Ashok Kumar and Others vs Tek Chand

Sabina, J.—Vide this judgment, the above mentioned two petitions, would be disposed of. Petitioners have filed these petitions u/s 482 of the Code of Criminal Procedure, 1973 seeking quashing of the complaint dated 21.12.2006 (Annexure P1) and subsequent orders passed in pursuance thereto.

Contents of the complaint (Annexure P1) in question read as under:

That the complainant is resident of Hisar and his sons Anil and Vikash sons of Madan Lal during the business of saw machine in Rectangle No. 109 Killa No. 9/2 situated in Hisar. The saw machine is running on the spot since 1988.

That Hari Chand son of Rohan Das got executed a sale deed No. 4963 dated 28.11.1985 regarding Rectangle No. 109 Killa No. 9 min (1K-13M) and killa No. 26 min (0K-07M) total 2 Kanal 0 marla situated in Hisar in favour of accused 5 to 10 through Ramphal General Power of Attorney. Copy of sale deed is attached alongwith the complaint.

That in the masavi Rectangle No. 109 Killa No. 9/1 (6-3) and 9/2 (1-7) area has been shown. Copy of masavi is attached.

That the above said Hari Chand was owner of Rectangle No. 109 Killa No. 9/1 (6-13) and 9/2 (1-7) situated in Hisar and he got executed the sale deed of specific no of Rectangle No. 109 Killa No. 9/1 and 9/2.

That the accused no 5 to 10 with the collusion of accused no 1 to 4 got mutation entered of above said sale deed, mutation no. 9607 dated 25.7.2000 and mutation no. 4736 dated 25.7.2000. As per mutation no. 9607 dated 25.7.2000 the accused no 5 to 10 had been shown owner in possession of Rectangle No. 109 Killa No. 9/2 (1-7), situated at Hisar, whereas on the spot the accused no. 5 to 10 were not in possession of the said land. Whereas as per sale deed no. 4963 dated 28.11.1985 Rectangle No. 109 Killa No. 9/2 (1-7) situated at Hisar was not sold, beside this as per mutation no. 4736 dated 5.7.2000, it has been shown as owner of Rectangle No. 109 Killa No. 9/1/1 (0-3) and killa No. 26/1(0-9) situated at Hisar. Whereas as per sale deed no. 4963 dated 28.11.1985 only the area of Rectangle No. 109 Killa No. 26 min (0-7) was sold and killa no 9/1/1 (0-3) of Rectangle was not sold. Thus accused no. 1 to 4 with the collusion of accused no 5 to 10 got prepared intentionally wrong mutation so that accused no. 5 to 10 may cause loss to the sons of complaint namely Anil, Pardeep sons of Ami Chand, Amar Singh son of Nanak Ram Vikash son of Madan Lal, who are in possession of Rectangle No. 109 Killa No. 9/2 (1-7), situated at Hisar and may cause damage to the persons in possession namely Mulakh Raj son of Aci Lal in Rectangle No. 109/9/1(0-3) and 26/1 (09) situated at Hisar. Copy of mutation no. 4736 and 9607 are hereby attached. These both mutations are wrong and forged and the accused are using the same.

That accused no, 5 to 10 got the demarcation by giving the application through their friends/relatives by filing the application through Tehsildar Hisar of Rectangle No. 109 Killa No. 9/2 (1-7) and on the basis of demarcation in killa no. 9/2 (1-7) of rectangle no.109 situated at Hisar, Dalip and Pardeep sons of Ami Chand having their pacaka house 20''x45'' and Amar Singh son of Nanak Ram having his packa house 60''x32'' and Vikash son of Madan Lal and Anil son of Tek Ram constructed their house 10''x15'' and boundary wall 93''x27/1/2'' beside this on kila no 9/1 (0-3) and 26/1(0-9) of rectangle no. 109 the two shops, chobara, Dharam Kanta, Ghar, Boundary wall and house etc of Mulkh Raj had been shown.

That in view of the above said wrong mutation accused no 5 to 10 wanted to forcibly dispossessd the sons of complainant who are in possession of killa no. 9/2 (1-7) killa no. 9/1 (0-3) and 26.1 (0-9) of rectangle 109. One application was given in police station on 6.12.2006.

That on 12.10.2006 about 3 pm accused no. 5,6,11 and 12 came to the godown of Tek Chand and Anil situated at Jahajpur had given a threat of murder to Anil, Vikash and Mulakh Raj and stated that the above said land on which saw machine is there is belonging to them. Mulkh Raj etc gave the information to S P Hisar regarding this occurrence but no action has been taken.

Thus, it is prayed that the accused may be summoned and strict action may be taken against them.

Learned counsel for the petitioners has submitted that the complainant was not owner of the land in question. The land in question had been sold by Hari Chand to accused Nos. 5 to 10. Thereafter, mutation was sanctioned by accused No. 1 to 4 in favour of accused Nos. 5 to10. The owner had no dispute with regard to the sanctioning of the mutation in favour of accused Nos. 5 to 10. The complainant was neither owner nor in possession of the land in question and, hence, the complaint filed by him was not maintainable. It has further been submitted that the trial Court vide order dated 24.4.2007 had ordered the summoning of accused Nos. 5 to 10 for commission of offence punishable under Sections 420,506,120B of the Indian Penal Code (`IPC'' for short). In revision filed by the complainant against the said order, the Court of revision ordered the trial Court to pass a fresh order in accordance with law as valid reasons for dismissing the complaint qua accused Nos 1 to 4 had not been given. Despite this, the trial Court vide order dated 10.2.2010 had ordered the summoning of accused No. 11 and 12 also.

Learned counsel for the respondents, on the other hand, has submitted that all the accused in connivance with each other had committed the offence in question and were liable to be tried by the trial Court with regard to the said offence.

It has been held in 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 u/s 482, Cr.P.C. Can be exercised by the High Court 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 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 u/s 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 u/s 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 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

Admittedly, Hari Chand had executed sale deed dated 28.11.1985 in favour of accused Nos. 5 to 10 through attorney Ram Phal qua 2 kanals of land bearing rectangle No. 109 Killa No. 9 min (1K-13M) and killa No. 26 min (0K-07M) situated in Hisar. On the basis of the sale deed, mutation was sanctioned in favour of accused Nos. 5 to 6 qua rectangle No. 109 killa 9/2(1-7) situated at Hisar. Accused Nos. 5 to 6 were not in possession of the suit land. Although as per the sale deed rectangle No. 109 killa No. 9/2 had not been sold yet mutation was sanctioned qua the same. The case of the complainant is that all the accused in collusion with each other had prepared wrong mutation so as to cause loss to the complainant party who were in possession of rectangle No. 109 killa No. 9/2(1-7), 9/1(0-3) and 26/1(0-9).

Learned counsel for the petitioners has placed on record the copies of jamabandies. A perusal of the jamabandies reveal that Khasra No. 109//9/2(1-7) is owned and possessed by Hari Chand. Khasra Nos. 109//9/1/1(0-3) and 26/1/(0-9) are owned and possessed by Hari Chand. Learned counsel for the respondents, on the other hand, has failed to counter the said entries in the jamabandies during the course of arguments.

Since Hari Chand is owner in possession of the land qua which mutation has been sanctioned in favour of accused Nos. 5 to 10, complainant cannot be said to have any grievance in this regard. The owner had sold 2 kanals of land to accused Nos. 5 to 10 and mutation has been sanctioned in favour of accused Nos. 5 to 10 qua Khasra numbers owned and possessed by him. Complainant, who is neither the owner of land in question nor in possession of the same cannot be said to have any grievance in this regard. The aggrieved parties could have been the seller or the purchaser.

9. Petitioners in Crl. Misc. M No. 18235 of 2010 have sanctioned mutation as per the request of the seller and purchaser. Hence, no offence can be said to have been committed by them.

So far as the petitioners in Crl. Misc. M No. 35145 of 2010 are concerned, the complaint qua them was dismissed vide order dated 24.4.2007 by the trial Court. The Court of revision vide order dated 16.9.2009 had held that the reasons given by the trial Court while dismissing the complaint qua respondents No. 1 to 4 were not valid reasons. The accused were revenue officials and specific act had been alleged against them. Thus, the trial Court was directed to pass a fresh order in accordance with law. It is apparent that no such finding was given by the Court of revision so far as accused No. 11 and 12 are concerned. The trial Court, thus fell in error while passing the order dated 10.2.2010 by summoning accused Nos. 11 and 12 (petitioners in Crl Misc. M. 35145 of 2010). There was no such direction by the Court of revision.

In view of the above discussion, continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, these petitions are allowed. Complaint dated 21.12.2006 (Annexure P1) and order dated 16.9.2009 passed by the Court of revision and summoning order dated 10.2.2012 passed by the trial Court and subsequent proceedings arising therefrom are set aside qua the petitioners.