Crl. Misc. No.M-24462 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: November 29th, 2010 1. Crl. Misc. No. M-24462 of 2010 Shri S.S. Bose and another …..Petitioners Vs. State of Punjab and others …..Respondents 2. Crl. Misc. No. M-29145 of 2010 Parmod Bhardwaj …..Petitioners Vs. State of Punjab and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Ashish Kapoor, Advocate for the petitioners in Crl. Misc. No. M-24462 of 2010. Crl. Misc. No.M-24462 of 2010 [2] Mr.J.S. Virk, Advocate for the petitioner in Crl. Misc. No. M-29145 of 2010 Mr.Abhishekh Chautala, AAG, Punjab. Mr.T.S.Sangha, Sr. Advocate with Mr.Narinder Singh, Advocate for the complainant. -.- M.M.S. BEDI, J. Through this common judgment, I intend to dispose of two petitions bearing Criminal Misc. Nos.M-24462 and M-29145 of 2010 one filed by S.S. Bose, posted as Deputy General Manager, Indian Oil Corporation and Sanjeev Kumar, Assistant Manager (Retail Sales) and another filed by Parmod Bhardwaj, Approved Valuers, invoking the inherent jurisdiction under Section 482 Cr.P.C. for quashing of FIR No.213 of August 8, 2010 under Sections 454, 465, 468, 120-B IPC registered at Police Station Rajpura. For adjudication, Crl. Misc. No. M-24462 of 2010 has been taken as the main petition for referring to the facts and documents. The FIR was registered at the instance of Brij Mohan Mahajan- respondent No.4, Director of Nimitiya Properties Limited (for short ‘the NPL’). The FIR was registered on the basis of a complaint dated May 18, 2010 received in the office of DGP on May 20, 2010. The contents of the compliant on the basis of which the FIR has been registered, reads as follows:- “To Crl. Misc. No.M-24462 of 2010 [3] The Director General of Police, Punjab, Chandigarh. Sub:- Regarding taking legal action against Sh.Parmod Bhardwaj, B.E. (Civil), Government Approved Valuer, Resident of Opp. Govt. Girls Higher Sec. School, Nehru Garden, Jalandhar, Punjab and some other errant officials of Indian Oil Corporation. Most Respected Sir, The complainant submits as under:- 1. That complainant Sh.Brij Mohan Mahajan, Director Nimitaya Property Limited is the R/o Farm No.2A, Avenue Cassia, Westend Greens, Rajokari, New Delhi-110038. 2. That complainant purchased plot measuring 13467.6 sq. yards situated at Pehar Khurd Tehsil Rajpura, District Patiala, on dated 27.3.2006 from M/s Indian Oil Corporation Ltd. at price of Rs.2,11,000,00/-. Copy of the sale deed dated 27.3.2006 is attached. The sale of the said plot is completed in all respect and is free from all encumbrances. 3. That when the complainant started construction on the said plot as per the rights envisaged in the sale deed then complainant received a letter dated 8.8.2007 from OCL Office and shocked to know about the contents of Crl. Misc. No.M-24462 of 2010 [4] the letter that he is prohibited to construct any building or any other structure etc. on the said land in question. 4. That it is worth while to mention here that at the time of executing the sale deed in favour of the complainant party the owner of the land namely the M/s Indian Oil Company kept concealed a fact regarding the oil pipe lines laid under the ground by the Indian Oil Company which is running through the same land which was sold to the complainant party. The oil pipe lines laid by the Indian Oil Company was within the knowledge of the company and company knowingly cheated the complainant fraudulently and dishonestly executed the sale deed in the favour of complainant. 5. That the complainant approached to the S.S.P., Patiala against the misdeeds and fraud committed by the IOCL who marked the inquiry to the SHO, P.S. Sadar Rajpura and the S.H.O. concerned after taking the opinion of DA, Legal reached to the conclusion that above said officials of IOCL have cheated Nimitaya Properties Limited, New Delhi (complainant Firm) and on the direction of the Inspector General of Police Zonal-1, Punjab Patiala, a FIR No. 211 dated 7.10.2008 under Sections 420, 120-B IPC was registered at P.S. Crl. Misc. No.M-24462 of 2010 [5] Sadar Rajpura against the IOCL officials at etc. Copy of the said FIR is attached herewith. 6. That the IOCL official are high handed persons despite of the fact that FIR has been registered against them they are running scot free. The complainant was shocked to know that Sh.Parmod Bhardwaj, a valuer on the penal of IOCL alongwith IOCL officials intentionally and deliberately went to the said plot of the complainant without the prior permission of the complainant forcibly entered and trespassed into the said plot, demarcated and prepare the valuation report of entire plot. 7. That the report prepared by the valuer on the direction of the IOCL is false and baseless there is no truth behind this and same is being prepared just to escape the IOCL officials from the hands of law. The present report of the valuer is not based on the Petroleum and Minerals Pipelines Act, 1962. As per the report of the valuer the area in question was being used for storage of tanks. But in reality the aforesaid act does not allow such type of usage like storage of tanks on the said plot in question. So, if the complainant used this area for the storage of tank which is ultimately barred by the relevant statute and as per the public policy, the same usage may invite any mishap or tragedy which could cause danger Crl. Misc. No.M-24462 of 2010 [6] to life in large number in the vicinity, there are so many example of such type of tragedy and loss of life for example recently in IOCI Depot in Jaipur and many other place in India Abroad. 8. That the act and the conduct of the valuer and IOCL officials are come under the preview of offences related with trespass, loss to property and misuse of their post, position and duties. So stern legal action may kindly be taken against the Parmod Bhardwaj, valuer and some erring officials of the IOCL and they may kindly be brought to book under the provisions of Criminal Law and justice may kindly be done to the complainant. NOTE: Photocopies of relevant documents are attached. Submitted by: Sd/- (Brij Mohan Mahajan), Director Nimitaya Property Limited, Is the R/o Farm No.2A, Avenue Cassia, Westend Greens, Rajokari, New Delhi-110038 Ph.: 9810100786.” The allegations in the abovesaid complaint were enquired into by DSP Sub Division, Rajpura and a report was submitted to SSP, Patiala, vide letter No. 491/C DSP Rajpura dated July 19, 2010. DSP had recorded the statements of Chowkidar Arjan Dev, S.S. Bose, Sanjeev Kumar and Brij Mohan and submitted the same to the SSP. The report prepared by DSP forms part of the report under Section 173 (2) Cr.P.C. The said report was sent by SSP, Patiala to District Attorney, Legal. District Attorney observed Crl. Misc. No.M-24462 of 2010 [7] that the DSP had not given any finding in his report regarding the trespass, loss of property or the misuse of the position and duties. The report of District Attorney, (Legal) reads as follows:- “I have examined the application of Brij Mohan Mahajan dated 18.5.2010, report of DSP Sub Division, Rajpura bearing NO.491/C/DSP/Rajpura dated 19.7.2010 and other papers under consideration. Brij Mohan has levelled allegations in his application dated 18.5.2010 against Parmod Mahajan and other erring officials of the IOCL for offences related with trespass, loss to property and misuse of their post, position and duties. But no findings have been given by DSP Sub Division, Rajpura, in his report dated 19.7.2010. I am of the view that for proper legal opinion, DSP Sub Division, Rajpura, may be directed to give specific findings on the allegations levelled by Brij Mohan in his application dated 18.5.2010 pl. W/SSP Sd/-D.A. (Legal) 21.7.2010”. Thereafter DSP vide his report No.491/C/DSP Rajpura dated July 31, 2010 stated that on the basis of the statements of Chowkidar Arjan Dev, S.S. Bose, Sanjeev Kumar and Parmod Bhardwaj and that of the owner of the property Brij Mohan Mahajan, it is apparent Crl. Misc. No.M-24462 of 2010 [8] that in the absence of Brij Mohan Mahajan, the said persons had entered the building by breaking open the locks and obtained report from Parmod Bhardwaj, Valuer with an objective to cause loss to the owner and report of District Attorney, Legal, should be obtained for necessary action by SHO, Police Station, Sadar, Rajpura. The application of DSP was sent to D.A., Legal for legal opinion who without application of mind or any personal opinion passed the following orders on August 6, 2010:- “I have examined the application of Brij Mohan Mahajan dated 18.5.2010, reports of DSP Sub Division Rajpura dated 19.7.2010 and 31.7.2010 and other papers under consideration. Brij Mohan has levelled allegations in his application dated 18.5.2010 against Parmod Mahajan and other erring officials of IOCL for offences related with trespass, loss to property and misuse of their post, position and duties. As per findings of DSP Sub Division, Rajpura, dated 31.7.2010, S.S. Bose and Sanjiv Goyal had entered the building of applicant- owner Brij Mohan in his absence after breaking the lock and in order to cause loss to applicant Brij Mohan had got prepared the documents from Parmod Kumar Bhardwaj, a valuer. I am of the view that from the findings of DSP Sub Division, Rajpura, dated 31.7.2010 and application of Crl. Misc. No.M-24462 of 2010 [9] Brij Mohan Mahajan, act of S.S. Bose , Sanjiv Goyal and Parmod Kumar Bhardwaj prima facie attracts the provisions of Sections 454/ 465/ 468/ 120-B IPC. Pl. W/SSP. Sd/-D.A. (Legal) 6.8.2010.” The petitioners have sought the quashing of FIR and all the criminal proceedings emanating therefrom on the ground that the FIR has been lodged with malafide intention with an objective to pressurize the petitioners as petition for quashing of earlier FIR No. 211 of 2008 registered at Police Station Sadar, Rajpura, has been challenged before this Court and to pressurize the Indian Oil Corporation Limited (for short ‘IOCL’) to repurchase land sold to the complainant at higher price at the valuation assessed by the complainant. During the pendency of the quashing proceedings in earlier FIR, to amicably settle the dispute, as the chances of amicably settlement were not apparent, the High Court in order dated July 27, 2010 in quashing petition observed that valuation of property was not necessary. No offence is made out from the submissions in the FIR even if the unrebutted allegations are presumed to be correct. There has neither been preparation of any false document nor the offence of lurking trespass or house breaking is made out under Section 454 IPC. In order to substantiate the malafide, the few facts as enumerated in the petition are that:- the Central Government vide notification No. S.O. 73 dated December 16, 1981 acquired the right of user in the lands specified in its Crl. Misc. No.M-24462 of 2010 [10] schedule for laying Mathura- Jalandhar pipeline. The Central Government vested the right of user in the pipelines Division of the Indian Oil Corporation Limited. The Marketing Division of IOCL purchased the land bearing Khasra Nos.276, 279 measuring 13 bigha 6 biswa (approximately 2.38 acres) falling in Village Pahar Khurd, Tehsil Rajpura, District Patiala from its erstwhile owners for its use as its Oil Depot vide its sale deed dated January 30, 1990. The pipeline ran beneath one corner of the said plot. The pipeline Division of IOCL, with an objective to prevent activities regarding the construction, excavation etc. on a part of the land under which the pipeline was passing, addressed communication to various District Collectors including the District Collector, Patiala on September 2, 1993 to enter the Right of User/ Right of Way acquisition details in revenue records/ jamabandi maintained by the Revenue officials/ Tehsildars etc. to ensure that subsequent/ potential buyers are aware of the limited encumbrance on the property. On December 6, 2005, the Marketing Division of IOCL engaged Metal Scarp Trading Corporation (MSTC), a public sector enterprise of the Government of India for disposal of the land measuring 13 bigha 6 biswa. Namitaya Properties Limited (NPL) participated in the tender process and being highest bidder purchased the same vide sale deed dated March 27, 2006 for a sum of Rs.2.11 crores from Marketing Division of IOCL. While NPL was in process of developing the said land, pipeline Division of the IOCL wrote to NPL on August 8, 2007 stating that by virtue of provisions of Petroleum and Minerals, Pipelines (Acquisition of Right of User Land) Act, 1962 (for short ‘PMP Act’), raising construction, Crl. Misc. No.M-24462 of 2010 [11] excavation etc. on the acquired part of the land is prohibited and advised NPS to clear encroachment on that part of the land. While the total area of the land in question is 2.38 acres, the area affected was only 0.07 acres i.e. roughly 3% of the total area. NPL issued a legal notice to IOCL for removal of the pipeline. IOCL negotiated with NPL but no amicable settlement could be reached. Thereafter NPL preferred Writ Petition (Civil) No. 1456 of 2008 before the High Court of Delhi praying for removal of pipeline which is pending adjudication. NPL had also filed an FIR against the officials of IOCL alleging that the complainant had been cheated. FIR No.211 dated October 7, 2008 under Sections 420, 120-B IPC stands registered against the officials of the IOCL at Police Station Sadar, Rajpura. A petition for quashing of the said FIR is pending in the High court bearing Crl. Misc. No. M-27995 of 2008. IOCL had offered three alternatives for amicable settlement of the dispute vide their letter dated February 23, 2008. Copy of the letter dated February 23, 2008, has been appended as annexure P-4. The following three alternatives had been offered by the IOCL:- “a) IOCL buys back the land for the same consideration, bears expenses incurred for registration and pays interest as per PLR of SBI from such date of sale till re-purchase; b) the parties appoint a Government approved valuer with mutual consent. The price of land he values is the price of land IOCL pays to NPL. Crl. Misc. No.M-24462 of 2010 [12] c) IOCL helps NPL to sell the land through MSTC and also bears expenses for registration etc.” It appears that NPL did not respond to the offer but had obtained valuation report dated March 1, 2008 for the said land from M/s Arun Mittal and Associates and M/s Avinash Khosla and Associates, who valued the land at Rs.18.04 crores. Copy of the valuation regarding the property in dispute i.e. 13 bigha 6 biswa got prepared by the respondent- complainant is attached herewith as annexure P-5. Another report was got prepared by NPL through M/s Avinash Khosla and Associates valuing the property at Rs.43.56 crores. The said valuation report dated March 5, 2008 is attached as annexure P-6. In petition i.e. Crl. Misc. No. M-27995 of 2008 for quashing FIR No. 211 of 2008 registered at Police Station Sadar Rajpura, under Sections 420, 120-B IPC the High Court had granted stay of the investigation vide order annexure P-8 dated October 24, 2008 but vide order dated February 18, 2010, the order was modified to the effect that the prosecution agency would be entitled to continue with the investigation, however, in case the prosecution agency opts to present report under Section 173 (2) Cr.P.C., the Court will not frame charges against the petitioners. Besides this, an interim direction was issued that in case the investigating officer intended to arrest any of the accused, 7 days clear notice in writing would be given to enable them to avail the legal remedy available to them adopting the guidelines of Supreme Court in Joginder Kumar Vs. State of U.P., (1994) 4 SCC 260. As attempt was made to arrest the accused on the basis of the order dated February 18, 2010, the Crl. Misc. No.M-24462 of 2010 [13] officials obtained the orders of pre-arrest bail from the High Court. The petitioners claimed that while adjourning the matter, the High Court had advised the parties to settle the matter and desired to know the price that IOCL would be willing to pay to re-purchase the land in question. The IOCL officials had written a letter dated March 8, 2010 to SSP, Patiala, alleging malafides and bias against the investigating officer and requested that investigating officer should be changed. Copy of the said letter has been appended herewith as annexure P-12. The petitioners claimed that IOCL was willing to repurchase the land which was sold to the complainant at the price valued by Sh.Parmod Bhardwaj, approved valuer who had valued the land at Rs.4.3 crores whereas this property had been sold by IOCL for Rs.2.11 crores. Sh.Parmod Bhardwaj, Government Approved Valuer had prepared his report annexure P-14 and the same was produced before the court on April 8, 2010 in Crl. Misc. No. M-27995 of 2008. Copy of the letter dated May 7, 2010, annexure P-15, has been placed on record which was sent by Brij Mohan Mahajan, Director of NPL wherein he has levelled allegations that Parmod Bhardwaj had trespassed in his property. In para 6 b of his letter, he has stated that as per the report of Chowkidar, no one had visited the property for valuation. In reply filed by the DSP, Rajpura, on behalf of respondents No.1 to 3, it has been submitted that complaint dated May 18, 2010, addressed to DGP, received from complainant Brij Mohan Mahajan against the petitioners that they had broken locks and entered the property of NPL in the month of April 2010, was enquired into by DSP, Rajpura. The Crl. Misc. No.M-24462 of 2010 [14] allegations were substantiated and after seeking legal opinion of DA, Legal, Patiala, SSP had ordered registration of case. All the accused have prepared the valuation report by entering in the property of NPL Village Pahar Khurd, without the permission of the Court and without the consent of the owner namely, Brij Mohan Mahajan of NPL as such the police has taken action on the basis of offence committed by S.S. Bose, Rajiv Goel, Parmod Bhardwaj. Pendency of petition for quashing another FIR in Crl. Misc. No.M-27995 of 2008 has been admitted but it is stated that the orders passed by the High Court in said petition has no impact upon the merits of the present FIR. The complainant- respondent No.4 has also filed similar reply reiterating that the petitioners have prepared valuation report by entering the property of NPL without the permission of the owner of the property and prepared a false valuation report. I have heard counsel for the petitioners and gone through the reply. It is an admitted fact that complainant- Brij Mohan Mahajan, Director of NPL is the owner of the property measuring 13 bigha 6 biswa of land with a dilapidated building and boundary wall thereof, as is apparent from the valuation report prepared by his own Architect, annexure P-5. There appears to be a controversy regarding the valuation of the property in view of the offer of the seller IOCL to re-purchase the same for which purpose annexures P-5 and P-6, valuation reports have been got prepared by complainant from M/s Arun Mittal and Associates and M/s Avinash Khosla & Associates, valuing the property to the tune of Rs.18.04 crores. The officials of the IOCL have got the valuation of the property made by Crl. Misc. No.M-24462 of 2010 [15] appointing Parmod Bhardwaj of Parmod Bhardwaj and Associates who has prepared the valuation report annexure P-14. Parmod Bhardwaj has assessed the value of the property as approximately Rs.4,03,98,055/-. The complainant had admittedly sent a letter annexure P-15 addressed to Parmod Bhardwaj in para 6 (b) that he had made the valuation report either sitting in the office of IOCL or in his office as his chowkidar had reported that no one had visited the property for the purpose of valuation. The letter annexure P-15 dated May 7, 2010 is an admitted document and the respondent has not denied, in his reply, to have sent letter annexure P-15. The FIR No.213 of 2010 was registered on August 8, 2010 under Sections 454, 465, 468, 120-B IPC, by filing this petition in the month of August challenging the FIR on the ground that prima facie the FIR did not disclose commission of any cognizable offence as such Court should interfere with the investigation and quash the same. Though the Court had a jurisdiction to interfere in the investigation and quash the same in case the FIR did not disclose commission of any cognizable offence as per the law laid down in State of West Bengal and others Vs. Swapan Kumar Goha and others, reported in (1982) 1 SCC 561, but while issuing notice of motion on August 23, 2010, the status of the investigation was ordered to be intimated to the Court. On September 8, 2010, the investigating officer informed that the investigation would be completed within few days as such time was granted to the prosecution agency to complete the investigation and present the challan on the basis of the material gathered. As the State counsel informed on September 24, 2010 that report under Section 173 (2) was ready to be Crl. Misc. No.M-24462 of 2010 [16] filed as such the investigating agency was required to produce a complete copy of the report under Section 173 (2) Cr.P.C., in order to enable this Court to arrive at a conclusion that whether on the basis of the allegations in the FIR and the material collected during investigation, any offence under Sections 454, 465, 468, 120-B IPC was made out or not. However, the trial Court was directed not to frame charges against the petitioners during the pendency of this petition. The entire report has been made available alongwith the statements of the witnesses, the valuation report of M/s Avinash Khosla and Associates prepared by the complainant and the valuation report prepared by Parmod Bhardwaj, on the instructions of IOCL pertaining to the land purchased by complainant regarding which civil and criminal litigation is pending. The principles governing the authority of High Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. have come up before the Apex Court in number of cases. The parameters for quashing of FIR have been enumerated in State of Haryana Vs. Bhajan Lal, AIR 2004 SC 604. It has been laid down that in following category of cases, the High Court may in exercise of powers under Article 226 or under Section 482 Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, 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 Crl. Misc. No.M-24462 of 2010 [17] 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.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 F.I.R. 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 S.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and