Crl. Misc. No. M-24856 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-24856 of 2008 Date of decision: .08.2011 Sher Mohd. Khan .....PETITIONER VERSUS Madan Lal and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sunil Panwar, Advocate, for the petitioner. Mr. A.K.Tyagi, Advocate, for respondent No. 1. None for respondent No. 2-State of Haryana. *** AUGUSTINE GEORGE MASIH, J. This petition under Article 215 of the Constitution of India read with Sections 482 and 340 of the Code of Criminal Procedure has been preferred by the petitioner for setting aside/declaration as nullity the order dated 14.08.2008 passed by this Court quashing FIR No. 470 dated 18.07.1995 registered under Sections 420, 467, 468, 471 and 120-B IPC at Police Station Sadar, Gurgaon having been obtained by fraud and mis- representation and for initiation of proceedings under Section 340 Cr.P.C. against respondent No. 1 for having committed an offence referred in Section 194 Cr.P.C. against respondent No. 1. Crl. Misc. No. M-24856 of 2008 2 Briefly the facts of the case are that a Registered Co-operative Society by the name of Chanderlok Maruti Employees Co-operative House Building Society, Chakarpur (hereinafter referred to as 'the Society”) was formed. The said Society was registered with the Assistant Registrar of the Co-operative Society, Gurgaon, under the provisions of Haryana Co- operative Societies Act, 1984. The Society in furtherance of its aims and objects got constructed 200 residential flats from D.L.F. within a short period of 2 years and the allotment of flats was made by draw of lots before its general body presided over by Assistant Registrar, Gurgaon on 27.02.1994. Out of 200 flats, possession of 192 flats was delivered and remaining 8 flats could not be handed over to the members of the Society as they failed to deposit the balance payment due to the Society. Some of these members of the Society filed complaints before the Deputy Registrar of the Co-operative Societies, Gurgaon against the Managing Committee of the Society. That apart, Complaint was filed by the petitioner-Sher Mohd. Khan along with two other members of the Society to the Deputy Commissioner, Gurgaon in an open public grievance meeting against the Managing Committee. He marked the enquiry to the Additional Deputy Commissioner, Gurgaon, who, after holding an enquiry, submitted his report dated 30.05.1995. In the said report, allegations against the Managing Committee, of which Madan Lal-respondent No. 1 was also a member, were found to be prima-facie correct. The Deputy Commissioner, Gurgaon forwarded the said enquiry report to the Senior Superintendent of Police, Gurgaon. On the basis of this enquiry report, FIR No. 470 dated 18.07.1995 under Sections 420/467/468/471 IPC was registered at Police Station Sadar, Gurgaon. After completion of the investigation, challan was presented before the competent Court on 23.08.2006 and thereafter, Crl. Misc. No. M-24856 of 2008 3 charge was framed against respondent No. 1-Madan Lal and other co- accused on 18.10.1996 and the trial was going on. On 23.11.2007, respondent No. 1 filed Crl. Misc. No. 52302-M of 2007 titled as Madan Lal vs. State of Haryana under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No. 470 dated 18.07.1995 primarily on the ground that the Society filed a suit for permanent injunction seeking a decree of declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon is illegal, null and void, without jurisdiction, arbitrary, discriminatory, unconscionable being against the principles of natural justice and without affording opportunity of hearing to the Society and further a decree of permanent injunction restraining the Deputy Commissioner, Gurgaon from getting dismissed the Managing Committee of the Society prior to expiry of its tenure on 14.06.1997 and also from getting the members of the Managing Committee of the Society arrested under FIR No. 470 dated 18.07.1995, Police Station Sadar, Gurgaon. This civil suit was partly allowed, wherein a decree for declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner is illegal, null and void and without jurisdiction and not binding on the Managing Committee of the Society and that the Deputy Commissioner, Gurgaon was not entitled to take any action against the Managing Committee of the Society under the impugned report dated 30.05.1995. The said findings of the Civil Judge (Sr. Division), Gurgaon dated 28.02.2003 had attained finality as no appeal against the said decree was filed. The findings so returned by the Civil Court having attained finality are binding on the Criminal Court. Thus, the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon being not in accordance with law as per the decree dated 28.02.2003, Crl. Misc. No. M-24856 of 2008 4 which was the basis for registration of the FIR, could not be allowed to be sustained and thus prayed for quashing of the FIR. The State of Haryana was only impleaded as a party-respondent and none of the complainants, who had filed the complaints to the Deputy Commissioner, Gurgaon or the Additional Deputy Commissioner, Gurgaon, were impleaded as respondents. Upon notice issued to the State of Haryana, reply was filed by the Assistant Commissioner of Police, Sadar, Gurgaon on behalf of the State of Haryana, wherein the factual assertions of the petitioner were not denied. The case came up for hearing before this Court on 14.08.2008 when the following order was passed:- “ This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 470, dated 18.07.1995, under Sections 420, 467, 468, 471, 120-B IPC, registered at Police Station, Sadar Gurgaon, District Gurgaon (Annexure P-2) and also consequential proceedings arising therefrom qua the petitioner. It has been contended by the counsel for the petitioner that FIR is the verbatim reproduction of the report dated 30.05.95 of the Additional Deputy Commissioner and Chief Executive Officer, District Rural Development Authority, Gurgaon addressed to the Deputy Commissioner, Gurgaon. The said report was challenged by the Society by way of civil suit before Civil Judge (Sr. Division), Gurgaon, who, vide order dated 28.02.2003, has decreed the suit. The relevant extract of the same is reproduced hereinbelow: Crl. Misc. No. M-24856 of 2008 5 “ ISSUE NO. 8 (RELIEF) 14. Upon my findings on the foregoing issues, the suit of the plaintiff succeeds and the same is hereby decreed partly. Therefore, a decree for declaration to the effect that the report dated 30.5.95 of defendant No. 2 prepared after filing of W.S. on 14.6.95 ante dated is illegal, null and void, and without jurisdiction, arbitrary and discriminatory, unconsciencable, against the principle of natural justice and affording opportunity of hearing to the plaintiff and the same is not binding upon the Managing Committee of the plaintiff and that the defendants are not entitled to take any action against the Managing Committee of the plaintiff under the impugned report dated 30.5.95 of the defendant No. 2, is hereby passed in favour of the plaintiff and against the defendants, with no order as to costs. Rest of the relief claimed by the plaintiff society is hereby dismissed. Decree sheet be drawn accordingly and file be consigned to record room after due compliance. Sd/- Announced. Civil Judge (Sr. Division), 28.2.2003 Gurgaon, 28.2.2003.” In the light of the above, the counsel for the petitioner contends that the findings given by the civil court are binding on the criminal court and, therefore, the contents of the FIR, which were the basis for registration of the FIR, do not hold good as the same have been held to be illegal, null and void. No appeal has been preferred and the judgment Crl. Misc. No. M-24856 of 2008 6 has become final. Since the said document, which is the basis of the FIR, is not held to be legal, therefore, the FIR itself deserves to be quashed. The factual aspect with regard to the contents of the FIR and the report dated 30.5.95 being verbatim the same, has not been disputed and it being a settled preposition of law, that findings given by civil court are binding on the criminal court, no useful purpose would be served by proceeding with the case, which is pending before the trial court. In view of the above, this petition is allowed. FIR No. 470, dated 18.07.1995, under Sections 420, 467, 468, 471 and 120-B IPC, registered at Police Station, Sadar Gurgaon, District Gurgaon and also consequential proceedings arising therefrom qua the petitioner, are hereby quashed.” After passing of this order, Sher Mohd. Khan, who along with two others had filed the complaint leading to holding of an enquiry by the Additional Deputy Commissioner, Gurgaon and on the basis of the enquiry report the FIR came into existence, when came to know of the above order dated 14.08.2008, filed the present petition CRM No. M-24856 of 2008, alleging therein that respondent No. 1-Madan Lal (petitioner in CRM No. 52302-M of 2007) had obtained this order from this Court by not pleading the true and correct facts and had intentionally withheld the relevant and vital information from this Court with regard to the fact that the decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon (which became the basis for quashing the FIR) was challenged by petitioner-Sher Mohd. Khan by filing Civil Appeal No. 86 of 12.12.2003, which was allowed Crl. Misc. No. M-24856 of 2008 7 vide judgment and decree dated 16.05.2006 passed by the Additional District Judge, Gurgaon and the judgment and decree dated 28.02.2003 was set aside. Thereafter, an appeal was preferred by respondent No. 1 along with four others in this Court being RSA No. 840 of 2007 titled as Ashok Kumar Chauhan and others vs. Deputy Commissioner, Gurgaon and others on 02.03.2007, which stands admitted and is pending adjudication by this Court. These facts were not disclosed by Madan Lal-respondent No. 1 while filing CRM No.52302-M of 2007 on 23.11.2007. Even on the date, when the order dated 14.08.2008 was passed by this Court in the said Criminal Misc. application, this fact was not brought to the notice of the Court. It was rather contended by the petitioner (respondent No. 1 herein) before the Court that no appeal has been preferred against the judgment and decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon, and the same has become final as is apparent from order dated 14.08.2008 passed by this Court while quashing the FIR. Upon notice having been issued by this Court, reply has been filed by respondent No. 1, wherein a preliminary objection has been taken that there is no provision of review in Criminal Law. Section 362 of the Code of Criminal Procedure specifically bars review of its own judgment or final order by any Court. It has been submitted that the answering respondent was not aware of the appeal filed against the judgment and decree dated 28.02.2003 passed by the Civil Judge (Sr. Division), Gurgaon, as he was not impleaded as a party in the appeal. It is further stated that he was not aware of the filing of RSA No. 840 of 2007 in this Court till he received notice in the present petition for the reason that he was arrested on 29.11.2005 in a case bearing FIR No. 190 dated Crl. Misc. No. M-24856 of 2008 8 10.03.2005 under Sections 420/467/468/471/120-B IPC and remained in jail till 04.04.2007. The Power of Attorney was got signed from the answering respondent by his counsel Sh. Ajit Dahiya in custody only for filing a bail application. The said Power of Attorney was executed on 10.06.2006, which was attested by the learned Judicial Magistrate 1st Class, Gurgaon. He was never informed either by his counsel or the other appellants that they were filing an appeal in this Court. On the date when the Regular Second Appeal was filed in this Court i.e. 02.03.2007, he was in custody. Hence, it is totally wrong to say that the answering respondent fraudulently and deliberately concealed the material facts as he had no knowledge of the developments in the civil case and thus, made wrong submissions in the petition for quashing of FIR that the judgment and decree dated 28.02.2003 by the Civil Judge (Sr. Division), Gurgaon has become final. The fact with regard to the filing of the appeal in the High Court being RSA No. 840 of 2007 stands admitted by him in his reply filed. Counsel for the petitioner, on the basis of the above facts and pleadings, submits that it is not disputed and rather admitted that an appeal was pending before this Court when order dated 14.08.2008 was obtained by Madan Lal-respondent No. 1 by wrongly asserting in his affidavit dated 23.11.2007, which was filed in this Court along with and in support of Crl. Misc. No. 52302-M of 2007, that the judgment and decree dated 28.02.2003 passed by the Court of learned Civil Judge (Sr. Division), Gurgaon had attained finality. This very assertion became the basis for quashing FIR No. 470 dated 18.07.1995 by this Court vide order dated 14.08.2008. It cannot be accepted that respondent No. 1 was not aware of the filing of the appeal as the Power of Attorney attached with the Regular Second Appeal, which fact has been admitted to have been executed by Crl. Misc. No. M-24856 of 2008 9 respondent No. 1, clearly indicates his knowledge. Further, CRM No. 52302-M of 2007 was filed on 23.11.2007 whereas he was released from custody on 04.04.2007 i.e. after a period of more than 7 months. Before making a positive assertion in the affidavit before this Court, he was required to verify the correct factual position, which, it cannot be believed, was not done so by respondent No. 1. Further, intentionally the complainants were not impleaded as respondents in the petition. It clearly reflects the mala-fide intention on the part of respondent No. 1. He contends that fraud avoids all judicial acts and a judgment and decree obtained by playing fraud on Court is nullity and non-est in the eyes of law and it can be challenged in any Court even in collateral proceedings. In support of this contention, reliance has been placed by him on the judgment of the Supreme Court in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and others, AIR 1994 Supreme Court 853. Placing reliance on the judgment of the Supreme Court in the case of Hamza Haji vs. State of Kerala and another, (2006) 7 Supreme Court Cases 416, he contends that the High Court, in exercise of its powers under Article 215 of the Constitution of India, has the power to undo a decision that has been obtained by a party by playing fraud on the Court. He contends that in exercise of its powers under Section 482 Cr.P.C., High Court has the power to declare its order to be a nullity or to recall the same and in such circumstances, Section 362 Cr.P.C. would not be attracted. For exercise of powers under Section 482 Cr. P.C., which is an inherent power, the only requirement is that the case should fall under one or other of the three conditions mentioned in Section 482 Cr.P.C. The present case would be a case which would fall under these conditions and was a fit case where the Court should exercise its extraordinary inherent Crl. Misc. No. M-24856 of 2008 10 powers under Section 482 Cr.P.C. In support of this contention, reliance has been placed on the judgment of the Full Bench of Rajasthan High Court in the case of Habu vs. State of Rajasthan, AIR 1987 Rajasthan 83. He, accordingly, prays for the declaration of the order dated 14.08.2008 passed by this Court to be a nullity as the same was based on fraud, mis- representation, false and misleading facts as asserted by respondent No. 1 through an affidavit before this court and has further prayed for initiation of the proceedings under Section 340 Cr.P.C. On the other hand, counsel for respondent No. 1 has reiterated the facts, as have been stated by respondent No. 1 in his reply before this Court. He, however, has placed reliance on the judgment of the Supreme Court in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa and others, (2001) 1 SCC 169, to contend that there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed in a case. Reliance has also been placed on the Full Bench of the Calcutta High Court in Harjeet Singh vs. State of West Bengal, 2005 Crl. L.J. 3286, to contend that provisions of Section 362 Cr.P.C. act as a bar in recalling order passed by the Court. On this basis, he prays for dismissal of the petition. I have heard the counsel for the parties and have gone through the records of this case as also CRM No. 52302-M of 2007 Madan Lal vs. State of Haryana and RSA No. 840 of 2007 titled as Ashok Chauhan and others vs. Deputy Commissioner, Gurgaon and others, which were summoned vide order dated 28.08.2009. Crl. Misc. No. M-24856 of 2008 11 Before Proceeding further, the scope and ambit of Section 482 Cr.P.C. as also the jurisdiction of High Court under this Section needs to be gone into. Section 482 Cr.P.C. reads as follows:- “482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” All Courts, whether civil or criminal, in the absence of an express provision, as inherent in their constitution, possess 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 aliquit alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). Section 482 Cr.P.C. thus, does not confer a new jurisdiction or power on the High Court. It merely safeguards all existing inherent powers possessed by it necessary to secure the ends of justice. These powers by this provision have been preserved lest it be considered that the only powers possessed by it are those which are expressly conferred by the Code and that no inherent power had survived with the passing of the Code. This Section was added so that the High Courts may not feel hesitant to exercise their inherent powers even in cases where injustice was palpable and apparent in its absence. It is a sort of reminder to the High Courts that they are not merely Courts of law but also Courts of justice and possess inherent powers to prevent and remove injustice. However, in view of Section 482 Cr.P.C., this power is not available with the subordinate Courts now. Crl. Misc. No. M-24856 of 2008 12 No legislative enactment dealing with the procedure, as exhaustive as it may be, can visualize and provide for all cases that may possibly arise. While putting into effect the procedural law, lacunae are sometimes discovered therein and it is to cover such lacunae and to deal with cases when such lacunae are discovered in the procedural law that these inherent powers are required. The Courts must, therefore, have inherent powers, apart from the express provisions of law, which are essential and necessary for their existence and for proper discharge of duties imposed upon them by law. This doctrine finds expression in Section 482 Cr.P.C.. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the Courts subordinate to it. The inherent jurisdiction of the High Court preserved under this Section is vested in it by “law” within the meaning of Article 21 of the Constitution. The inherent jurisdiction possessed by the High Court and as envisaged 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 abuse of the process of any Court; and (iii) to otherwise secure the ends of justice. Under any one or more of these three circumstances, this jurisdiction can be exercised by the High Court. Keeping in view the content, purpose and nature of this provision, it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The powers of the High Court under this Section are extraordinary in their nature and exercised ex debito Crl. Misc. No. M-24856 of 2008 13 justitiae, that is to say, for the purpose of doing real and substantial justice, for the administration of which the Courts of law exist. But this does not mean that these inherent powers are to be exercised where such powers have been expressly taken away by legislation and also cannot be invoked which are directly covered by the specific provisions of the legislation. If a remedy is specifically available under the Statute, High Court cannot, in such situations, invoke inherent jurisdiction. These powers are to be exercised only when there is no specific provision in the Code to meet a particular situation and only when no other remedy is available to the litigant. Inherent jurisdiction cannot be exercised against the provisions of law but needs to be exercised only in cases where substantial justice is required to be done and that too, where any one or more of the three circumstances, as mentioned in Section 482 Cr.P.C., exist. Thus, the High Court is not given, nor did it ever possess, an unrestricted, unguided or undefined power to make any order which it might please to consider, was in the interest of justice. High Court like any other Court is also strictly governed by the provisions contained in the Criminal Procedure Code and is not supposed to travel beyond those specific provisions. Its inherent powers are as much controlled by principle and precedent as are its express powers by Statute. It is a well established and recognized principle of legal jurisprudence that an act of the Court shall not harm any party, which means total and complete justice shall be done in the case by the Court. Relief will not be granted to a party whose hands are dirty with crime and misadventure or where it has not approached the Court bona-fide or with a mala-fide intention with an effort to mislead the Court especially when the facts are misrepresented or deliberately suppressed. It can conversely be Crl. Misc. No. M-24856 of 2008 14 said that when it comes to the knowledge of the Court that an order has been obtained by these means, the Court would exercise its inherent powers to see that justice is not made a causality by recalling or setting aside such order as the case may require. This Court in circumstances as mentioned above would not feel helpless or give an interpretation to Section 482 Cr.P.C. in a narrow campus to make itself powerless to correct its own error. Inherent jurisdiction exists for the advancement of justice and if any attempt is made to abuse that authority, so as to produce injustice, the Court has the power to prevent that abuse. One of the circumstances provided in Section 482 Cr.P.C. where inherent jurisdiction can be exercised is to prevent abuse of the process of any Court, which would include abuse of process of itself as well. In the absence of such power, the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse of process of law to allow an order obtained