Crl. Misc. No.45031 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Misc. No.45031 of 2007 Date of Decision:May 21, 2009 Ishwar Singh ---Petitioner versus State of Haryana ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. I.K.Mehta,Advocate, with Mrs. Ranjit Mehta, Advocate, for the petitioner Mr. Sidharth Sarup, AAG, Haryana *** SABINA, J. Ishwar Singh -petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for quashing of FIR No. 408 dated 31.12.2006 under Sections 6 and 7 of the Punjab Scheduled Roads Act No. 41 of 1963 registered at Police Station, Rajindra Park, Sector-5, Gurgaon (annexure P-4). The allegations against the petitioner as levelled in the FIR (annexure P-4) are as under:- “It is to inform you that unauthorised construction is being carried out by Ishwar Singh son of Prabhu Dayal in Khasra No. Crl. Misc. No.45031 of 2007 -2- 2607 in village Gurgaon, Tehsil Gurgaon, District Gurgaon. Local enquiry shows that Ishwar Singh son of Prabhu Dayal (1) by carrying out unauthorised construction/complete construction/digging has violated the provisions of Section 6 of the Punjab Act No. 41 of 1963. (2) The accused has converted the use of the land for residential purpose (construction of roads) and has thus violated the provisions of Section 7 of the Punjab Act No. 41 of 1963. (3) Under Section 4(1)(A)(B) of Punjab Act, 1963 the land under reference falls within the notified area of Gurgaon. It has been published in the Gazette Notification No. 2319-27 CP-64 dated 3.7.1964, copy whereof is attached. It is defined therein that without the permission of the Administrator or Village Development authority raising of construction/complete construction/digging is prohibited. It is requested that the name of the real owner/person who is responsible for raising the unauthorized construction be confirmed and thereafter suitable action may be taken against the accused as well as construction may be got stopped. The number of the first information report and its date registered by you may be communicated to this office also Sd/- District Town Planner (E), Gurgaon.” During the pendency of the petition learned State counsel was asked to verify as to whether any construction had, in fact, been raised on the land in question. Learned State counsel has placed on record the communication from the Assistant Commissioner of Police, Udyog, Gurgaon wherein it has been stated as under:- Crl. Misc. No.45031 of 2007 -3- “Kindly refer to your office Memo No. 10187 dated 27.3.2009, on the subject noted above. In this connection it is submitted that after the receipt of above referred communication from your office an application for verifying the query raised by Hon'ble High court was moved to the Tehsildar Gurgaon mentioning therein that the present position of Khasra No. 2607 Gurgaon village may be got verified through Girdhawar or Patwari by inspecting the spot. The said application was marked to Ved Parkash Halqua Patwari by the Tehsildar Gurgaon on 12.5.2009. The Khasra No. 2607 was visited/inspected by Sh. Ved Parkash Halka Patwari along with ASI Babu Lal PS Rajendra Park on the same day. After inspecting the Khasra No. 2607 the said Patwari submitted his report that the land of Khasra No. 2607 situated in village Gurgaon is lying vacant. The photocopy of application and report of Patwari is annexed herewith for reference and perusal. The case is fixed on 21.5.2009 in the Hon'ble High Court. This is for your kind information please.” In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp (1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the Crl. Misc. No.45031 of 2007 -4- 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 chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant, 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 no 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 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 Crl. Misc. No.45031 of 2007 -5- 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 concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. Since the allegation against the petitioner is that he was raising unauthorised construction over the land in question, but on spot inspection the land in question has been found to be vacant land, the continuation of criminal proceedings would be nothing but abuse of process of Court as no offence is prima facie made out against the petitioner Accordingly this petition is allowed. FIR No. 408 dated 31.12.2006 under Sections 6 and 7 of the Punjab Scheduled Roads Act No. 41 of 1963 registered at Police Station, Rajindra Park, Sector-5, Gurgaon(annexure P-4). and all consequential proceeding arising therefrom are quashed. (SABINA) JUDGE May 21, 2009 PARAMJIT