Allowed

Puneet Sharma v. State Th.Home Deptt.and Ors.

J&K HC16 Feb 2023CRMC/268/2018

Case brief

AI extract

What is this about?

The High Court quashed an FIR registered against the petitioner in a land possession dispute. Relying on inherent powers under Section 482 CrPC, the Court held that the criminal proceedings were an abuse of process instituted to harass the petitioner in a pending civil suit, as the allegations did not disclose a cognizable offence.

What did the court decide?

FIR No. 0061/2018 for offences under Sections 427, 447, 504, 506 RPC is ordered to be quashed.

Puneet Sharma Vs State Th.Home Deptt.and Ors. — Quashing and FIR | J&K HC (2023)

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Sr. No.

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH ATJAMMU

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CRM(M) No. 268/2018

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Reserved on: 03.02.2023 Pronounced on:16.02.2023

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Puneet Sharma

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.....Petitioner(s)

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Through :- Mr. Nirmal Kotwal, Advocate

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v/s

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State of J & K & Ors.

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.....Respondent(s)

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Through :- Mr. Vishal Bharti, Dy AG

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CORAM: HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE

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JUDGMENT

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Petitioner, through the medium of this petition, has invoked the inherent jurisdiction of this Court in terms of Section 561-A of now repealed J&K CrPC (akin to section 482 of Central CrPC) seeking quashment of the FIR No. 0061/2018 dated 11.04.2018 registered at Police Station, Bari Brahmana District Samba, wherein the petitioner was accused of being involved in the commission of offences punishable under Sections 427, 447, 504, 506 RPC (since repealed penal law of J&K).

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Petitioner/accused pleaded following facts:-

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a) That the petitioner is owner in possession of land measuring 04 Kanal comprising in Khasra No. 528 situated at Village Birpur Tehsil Bari Brahamana District Samba by virtue of Gift Deed dated 12.10.2017 executed by the father of the petitioner duly registered in the Court of Sub-Registrar, Samba with all rights, title and interest, the mutation in respect of this land has also been attested in favour of the petitioner vide mutation No. 3555 dated 13.11.2017.

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b) That respondent No.3 having no right, title and interest started interfering in the peaceful possession of the petitioner over the

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CRM(M) No. 268/2018

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land mentioned hereinabove, the petitioner filed a civil suit in the Court of learned Pr. District Judge Samba against respondent No.3 herein seeking a decree of permanent prohibitory injunction restraining the respondent No.3 from interfering in any manner, forcibly occupying, dispossessing the petitioner from the land aforesaid, the said suit was transferred to the Court of learned Munsiff Samba for further adjudication, who vide order dated 14.03.2018 temporarily restrained the respondent No.3 herein from interfering in any manner and forcibly occupy, dispossess the petitioner from the suit land.

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c) That respondent No.3 being a high headed person and having very close links with Gunda elements and land brokers kept on threatening the petitioner of dire consequences, as such, the petitioner filed an application in the court of learned Addl. Munsiff, Samba seeking implementation of order dated 14.03.2018 through in-charge Police Station Bari Brahmana and the learned court vide order dated 15.03.2018, in order to maintain the sanctity of court order, directed in-charge Police Station Bari Brahmana to implement the order dated 14.03.2018 and submit the compliance report .

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d) That the SHO P/S Bari Brahmana after receiving both the aforesaid orders from the learned court made a request to Tehsildar Bari Brahmana vide his letter dated 20.03.2018 for conducting demarcation of Khasra Nos. 506, 509 and 528 of Village Birpur Tehsil Bari Barhmana District Samba, thereafter Tehsildar Bari Brahmana conducted the demarcation of the aforesaid land and submitted the report dated 30.03.2018 which clearly held that Khara No. 528 measuring 04 Kanal is under the possession of petitioner and there is no entry in the revenue record in respect of respondent No.3 herein. The Akas Shajara in respect of the Khasra numbers stands submitted by the revenue authority vide their report dated 30.03.2018 clearly indicating the position of Khasra numbers therein.

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e) That the respondent No. 3 in order to cause harassment and for taking advantage in civil litigation pending disposal before the civil court between petitioner and respondent No. 3 managed to file impugned FIR No. 0061/2018 at Police Station Bari Brahmana District Samba under sections 447, 427, 504 & 506 RPC against the petitioner.

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Respondent No.2-SHO Police Station Bari Brahmana, in his counter has stated that the present petition is not maintainable as the petition involves factual disputes which can only be adjudicated by leading evidence and requires a full dressed trial by the trial Court. It is contended that on 11.04.2018 one person namely Kuldeep Raj Dubey S/O Behari Lal R/O 18 Mohinder Nagar Tehsil and District Jammu, came to Police Station and produced a Court order with regard to registration of FIR. After receipt thereof, the respondent No.2 registered a case FIR No. 61/2018 for the commission of offences punishable under Sections 447, 427, 504, 506 RPC against the petitioner and the investigation of the case was entrusted to SI Yograj Sharma.

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During the course of investigation, the investigating officer visited the spot at Purmandal Morh near railway bridge, Birpur Bari Brahmana, after preliminary inquiry and inspections, prepared site plan, recorded statements of witnesses U/S 161 CrPC. During further course of investigation 1.O called the respondent No.3-complainant Kuldeep Raj Dubay @ Mangu Shah S/O Behari Lal R/O Gool Arnas Tehsil Arnas District Reasi, A/P H.No.18 Mohinder Nagar, Canal Road Jammu several times for recording his statement u/s 161 CrPC, but neither he reported in the Police Station nor cooperated with I.O; that I.O obtained earlier demarcation report of disputed land bearing Khasra No. 506,508,509 and 528 which are situated

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at Village Birpur Tehsil Bari Brahmana District Samba, from the office of Tehsildar Bari Brahmana. On perusal of demarcation report, it was found that the Khasra No 506 measuring 6 Kanals 11 Marlas land has been registered on the names of Devi Singh, Krishna Pal, Shiv Karan all sons of Omkar Singh, Khasra No. 509 measuring 10 Kanals 9 Marla has been registered on the names of Hari Chand and Nathu Ram, both sons of Mehnga along with Shamsher Chand ,Sonu, Mehanti Devi, Kanta Devi etc., Khasra No. 508 is a State land and Khasra No. 528 measuring 12 Kanals divided into 3 plots measuring 4 kanal each has been registered in 2017 on the names of petitioner/accused Puneet Sharma and his brother Arun Kumar Sharma both sons of Shiv Kumar Sharma and Saroj Sharma

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W/O Shiv Kumar Sharma all R/O 56/9, Channi Himmat, Jammu respectively. Moreover, plot No. 1 and 2 measuring 8 kanals land have been under the possession of Puneet Sharma and Arun Sharma, plot No. 3 which has been registered on the name of Saroj Sharma W/O Shiv Kumar Sharma (Mother of alleged person Puneet Sharma) on which the claim has been made by the complainant Kuldeep Raj Dubey on the said plot and is disputed between petitioner Puneet Sharma and the complainantrespondent No.3 Kuldeep Raj Dubey. As per the revenue record register, Khasara, Gardwari Rabi 2017, no such khasra numbers (above-mentioned) are registered on the name of complainant-respondent No.3 Kuldeep Raj Dubey. During this period, this Court has stayed the investigation of the instant case and the investigation will be restarted after the stay is vacated, thus present petition deserves to be dismissed.

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Heard learned counsel for the parties and considered the matter. I have also perused the material available on record.

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According to learned counsel for petitioner, the allegations leveled are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner and despite such facts, petitioner is being harassed by respondent No.3 by lodging the impugned FIR. It is averred that respondent No.3 is abusing the process of law, solely to wreck vengeance upon the petitioner and to victimize him, the same deserves to be quashed.

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The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice.

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The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335 , has dealt with the scope of power of High Court under Section 482 CrPC 1973 in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted as follows:-

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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

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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 channelized 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 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. (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 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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From the foregoing survey of law on the subject, it is clear that this Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court. An attempt has been made by the complainant to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence.

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Having considered the relevant arguments of the parties and the relevant material on record, this Court is of the considered view that respondent No.3 has resorted to the criminal proceedings against the petitioner to pressurize him to settle score with regard to a land dispute between them. There is admitted fact that the parties involved in this petition have litigation (civil) against each other. The dispute involves in the present case certainly determination of issues which are of civil nature, pursuant to which respondent No. 3, in order to cause harassment and for taking advantage in civil litigation, pending before the civil court between the petitioner, managed to lodge impugned FIR against the petitioner, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour.

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The Allahabad High Court in case titled “Randheer Singh Vs The State of U.P. & Ors.” reported in 2021 SCC Online SC 942, has held that criminal proceedings must not be used as instruments of harassment. Para 33 is extracted as under:-

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“33. ….There can be no doubt that jurisdiction under Section 482 of the Cr.P.C should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.”

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Having regard to the in-disputed facts that there is civil litigation between

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the petitioner and respondent No.3 pending before the civil court with regard to land measuring 04 kanal comprising in Khasra No. 528 situated at Village Birpur Tehsil Bari Brahmana, wherein a temporarily injunctions granted vide orders dated 14.03.2018 and 15.05.2018 are operating against respondent No.3, it can be safely held that the real dispute between the petitioner and respondent No.3 is essentially civil in nature. Therefore, it seems to be a classic case of abuse of legal process and is required to be quashed to secure the ends of justice.

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