Crl.Misc.No.M-7051 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No. M-7051 of 2009 Date of Decision: 22 -5 - 2009 Birinder Singh and another .....Petitioners v. State of Punjab and another .....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.B.S.Bhalla, Advocate for the petitioners. Mr.Mehardeep Singh, DAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present criminal miscellaneous petition has been filed invoking inherent jurisdiction of this Court under Section 482 Cr.P.C., with a prayer to quash case FIR No.147 dated 26.7.2008 registered at Police Station City Khanna, District Police Khanna under Sections 447, 451, 380 and 120-B of the Indian Penal Code. Before the background of the case, litigation inter se the parties and earlier order passed by this Court in Criminal Misc.No.14792 of 2008, Annexure P-4 are noticed and discussed, it would be pertinent to mention that in the present petition, in pursuance of notice of motion issued, written statement has been filed by Deputy Superintendent of Police, Khanna. In para 24 of the written statement, it has been stated as under:- Crl.Misc.No.M-7051 of 2009 [2] “24. That contents of this para are denied being incorrect that the FIR has been falsely registered. However, it is stated that Sec. 380 IPC has been deleted on the enquiry report of S.P. (D) Khanna.” It is evident from above that during investigation, offence under Section 380 IPC has been deleted. Therefore, this Court has to consider whether any offence under Sections 447 and 451 read with Section 120-B IPC is made out or not? This Court for the discussion and reasons to be stated later, propose to pass severe strictures against Balwinder Singh Randhawa, PPS, Deputy Superintendent of Police, Khanna and SI Kuldip Singh, Investigating Officer. Therefore, they are put to notice and notice to this effect be issued to them by the Registry that they have shown scant regard to the order Annexure P-4 passed by this Court and had foregone the opportunity to redeem themselves for the conduct which is unbecoming of police officials, as inter se dispute between warring brothers which was purely of civil nature, they intervened for extraneous reasons and had usurped the jurisdiction of the civil court. A time has come when police officials had to learn not to muddle in the civil litigation between the parties and to refrain, not to abuse the process of criminal law. Having stated so as a prelude to this judgment and aforementioned proposed stricture, I proceed with the facts raised in the present petition. Counsel for the petitioners has placed on record, copy of civil court judgment Annexure P-7 passed in Civil Suit No.43 dated 16.1.2003. Reference to Annexure P-7 is made to garner facts. Petitioners had filed suit against respondent No.2. Petitioners and respondent No.2 are sons of Mohinder Singh through different mothers. Mohinder Singh father of the Crl.Misc.No.M-7051 of 2009 [3] petitioners was married with Surinder Kaur and out of that wedlock two sons Devinder Singh and Ravinder Singh and one daughter Tejinder Kaur were born. Devinder Singh pre-deceased Mohinder Singh leaving behind his wife and two children, namely, Sonia and Rabinder Singh. Differences arose between Mohinder Singh and Smt.Surinder Kaur. Mohinder Singh married Amrit Kaur. Petitioners were born from the loin of Mohinder Singh and from the womb of Amrit Kaur. It is essentially a civil dispute over the estate of Mohinder Singh between petitioners and their step brother respondent No.2 Ravinder Singh. Petitioners had filed a civil suit for declaration and permanent injunction. Court of Additional Civil Judge (Sr.Division), Khanna on 12.9.2008 decided the civil suit and held as under:- “60. As a consequence of findings returned on above issues, suit of plaintiffs Birinder Singh and Jagbinder Singh succeeds and is directed to the effect that they are joint owners and entitled to 1/3rd share (1/6 share each) alongwith defendants in the property in dispute fully described in the headnote of the plaint subject to partition. Gift deeds dated 5.3.1999 executed by Mohinder Singh in favour of defendant no.1 Rabinder Singh Batra, Gift Deed dated 10.3.1999 executed by Mohinder Singh in favour of defendant no.2 Smt. Tejinder Kaur, mutation order 8.6.2000 on the basis of Gift Deeds, Sale deed dated 13.5.1997 executed by Mohinder Singh in favour of defendant no.1 and mutation sanctioned on the basis of said sale deed, are set aside, having effect on the rights of the plaintiffs. Defendant no.1 is restrained from alienating and dispossessing the plaintiffs from the property in dispute except Khasra No.1324 fully described in the headnote of the plaint. In view of the relationship of the parties, the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared and file be consigned to record room.” Crl.Misc.No.M-7051 of 2009 [4] The above said findings held the petitioners to be joint owners, and entitled to 1/3rd share in the property. Earlier thereto Mohinder Singh had filed a civil suit for possession against his two sons i.e. the petitioners. The civil suit was decreed and petitioners were directed to hand over the vacant possession of the property in their possession to their father Mohinder Singh, then plaintiff in the suit. The relevant portion of the decree read as under:- “Plaint presented on 28.2.2000 This suit was coming on 29th day of July, 2000 for final disposal before me (Muneesh Arora, PCS, Civil Judge, Jr. Division, Khanna in the presence of Shri J.S.Aujla, Advocate counsel for the plaintiff and Sh.J.K.Verma, Advocate counsel for the defendants. It is hereby ordered that the suit of the plaintiff succeeds and is hereby decreed with costs Defendants are directed to hand over the vacant possession of property in their possession to the plaintiffs within a period of two months from the date of decree. Defendants are further restrained from changing the existing position of the suit prop0erty in the mean time.” This decree became subject matter of Regular Second Appeal No.936 of 2002, as petitioners had preferred appeal to this Court. This Court on July 14, 2003 passed the following order:- ORDER: Present: Shri M.L.Sarin, Senior Advocate with Ms.Sweena Pannu, Advocate for the appellants. Sh.Gurminder Singh, Advocate for the respondent. -------- Says that Mohinder Singh, plaintiff-respondent had died on August 25, 2002. According to the learned counsel, the present appellants being sons of Mohinder Singh are also entitled to the estate of Mohinder Singh. However, this fact is disputed by Sh.S.C.Kapoor, learned Senior Counsel for the respondent Rabinder Singh. According to the learned counsel for the respondent, the deceased Crl.Misc.No.M-7051 of 2009 [5] Mohinder Singh had executed a will in which the present appellants Birinder Singh and Jagbinder Singh had been dis- inherited. Without expressing any opinion on the succession of the aforesaid deceased, at this stage, the claim of the appellants cannot be prima facie rejected because of the death of Mohinder Singh. Admitted. Parties shall maintain status quo, qua possession, during the pendency of the present appeal. It is further directed that none of the parties would alienate the property during the pendency of the appeal, except with prior permission of the Court. Sd/-Viney Mittal July 14, 2003. Judge.” The above-mentioned facts make it abundantly clear that Mohinder Singh was aggrieved that petitioners are in possession of the suit property. The civil court had decreed the suit vide Annexure P-5 and directed that vacant possession of the property be handed over to Mohinder Singh. It has no where come that in pursuance of the decree, petitioners had surrendered or parted away with the possession to Mohinder Singh or his successors, rather they made the decree subject matter of Regular Second Appeal No.936 of 2002, order of which has been reproduced above and status quo regarding possession was ordered. Respondent No.2 Ravinder Singh claim succession and possession through Mohinder Singh against the petitioners – his step brothers. On 14.7.2003, this Court had ordered status quo. It seems Ravinder Singh respondent No.2 intended to migrate to United States of America. Regular Second Appeal having been admitted was not decided. Therefore, to frustrate the interim order in favour of the petitioners, Crl.Misc.No.M-7051 of 2009 [6] Ravinder Singh procured aid and help of the police officials, who in order to frustrate the order of status quo of possession passed by this Court, acted in a most crude manner and on an application submitted by Ravinder Singh sealed the premises which were in possession of the petitioners which necessitated the petitioners to approach this Court by filing Criminal Misc.No.M-14792 of 2008, in which they prayed that action of the respondents in putting the seal is mala fide. This Court on 19.1.2009 passed the following order:- “Jagbinder Singh petitioner was in continuous litigation with his brother Ravinder Singh Batra. It is stated in the petition that order of status quo has been granted in favour of the petitioner by this Court in Regular Second Appeal No.936 of 2002 on 14th July, 2003. Petitioner claims that he is in possession of the entire property and the status quo order was subsisting when Ravinder Singh Batra gave an application to the SDM stating that he has to go abroad, therefore, the property in his possession be sealed. On the application (Annexure P-5) so filed, SDM issued a letter to the SSP Khanna. A true translated copy of the letter has been attached at page 29 of the petition and the same reads as under: “From Sub Divisional Magistrate, Khanna. To Senior Superintendent of Police, Khanna. No. 753/ Steno dated 21.5.2008 Subject: Regarding sealing of the residential house and building of Batra Nursing Home from 28.5.2008 till the return of the applicant from abroad. Crl.Misc.No.M-7051 of 2009 [7] Dr. Ravinder Singh Batra had submitted on the above said subject matter that there is a litigation pending between him and his family members. Now he want to go abroad. He told that the Hon'ble High Court vide its order dated 29.5.2004 directed this office that the order dated 14.7.2003 regarding the status quo of the residential house and the building of the hospital is in his favour and should not be violated. He also submitted that since he is going abroad and therefore till his return the residential house and the Batra Hospital may be sealed. The copy of the application and copy of the order of the court is sent to you for the information and necessary action. Sd/- Sub Divisional Magistrate Khanna Date 21.5.2008” It is stated that on receipt of the application, SSP had marked the same to the DSP Khanna. DSP Khanna further down-marked the same to the SHO Police Station Khanna. Inspector Gurcharan Singh, SHO Police Station Khanna went at the spot and sealed the entire property. Grievance of the petitioner is that he was in possession of the property and on the application given on the wrong averment, his property has been sealed. Counsel for the complainant has controverted this fact and has stated that he was in possession of the property and therefore, he had a right to get the property sealed. This is a strange case, where parties are in civil litigation. What business police has got to intervene in the property dispute of the parties, which was a subject matter of the civil Court? This Court had called the SDM. He appeared in the Court and has stated that he had only forwarded the application to the SSP. SSP had further marked the same to the DSP and Crl.Misc.No.M-7051 of 2009 [8] DSP to the SHO. SHO has stated that in his presence, only respondent No.4 had sealed the property. Counsel for the petitioner has stated during the course of arguments that he was not allowed to enter in the house as the property had been sealed by the police and no body has come forward to own the action on the part of police that the property was sealed by them. Counsel has further submitted that when he made an attempt to enter in his house, case has been registered against him that he has broken the seals put up by the police. One thing is apparent that in present case, police had facilitated sealing of the premises. This was without following any proper procedure. On a query put to the State, Counsel for the State is unable to state, under which provisions of law or mandate or a Sanction, the police had accompanied Ravinder Singh Batra to seal the building, for which civil Court had issued an order of the status quo. The procedure adopted by the police is not only irregular, but patently illegal. Action of petitioner to protect order of status quo, cannot be held to be bad, therefore registration of FIR seems to be malafide. Since the petitioner has got the possession of the premises and has been implicated in case FIR, no relief can be granted to him in the present petition, however, he will be at liberty to seek quashing of FIR. The record, which was sealed on the previous date, be returned to the Investigating Officer. With these observations, present petition is disposed off.” This Court in Criminal Misc.No.M-14792 of 2008 had specifically held “action of the petitioners to protect order of status quo cannot be held to be bad, therefore, registration of FIR seems to be mala fide”. Crl.Misc.No.M-7051 of 2009 [9] The impugned FIR which was registered against the petitioners read as under:- “The SSP Khanna, Dear Sir, I have just received a telephone call to inform me that my residence at Railway Road Khanna has been broken into. Birinder Singh came from Mohali and with his younger brother Jagbinder Singh broke open the seals and locks placed on my residence and forced their way in with no one to resist this trespass. I have been living in my home since 1947 and continually with my aging parents since 1976 when I set up practice. My father had two sons from his second marriage Birinder Singh and Jagbinder Singh. He made every effort to settle them independently but was finally compelled to disinheritance. A lot of litigation started in 1999 and the case still sub judice in the Pb. & Haryana High Court and stay orders have been issued status quo will be maintained till a decision in the case. On a previous visit to my sons in the USA. I had obtained specific orders from the court of Justice Rajive Bhalla, asking the SSP Khanna to see that Status quo was maintained especially with regard to the residential portion and fearing this kind of criminal behaviour requested that the house and hospital be sealed. My fears have now proven true. All my luggage assets and papers are in the house and I can well imagine. I have been informed that Jagbinder Singh broken open the locks of the house and entered it at about 6 or 7 pm today 8th July 2008 with his servant Joginder he has stolen quite a few articles from the house and has locked up the front gate of the premises so that nobody can come in and check up. Just because I am so for away does not mean that my house should be broken into and seals placed by the police so brazenly broken open. Just because they have a stay on arrest it is ok for them to commit crime and get away with it. Is the law of the land only for those who obey it but not for those who break it and cock a snoot at the whole system. Sir please see that justice is carried out and the possession of my house restored to me Crl.Misc.No.M-7051 of 2009 [10] and the seals replaced. Thanking you, Yours Truly Sd/- Dr.Rabinder Singh Batra.” As noticed, police during enquiry has found that no offence of theft under Section 380 IPC is made out. This Court has to examine whether any offence of trespass falling within the ambit of Section 447 and 451 IPC is made out or not? From the perusal of Annexure P-7 judgment of the civil court, it is evident that petitioners have been held to be co-sharers in the property to the extent of 1/3rd. Further more Mohinder Singh through whom respondent No.2 claim succession had filed a civil suit calling upon the petitioners to hand over the vacant possession. Suit of Mohinder Singh was decreed vide Annexure P-7. Same was challenged by filing a Regular Second Appeal. This Court had ordered that status quo regarding possession be maintained. It is apparent that in pursuance of decree, there is no document on record to show that possession passed from the hands of the petitioners to respondent No.2. Order of status quo was in operation, yet as noticed in order Annexure P-4 passed in Criminal Misc.No.M-14792 of 2008, decided on 19.1.2009, this Court had held action of the Sub Divisional Magistrate and police officials to seal the property to be bad. The police officials were dealt with lightly and no action was taken against them. When the present petition for quashing of the FIR was instituted, notice of motion was issued with a hope that better sense will dawn upon the police officials and at their own level taking into considerations the reasons and tenor of the order Annexure P-4, they would not persist with the impugned FIR. Case was adjourned on various dates. By filing of present petition, not only petitioners have been put to distress but much time and energy of this Court has been also wasted. In the reply so filed by way of affidavit of Balwinder Singh Randhawa, PPS, Deputy Crl.Misc.No.M-7051 of 2009 [11] Superintendent of Police, Khanna and SI Kuldip Singh have gone out of way to justify registration of the FIR. SI Kuldip Singh was present in Court. On an enquiry, State counsel on instructions from him stated that no statement of complainant has been recorded as he was in United States of America. For the discussion made above and as observed earlier action of the police officials in registering the case is held to be mala fide. In State of Haryana & Ors. v. Bhajan Lal, 1993(1) RCR (Crl.) 383, Hon'ble Apex Court laid down the law in the following terms:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chanelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.” Sub-Para (7) of the said Para reads as under: “(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.” Consequently, the present petition is allowed and impugned FIR is quashed. As noticed in this judgment, notice be issued to Balwinder Crl.Misc.No.M-7051 of 2009 [12] Singh Randhawa, PPS, Deputy Superintendent of Police, Khanna and SI Kuldip Singh as to why severe strictures as proposed be not passed against them and heavy costs be not imposed. After the service is effected upon Balwinder Singh Randhawa, PPS, Deputy Superintendent of Police, Khanna and SI Kuldip Singh, case be listed for further proceedings. ( KANWALJIT SINGH AHLUWALIA ) May 22, 2009. JUDGE RC