Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH 1. Crl. Misc. No. M- 50814 of 2007 Date of decision. 15 .03.2010 Mehar Singh s/o Daljit Singh, r/o village Ankhol, Tehsil Bahadurgarh, District Jhajjar. ....... Petitioner Versus State of Haryana through Advocate General, Haryana, Chandigarh. ........ Respondent 2. Crl. Misc. No. M- 51595 of 2007 Date of decision. 15 .03.2010 Yogender Singh s/o Sube Singh, r/o 8 Biswa, Jatwara Mohalla, Bahadurgarh, District Jhajjar ....... Petitioner Versus State of Haryana through Advocate General, Haryana, Chandigarh. ........ Respondent -- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajiv Trikha, Advocate for the petitioner, in both the petitions. Mr. Sandeep Mann, Sr. DAG, Haryana for the respondent, in both the petitions. Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 2 -- Sham Sunder, J. This order shall dispose of Criminal Miscellaneous No. M- 50814 of 2007, filed by Mehar Singh and Criminal Miscellaneous No.M- 51595 of 2007, filed by Yogender Singh, petitioners, under Section 482 of the Code of Criminal Procedure, for quashing FIR No. 152 dated 4.7.2005, under Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter to be called as Act only), Police Station City Bahadurgarh, alongwith the report, filed under Section 173 Cr.P.C. ( Annexure P-1) and the order framing charge dated 12.09.2007, as also the charge sheet (Annexure P-3) and all the subsequent proceedings arising therefrom. 2. The District Town Planner, Jhajjar, wrote a letter to the Senior Superintendent of Police, Jhajjar, vide memo No. 327 dated 1.3.2005 that Yogender Singh son of Subey Singh and Mehar Singh son of Daljeet residents of Sankhol Bahadurgarh, were the owners of the land bearing khasra Nos. 164/1, 165/1, situated in village Bahadurgarh, Tehsil Bahadurgarh, District Jhajjar. The total area of the aforesaid khasra numbers is about 2 bighas and 11 biswas. It was stated Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 3 that the said land had been sub-divided into plots for residential and industrial purpose without obtaining a licence from the Director, Town & Country Planning, Haryana, as required under Section 3 of the Act. The plan of the site was also attached with the letter. It was further stated that out of the land, aforesaid, the petitioners had sold 10 plots, as shown in the annexure, accompanying the letter, detailing the names of the parties, to whom, the same were sold and the registration particulars thereof. It was further stated that, under these circumstances, the petitioners, contravened the provisions of clause (i) of Section 7 of the Act. It was further stated that the petitioners, thus, committed the offence, punishable under Section 10 of the Act. On the basis of the letter, aforesaid, the FIR was registered. 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 maximum sentence for the offence, under Section 10 of the Act, is three years. He further submitted that according to Section 468 of the Code of Criminal Procedure, the limitation for taking the cognizance, for an offence punishable for a term exceeding one year but not exceeding Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 4 three years, was three years. It was further submitted that challan in this case was presented on 17.02.2006 and the charge was framed on 12.09.2007. It was further submitted that merely filing of challan in the Court, could not amount to taking cognizance. He further submitted that the cognizance could be taken by the Magistrate, concerned, only within a period of three years from the date of the commission of offence. He further submitted that the plots were allegedly carved out in 2002 and 2003. He further submitted that the cognizance was taken in 2007, i.e. not within the period of three years, from the date of alleged commission of offence. He further submitted that, under these circumstances, the FIR and the subsequent proceedings, arising therefrom, are liable to be quashed. 5. On the other hand, the Counsel for the respondent-State, submitted that according to Section 469 of the Code of Criminal Procedure, the period of limitation, in relation to the offence, is to commence, on the date of the offence; or where the commission of the offence, was not known, to the person, aggrieved by the offence; or to any Police Officer, the first day on which such offence comes to the knowledge of such person or any Police Officer, Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 5 whichever is earlier. He further submitted that the commission of offence by the petitioner, came to the knowledge of the District Town Planner, Jhajjar, in March, 2005 when the letter was written and the challan was presented on 17.2.2006. He further submitted that charge was framed on 12.09.2007, when the cognizance could be said to have been taken, by the Court concerned. He further submitted that, thus, the cognizance was taken by the Court concerned, within a period of three years from the date , the commission of offence, came to the knowledge of the person, aggrieved. Thus, it could not be said, that the cognizance was not taken within the period of limitation. He further submitted that, as such, the FIR and the subsequent proceedings, could not be quashed. 6. 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 abuse of the process of any Court, or otherwise, to secure the ends of justice, has Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 6 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 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 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 Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 7 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 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- Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 8 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 every 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 allegations in the complaint did constitute a cognizable offence justifying registration of a case Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 9 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. The inherent powers, with which the Criminal Courts, are 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 petitioner deserves the indulgence of the Court or not. At the time of deciding the petition under Section 482 Cr.P.C., the Court is only required to, look into the allegations, contained in the FIR and the documents, attached therewith. What was the defence of the accused, is a matter of evidence. The plea of defence of the accused, at the time of deciding the petition under Section 482 Cr.P.C. cannot be taken into consideration. From letter no.327 dated 1.3.2005 , which was sent by the District Town Planner, Jhajjar, to the Senior Superintendent of Police, Jhajjar, it is evident that the commission of offence by the petitioners, under Section 10 of the Act came to his knowledge on that date. On the basis of that letter, the FIR, Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 10 aforesaid was registered on 4.7.2005. The challan was presented in the year 2006 and the charge was framed on 12.09.2007. Under these circumstances, the period of limitation, started running from the date when the commission of offence, by the petitioner, came to the knowledge of person aggrieved i.e. the District Town Planner, Jhajjar. If the period of limitation is computed from 1.3.2005, then the cognizance having been taken by the Court concerned, on 12.09.2007, when the charge was framed, could be said to be within the period of limitation. The submission of the Counsel for the petitioners, being without merit, must fail, and the same stands rejected. 8. The Counsel for the petitioners, however, placed reliance on State of Maharashtra v. Sharadchandra Vinayak Dongre and others, AIR 1995 (SC) 231, State of Himachal Pradesh v. Tara Dutt and another, AIR 2000 (SC) 297, and Nand Lal v. State of Haryana, 1987 (2) RCR 467 in support of his contention, that the cognizance, was not taken, within the period of limitation. The facts of the aforesaid cases, are clearly distinguishable from the facts of the instant case. In those cases, certainly the cognizance had been taken beyond the period of limitation, provided under Section 468 Cr.P.C. It was, under these circumstances,that it was held that the Act of the Court concerned Crl. M. No. M- 50814 of 2007 and Crl. M. No. M- 51595 of 2007 11 taking cognizance beyond the period of limitation, being illegal, the proceedings were liable to be quashed. In the instant case, as stated above, cognizance was taken by the Court, within the period of limitation from the date the commission of offence, came to the knowledge of the person aggrieved and, as such, it could not be said that the act of the Magistrate, concerned, was in any way illegal. No help, therefore, can be drawn, by the Counsel for the petitioner, from the ratio of law, laid down, in the aforesaid cases. The submission of the Counsel for the petitioners, being without merit, must fail, and the same stands rejected. 9. For the reasons, recorded above, Criminal Miscellaneous No. M- 50814 of 2007, filed by Mehar Singh and Criminal Miscellaneous No.M- 51595 of 2007, filed by Yogender Singh, petitioners, being devoid of merit, must fail, and the same are dismissed. 10. The Registry is directed to comply the order immediately by sending the copies thereof to the quarters concerned. (SHAM SUNDER) JUDGE March 15 , 2010 dinesh