Criminal Misc. No. M-30730 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-30730 of 2009 Date of Decision: 30.04.2010 1. Pawan Kumar alias Pappu alias Kala son of Hari Ram, r/o village Main Bazar Dhanaula Kalan, Tehsil and District Barnala. 2. Darshan Singh Dhindsa son of Pritam Singh, r/o village Bhathla Road, Dhanaula, Tehsil and District Barnala. ... Petitioners Versus 1. State of Haryana. 2. Suresh Kumar son of Randhir Singh, Caste Jatt, r/o village Bakarwala, P.S. Nanglohi, Delhi. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.S. Jatana, Advocate, for the petitioners. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for respondent No. 1 – State. Mr. J.C. Malik, Advocate, for respondent No. 2/complainant. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 227, dated 11.06.09, under Sections 120-B, 406, 420, 465, 467, 468, 471, and, 506 IPC, P.S. Samalkha, District Panipat, and, all the subsequent proceedings, arising out of the same, has been filed by the petitioner, on the basis of compromise (Annexure P2). Criminal Misc. No. M-30730 of 2009 2 2. The facts, in brief, are that, the complainant/respondent No. 2, alongwith his brother-in-law Rishi Dev, resident of Nangal Kalan, District Sonepat, with a view, to purchase 13 acres of land, behind Arpana Hospital, Smalkha, went to one Randhir Singh, property dealer, who took them, to one Surinder son of Sewa Singh, resident of Kutail. On reaching there, they came to know that, Surinder, had already sold the land, to one Bharpoor Singh son of Babu Singh, resident of Kamalpur, Sangrur, Punjab. After some days, it was informed by Randhir Singh, property dealer, to the complainant/respondent No. 2, that the deal, with regard to the sale of land, had already been struck with Master Ran Singh, resident of Baroli, through Nakul, resident of Assandh, and, Karamjeet, resident of Panipat, property dealers. Thereafter, the complainant, his brother- in-law and Randhir Singh, property dealer, went to Master Ran Singh, resident of Baroli, who told them, that he was the owner of the land, as he had purchased the same, from Bharpoor Singh. After negotiations, between Master Ran Singh and the complainant/respondent No. 2, with regard to the sale of 13 acres land, a deal, was struck @ Rs. 30,01,000/- per acre, and, the earnest money, to the tune of Rs. 1 crore, was agreed to be paid by the complainant. Out of the total amount of the earnest money, Rs. 60 lacs, were offered, to be paid, by the complainant, in the first instance, and the remaining amount of Rs. 40 lacs, was to be paid, after three days. However, Master Ran Singh, told the complainant/respondent No. 2, to pay Rs. 40 lacs, as the remaining Criminal Misc. No. M-30730 of 2009 3 amount of earnest money, to Surinder, resident of Kutail. Thereafter, the parties, went to the office of Randhir Singh, property dealer, where, Master Ran Singh, told the complainant, to get executed an agreement, in relation to the aforesaid land, from Bharpoor Singh, the previous owner thereof, as he (Master Ran Singh), at the time of purchasing the same, had not got executed the agreement from him (Bharpoor Singh). Consequently, on 15.09.08, Master Ran Singh and Bharpoor Singh, came to the office of Randhir Singh, property dealer, where the agreement, with regard to 13 acres of land, was executed, between the parties, as a result whereof, the complainant, paid a sum of Rs. 60 lacs, as earnest money, to him (Master Ran Singh), in the presence of Randhir Singh and his brother-in-law Rishi Dev. The remaining amount of Rs. 40 lacs, as earnest money, was paid, on 17.09.08, to Surinder, resident of Kutail, in the presence of Randhir Singh, property dealer, Master Ran Singh, Bharpoor Singh, Pappu @ Kala and Darshan Singh. It was stated that, at the relevant time, Vicky, Karamjeet, Tejbir and Nakul, the other property dealers, were also present there, who made him (complainant) believe, that the land, was free from all encumbrances and it finally became the ownership of Master Tara Singh, after having passed through, various deals, struck between its previous sellers and the purchasers, from time to time. It was further stated that the sale deed of the land, in dispute, was agreed to be executed, on 30.11.08. However, when the complainant, went to get executed the same, Master Tara Singh, told him, that he could not Criminal Misc. No. M-30730 of 2009 4 execute the same, and, as such, he would have to talk to Bharpoor Singh. Thereafter, the complainant, went to Bharpoor Singh, who by naming Vicky, property dealer, Pappu @ Kala, and, Darshan, told him, that they would get executed the sale deed, in relation to the land, in dispute, with Surinder, resident of Kutail. After due inquiry, the complainant, came to the know, that said Surinder, had not sold his land, to anyone. It was further stated that, as such, the complainant, was cheated and deprived of his hard earned money, to the tune of Rs. 1 crore. It was further stated that, the complainant, tried his best, to contact the aforesaid persons, but in vain. It was further stated that, on 25.02.09, Randhir Singh, property dealer, called Surinder, Vicky, Bharpoor Singh, Master Ran Singh, Karamjeet, Nakul, Darshan Singh, Pappu @ Kala and Sarpanch, in his office, at Samalkha, where, they flatly refused, either to get executed the sale deed, in respect of the land, in dispute, in favour of the complainant, or return the earnest money, to the tune of Rs. 1 crore. It was further stated that, the aforesaid persons, also threatened the complainant, that he would be got killed. Left with no other alternative, the aforesaid FIR, was got registered, against the accused. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioners, submitted that, the parties, have arrived at a compromise, which is Annexure P2. He further submitted that, as per the compromise, now there remains, no Criminal Misc. No. M-30730 of 2009 5 dispute, between the parties. He further submitted that, with a view to prevent the abuse of process of Court, and, in the interest of justice, the FIR, referred to above, and all the subsequent proceedings, arising therefrom, be quashed. 5. On the other hand, the Counsel for respondent No. 1, submitted that, the FIR and the subsequent proceedings, arising out of the same, cannot be quashed, as the compromise, is not signed, by Pawan Kumar, petitioner, and, as such, it cannot be said, to be a legal and valid composition deed, in the eye of law. He further submitted that there can only be a compromise between two or more persons. He further submitted that the offences, under Sections 465, 467, 468, and, 471 IPC are non-compoundable and such compromise deed could not be accepted. He further submitted that, if, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete chaos in the society. 6. The Counsel for the complainant/respondent No. 2, however, submitted that compromise with the petitioners has been arrived at. 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 the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be Criminal Misc. No. M-30730 of 2009 6 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 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 Criminal Misc. No. M-30730 of 2009 7 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 Criminal Misc. No. M-30730 of 2009 8 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 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 Criminal Misc. No. M-30730 of 2009 9 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 of the instant case, let us see, as to whether, the petitioners, deserve the indulgence of the Court or not. There are serious allegations, against the accused- petitioners, that they in connivance with their co-petitioners (non- applicants), in the first instance, defrauded the complainant, to the tune of Rs. 1 crore, by offering to sell 13 acres of land, at Samalkha, and, secondly, refused to get executed the sale deed, in respect thereof, and return the earnest money, as also threatened the complainant to get him killed. Even the ownership of the land, in dispute, in relation to the persons who agreed to sell the same was not proved. In other words they were not the owners thereof, and, as such, were incompetent to execute the agreement to sell. The mere fact that, the petitioners, entered into the compromise (Annexure P2) with the complainant, that too, when the same, is not signed, by Pawan Kumar, petitioner, did not absolve them of their criminal liability. They not only allegedly cheated the complainant, but also deprived him of his hard earned money. The provisions of Section 482 of the Cr.P.C. cannot be invoked for quashing the FIR relating to such serious offences. If, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete chaos in the society. Even otherwise, the offences, punishable under Criminal Misc. No. M-30730 of 2009 10 Sections 120-B, 465, 467, 468, and, 471 IPC, allegedly committed by the accused-petitioners, are against the public policy and society. In the present case, the offences, punishable under Sections 120-B, 465, 467, 468, and, 471 IPC, are non-compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non- compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. In Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in the proceedings, under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to Criminal Misc. No. M-30730 of 2009 11 which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the Criminal Misc. No. M-30730 of 2009 12 jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." 29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal Criminal Misc. No. M-30730 of 2009 13 proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 9. In view of the principle of law, laid down, in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar, created by Section 320 Cr.P.C. for the composition of offences, punishable under Sections 120-B, 465, 467, 468, and, 471 IPC. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then the crime will increase manifold, and the criminals will feel encouraged. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. 10. For the reasons recorded above, Criminal Misc. No. M-30730 of 2009, being devoid of merit, must fail, and the same Criminal Misc. No. M-30730 of 2009 14 stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned. 30.04.2010 (SHAM SUNDER) Amodh JUDGE