Criminal Misc.No.M-37127 of 2009 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRIMINAL MISC.No.M-37127 of 2009 Date of Decision : February 26, 2010 Rakesh Garg ....Petitioner Versus State of Haryana .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.K.K.Gupta, Advocate, for the petitioner. Mr.Sukant Gupta, Additional AG, Punjab. Mr.Naresh Joshi, Amicus-Curiae for the Minor Girls. -.- -Whether Reporters of Local papers may be allowed to see the judgment? -To be referred to the Reporters or not? -Whether the judgment should be reported in the Digest? --- Surya Kant, J . This petition under Section 482 of the Code of Criminal Procedure seeks quashing of the F.I.R.No.142 dated 12.12.2009 under Sections 406, 420, 467, 468, 471 & 120-B IPC, registered at Police Station Ismailabad, District Kurukshetra. [2] In order to appreciate the petitioner’s grievance, the facts leading to registration of the said FIR require a brief reference. [3] The land measuring 44 kanals 1 marla situated within the revenue estate of Village Tabra, Tehsil Ismailabad, District Kurukshetra, was owned by one Joginder Singh. The said Joginder Singh was married to 1 Criminal Misc.No.M-37127 of 2009 Luxmi Devi and out of their wedlock, four daughters were born who were aged about 14 years, 11 years, 8 years and 2 years respectively, at the time when they, through their maternal uncle-Balwant Singh, instituted Civil Suit No.39/2004 under Sections 20 & 27 of the Hindu Adoption and Maintenance Act, 1956 for the grant of maintenance to them. [4] The tragic circumstances which forced the four minor girls to institute the above stated civil suit were more than horrifying as their father (Joginder Singh) murdered their mother (Smt.Luxmi Devi) on 29.12.2003, apparently annoyed at their mother’s inability to bear him a male child. Joginder Singh was arrested in case FIR No.173 dated 29.12.2003 under Sections 302/120-B IPC, registered at Police Station Ismailabad, District Kurukshetra. [5] Having lost their mother and the accused-father being behind the bars, the four minor girls took shelter in the house of their maternal uncle (Balwant Singh) through whom they later on filed the above mentioned Suit against their father etc. for grant of maintenance out of the income drawn by him from the agricultural land in question. On an application moved under Order 38 Rule 5 read with Order 39 Rules 1 & 2 CPC for attachment of the suit property and to restrain their father from alienating the same, the Civil Court at Pehowa vide order dated 8.2.2005 directed that the maintenance of the four girls shall be the first charge on the suit property and also granted ad-interim maintenance of Rs.3,000/- per month to the minor girls. The Civil Court, however, did not restrain Joginder Singh from alienating the suit property. [6] Joginder Singh, while still in jail, sold 40 kanals (out of 44 kanals 1 marla) of land to (i) Manjit Singh son of Gurjang Singh, resident 2 Criminal Misc.No.M-37127 of 2009 of village Thaska Miran, District Kurukshetra, (ii) Kashmir Singh son of Buta Singh, resident of Village Habri, District Kaithal on 1.9.2006 and soon thereafter, both the above named vendees further sold the suit property vide sale deed dated 30.3.2007 to Smt.Vijay Kumari, Smt.Kusum Kansal and Smt.Shalu Kansal, all residents of village Ismailabad, Tehsil Pehowa, District Kurukshetra. [7] Pertinently, Joginder Singh (while in jail) is said to have sold the suit property for a sale consideration of over Rs.40 lacs and that too in hard cash only. Joginder Singh maintains a bank account in the Punjab National Bank, but not even a single penny from this sale consideration went into his account. To whom the sale consideration was paid, where has it gone and how has it been appropriated or misappropriated are the intriguing questions to be resolved by the trial Court at an appropriate stage. [8] At the time of 2nd sale of the suit property vide sale deed dated 30.3.2007, Manjit Singh did receive a substantial part of the sale consideration, namely, Rs.41,50,000/- by way of demand drafts/cheques from the vendees Smt.Vijay Kumari and others. It has been the consistent stand of Smt.Vijay Kumari etc. that Manjit Singh duped them, neither did he disclose that the maintenance of four minor girls was the first charge on the suit property nor informed that the suit property was subject matter of the civil suit filed by the minor girls. These vendees assert themselves to be bonafide purchasers. [9] The Civil Court order dated 8.2.2005 was immediately brought on record of the revenue authorities by the maternal uncle of the girls (Balwant Singh) and a copy thereof was enclosed by the revenue 3 Criminal Misc.No.M-37127 of 2009 officials alongwith the instrument of sale produced for registration. The petitioner, who at the relevant time was Naib Tehsildar-cum-Registering Authority at Ismailabad, however, is alleged to have “over-looked” that order and did not make any endorsement to this effect while registering the Sale-Deed. The fact finding enquiry held subsequently by the Deputy Commissioner, Kurukshetra, under the orders of this Court, reveals that the application moved by the maternal uncle of the minor girls alongwith the copy of the Civil Court order itself was removed from the record and no entry of that order dated 8.2.2005 was made by anyone till a new Patwari (Rajbir Sharma) joined and made an entry thereof on 30.4.2008 i.e. much after the registration of both the sale deeds in question. [10] Smt.Vijay Kumari and others-the subsequent vendees, moved an application before the Civil Court for their impleadment in the civil suit filed by the minor girls against their father for maintenance. The application having been turned down by the Civil Court, they approached this Court in a revision petition filed under Article 227 of the Constitution of India. [11] During the course of hearing of the afore-stated revision petition, this Court took notice of an apparent collusion and connivance amongst the vendors, vendees and the revenue/registering authorities with a view to defeat and frustrate the right to maintenance of the minor girls whose living conditions but for their maternal uncle, were no better than orphans. However, it was deemed appropriate to seek a fact finding enquiry before issuing any supervisory direction as in the absence of any relevant material on record, such a direction could cause unintended 4 Criminal Misc.No.M-37127 of 2009 injustice to a bonafide purchaser who might have been trapped by allurement of a distress sale. [12] The Deputy Commissioner, Kurukshetra, to whom the fact- finding enquiry was entrusted, submitted a self-speaking report dated 24.9.2009 holding that there is enough material to infer “conspiracy”, “collusion” and “cheating” between the vendors, vendees, Naib Tehsildar and some other officials. The Deputy Commissioner further concluded that two of the conspirators, namely the Naib Tehsidar and the Registry Clerk, being government servants, the State Government is competent to take action against them under the Haryana Civil Services (Punishment and Appeal) Rules, 1987. The Deputy Commissioner, Kurukshetra accordingly endorsed a copy of the enquiry report to the Superintendent of Police, Kurukshetra, with a request, “to lodge an FIR and take immediate necessary action against the officials/persons found guilty, as mentioned in the enquiry report”. [13] This Court was still circumspect of the fact that the Deputy Commissioner, Kurukshetra might not have recommended a harsh action, being swayed by some observations made by this Court in the previous order while directing the Superintendent of Police, Kurukshetra not to register the FIR for the time being, this Court vide order dated 25.9.2009 decided to hear all the parties concerned before taking any further action in the matter. [14] Thereafter, the learned counsel for the State and other affected parties were heard and records perused. It may be noticed here that the petitioner (who by that time had been promoted as Tehsildar) also remained present in Court on most of the dates and was confronted with 5 Criminal Misc.No.M-37127 of 2009 the factual conclusions drawn by the Deputy Commissioner, Kurukshetra, in his above mentioned enquiry report. [15] Pertinently, Manjit Singh, the first vendee, took a plea before this Court that the subsequent vendees were `aware’ of the orders passed by the Civil Court and in fact Rs.15 lacs, in cash, were `kept separately’ for ‘payment of maintenance’ to the minor girls and the said amount was allegedly still lying with these vendees, namely, Mrs.Vijay Kumari etc., who in turn denied receiving any such amount for onward payment to the minor girls. [16] Keeping the allegations and the counter-allegations in view and with reference to the peculiar facts and circumstances noticed above, that this Court vide order dated 20.11.2009 permitted and directed the Superintendent of Police, Kurukshetra to register an appropriate case, appoint a fairly senior police officer as the Investigating Officer and take immediate action against the suspects. This is how the FIR No.142 dated 12.12.2009 under Sections 406, 420, 467, 468, 471 and 120-B IPC came to be registered at P.S.Ismailabad, District Kurukshetra, quashing of which is sought by the petitioner. [17] No sooner did the above-stated order dated 20.11.2009 was passed, then the present petitioner, namely, Rakesh Garg (the then Naib Tehsildar, Ismailabad) moved a Civil Misc.Application No.30320-CII of 2009 to recall the same regarding registration of the FIR and/or to grant him ad-interim bail against his arrest. Though this Court issued notice to the State in the said application for 8.1.2010 but no ad-interim bail was granted to him at that stage. 6 Criminal Misc.No.M-37127 of 2009 [18] The High Court was closed on account of the winter break from 25.12.2009 to 5.1.2010. During vacations, the petitioner presented this quashing petition at the residence of one of the Hon’ble Vacation Judges on 31.12.2009 which was ordered to be listed on that very day, followed by the following order of even date:- “The order dated 8.2.2005 passed by the Additional Civil Judge (Sr.Division), Pehowa, reveals that the defendant Joginder Singh was allowed to alienate the property on the condition that maintenance of his daughter would be the first charge on the suit property. On the same day, the Court of Additional Civil Judge (Sr.Divn.), Pehowa passed another order which is reproduced as under:- `According to the provision, the applicants are entitled to interim maintenance during the pendency of the suit, since no sufficient means except the property of the defendant has been shown by the applicant and thus they are held entitled to Rs.3000/- per month out of the income of the property of the defendant as interim maintenance from the date of filing of the said application till its disposal’ None of the orders indicate if there was say against alienation, as such, the petitioner had registered the sale deed on 1.9.2006 and obtained the affidavits from the vendees and vendors that they undertook to abide by the order of the civil court and they had kept Rs.15 lacs in reserve as security for payment of the maintenance. The petitioner was not party to the litigation and was not in any way benefited by the registration of the sale deed. The Deputy Commissioner, Kurukshetra, on the direction as contained in the Civil Revision No.4919 of 2009, recommended the departmental enquiry as he was prima facie of the view that Rakesh Garg, Naib 7 Criminal Misc.No.M-37127 of 2009 Tehsildar and Ramesh Chand Registry Clerk did not comply with the orders of the Court. The FIR does not contain any allegations of cheating, fraud, forgery or misappropriation against the petitioner. Admitted. Further proceedings qua the petitioner only are stayed.” [19] Soon after the winter break when the suo-moto proceedings came up for hearing before this Court, the Investigating Officer produced the above-stated order and expressed helplessness to proceed with the ongoing investigation as it could not have been conducted in piecemeal. [20] Vide order dated 15.1.2010 and after making a brief reference to the factual events, the Registry was directed to put up the records of this quashing petition before Hon’ble the Chief Justice for listing it for final hearing before an appropriate Bench. Hon’ble the Chief Justice having directed to list this case alongwith the suo-moto proceedings, that the pleadings were got completed and the matter has been taken up for final disposal. [21] During the course of hearing of the suo-moto proceedings, it was also brought to the notice of this Court that the petitioner-Naib Tehsildar was earlier caught red-handed while taking bribe in a trap case in relation to which FIR No.3 dated 16.1.2009 had been registered against him in the Police Station, State Vigilance Bureau at Ambala. The maternal uncle of the girls pointed out that on account of the alleged political patronage being enjoyed by the petitioner, no action was taken against him in the said trap case also. The allegations were not totally unsubstantiated. The State Government stated on oath that the Superintendent of Police, 8 Criminal Misc.No.M-37127 of 2009 State Vigilance Bureau, Ambala, has not forwarded the case for seeking sanction of the State Government despite three reminders sent to him. The explanation of the Superintendent of Police was accordingly sought and then only he applied for the requisite sanction, which was accorded by the State Government without any delay paving ways for the presentation of a charge-sheet against the petitioner in that case. [22] Adverting to the case in hand, the petitioner seeks quashing of the subject FIR, inter-alia, on the grounds that :- (i) the Civil Court, Pehowa vide its interim order dated 8.2.2005 though had created the maintenance claim of the minor girls as the first charge on the suit property but it also did not restrain him from alienating the same and thus, the petitioner did not exceed his jurisdiction while registering the sale deeds, which he was otherwise obligated to do so under the Registration Act; (ii) the non-disclosure of Civil Court’s order dated 8.2.2005 was in consequential as the same being prior in time, the vendees were otherwise bound by the same; (iii) The Deputy Commissioner, Kurukshetra, has merely recommended disciplinary proceedings against the petitioner under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 and there was no occasion to register the FIR against him; (iv) the impugned FIR has been registered under the “pressure” and “influence” of this Court in terms of the orders passed from time to time in the suo-moto proceedings; (v) no prima-facie case under Section 120-B IPC is made out against the petitioner. [23] I have heard learned counsel for the petitioner, Additional Advocate General, Haryana as well as the learned Amicus-curiae and have 9 Criminal Misc.No.M-37127 of 2009 gone through the records including the orders passed by this Court from time to time in the suo-moto proceedings. [24] In the State of Haryana versus Bhajan Lal (1992) (Supplementary) (1) SCC 335, which has been consistently followed by the Hon’ble Supreme Court in the subsequent decisions including in M/s Zandu Pharmaceutical Works Limited and others versus Mohd.Sharaful Haque and another, (2005 (1) SCC 122, it has been held that the powers possessed by the High Court under Section 482 Cr.P.C. can be invoked to quash the FIR or a complaint in the following identified circumstances:- “(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 the 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 10 Criminal Misc.No.M-37127 of 2009 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide 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.” [25] In M/s Zandu Pharmaceutical Works Limited and others’ case (supra), it was re-stated that: “The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidenced has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no 11 Criminal Misc.No.M-37127 of 2009 hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extra-ordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive”. (emphasis applied) [26] In Renu Kumari versus Sanjay Kumar and others, 2008 (2) Apex Court Judgments 18, their Lordships have ruled that the FIR cannot be quashed on the ground of malafide of the informant and once the FIR is lodged, it is the material collected during investigation and the evidence led in the Court which decides the fate of the accused. [27] The parameters laid down for quashing of an FIR by the High Court in exercise of its power under Section 482 Cr.P.C. were re- emphasised by the Apex Court in State of Karnataka and another versus Pastor P.Raju, 2006 (3) RCR (Crl.) 859, holding that the High Court cannot quash the FIR when the matter is still under investigation as it tantamount to interfering with the statutory powers of the police to conduct the investigation. A somewhat similar view was taken in State of Orissa and another versus Saroj Kumar Sahoo, 2006 (1) RCR (Criminal) 324. [28] In Minu Kumari & another versus State of Bihar & others, 2006 (3) RCR (Criminal) 271, the Supreme Court pointed out 12 Criminal Misc.No.M-37127 of 2009 that the inherent jurisdiction under Section 482 Cr.P.C. can be exercised in three circumstances, namely, (i) to give effect to an order under the Code; (ii) to prevent the abusing of the process of Court and (iii) to otherwise secure the ends of justice. [29] Didigam Bikshapathi & another versus State of Andhra Pradesh, 2008 (2) SCC 403, is yet another decision wherein the Supreme Court has explained the scope of powers of the High Court to quash an FIR or complaint when the allegations contained therein though constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. It observed that:- “…..It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression or needless harassment….” [30] A recent decision in State of Punjab and others versus Inder Mohan Chopra and others, 2009 (2) RCR (Criminal) 241, reminds that in exercise of its power under Section 482 Cr.P.C., the High Court does not function as a Court of Appeal or Revision and the inherent jurisdiction though wide, needs to be exercised sparingly, carefully and 13 Criminal Misc.No.M-37127 of 2009 with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. These very principles have been reiterated in Central Bureau of Investigation versus A.Ravishankar Prasad and others, 2009 (3) RCR (Criminal) 466. [31] Applying these well known principles and the cited parameters to the facts of the case in hand, suffice it to observe that no case to quash the impugned FIR is made out by the petitioner. As noticed earlier, the FIR was registered on 12.12.2009 and soon thereafter the petitioner obtained stay of the proceedings on 31.12.2009. The investigation is at the preliminary stage and it appears that except one, no other suspect has been interrogated by the police. It is, thus, apparent that the FIR cannot be quashed on the ground that there is no evidence to support the allegations or that the evidence available on record is manifestly inadequate to support the allegations. [32] The plea of the petitioner that since the alienation of the subject land was expressly permitted by the Civil Court and thus, he did not exceed his limit while registering the sale-deed, is wholly misconceived and mis-leading. The allegation against the petitioner is that of colluding and conniving with the vendor and/or vendees thereby removing the original papers from the record and showing the land free from all types of encumbrances to jeopardize the rights of the minor girls. The other allegation leveled by the Deputy Commissioner, Kurukshetra, in his fact finding report is that the actual sale consideration was more than Rs.40 lacs whereas the sale deed was registered at a lower price thereby causing loss to the State exchequer. These allegations can be substantiated or refuted only by producing relevant evidence at an appropriate stage. 14 Criminal Misc.No.M-37127 of 2009 Thus, it cannot be said that the allegations contained in the FIR are inherently improbable or do not, prima-facie, constitute any offence. [33] Similarly, it is not the case of the petitioner that the FIR does not disclose a cognizable offence. Likewise, the allegations made against the petitioner are specific and directly in relation to the abuse of his official position as a public servant. No provision of law has been referred to engrafting any legal power against registration of the subject FIR or continuous of the resultant proceedings. [34] Adverting to the scandalous plea taken by the petitioner that the FIR has been registered under the “pressure” and “influence” of this Court,