Dismissed

Shiv Ram and Anr. v. State of Hp and Anr.

Himachal Pradesh HC8 Jul 2024CRMMO/372/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh refused to quash an FIR registered under various IPC sections and the SC/ST Act concerning disputed land records and compensation. The court held that allegations showed a prima facie case of preparing incorrect revenue records to deprive a co-sharer of his share. Subsequent corrections in records or claimed absence of mala fide were insufficient at the quashing

What did the court decide?

FIR No.162/2017 was not quashed and the petition filed by the petitioners was dismissed.

Shiv Ram and Anr. Vs State of Hp and Anr. — Quashing and FIR | Himachal Pradesh HC (2024)

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2024:HHC:5306

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No.372 of 2022 Reserved on: 26.06.2024 Date of Decision: 08.07.2024.

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Shiv Ram Sharma & Anr. ...Petitioners Versus State of H.P. & Anr. ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioners	:	Mr. Virender Singh Chauhan, Senior Advocate with Mr. Anirudh Sharma, Advocate.
For the Respondents	:	Ms. Ayush Negi, Deputy Advocate General for respondent No.1/State.
		Mr. Vinod Chauhan, Advocate for Respondent No.2.

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Rakesh Kainthla, Judge

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The petitioners have filed the present petition for quashing of FIR No.162/2017, dated 11.11.2017, registered against the petitioners for the commission of offences punishable under

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Section 420, 467, 468, 471, 506, and 120B of IPC read with Section

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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3(1)(s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (in short ‘the Act’) at Police Station, Bhuntar.

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Briefly stated, the facts giving rise to the present petition are that the informant-Gurdas Ram made a complaint to the police, stating that he had purchased land bearing Khasra No.4377 from Surender Kumar in the year 1992 to the extent of 1 Bigha 11 Biswa and Devinder Kumar was left with 11 Biswa of land after the sale. Devinder and Surender Kumar partitioned the land. While attesting the mutation, the land of the informant was entered in the name of Devinder Kumar in the absence of the informant. Devinder became the owner of 1-9-4 Bighas of land. The land was subsequently acquired for the construction of the four-lane road. The informant obtained the revenue papers and found that his land was reduced in the revenue record. When he raised the matter, Devinder Kumar threatened to kill him and abused him in the name of his caste. Devinder and his brother gave beatings to the informant in Patwar Khana. Devinder also obtained a loan of ₹8 lakhs on the land.

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The police registered the FIR and conducted the investigation. It was found during the investigation that the

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informant had purchased 1-11 bighas of land out of 2-13 bighas of land. Surender Sharma and Devinder exchanged the land measuring 16 Biswa and the informant found this fact at the time of acquisition of the land. Compensation of ₹67,50,536.89/- was assessed for acquisition of the land, out of which Devinder was paid ₹37,14,918.10/-, Ram Kali was paid ₹5,62,544.74/-, Dharmdass was paid ₹19,10,529.31/- and informant was paid Rs 5,62,544.74/-. The police obtained the record and found that the share of Surender Kumar was shown as Bila Baya (not sold) which should have been shown as Baya (sold). The entry in the Jamabandi for 2003-04 was wrongly recorded. The signatures of all the co-sharers were not obtained at the time of the family partition. It was found that Patwari-Nimat Ram and Tehsildar Shiv Ram Sharma had attested Mutation No.8316 dated 29.09.2007 without any intimation to any person. The Revenue Officials had prepared the wrong record and used it to deprive the informant of his land. The specimen signature, admitted signatures, and questioned documents were sent to RFSL, Dharmshala and the report shows that the disputed signatures on the questioned documents were put by Nimat Ram, Patwari.

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Surender Kumar, Devinder Kumar, Gambhir Singh, Kanugo and Shiv Ram, Tehsildar.

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The petitioners have filed the present petition for quashing of the FIR, asserting that the contents of the FIR do not constitute any offence. The self-serving statement of the informant is not sufficient to establish the commission of the cognizable offence. A false FIR was lodged to harass the petitioners. The allegations made in the FIR are inherently improbable. The complainant moved an application before the Land Acquisition Officer for the recovery of ₹22,73,750/-, which was received by Devinder Kumar. He stated in the application that Devinder Kumar had received the compensation based on the wrong revenue entries, which were rectified by Fard Badar No.106 dated 03.02.2020. Mutation was also attested based on wrong revenue entries without any intention to cheat any person. Mutations of 12 persons were attested on 20.09.2007 and Mutation No.8316 was also attested without any dishonest intention. The informant is in possession of the land and he had taken a loan from the bank. Devinder Kumar would have taken possession of the land based on wrong revenue entries but he had not done so. The error in the revenue record was clerical, which

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was rectified. The informant has initiated proceedings for the recovery of the excess amount. Hence it was prayed that the present petition be allowed and the FIR be ordered to be quashed.

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The petition is opposed by respondent No. 1 by filing a reply reproducing the contents of the FIR and the details of the investigation. It was asserted that police conducted the investigation and found sufficient reasons to file the charge sheet. The police submitted the charge sheet before the Court, which is pending adjudication. The petitioners had created false documents to benefit Devinder Kumar and Surender Kumar for evicting the informant despite knowing that he belongs to a Scheduled Caste. The present petition is not maintainable; hence it was prayed that the same be dismissed.

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A separate reply was filed by respondent No. 2 making preliminary submissions regarding lack of maintainability, the petitioners having concealed material facts from the Court and the petitioners being estopped from filing the petition by their act and conduct. The contents of the petition were denied on merits. It was asserted that police prepared a cancellation report initially but it was rejected by the Court. The ultimate control of the village

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Revenue Officer was with the petitioners and it cannot be believed that the entries were wrongly recorded without their connivance. The parties were related to each other and false documents were prepared to benefit Devinder Kumar and Surender Kumar. The petitioners got the land transferred in the name of the coaccused, who obtained compensation from the National Highway Authority of India. The informant only came to know about the preparation of the false document during the process of acquisition. Hence it was prayed that the present petition be dismissed.

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A rejoinder denying the contents of the reply filed by respondent No. 2 and affirming those of the petition was filed.

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I have heard Mr. Virender Singh Chauhan, learned Senior Advocate assisted by Mr. Anirudh Sharma, learned counsel for the petitioner, Ms. Aayushi Negi, learned Deputy Advocate General for respondent No.1-State and Mr. Vinod Chauhan, learned counsel for respondent No.2-informant.

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Mr. Virender Singh Chauhan, learned Senior Counsel for the petitioner submitted that the entries were mistakenly made in the revenue record. Petitioners had no mala fide

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intention, which is evident from the fact that Devinder Singh had not taken any steps for the possession of the land. Therefore, he prayed that the present petition be allowed and the FIR be quashed.

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Ms Aayushi Negi, learned Deputy Advocate General for respondent No.1/State submitted that the petitioners had prepared the wrong revenue record to benefit his co-accused. The coaccused obtained excessive compensation based on the wrong revenue entries, which clearly shows that the entries were made to benefit the co-accused. Sufficient material exists to try the petition and the FIR should not be quashed.

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Mr. Vinod Chauhan, learned counsel for respondent No. 2-informant supported the submissions of Ms. Aayushi Negi learned Deputy Advocate General and submitted that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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The law regarding the exercise of jurisdiction under Section 482 of Cr.P.C. was considered by the Hon’ble Supreme

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Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: -

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9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 452¹ after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:

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“ 12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:

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( i ) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

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For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint.

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( ii ) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides /malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

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( iii ) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

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( iv ) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence.

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( v. ) A given set of facts may make out : ( a ) purely a civil wrong; ( b ) purely a criminal offence; or ( c ) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether

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the allegations in the complaint disclose a criminal offence or not.

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Similar is the judgment Maneesha Yadav v. State of U.P.,

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2024 SCC OnLine SC 643 , wherein it was held: -

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12. We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363 :

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“ 102. 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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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103. 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

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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.”

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Sh. Virender Singh Chauhan, learned Senior Counsel referred to the application (Annexure 3) filed by the informant before the Land Acquisition Officer for recovery of ₹22,73,750/- in which it was mentioned that there was a clerical error and no illegal or criminal intention for incorporating the revenue entry to submit that this application falsifies the case of the prosecution. Hence, the FIR is liable to be quashed based on the application. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1: 1983 SCC (Cri) 115 , that the proceedings can be quashed if on the face of the complaint and the papers accompanying the same no offence is constituted. It is not permissible to add or subtract anything. It was observed:

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“10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.”

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Madras High Court also held in Ganga Bai v. Sh.ram,

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1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018 , that the fresh evidence is not permissible or desirable in the proceedings under Section 482 of Cr.P.C. It was observed:

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“Proceedings under Section 482, Cr.P.C. cannot be allowed to be converted into a full-dressed trial. Sh. Maheshwari filed a photostat copy of an order dated 28.7.1983, passed in Criminal Case No. 1005 of 1977, to which the present petitioner was not a party. Fresh evidence at this stage is neither permissible nor desirable. The respondent by filing this document is virtually introducing additional evidence, which is not the object of Section 482, Cr.P.C .”

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Andhra Pradesh High Court also took a similar view in

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Bharat Metal Box Company Limited, Hyderabad and Others vs. G. K.

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Strips Private Limited and another, 2004 STPL 43 AP , and held:

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“9. This Court can only look into the complaint and the documents filed along with it and the sworn statements of the witnesses if any recorded. While judging the correctness of the proceedings, it cannot look into the documents, which are not filed before the lower Court. Section 482 Cr.PC debars the Court to look into fresh documents, in view of the principles laid down by the Supreme Court in State of Karnataka v. M. Devendrappa and another, 2002 (1) Supreme 192 . The relevant portion of the said judgment reads as follows:

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"The complaint has to be read as a whole. If it appears that on consideration of the allegations, in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or

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vexatious, in that event there would be no justification for interference by the High Court. When 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".

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A similar view was taken in Mahendra K.C. v. State of

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Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was observed on page 142:

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“ 16 . … the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of the trial.”

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This position was reiterated in Supriya Jain v. State of

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Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765 wherein it was held:

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13. All these documents which the petitioner seeks to rely on, if genuine, could be helpful for her defence at the trial but the same are not material at the stage of deciding whether quashing as prayed for by her before the High Court was warranted or not. We, therefore, see no reason to place any reliance on these three documents.

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21. A similar view was taken in Iveco Magirus

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Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2 SCC

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86: 2023 SCC OnLine SC 1258 wherein it was observed:

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“63. Adverting to the aspect of exercise of jurisdiction by the High Courts under Section 482CrPC, in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do. We may not be understood to undermine the High Courts' powers saved by Section 482CrPC; such powers are always available to be exercised ex debito justitiae i.e. to do real and substantial justice for the administration of which alone the High Courts exist. However, the tests laid down for quashing an FIR or criminal proceedings arising from a police report by the High Courts in the exercise of jurisdiction under Section 482CrPC not being substantially different from the tests laid down for quashing a process issued under Section 204 read with Section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible if the justice of a given case does not overwhelmingly so demand.” (Emphasis supplied)

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Therefore, it is not permissible to look into the

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application while deciding the present petition.

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Section 218 of IPC deals with the preparation of wrong records by the public servant. It reads as under:

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Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charges to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

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It is apparent from the bare perusal of the Section that

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if a public servant knowingly prepares wrong record to cause loss to any person, he commits an offence punishable under this Section.

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A perusal of the Jamabandi shows that Devinder is shown to be having 1 share (not sold), Surender is shown to be having 7 shares (sold), Veena, Kanta, Asha, and Sevti were shown to have 4 shares (not sold) and the informant was shown to be the purchaser.

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Similarly in the copy of Jamabandi for the year 2013-14 (Annexure P4), Devinder is shown to have 700 shares out of 1272 shares that were not sold. The entry of not sold is admittedly incorrect because the same was made contrary to the factual position that Devinder Kumar had sold the land.

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It is also undisputed that a Mutation was also attested based on the private partition and entries were wrongly recorded. It was submitted that the mutation was attested in routine manner with other mutations and the error was bona fide . This is not acceptable. The investigating officer found that the informant was not present at the time of attestation of mutation, even though it was a mutation of family partition, which was required to be confirmed by all the co-sharers.

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Prima facie attestation of the mutation without serving the informant reducing his share and increasing the share of the seller can only lead to an inference that the wrong entry was made to benefit the seller and injure/harm the purchasers. Hence, prima facie the ingredients of Section 218 are satisfied.

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Even, if the informant had subsequently stated that there was no criminal intention, the same will not assist the petitioners. The intention is incapable of direct proof and it has to be ascertained by applying the principle that everybody intends the natural consequences of his act.

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The natural consequence of reducing the share of the co-sharer and increasing the shares of another co-sharer without

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the knowledge of the person, who is losing the share can only lead to an inference that the act was done with an intent to harm that person because otherwise the same would have been done with a notice to him and in his presence. Thus, the submission that the act was bona fide without any intent to harm any person cannot be accepted.

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A heavy reliance was placed upon the judgment of this Court in Laxmi Singh vs State, 2023:HHC:13467 , wherein the dispute was regarding the forged document and execution of the document based on cancelled power of attorney which is not the case here. In the present case, an incorrect record was prepared which was used for depriving the informant of his legitimate share in the property; hence, the cited judgment does not apply to the present case.

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It was submitted that the informant had taken a loan on the land, which shows that he was aware of the entries still he had not taken any action. Even, if it was so, that will not absolve the petitioners of their liabilities under the law.

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It was submitted that the error was corrected by Fard Bader. It is not shown that the Fard Badar was recorded by the

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petitioners; hence, no advantage can be derived from the correction of the error.

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The allegations in the FIR and the result of the investigation show that the petitioners had prepared the wrong revenue record, hence a prima facie case exists against the petitioners and the FIR cannot be quashed in such a situation. Thus, the present petition fails and the same is dismissed.

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The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the facts of the case.

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Parties are permitted to produce a copy of this judgment, downloaded from the webpage of the High Court of Himachal Pradesh before the authorities concerned, and the said authorities shall not insist on the production of a certified copy but if required, may verify passing of the order from Website of the High Court.

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( Rakesh Kainthla)

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Judge

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08 July, 2024 (Ankit)

Shiv Ram and Anr. v. State of Hp and Anr.

Case brief

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Shiv Ram and Anr. v. State of Hp and Anr.

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