IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No. M- 925 of 2009 Date of decision: 22.7.2010 Lt.Colonel Prithvi Singh Chauhan and another ......Petitioners Vs. State of Haryana and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.N.S.Shekhawat, Advocate, for the petitioners. Mr.S.S.Mor, Sr.DAG, Haryana, for respondent No.1. Mr.G.S.Dhillon, Advocate, for respondent No.2. **** ORDER The present petition has been filed under Section 482 Cr.P.C. for quashing of complaint/protest petition filed by respondent No.2 (Annexure P3) as well as summoning order dated 21.4.2008 (Annexure P4) passed by JMIC, Ambala Cantt. whereby the present petitioners have been summoned under Sections 148, 149, 447, 427, 382, 506 IPC to face trial. Notice of motion was issued in this case on 13.1.2009. Learned counsel for the petitioners submits that a detailed investigation was conducted by the police after recording statements of various persons and on the basis of statements as well as other material it was found that no such occurrence had taken place. Learned trial Court had Crl.Misc. No. M- 925 of 2009 [2] wrongly taken into consideration the statements of three false witnesses and the investigation report has been ignored. The summoning order is totally a non-speaking as no evidence has been discussed as such. Learned counsel for the petitioners further submits that in this case the FIR was got registered by respondent No.2 as a counter blast to the complaint lodged by the petitioners with regard to illegal acts of respondent No.2. The FIR/complaint are totally mis-use of the process of the law. Petitioner No.1 and his mother filed a civil suit for declaration and the dispute is of civil nature and FIR has wrongly been registered. Respondent No.2 has based his whole claim only on the basis of a Will dated 4.4.1987 allegedly executed by the wife of respondent No.2. His wife was murdered on 18.2.2001 and the stamp papers were allegedly purchased on 1.8.2001. The Will is a forged and fabricated document which does not confer any right on respondent No.2. Respondent No.2 had concealed the material facts and has not approached the Court with clean hands and as such he is not entitled to any equitable relief from this Court. Mr.Shekhawat, learned counsel for the petitioners further submits that the petitioners were in continuing possession of the land in dispute since the time of their fore-fathers and respondent No.2 never cultivated the said land. The learned Assistant Collector IInd Grade inspected the spot during the pendency of the application filed by petitioner No.1 and he found the present petitioner No.1 in possession of the land in dispute. A spot Inspection Report was also prepared which clearly proves his possession. An Executive Appeal was filed by respondent No.2 for Crl.Misc. No. M- 925 of 2009 [3] correction of revenue record wherein the Commissioner Ambala has held that Girdawari has been properly and correctly entered in favour of petitioner No.1. Mr.Shekhawat also submits that even no offence is made out under Section 427 IPC as no wrongful loss or damage has been caused to the property of general public or any other person as the land in dispute was being cultivated and was under legal possession of the petitioners. Similarly no offence under Section 382 IPC is made out as the land belongs to the petitioners and there was no question of any theft. Even no offence under Section 447 IPC was made out as there was no question of any criminal trespass as the property in dispute was already in possession of the present petitioners. Mr.Shekhawat also submits that allegations in the complaint are highly improbable and unnatural as about 9000 bricks which were lying at the spot along with 22 bags of cement, 120 slabs and 21 wooden garders of 5 feet length, were taken away by the petitioners. These allegations are highly unbelievable as these items cannot be loaded in the single tractor-trolley. Mr. Shekhawat also submits that petitioner No.1 is more than 73 years of age whereas respondent No. 2 is more than 66 years of age. Petitioner No.1 is suffering from Parkinson disease and even cannot walk properly and has 50% disability and the allegations levelled against the petitioners are impracticable and improbable and the same cannot be believed. Learned counsel for the petitioners has also relied upon the judgment of Hon'ble the Apex Court in Dhariwal Tobaco Products Ltd. and others v. State of Maharashtra and another 2009 (1) R.C.R. Crl.Misc. No. M- 925 of 2009 [4] (Criminal) 677 to support his contention. Written statement on behalf of respondent No.2 i.e. Col. K.C.Kingh (Retd.) has been filed which is on record. A preliminary objection has been raised with regard to maintainability of the petition as the petitioners have not availed the alternative remedy of appeal and Crl.Revision under Section 397 Cr.P.C. The impugned order is appealable as well as revisable and the present petition is not maintainable. Mr.Dhillon, learned counsel for respondent No.2 submits that the present petition is also liable to be dismissed on account of concealment of material facts and mis-statement of facts and other orders passed by the courts below in various cases. Mr. Dhillon further submits that after registration of FIR, a detailed inquiry was conducted by Assistant Superintendent of Police and he also recorded the statements of witnesses from both sides and submitted a detailed report. The petitioners demolished the wall of respondent No.2 and took away all the construction material from the spot. Co-accused Chander Pal was also arrested by the local police who remained in police custody and later on sent to judicial custody and subsequently bailed out. Thereafter, an inquiry was conducted by an officer below the rank of Assistant Superintendent of Police which is immaterial and has to be ignored. Mr.Dhillon also submits that the anticipatory bail filed by the petitioners along with other co-accused was also dismissed by passing a detailed order on 21.1.2005. Later on the High Court granted bail and the petitioners were directed to Crl.Misc. No. M- 925 of 2009 [5] join investigation. Thereafter a written compromise was arrived at between petitioners and respondent No.2 . As per compromise, the petitioners had to be given 1/3rd share from the Estate left by Raja Ram Singh and his wife Mrs.Ajmer Kanwar to the children of respondent No.2. The petitioners backed out from that commitment. Mr.Dhillon also submits that in response to cancellation report submitted by the local police, respondent No.2 filed a protest petition under Sections 148/149/447/427/382/506 IPC. The learned trial Court passed a detailed order dated 21.4.2008 and summoned the petitioners along with other co-accused for the aforesaid offences. Mr.Dhillon has relied upon the judgments of Hon'ble the Apex Court in Sunita Jain Vs. Pawan Kumar Jain and others 2008(1) R.C.R.(Criminal) 954, Balkar Singh Vs. Jagdish Kumar and others 2005(2) R.C.R. (Criminal) 50, Ram Swarup Vs. Mohd.Javed Razack and another 2005 (2) RCR (Criminal) 55, Kamaladevi Agarwal vs. State of West Bengal 2001(4) RCR (Criminal) 522 and this Court in S.M.Lamba Vs. Suresh Kumar and another 2005(3) RCR (Criminal) 468 and Andhra Pradesh High Court in Girish Sarwate vs. State of A.P. And another 2005(1) RCR (Criminal) 758 to support his contention. I have heard the arguments of learned counsel for the parties and have also gone through the impugned order. Admittedly, petitioner No.1 and respondent No.2 are real brothers-in-law. Petitioner No.1 is brother of wife of respondent No.2. There is a dispute with regard to ownership of the land in dispute measuring 88 kanals 15 marlas situated in the revenue estate of village Crl.Misc. No. M- 925 of 2009 [6] Kambas, Tehsil Barara, District Ambala. Initially that land was owned by late Shri Kanwar Raja Ram Singh who transferred the land by way of sale deed dated 25.9.1970 in favour of Pratha, wife of respondent No.2 who made a registered Will with regard to that land in dispute and also of immovable property in favour of her husband i.e. respondent No.2. Smt. Pratha was murdered and the property was transferred in the name of respondent No.2. Civil, revenue and criminal proceedings were initiated with regard to that very land. FIR no. 6 dated 12.1.005 under Sections 148/149/447/427/382/506 IPC was got registered on the basis of complaint made by respondent No.2 against the petitioners and others. The matter was investigated by the police. DSP, Naraingarh conducted the inquiry who found the case to be falsely registered against the petitioners. Thereafter , SP, Ambla ordered the SHO of Police Station, Barara to conduct investigation who found the allegations false and reported that no such occurrence had taken place. On 24.4.2005, cancellation report was submitted by the police and thereafter a complaint/protest petition was filed against the cancellation report before the JMIC, Ambala Cantt. which was allowed and the impugned summoning order was issued by holding that a prima facie case under Sections 148/149/447/427/382/506 IPC is made out. The impugned summoning order dated 21.4.2008 is subject matter of challenge in the present petition which has been challenged primarily on the ground that a detailed inquiry was conducted by the police in the FIR and the petitioners were found innocent and the present complaint is totally an abuse of the process of law just to show possession and counter- Crl.Misc. No. M- 925 of 2009 [7] blast to the other litigation pending between the parties. Perusal of the impugned order reveals that the complainant while appearing as CW-1 has reiterated the very facts /allegations as mentioned in the protest petition on oath in his statement and the same has been corroborated by the statements of CW-2 and CW-3 Vishav Pal Singh and Jagdip Singh respectively. There is nothing in the impugned order to show that some additional evidence has come out which has not been investigated by the police. The statement of the complainant is merely reiteration of earlier statement which has been the subject-matter of investigation by the police on which basis the petitioners were found innocent. Simply by mentioning that a prima facie case has been made out under Sections 148/149/447/427/382/506 IPC is not sufficient to summon the accused. Long litigation is pending between the parties for the last several years and the trial Court has not mentioned anything with regard to the earlier investigation conducted by the police. The present FIR was got registered by respondent No.2 as a counter-blast to the complaint lodged by the petitioners with regad to illegal acts of respondent No.2. It has also come on record that petitioner No.1 is more than 73 years of age and suffering from Parkinson disease and even cannot walk properly due to 50% disability. Disability certificate issued by Command Hospital, Western Command, Chandimandir has also been annexed with the petition. As per complaint of respondent No.2, his wife had bequeathed property in his favour by virtue of a Will as being the owner of the land in dispute by way of sale deed dated 25.9.1970. A civil suit to challenge that Crl.Misc. No. M- 925 of 2009 [8] Will was filed by mother of petitioner No.1 that the petitioners were owners in possession of the land in dispute and the Will dated 25.9.1970 in favour of Smt Pratha was illegal, null and void and entries in the revenue record were wrong. The petitioners have claimed to be owners in possession of the land in dispute as being in continuous possession since the time of their forefathers. As per case of the petitioners, the stamp papers were purchased on 1.8.2008 whereas Smt.Pratha was murdered on 18.2.2001 which clearly shows that the Will was forged and fabricated. These material facts were concealed by respondent No.2 complainant in the complaint. Had these facts were in the knowledge of the trial Court, the petitioners would not have been summoned. Even as per report of the Assistant Collector IInd Grade, Barara the land was inspected at the spot and petitioner No.1 was found to be in possession. There is other material on record which shows the possession of the petitioner over the land in dispute. Without taking into consideration all these facts, the trial Court has summoned the petitioners. Once the petitioners are owners in possession of the land in dispute, the question of theft does not arise and moreover the allegations in the FIR seem to be highly improbable as no prudent person would like to commit any such offence when long litigation is pending between the parties for last several years. The objection raised by the learned counsel for respondent No.2 that the present petition is not maintainable as an alternative remedy of filing revision which was available to him, has not been availed, is not sustainable. The contention with regard to alternative remedy has been Crl.Misc. No. M- 925 of 2009 [9] dealt with by Hon'ble the Apex Court in Dhariwal Tobaco Products' case (supra), wherein it has been held that the High Court has powers under Section 482 Cr.P.C. to quash the proceedings if there is an abuse of process of Court and ends of justice require. Moreover, the power of the High Court can be exercised not only in terms of Section 482 Cr.P.C. but also in terms of Section 483 thereof. Duty of the High Court is to exercise continuous superintendence over Courts of Judicial Magistrates. Under Section 482 Cr.P.C High Court has power over the Courts of Judicial Magistrates subordinate to it just to ensure that there is an expeditious and proper disposal of cases by such Magistrates. In view of the law laid down by Hon'ble the Supreme Court in Dhariwal Tobaco Products' case (supra), there is no merit in the contention raised by learned counsel for respondent No.2. Hon'ble the Supreme Court in Dhariwal Tobaco Products' case (supra) has held that whenever the High Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of Court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so. Hon'ble the Apex Court in Central Bureau of Investigation v. Ravi Shankar Srivastava [2006] 7 SCC 188 while observing that the High Court in exercise of jurisdiction under Section 482 Cr.P.C. does not function either as a court of appeal or revision, held as under: “ Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Crl.Misc. No. M- 925 of 2009 [10] Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possible arise. The Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle “ quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While Crl.Misc. No. M- 925 of 2009 [11] exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdcition under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid don in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it si permisible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Crl.Misc. No. M- 925 of 2009 [12] In view of the detailed discussion made above, it is clear that the impugned summoning order has been passed without application of mind and without taking into consideration various factors and long litigation between the parties. Moreover, there is no fresh evidence before the Court to summon the petitioners except the statements of the witnesses which are merely reiteration of the earlier statements which have already been investigated by the police. For the reasons recorded above, there is merit in the submissions made by the learned counsel for the petitioners. The petition is allowed, the complaint/protest petition filed by respondent No.2 (Annexure P-3) as well as summoning order dated 21.4.2008 (Annexure P-4) are quashed. (DAYA CHAUDHARY) JUDGE Dated: 22.7.2010 raghav