Surinder Bhagat And Others vs Mohinder Kumar And Others

Rajnesh Oswal, J

The petitioners have filed the present petition under Section 561-A Cr.P.C, now Section 482 Cr. P.C. for quashing the complaint, titled, “Mohinder Kumar vs. Mohd Hanief and others” pending before the Court of Special Railway Magistrate, Jammu (hereinafter to be referred as “the trial court”) and also the order dated 14.01.2012, whereby process has been issued against the petitioners.

Before this court proceeds further, it is apt to note that the respondent No.3, who was the third accused along with the petitioners died during the pendency of the complaint. The petitioners have sought the quashing of the aforesaid complaint on the ground that no offence is made out against them and that the petitioner No. 1 had been serving as a Gazetted Officer and as per the requirement of law under Section 197 Cr.PC, no criminal proceedings could have been initiated against him without obtaining prior sanction from the Competent Authority,

Despite notice, the respondents have not chosen to appear, therefore, this Court heard the arguments on behalf of the petitioners only.

Mr. J. P. Gandhi, learned counsel for the petitioners argued that the contents of the complaint reveal that no offence is made out against the petitioners and the learned trial court despite that has issued the process against the petitioners. He further submitted that the process has been issued in the mechanical manner.

Heard learned counsel for the petitioners and perused the record.

The averments made in the complaint are extracted as under :

“xxxxx

“ In the matter of:

Complaint under Section 403, 418, 420, 120-B 468, 471 RPC

Sir,

The complainant/applicants most respectfully submits as under:

That complainant/applicant is permanent resident of J&K State and residing aforesaid address and peace loving, law abiding citizen of India.

That the complainant/applicant had entered into agreement for purchase of land from the person owner in possession and in lieu of that they had executed agreement to sell and power of attorney in favour of complaint dated 04.01.2010 and same was registered with the sub registrar, Jammu with regard to land bearing Kh. No. 204 old/254 new measuring 6 kanals situated at village Sajadpur Martha Tehsil and District Jammu being law fully owners.

That the accused had hatch a conspiracy with one Kaka Ram and attested fard-i-inkaf with regard to the land mutated under section 4 of the Agr. Reforms Act whereby declaring he executants as owner with regard to land bearing Kh. No. 204 old/254 new measuring 2 kanals 9 marlas situated at village Sajadpur Martha Tehsil and District Jammu, the accused person will be bound to spot inspection over the land and thereafter, attested the mutation without affording opportunity to the person in possession execute gift deed in favour of the Madan Lal Chouhan.

That the land already sold by the owner in possession to the complainant and complainant is in possession without any interference over the land since the execution of said documents and till date is in cultivating possession over the said land.

That in the said document i.e in thebody of the agreement to sell is reproduce as under “that if first pary refuse to execute the sale deed of other necessary documents in court of law in favour of second party or any person of his choice then First party will repay the double amount of advance paid to the second party and if the second party fails to pay the balance amount then advance paid will be forfeited.”

That it was found or come to the knowledge of the complainant that the said land was illegally transferred by the accused with mala fide intension to get undue benefits and attested mutation with regard to the land supra and the accused person manage a forged/illegal document in favour of the beneficiary.

That the accused with criminal intention on the one hand manoeuvred a forged document self styled as fard-i-kaf thereby assuming/declaring full fledged owners of the land to unknown person.

That the intentions of the accused at the time of execution of said document with criminal intention to cause wilful loss to the complaint by the act of cheating managed and prepared a false document as genuine knowing fully well that the said land is mutated under section 4 and 8 of Agrarian Reforms Act, it is needless to mention here that all this had been done to get undue benefits by the act of fabrication, fraud and cheating, as such the accused persons with their mala fide intention and criminal conspiracy for their personal benefits prepared illegal document.

That the complainant is not aware of other accomplishes/ associates/abettors in the commission of aforesaid crime, the accused have done all this in a pre-planned manner with criminal intension, to use the forged document as genuine and by using the same in this way to get benefits which as indicated above, and complainant came to know of the same through concerned Patwari. A copy of the Girdwari and other documents with regard to the said land is annexed herewith for your kind perusal.

That the intention of the accused at the time execution of said document is mala fide with motive to cause loss to the complaint and loss has been caused to the complainant due to their illegal act.

That the accused has cheated the complainant dishonestly, intentionally with mala fide design to cause loss to the complainant.

That the cause of action has been accrued to the complainant at Jammu, when agreement to sell has been executed at Jammu and offence has been committed by the accused person within the jurisdiction of this Hon’ble Court.

That accused has committed the offence intentionally in order to harm and damage the complainant/applicant and illegally executed said document in favour of the Balak Ram who had no where exists in the paper or neither he has co sharer or tenants over the land belonging to complainant, the gift deed prepared and executed by the said person with criminal conspiracy, the accused behaved in very decorous manner, which is against the other and civilized societies.

An affidavit in support is annexed herewith

It is therefore, requested that accused persons may kindly be dealt under section 403, 418, 420, 120-B RPC.

x xxxxxxx”

A perusal of the complaint reveals that Mohinder Kumar and Raj Kumar through their attorney holder, Rattan Lal Chauhan has filed a complaint against the petitioners and proforma respondent No. 3 for commission of offences under Section 403, 418, 420, 120-B, 468 & 471 RPC. The allegations levelled in the complaint are that the petitioners and proforma respondent No. 3 hatched a conspiracy with one Kaka Ram and attested a fard Intikhab in respect of the land measuring 2 kanals 9 marlas situated at village Sajadpur Martha Tehsil and District Jammu mutated under Section 4 of the Agrarian Reforms Act. It contended that the complainants are in possession of the land in question ever since execution of the agreement to sell and power of attorney dated 04.01.2010 in their favour. It is further averred in the complaint that it came to the knowledge of the complainants that the said land was illegally transferred by the accused persons to get undue benefits with a mala fide intention and attested mutation with regard to the aforesaid land. It is further averred that the petitioners and proforma respondent No. 3 managed a forged document in favour of the beneficiaries, styled as “fard-a-kaf”, whereby unknown person has been declared as owner of the land. It is also alleged that the petitioners and proforma respondent No. 3 had committed the offence intentionally in order to harm the respondents 1 & 2.

The learned trial court after reproducing the contents of the complaint which is not only full of grammatical errors but is vague as well, has issued the process against the petitioners. There is averment in the complaint that the forged document has been prepared by the petitioners for the purpose of granting undue benefits to the alleged beneficiary, who has not been arrayed as an accused. It is not forthcoming as to how the offences under section 403, 418 RPC are made out in the complaint. The petitioner No.1 is Naib-Tehsildar and petitioner No.2 is Patwari. How they have committed forgery is also not forthcoming from the record. It is evident that the complaint has been filed only to harass the Government Employees.

A perusal of the record of the trial court reveals that one gift deed dated 09.10.2009 executed by one Balak Ram S/o Paras Ram R/o Chak Chouhan in favour of Madan Lal Chauhan S/o Paras Ram, R/o Chak Chouhana Tehsil and District Jammu has been placed on record. The respondent Nos. 1 & 2, in fact are aggrieved of the gift deed executed in favour of Madan Lal Chouhan by said Balak Ram pursuant to the Fard Intikhab. If the gift deed has wrongly been executed, the same could have been challenged but no criminal proceedings can be initiated against the petitioners more particularly when they are not parties to the gift deed. Also the mutation attested pursuant to the gift deed can be assailed before the competent authority. The civil dispute in respect of execution of gift deed has been given criminal colour for ulterior purpose.

The trial court has issued the process against the petitioners and proforma respondent No. 3 for commission of offences under sections 403, 418, 420, 120-B, 468 & 471 RPC without recording its satisfaction as to how the aforesaid offences are made out and what was the document before the learned trial court, which was allegedly forged by the petitioners and respondent No. 3.

In “State of Haryana v. Bhajan Lal, 1992” [Supp (1) SCC 335], the Hon’ble Supreme Court of India has laid down the principles for the purpose of exercising inherent powers while examining the legality of FIR/criminal proceedings:

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 channelised 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 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide 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.

(Emphasis added)

Further in “Mohammad Wajid & Anr. vs. State of U.P”[ 2023 INSC 683] , , the Hon’ble Supreme Court has observed as under:

“30. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the 17 necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.”

(Emphasis added)

In view of the above, the continuance of criminal proceedings would be nothing but an abuse of process of law, as such, the present petition is allowed and the complaint, titled, “Mohinder Kumar and Anr. vs. Mohd

Hanif and ors” pending before the learned Railway Magistrate Jammu as well as process issued vide order 14.01.2012 are quashed.