R. Prakash and Others vs State and Others

Rathnakala, J—Since the parties in both petitions are the same and the allegations are identical, both the cases are taken together for disposal. The second respondent though served is unrepresented.

Heard Sri. Nitin R., learned Counsel appearing for the petitioners and the learned High Court Government Pleader for the State.

The fact is, the second respondent in the capacity of General Power of Attorney Holder of one Sanjay Jam lodges a complaint on 21.2.2011 against the petitioners herein, who are the members of the same family, alleging that the accused persons trespassed into his property bearing site No. 36, Khata No. 56, 12th Main, 17th ''D'' Cross, 5th Phase, J.P. Nagar, Bangalore, of which he is in rightful possession. He lodged another complaint on 27.2.2011, a week after the first complaint alleging offences under Sections 341, 324, 506 read with Section 34 of IPC against the petitioners. In both cases, investigation is stayed in view of the interim order passed.

Learned Counsel appearing for the petitioners submits, the crux of the matter is in respect of the ownership/possession of the property in site No. 36 cited in both the complaints. In this regard, the petitioners filed a suit for permanent injunction in O.S. No. 7073/2010 and subsequently the complainant also filed a suit for permanent injunction in O.S. No. 2331/2011 and both suits were disposed of together vide judgment dated 7th August 2015. The suit filed by the complainant is dismissed and the suit filed by the accused persons is decreed. The complainant has given the colour of crime to a civil dispute, which is not permissible in law, and the complaints are liable to be quashed.

The complaint is lodged not by the owner of the property but by the GPA Holder of the property and it is obvious that the complaint allegations revolve around the center point that the complainant is the owner of the property. When it is shown that the dispute was about the ownership and possession of the property, there cannot be an allegation of Section 447 against the petitioners in respect of the very same property.

As regards the second complaint is concerned, though the allegations are made under Sections 341, 324, 506 of IPC, the office is said to have been committed over the site which is the subject matter of the dispute between the parties.

The Apex Court in the matter of Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, AIR 1988 SC 709 : (1988) CriLJ 853 : (1988) 1 Crimes 780 : (1988) 1 JT 279 : (1988) 1 SCALE 261 : (1988) 1 SCC 692 : (1988) 2 SCR 930 , on noticing that the matrix at its hand may constitute a civil wrong and the ingredients of the criminal offences were wanting, quashed the criminal proceedings as against the appellants before it. The law on the point is well elucidated in its recent judgment in Rajib Ranjan Vs. R. Vijaykumar, (2014) 4 CCR 409 : (2014) 4 Crimes 328 : (2015) 1 JCC 42 : (2014) 4 RCR(Criminal) 723 : (2014) 10 SCJ 153 from para No. 22 onwards thus:

"22. The SLP preferred by the respondent was also dismissed by this Court on 14-09-2007. It is only thereafter the respondent filed the criminal complaint out of which the present proceedings emanate. No doubt, the respondent in his complaint has right to colour his complaint by leveling the allegations that the appellants herein fabricated the records. However, on the facts of this case, it becomes difficult to eschew this allegation of the respondent and we get an uncanny feeling that the contents of the FIR with these allegations are a postscript of the respondent after losing the battle in civil proceedings which were taken out by him challenging the action of the Department in rejecting his tender. When he did not succeed in the said attempt, he came out with the allegations of forgery. It thus becomes clear that the action of the respondent infilling the criminal complaint is not bona fide and amounts to miscues and abuse of the process of law".

In State of Haryana v. Bhajan Lal, this Court has laid down principles on which the court can quash the criminal proceedings under Section 482 Cr.P.C. These are as follows: (SCC pp. 378-79, para 102)

"(1) 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.

(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 not 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 a 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 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 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

(7) Where a criminal proceeding is manifestly attended with malafide 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."

Principles 6 and 7 are clearly applicable in the present case.

Having regard to the circumstances narrated and explained above, we are also of the view that an attempt is made by the respondent to convert a case with civil nature into a criminal prosecution. In a case like this, the High Court would have been justified in quashing the proceedings in exercise of its inherent powers under Section 482 of the Code. It would be of benefit to refer to the judgment in Indian Oil Corporation v. NEPC India Ltd., wherein the Court adversely commented upon this very tendency of filing the criminal complaints even in cases relating to commercial transaction for which civil remedy is available or has been availed. The Court held that the following observations of the Court in this behalf are taken note of (SCC pp. 74849, paras 13-14)

"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., this Court observed: (SCC p.643, para 8)

"8......It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may"

In Inder Mohan Goswami v. State of Uttaranchal, the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: (SCC pp. 10-11 & 16, paras 23-25 & 46)

"23. This Court in a number of cases has laid down the scope and ambit of court''s powers under Section 482 Cr.P.C.. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court; and

(iii) to otherwise secure the ends of justice.

Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

Discussion of decided cases

Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the court''s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained".

In the light of the above, the very registration of the case and the continuation of the consequential proceedings, if any, is a pure abuse of process of law and cannot be sustained.

Accordingly, the petitions are allowed.

The complaints dated 27.2.2011 and 21.2.2011 along with FIR in Crime No. 141/2011 dated 27.2.2011 and Crime No. 130/2011 dated 21.2.2011, are quashed.