Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 4749 of 2021 Petitioner :- Radhey Shyam And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamlesh Kumar Tiwari,Atul Kumar Shahi Counsel for Respondent :- G.A.
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Piyush Agrawal,J.
1. Heard Sri Kamlesh Kumar Tiwari, learned counsel for the petitioners, Sri Atul Kumar Sahi, learned counsel for the informant-respondent no.3 and Km Meena, learned A.G.A. for the State-respondent nos. 1 and 2.
2. This writ petition has been filed praying for the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the first information report dated 12.06.2021 registered as Case Crime No. 312 of 2021, under sections 406 ,419, 420, 467 468, 471, 120-B I.P.C., P.S. Khorabar, District Gorakhpur.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent-authority not to arrest the petitioners in pursuance of the first information report dated 12.06.2021 registered as Case Crime No. 312 of 2021, under sections 406 ,419, 420, 467 468, 471, 120-B I.P.C., P.S. Khorabar, District Gorakhpur".
3. Briefly stated facts of the present case are that the Khasra-plot no. 219, area 0.402 hectare and Khasra-plot No. 284, area 0.809 hectare of village Jungle Ramgarh @ Chawari, Tappa and Pargana Haveli, Tehsil Sadar, District Gorakhpur were jointly owned by petitioners, their mother Lalita Devi and brother Sita Ram Pandey. Mother Lalita Devi and her three sons, namely, Sita Ram Pa, Radhay Shyam, Shiv Shankar were the owner of the aforesaid land. All the aforesaid co-owners entered into registered agreement to sale dated 04.03.2010 with the informant-respondent no.3 with the condition that informant-respondent no.3 shall get the sale deed executed within a year. On 07.04.2012, the informant-respondent no.3 got executed a sale deed from all the co-owners of land except 50 dismile land. Subsequently, the mother of the petitioners, namely, Lalita Devi died. After her death, three brothers, namely, Sita Ram Pandey, Radhey Shyam and Shiv Shankar become co-owners of the 50 dismile remaining land and petitioners have 1/3rd equal share each. On 06.11.2020, the brother of the petitioners, namely Sita Ram executed a sale deed in favour of one Smt. Asha Devi, wife of Munni Lal Yadav. He also sold 0.8420 hectare of land of Khasra-Plot No. 284 out of his share.
4. It appears that Original Suit No. 242 of 2011 was filed by the petitioners and his brother Sitaram Pandey in the Court of Civil Judge (Senior Division), Gorakhpur for cancellation of registered agreement to sale dated 04.03.2010, which was dismissed for non prosecution on 04.10.2012. Three days thereafter, the petitioners, their brother and mother executed a sale deed in favour of informant-respondent no.3 on 07.04.2012.
5. In the counter affidavit, the informant-respondent no.3 has alleged that a notarized agreement to sale was also entered into with the informant- respondent no.3 on 22.12.2015 for sell of remaining land. Since the brother of the petitioners has sold his share to one Smt. Asha Devi, therefore, informant-respondent no.3 has lodged the impugned FIR.
6. Aggrieved with this, the petitioners have filed the present writ petition.
7. Learned counsel for the petitioners submits that from a bare reading of the impugned FIR, no cognizable offence is made out. The informant- respondent no.3 wants to built up a pressure upon the petitioners to take away the land of the petitioners. There is no allegation in the impugned FIR against the petitioners, and even impugned FIR does not disclose commission of cognizable offence. He, therefore, submits that the impugned FIR is an abuse of process of law and at the best civil suit has been attempted to be converted into a criminal case.
8. Learned counsel for the informant-respondent no.3 submits that brother of the petitioners has sold his share to some one else and petitioners may also sell their share, whereas notorized agreement to sell is of the year 2015, petitioners are bound to sell their land to the informant-respondent no.3. It is submitted that unregistered agreement to sale which has been disputed by the petitioners, who stated that agreement does not bear their signatures.
9. We have carefully considered the submissions of the learned counsel for the parties
10. The facts as briefly stated above, leaves no manner of doubt that the petitioners, their brother and mother were co-owner of the disputed land. They jointly executed a sale deed in favour of informant-respondent no.3 on 07.04.2012 for certain portion of the disputed property. Thereafter, mother of the petitioners died. Consequently, share of the mother was devolved in favour of three sons and, thus, remaining land which is stated to be 50 dismil, petitioners and their brother Sita Ram Pandey have equal share and co-owners. The brother of the petitioners, namely, Sita Ram Pandey has sold about 0.8420 hectare of land to one one Asha Devi out of his share. Petitioners having not sold their land as yet. The alleged unregistered sale deed dated 22.12.2015 filed by the informant-respondent no.3, has been disputed by the petitioners. The facts of the case clearly reveals that purely civil suit has been attempted to be converted into a criminal case by the informant-respondent no.3, which is glaring example of the abuse of the process of law, even from the perusal of the impugned FIR.
11. In the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335, Hon'ble Supreme Court has illustrated certain circumstances, in which FIR can be interfered with in exercise of powers under Article 226 of the Constitution of India. The said illustrations crystallized by Hon'ble Supreme Court in the case of Bhajan Lal and others (supra), are reproduced below:
"(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides 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."
12. The principles of law laid down in the case of Bhajan Lal and others (supra) has been reiterated by Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 (Para-23) and it has been held as under:-
"Conclusions:-
23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
13. In view of law laid down by Hon'ble Supreme Court in the case Bhajan Lal (supra) and the facts of the present case, the impugned FIR can not be sustained, inasmuch as it is an abuse of process of law by converting a civil dispute into a criminal case. Therefore, the impugned FIR is liable to be quashed.
14. With the above observations, the writ petition is allowed. The aforesaid impugned first information report is hereby quashed.
Order Date :- 27.7.2021 T.S.