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Judgment
This application under Section 482 of the Code of Criminal Procedure has been filed for quashing Siliguri Police Station case No. 224 of 2010 dated 16th April, 2010 under Section 406 and 420 of the Indian Penal Code as well as for quashing the charge sheet being no. 435 of 2010 dated 31st October, 2010 on the ground that the dispute between the parties comes within the purview of civil Court and the first information report as well as the charge sheet do not disclose any offence under Section 406 or 420 of the Indian Penal Code. The delay in filing the first information report has also been agitated as one of the grounds for quashing the first information report as well as the charge sheet.
Learned Advocate appearing on behalf of the petitioners contended that in fact opposite party no. 2 was a tenant of the petitioner on a portion of premises in plot no. 7565 recorded in khatian no. 4363/1 under Mouja- Siliguri in ward no.VIII of Siliguri Municipal Corporation. The said premises were required to be demolished for facilitating the construction work of the proposed building in plot no. 7565. The opposite party no. 2 had expressed his willingness to purchase the shop/office room measuring 384 sq. ft. in the ground floor and remaining space measuring about 320 sq. ft. in the first floor for a consideration of Rs.3.5 Lakhs.
Pursuant to such agreement possession of 384 sq. ft. in the ground floor was delivered to opposite party no. 2. The opposite party no. 2 filed Title Suit no. 11 of 2010 but the said suit was subsequently withdrawn by opposite party no. 2.
Learned Advocate appearing on behalf of the petitioner vehemently contended that the dispute between the parties comes within the purview of civil dispute and there is absolutely no ingredients either in the first information report or in the charge sheet to rope in the petitioners in a case under Section 406 and 420 of the Indian Penal Code. It is further submitted that in order to enforce his claim the opposite party no. 2 filed a civil suit but for the reasons best known to opposite party no. 2 the said suit was withdrawn by opposite party no. 2.
Learned Advocate appearing on behalf of the petitioners vehemently contended that continuance of the criminal case would amount to abuse of process and accordingly the said case ought to be quashed.
Learned Advocate appearing on behalf of opposite party no.2 contended that the opposite party no. 2 has paid the entire amount in terms of the agreement agreed and executed by and between the parties but the petitioners in order the cheat the opposite party no. 2 did not cast the roof of the first floor in order to avoid delivery of possession of the first floor in terms of such agreement and thereby expressed his intention of cheating opposite party no. 2. Admittedly, in terms of such first information report the investigation has already been culminated in filing of the charge sheet.
In the celebrated decision reported in 1992 SCC(Cri) 426 (State of Haryana Vs. Bhajan Lal) some illustrative categories of cases have been indicated by Apex Court in order to show as to how the power under Section 482 of the Code of Criminal Procedure can be exercised.
The illustrative categories indicated by the Apex Court are as follows:-
"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.
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.
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.
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.
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.
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.
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."
Admittedly, the High Court cannot assume the role of a trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation on a reasonable appreciation of such evidence. It is well settled principle of law that power under Section 482 of the Code of Criminal Procedure should be exercised sparingly with caution and circumspection in deciding the case of the parties.
In a proceeding under Section 482 of the Code of Criminal Procedure the High Court cannot enter into highly disputed questions of fact and concluded that material before it was sufficient to cause reasonable suspicion about case of the complainant.
In other words while deciding a proceeding under Section 482 of the Code of Criminal Procedure the High Court cannot look into the evidences on record and cannot enter into the disputed facts by usurping the jurisdiction of a trial Court. The investigation has already been concluded and charge sheet has been filed. At this stage it is next to impossible without embarking on the evidences on record to come to a definite finding about the rival claim of the parties. In that view of this case, the prayer for quashing the entire charge sheet cannot be entertained in a proceeding under Section 482 of the Code of Criminal Procedure. The application for quashing the charge sheet being no.646 of 2010 as well as the first information report being no.224 of 2010 dated 16.04.2010 is dismissed.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.