the complainant/respondent No. 1. The complaint was apparently filed, out of personal spite and to wreck vengeance, against his father i.e. petitioner No. 1 (since demised) and the remaining petitioners, non-acting Directors of the Company. The complaint was attended with malafides. This case falls within one of the categories, depicted in State of Haryana and others' case (supra). Continuation of complaint, the summoning order, and the subsequent proceedings, arising out of the same, would, thus, amount to sheer abuse of the process of the Court. The same are, thus, liable to be quashed. 11. Since, the accused, in the complaint, referred to above, belonged to different places, other than Hisar i.e. outside the jurisdiction of the concerned Court, it was obligatory on the said Court, in view of the amended provisions of Section 202 (1) Cr.P.C., to get an independent inquiry conducted, so as to reach the correct conclusion. The amended provision of Section 202 (1) Cr.P.C., are mandatory in nature. This provision, has been amended, just with a view to save the innocent persons, residing outside the jurisdiction of the Court, from being dragged, in false criminal cases. No such mandatory inquiry, was got conducted, by the Court concerned. On account of this reason, the summoning order is illegal. Criminal Misc. No. M-21455 of 2008 12 12. For the reasons recorded above, Criminal Misc. No. M- 21455 of 2008, is accepted. Complaint case No. 616/1, dated 15.12.07, under Sections 193, 195, 197, 500 and 506 read with Section 34 IPC, titled as, 'Virender Singh Vs. Davinder Chaudhary and other', pending in the Court of Chief Judicial Magistrate, Sonepat (Annexure P5), the summoning order dated 11.06.08 (Annexure P6), whereby, the petitioners, were summoned, under Sections 500 and 506 read with Section 34 IPC, and all the subsequent proceedings, arising out of the same, are quashed, qua the petitioners. 13. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned. 18.02.2010 (SHAM SUNDER) Amodh JUDGE