Crl. Misc. No. M- 28527 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 28527 of 2009 Date of decision. 06.05.2010 Harnek Singh s/o Gurbachan Singh, r/o Village Balara, Tehsil and District Ludhiana. ....... Petitioner Versus Lakhbir Singh s/o Harnek Singh, r/o 123, Ward No.9, Amloh, District Fatehgarh Sahib. ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Sunil Chadha, Advocate for the petitioner. Mr. G.S. Punia, Advocate for the respondent. -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing Criminal Complaint No. 104/1, dated 2.12.2008(Annexure P-1), pending in the Court of Judicial Magistrate Ist Class, Ludhiana, for 26.10.2009, summoning order dated 15.7.2009 ( Annexure P-2), as also the subsequent proceedings arising therefrom, has been filed by the petitioner . 2. The accused (now petitioner) is the real father of the complainant (now respondent). Earlier a civil suit titled as Lakhbir Singh and another was filed by Lakhbir Crl. Misc. No. M- 28527 of 2009 2 Singh, complainant, through his mother because at that time, he was minor , seeking relief of declaration to the effect that he alongwith his mother were the owners in possession of land measuring 15 kanals 12 marlas, comprising Khewat No.206, Khatauni No.246, Khasra No.37/3(8-0), 4(7-12), situated in the revenue estate of village Balara, Tehsil and District Ludhiana, as per jamabandi for the year 1977-78 and were also co-owners to the extent of 250 square yards of plot, which was 1/4th share of the same, situated in village Gill, Tehsil and District Ludhiana. That suit was decreed by the Court of Senior Sub Judge, Ludhiana, vide judgment dated 20.01.1982. It was further stated that the complainant and his mother also filed an application under Section 125 of the Code of Criminal Procedure, against the accused (now petitioner). That petition was withdrawn by the complainant (now respondent) and his mother from the Court concerned because a compromise was arrived at between the parties. According to that compromise, accused (now petitioner), made a statement in the Court that mutation regarding the land, in respect of the decree, was sanctioned in favour of the complainant and his mother, and he( petitioner ) was bound to give ½ of it to the complainant and his mother, and he also agreed to give ½ Crl. Misc. No. M- 28527 of 2009 3 share in the plot. It was further stated that contrary to the aforesaid decree, and the statement made in the Court, he (accused) sold the plot, referred to above to Smt. Kamaljit Kaur wife of S. Balwinder Singh for a handsome sale consideration. It was further stated that the petitioner was not having any sale-able right, therein, as the said plot, was the ownership of the complainant and his mother. The complainant approached the petitioner for cancellation of the sale deed, but to no avail. He, on the other hand, threatened the complainant with dire consequences. Accordingly, a criminal complaint for the offences, punishable under Sections 406, 419, 420 and 506 of the Indian Penal Code was filed. 3. The trial Court, after recording the preliminary evidence, summoned the petitioner as an accused, for the offences, punishable under Sections 406, 419 and 420 of the Indian Penal Code. 4. I have heard the Counsel for the parties, and have gone through the documents on record carefully. 5. The Counsel for the petitioner has submitted that from the bare reading of the allegations, contained in the complaint, no offence under Section 420 of the Indian Penal Code was made out. It was further submitted by him that even, if, it was assumed that the offence, punishable Crl. Misc. No. M- 28527 of 2009 4 under Section 420 IPC, was made out, then the complaint with regard to the same, was not filed within the period of limitation and hence no cognizance could be taken. It was further submitted by him that even, if, as per the decree, the complainant and his mother were declared to be the owners of ½ share of the plot, sale thereof by the petitioner, did not constitute any offence. It was further submitted by him that the petitioner was ready to compensate the respondent(complainant), he being his son, in respect of the sale of the plot, in question. He further submitted that, as such, the complaint, summoning order and the subsequent proceedings, are nothing, but a complete abuse of the process of Court and law. 6. On the other hand, the Counsel for the respondent/complainant, has submitted that once the decree was passed, in favour of the complainant, and his mother, in respect of ¼ share of the plot and in his statement, made before the Court, in a petition under Section 125 Cr.P.C., ½ share in the plot was given by the petitioner to the complainant and his mother, he was left with no title therein and, as such, by selling the same, representing himself to be the owner, he cheated the complainant. He has further submitted that the allegations, contained in the complaint, clearly, Crl. Misc. No. M- 28527 of 2009 5 constituted the offences, punishable under Sections 420 and 506 of the Indian Penal Code. He has further submitted that the complaint, summoning order, and the subsequent proceedings, arising therefrom, could not be said to be sheer abuse of the process of 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 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 Crl. Misc. No. M- 28527 of 2009 6 cognizance of an offence, it is guided by the allegations, whether those allegations, set out in the complaint, or 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 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 Crl. Misc. No. M- 28527 of 2009 7 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 every 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 Crl. Misc. No. M- 28527 of 2009 8 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 allegations 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. The inherent powers, with which the Criminal Courts, are clothed are to make such orders, as may be necessary, for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts Crl. Misc. No. M- 28527 of 2009 9 of the instant case, let us see, as to whether, the petitioner deserves the indulgence of the Court or not. At the time of deciding the petition under Section 482 Cr.P.C., the Court is only required to, look into the allegations, contained in the complaint, as to whether, an offence, is constituted therefrom against the accused or not. What was the defence of the accused, is a matter of evidence. The plea of defence of the accused, at the time of deciding the petition under Section 482 Cr.P.C. cannot be taken into consideration. In the instant case, as per the decree dated 20.01.1982, the complainant and his mother were declared to the owners to the extent of ¼ share in the plot in question. In that suit, the petitioner was a party and he was bound by that decree. Even in petition under Section 125 Cr.P.C., the petitioner made a statement giving ½ share in the plot, as maintenance to the complainant and his mother. Under these circumstances, the petitioner was not having any title, in the plot, in question. Since the petitioner was not the owner of the plot, in question, but, on the other hand, complainant and his mother were the owners thereof, he (petitioner) by selling the same, cheated them. The allegations, contained in the FIR, therefore, clearly constitute the offences, punishable under Crl. Misc. No. M- 28527 of 2009 10 Sections 420 and 506 of the Indian Penal Code. The proceedings under Section 482 of the Code of Criminal Procedure, are summary in nature. The disputed facts, cannot be adjudicated upon, during the course thereof. The complaint, summoning order for the offences under Sections 420 and 506 IPC, and the subsequent proceedings, arising therefrom, cannot be said to be a sheer abuse of the process of the Court and law. The same are not liable to be quashed. 9. For the reasons, recorded above, the petition, being devoid of merit, as indicated above, must fail, and the same is dismissed. 10. Any observation, made, in this order, shall not be taken, as an expression of mind, on merits of the case. 10. The Registry is directed to comply with the order immediately by sending the copies of the judgment to the concerned Courts. May 06, 2010 (SHAM SUNDER) dinesh JUDGE