Om Parkash Sachdeva vs Mahadev Parshad

V.S. Aggarwal, J. (Oral)

This is a petition filed by Om Parkash Sachdeva and Inder Mohan (hereinafter described as ''the petitioners'') seeking quashing of the complaint dated 16.6.1992 and the summoning order dated 20.10.1992 alongwith the subsequent proceedings pending in the Court of Shri Harnam Singh, Judicial Magistrate Ist Class, Hissar.

The facts alleged are that Shri Kishan Chand Sachdeva died leaving two sons namely Lal Chand Sachdeva (respondent No. 2) and petitioner Om Parkash Sachdeva. Shri Kishan Chand Sachdeva himself was a displaced person from West Pakistan. He migrated to India on the partition of the country and became a member of Refugee Cooperative Housing Society Limited, 14 Hailey Road, New Delhi. He had paid the admission fee and certain other amounts. On 25.8.1954 Shri Kishan Chand Sachdeva executed a will. It provided that in the event of his death, his two sons namely Lal Chand Sachdeva and Om Parkash Sachdeva shall be full owners of equal shares of the compensation. After execution of the will, he died on 1.9.1954. Om Parkash Sachdeva and Lal Chand Sachdeva had a joint account. After the demise of their father, the payments in respect of the subsequent calls were made out of the said joint account. The society was issuing receipts in the name of the widow of Shri Kishan Chand Sachdeva. The widow of Shri Kishan Chand Sachdeva had mentioned to the said society that her share and amount deposited be transferred in the name of Lal Chand Sachdeva. It is alleged that it was done to fulfil their requirements of the byelaws. The actual transfer by the Society in favour of Lal Chand Sachdeva took place on 7.3.1962. The sale deed of the plot in favour of Lal Chand Sachdeva was dated 18.12.1963. As per the request made by Smt. Lal Devi widow of Shri Kishan Chand Sachdeva, the possession of the plot was given by the society to petitioner No. 1 Om Parkash Sachdeva and respondent No. 2 Lal Chand Sachdeva. They constructed a single storey house on the plot.

It is contended that respondent No. 2 Lal Chand Sachdeva filed a civil suit against petitioner No. 1 for mandatory injunction directing the petitioner No. 1 to vacate the portion of the property in his possession. The plaint was rejected because it was under valued. Thereafter petitioner No. 1 continued to be in possession of the house but respondent No. 2 illegally and fraudulently sold the house mentioned above to one Rajesh Aggarwal. It was recited that respondent No. 2 Lal Chand delivered possession of the same to the vendee. As per the assertions this was a false fact that had been stated. On coming to know of the said sale, petitioner No. 1 filed a civil suit against respondent No. 2 and Rajesh Aggarwal for partition and injunction. There were also proceedings between the petitioners on one side and Mahadev Parshad and Rajesh Aggarwal on the other side. Petitioners'' claim is that as a counter blast on 16.6.1992 respondent No. 2 had made a complaint against the petitioners through Mahadev Parshad who is the father of Rajesh Aggarwal at Hissar. It pertains to offences punishable under Sections 324/327/330 and 506 IPC. It is claimed that since it is a mala fide complaint, the same should be quashed.

The petition has been contested. Lal Chand Sachdeva in his reply denies that he has filed or got filed a complaint against the petitioners through Mahadev Parshad. He even does not know any such person. The factum of the sale of the house was not disputed. The same even has been contested by Mahadev Parshad.

To appreciate the questions in controversy, reference can well be made to the contents of the complaint filed at Hissar. In the said complaint filed by Mahadev Parshad, he mentions that he visits his factories at Hissar. The petitioners reside at Delhi. There is a dispute between the parties. The petitioners want that the son of Mahadev Parshad may sell the house mentioned above to them and may not charge the market price. On 3.10.1991 Mahadev Parshad had gone to Hissar. He was coming from Bhansu Steel to Hissar Bus Stand. The petitioners had come there. Inder Mohan and Om Parkash had come out of one car. Om Parkash had a hockey in his hands while Inder Mohan was armed with a knife. On coming out from the car, they caught hold of Mahadev Parshad. Petitioner Inder Mohan gave a knife blow on the left side of the back of Mahadev Parshad and the other on the back side of the arm. Om Parkash gave a hockey blow near the right hand. On these broad facts, the complaint was filed. The learned Judicial Magistrate at Hissar had summoned the petitioners as accused for the offences mentioned above.

As is apparent from the resume of the facts given above, the petitioners'' counsel urged that the criminal complaints so filed at Panipat is a counter blast to the litigation pending in different courts including at Delhi. It is mala fide and without basis. False complaint to put pressure on the petitioners has been filed at Hissar. In support of his contention, the learned counsel had drawn the attention of the Court to some of the precedents from this Court. In the case of Gantoli v. Kalwa Ram, 1986(2) RCR 398, there were proceedings between the husband and the wife under Section 125 of the Code of Criminal Procedure. A complaint was filed with respect to offences punishable under Sections 323/504/506/380/148 and 149 IPC. It was held that it was a counter blast. The criminal complaint and the subsequent proceedings were quashed. In paragraph 4 it was held :

"At the motion stage, it was difficult to serve the respondents on the dates fixed. Vide order dated 31st July, 1985, I have observed that the respondent did not seem to be interested to put in appearance and thus had admitted the petition. Even today no one has put in appearance on his behalf. It seems obvious that the respondent has not the courage to meet the case of the petitioner which apparently is that it is an abuse of the process of the Court and is a counterblast to the maintenance proceedings. Additionally the articles mentioned in the complaint, said to have been removed from the house of the respondent at the time when his daughterinlaw was taken away, do not rule out the possibility that those were the Istridhan of his daughterinlaw. In the situation it is not in the interest of justice to keep the proceedings pending against the petitioner with the learned Magistrate."

Almost similar were the facts in the case of Om Parkash Mehra v. Karam Singh, 1987(1) RCR 586. Herein also a complaint was filed with respect to the offences punishable under Sections 420/406 IPC. The contention of the accused who had been summoned was that complaint has been filed to put pressure on him to withdraw other proceedings pending before the Rent Controller. The contention of the accused prevailed. The proceedings were quashed and in paragraph 3 it was held :

"In the given facts and circumstances of this case and the necessary backdrop which has been furnished by the learned counsel for the petitioner which, as already pointed out, remains uncontroverted. I am satisfied that the complaint Annexure P.4 is only mischievous and has been filed with a view to pressurise the petitioner to withdraw from the proceedings which are pending against the nephew of the respondent complainant in the Court of Rent Controller, Patiala. In the light of that there cannot be any other conclusion than the one that by continuation of these proceedings the complainant wants to misuse the process of the Court".

Same was the position in the case of Narain Singh v. Devinder Singh and others, 1988(1) RCR 452 and in the case of Saroop Singh v. State of Haryana, 1995(1) RCR 117. More recently in the case of Jatinder Aggarwal v. State of Punjab, 1996(2) RCR 788 when a similar question arose, the proceedings were quashed. In the cited case the occurrence was shown to have taken placed at Budhlada Bus Stand. The accused belonged to Bhatinda. The eye witnesses belonged to different places. The complainant had not even got himself medically examined. An earlier complaint had been filed against the accused for the offence punishable under Section 420 IPC. It had been dismissed. There were disputes between the parties over the business. The learned Single Judge of this Court held that intention of the complainant was to harass the accused. The result was that the proceedings were quashed.

It is apparent from the facts of all the cited cases that the court came to the conclusion that the proceedings namely the criminal complaint were mala fide. The same had been filed with the sole object to harass the accused in those cases and, therefore, they were quashed. Once such a conclusion is arrived at, indeed there would be no difficulty. Can we say in the facts of the present case that such a conclusion can be arrived at ? The answer would be in the negative.

For all fairness to the petitioners'' learned counsel, he drew the attention of the court to certain facts, admissions and events to urge that it is a false complaint. Purposefully the said events are not being mentioned to express any opinion but the significance of the events of the complaint, reference of which had already been made does not permit this court at this stage to conclude that the complaint was filed with a mala fide intention. At the initial stage, the Court would be reluctant to evaluate the genuineness and reliability of the allegations. Ordinarily, it should be done by the trial court. The High Court would only quash the proceedings once it comes to the conclusion that the assertions are false and mala fide.

We know from the decision State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 : 1992 SCC (Cri.) 426 that powers to quash the proceedings have to be exercised sparingly. Only in extreme cases where no case is drawn it is mala fide or vindictive litigation, those proceedings can be quashed. The Supreme Court had drawn certain guidelines which need not be reproduced here in extenso. Subsequently, in the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995(3) RCR (Cri) 700 : 1995 SCC (Cri.) 1059 again the Supreme Court held :

"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 first information report or the complainant and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

The consistent view which has become the law of the land is that the High Court should exercise this power sparingly at the initial stage. Reference with advantage may be made to the Supreme Court decision in the case State of T.N. v. Thirukkural Perumal, 1995(2) SCC 449 wherein considering somewhat a similar situation it was held :

"The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments (reference in this connection may be made with advantage to State of Haryana v. Bhajan Lal) but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Cr.P.C. seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation."

Subsequently, in the case State of Maharashtra v. Ishwar Piraji Kalpatri and others, 1996(2) RCR (Crl.) 844 : 1996(1) SCC 542 same guidelines were forthcoming and in paragraph 22 it was held :

"In fact, the question of mala fides in a case like the present is not at all the relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist, then the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But there mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations of mala fides were also made in P.P. Sharma case against the informer. It was held by this Court that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings."

Let us have a look on the facts of the case. In the complaint it is alleged that petitioners came to Hissar, assaulted and injured the complainant. No doubt there is previous history of litigation, but it is a double edged weapon. It could or could not be. It will not be proper to express any opinion about the truthfulness unless the court can find that allegations were false. That aspect is lacking and, therefore, it will not be proper to scrutinize the evidence and quashing the proceedings.

There is another way of looking at the matter. The petitioners can certainly approach the trial court to withdraw the summons. The trial court, if satisfied, is competent to do so. The earlier view that summons once issued by the trial court cannot be withdrawn, no more appears to be good law because the Supreme Court in the case of K.M. Mathew v. State of Kerala and another, 1992(2) PLR 35 held :

"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the every face of it does not disclose any offence against the accused."

Having set this controversy at rest, the answer is provided and the conclusions are obvious that even the trial court itself is competent to withdraw the summons once issued.

Taking stock of the situation, at this stage, the Court will not scrutinize the evidence to give a finding that the proceedings initiated are mala fide. Such material is not available except certain facts which were pointed by the petitioners'' counsel. On basis of that final findings cannot be given. The petition must fail and is dismissed.

At this stage, petitioners'' counsel requested that personal presence of the petitioners may be exempted because they have to come on each date from Delhi. It is directed that on a proper application being presented, the trial court will exempt the personal presence of the petitioners on such terms and conditions as may be deemed appropriate.