Criminal Misc. No. M-26667 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-26667 of 2009 Date of Decision: 12.08.2010 1. Surjit Kaur widow of Sh. Ajaib Singh; 2. Saranjit Kaur daughter of Sh. Ajaib Singh; 3. Baghel Singh son of Sh. Ajaib Singh; 4. Dalip Kaur wife of Sh. Bhagwan Singh; all residents of village Nagra, Tehsil Bhawanigarh, District Sangrur, Punjab. ... Petitioners Versus 1. State of Punjab. 2. Darshan Singh son of Sh. Bhajan Singh, resident of village Shanku, Tehsil Kharar, District Mohali, Punjab. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rahul Sharma, Advocate, for the petitioners. Mr. N. S. Panwar, Additional Advocate General, Punjab, for respondent No. 1 – State. Mr. G.S. Sandhawalia, Advocate, for respondent No. 2. * * * * SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 118 dated 30.05.09, under Sections 406, 420, 465, 467, 468, 471 and 120-B IPC, P.S. Bhawanigarh, District Sangrur, Punjab, and all the subsequent proceedings, arising therefrom, has been filed by the Criminal Misc. No. M-26667 of 2009 2 petitioners. 2. Manjit Singh (non-petitioner), executed an agreement to sell dated 25.03.09, in favour of the complainant/respondent No. 2, in relation to land, measuring 95 bighas 3 biswas, situated at village Nagra, District Sangrur, at the rate of Rs. 3,25,000/- per bigha. He was paid a sum of Rs. 50 lacs, as earnest money. It was stated that, Manjit Singh, had agreed to purchase the aforesaid land, by virtue of agreement to sell dated 09.01.09, from the petitioners, who were to execute the sale deed on or before 16.11.09. It was further stated that, on 29.05.09, Manjit Singh, called the complainant/respondent No. 2 and others, to village Nagra, for the extension of date for the execution of the sale deed. It was further stated that, Manjit Singh, on the pretext of extending the date for execution of the sale deed and for obtaining the signatures of the petitioners, fled from the spot. It was further stated that, Manjit Singh, took the agreement, from the complainant, pretending that, the women, had yet to sign the same. It was further stated that, Manjit Singh, alongwith other accused, thus, played fraud with the complainant. On the basis of the statement of the complainant/respondent No. 2, the FIR, was registered. 3. I have heard the counsel for the parties and have gone through the record carefully. 4. The Counsel for the petitioners, at the very outset, submitted that, Surjit Kaur, Saranjit Kaur, and, Dalip Kaur, petitioners No. 1, 2 and 4, respectively, have not been challaned, by the Investigating Agency, and, the petition, qua them, has become Criminal Misc. No. M-26667 of 2009 3 infructuous, and, the same be dismissed, as such. He further submitted that, Baghel Singh, petitioner No. 3, did not execute the agreement to sell, in respect of the land, in dispute, in favour of Darshan Singh, complainant/respondent No. 2. He further submitted that, if Manjit Singh, executed the agreement to sell, in favour of Darshan Singh, complainant/respondent No. 2, in respect of the land, in dispute, and, received a sum of Rs. 50 lacs, as earnest money, it was he, who could be said to have allegedly committed the offences. He further submitted that, since there was no privity of contract, between petitioner No. 3, and, complainant/respondent No. 2, he could not be held liable. He further submitted that, even otherwise, the allegations, contained in the FIR, only constitute a civil dispute, which has been converted into a criminal case. He further submitted that, no fraud, was played by Baghel Singh, petitioner No. 3, with the complainant/respondent No. 2. He further submitted that, in case, there was any breach of contract by Manjit Singh, then, the complainant, could resort to the other legal remedy of filing a suit for specific performance. He further submitted that continuation of the FIR and further proceedings, arising therefrom, would be nothing, but an abuse of the process of Court. 5. On the other hand, the Counsel for the respondents, submitted that, Baghel Singh, petitioner No. 3, in conspiracy with Manjit Singh, played fraud with the complainant/respondent No. 2. He further submitted that in this way Manjit Singh obtained a sum of Rs. 50 lacs as earnest money from the complainant, but, failed to Criminal Misc. No. M-26667 of 2009 4 execute the sale deed, in his favour. He further submitted that, the disputed questions of fact, cannot be adjudicated upon, in the proceedings, under Section 482 Cr.P.C. He further submitted that, it is the domain of the trial Court, to decide the disputed questions of fact, at the time of trial of the case. He further submitted that, the case, is fixed for framing of charge for 16.08.2010. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, qua Baghel Singh, petitioner No. 3, 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 Criminal Misc. No. M-26667 of 2009 5 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 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 Criminal Misc. No. M-26667 of 2009 6 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 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 Criminal Misc. No. M-26667 of 2009 7 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. 7. 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 may be stated here, that neither Baghel Singh, executed the agreement to sell, in favour of Darshan Singh, respondent No.2, nor, he received a sum of Rs. 50 lacs, as earnest money, from him. If he executed the agreement to sell, in respect of the land , in dispute, in favour of Manjit Singh, who further executed the agreement to sell, in favour of the complainant/respondent No. 2, and, obtained earnest money of Rs. 50 lacs, then, Baghel Singh, petitioner No. 3, could not be held liable for the alleged criminal liability of said Manjit Singh. Had there been privity of contract between Baghel Singh, petitioner No. 3, and, the complainant/respondent No. 2, the matter, would have been Criminal Misc. No. M-26667 of 2009 8 different. The offences, referred to above, are not constituted, against Baghel Singh, petitioner No. 3, as, he did not forge any document, nor, did cheat the complainant/respondent No. 2. In this view of the matter, continuation of the FIR and the subsequent proceedings, arising therefrom, against Baghel Singh, petitioner No. 3, would be nothing but an abuse of the process of Court, and, occasion injustice to him. Criminal Misc. No. M-26667 of 2009, thus, deserves to be accepted, qua Baghel Singh, petitioner No. 3. 8. For the reasons recorded above, Criminal Misc. No. M-26667 of 2009, is accepted, qua Baghel Singh, petitioner No. 3. FIR No. 118 dated 30.05.09, under Sections 406, 420, 465, 467, 468, 471 and 120-B IPC, P.S. Bhawanigarh, District Sangrur, Punjab, and all the subsequent proceedings, arising therefrom, are quashed, in relation to Baghel Singh, petitioner No. 3. 9. Criminal Misc. No. M-26667 of 2009, is dismissed, qua Surjit Kaur, Saranjit Kaur, and, Dalip Kaur, petitioners No. 1, 2 and 4, respectively, as having been rendered infructuous, in view of the submission, made by their Counsel. 10. 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, immediately. 12.08.2010 (SHAM SUNDER) Amodh JUDGE