Daud Jahangir Vs State of Jharkhand

….. For the Petitioner : Mr. Ajit Kumar, Sr. Advocate : Ms. Aprajita Bhardwaj, Advocate : Mr. Kushal Kumar, Advocate : Ms. Akriti Shree, Advocate For the State : Mr. Manoj Kumar, GA III : Mr. Deepankar, AC to GA III : Mr. Vineet Kr. Vashistha, Spl. P.P. For Respondent No.2 : Mr. Rishi Pallava, Advocate …..

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By the Court:-

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I.A. No. 976 of 2024

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Heard the parties.

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Learned Senior Advocate appearing for the petitioner does not press this interlocutory application.

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Accordingly, this interlocutory application is rejected as not pressed.

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(Anil Kumar Choudhary, J . )

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W.P. (Cr.) No.475 of 2023

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W.P. (Cr.) No. 475 of 2023

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Heard the parties.

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This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the entire criminal proceeding in connection with Nagri P.S. Case No. 114 of 2023 registered for the offence punishable under Sections 406, 420 and 506 of Indian Penal Code and consequential reliefs.

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The undisputed fact remains that in the meanwhile, the police completed investigation of the case and after completion of investigation police submitted charge sheet against the petitioner for having committed the offence punishable under Sections 406, 420 and 506 of Indian Penal Code and vide order dated 27.09.2023 the learned Judicial Magistrate 1^st Class-VI, Ranchi has taken cognizance of the said offences punishable under Sections 406, 420 and 506 of Indian Penal Code against the petitioner and ordered for issuance of summons.

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It is pertinent to mention here that the charge sheet or the cognizance order have not been made the subject matter of this writ petition nor the same has been challenged by the petitioner.

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The allegation against the petitioner is that the petitioner being the director of Barira Developers and Construction Pvt. Ltd. played deception with the informant and her relatives by inducing them to purchase the plots of land in a project of the said builder. The informant and her relatives being induced by the

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petitioner agreed to purchase four plots of land bearing numbers LIG Plot Nos. 4 to 6 and LIG Plot No. 103 and paid the entire consideration amount including the cost of constructing the boundary wall and the cost of the agreement but the petitioner cheated the informant and her relatives by not delivering the possession of the said plots of land for which the petitioner has received the entire consideration amount nor got the same registered in favour of the informant and her three relatives and ultimately, refused to hand over the possession of the land purchased by the informant and her relatives which led the informant to lodge a written report with the Officer-in-Charge of Nagri Police Station, Ranchi basing upon which Nagri P.S. Case No. 114 of 2023 has been registered and police after investigation of the case found the allegation to be true and submitted charge sheet.

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It is submitted by the learned Senior Advocate appearing for the petitioner that the petitioner admits having entered into an agreement with the informant and her relatives for sell of land to them. The learned senior counsel for the petitioner further contended that after the said agreement, time and again the informant was served with letters for payment of installment due to be payable by her but the informant has not taken any step to start construction of the building over the plot of land in question. It is next by the learned Senior Advocate appearing for the petitioner that the relatives of the informant have not come forward to lodge any FIR. It is then submitted by the learned

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Senior Advocate appearing for the petitioner that the informant is well aware about the cancellation of the agreement by the company of the petitioner in the year 2008 and there is an inordinate delay and laches on the part of the informant in lodging of the FIR hence, on this score alone, the entire criminal proceeding is to be quashed. In this respect, the learned Senior Advocate appearing for the petitioner relied upon the judgment of the Hon’ble Supreme Court of India in the case of Kishan Singh (dead) Through LRs. vs. Gurpal Singh & Ors. reported in (2010) 8 SCC 775 wherein, the Hon’ble Supreme Court of India inter alia observed that in cases where there is delay in lodging the FIR, the court has to look for a plausible explanation for such delay and in absence, of such an explanation, the delay may be fatal. In this respect, the learned Senior Advocate appearing for the petitioner also relied upon the judgment of the Hon’ble Supreme Court of India in the case of Robert John D’Souza & Ors. vs. Stephen V. Gomes & Anr. reported in (2015) 9 SCC 96 , wherein, the Hon’ble Supreme Court of India in the facts and circumstances of that case when none of the offence for which the appellants of that case were summoned was made out against them, from the perusal of complaint and the materials in the record, the Hon’ble Supreme Court of India observed that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants of that case before the Hon’ble Supreme Court of India in a criminal case; after a lapse of period of 12 years for execution of the registered sale deed in question.

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It is next submitted by the learned Senior Advocate appearing for the petitioner that even if the entire allegation made in the FIR are considered to be true in their entirety, still, neither the offence punishable under Section 406 nor the offence punishable under Section 420 of Indian Penal Code is made out. It is further submitted by the learned Senior Advocate appearing for the petitioner that the allegation does not contain any specific date, time or place and the dispute between the parties is a purely civil dispute and a cloak of criminal case has been given to a purely civil dispute. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of I ndian Oil Corpn. vs. NEPC India Limited & Ors. reported in (2006) 6 SCC 736 , it is submitted by the learned Senior Advocate appearing for the petitioner that the Hon’ble Supreme Court of India in that case has taken note of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors and hence if a person, somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement and submits that this case is just a similar effort made by the informant, as the limitation for filing a civil suit has already expired. In this respect, learned Senior Advocate appearing for the petitioner also relied upon the judgment of the Hon’ble Supreme Court of India in the case of G. Sagar Suri & Anr. vs. State of U.P. & Ors. reported in (2000) 2 SCC 636 as well as Vesa Holding Pvt. Ltd. & Anr. vs. State of Kerela & Ors. reported in (2015) 8 SCC

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293 as well as Randheer Singh vs. State of Uttar Pradesh & Ors. reported in 2021 SCC OnLine SC 942 .

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Learned Senior Advocate appearing for the petitioner next relied upon the judgment of the Hon’ble Supreme Court of India in the case of Vishnu Kumar Shukla & Anr. vs. State of Uttar Pradesh & Anr. reported in 2023 SCC OnLine SC 1582 wherein, the Hon’ble Supreme Court of India reiterated the settled principle of law by observing that in a deserving case a duty is cast upon the High Court to intervene and discharge the appellant before it. Learned Senior Advocate appearing for the petitioner next relied upon the judgment of the Hon’ble Supreme Court of India in the case of Haji Iqbal @ Bala Through S.P.O.A. vs. State of U.P. & Ors. reported in 2023 SCC OnLine SC 948 and submits that the Hon’ble Supreme Court of India has observed in that case that in frivolous and vexatious proceeding, 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.

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Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Mahmood Ali & Ors. vs. State of Uttar Pradesh & Ors. reported in 2023 SCC OnLine SC 950 , it is submitted by the learned Senior Advocate appearing for the petitioner that as inter alia observed in the case, that a court while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution of India need not restrict itself only to the stage of a case but is empowered

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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.

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Learned Senior Advocate appearing for the petitioner next relied upon the judgment of this Court in the case of Chandan Kumar Gupta & Anr. vs. The State of Jharkhand & Anr. in Cr.M.P. No. 1221 of 2022 wherein in the facts of that case, as the accused persons of that case did not execute the sale deed after receiving the advance amount where the victim was in possession of the land and continued in possession after constructing the house, merely because registration was not done because of the death of the father of the accused person of that case, who entered into an agreement with the victim of that case, this Court quashed the entire criminal proceeding and submits that in this case also the ratio of the case of Chandan Kumar Gupta & Anr. vs. The State of Jharkhand & Anr. (supra) is applicable. Hence, it is submitted that the prayer as made in this writ petition be allowed.

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Learned counsel for the State and the learned counsel for the respondent no.2 on the other hand oppose the prayer made by the petitioner in this writ petition. It is submitted by the learned counsel for the State and the learned counsel for the respondent no.2 by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Iqbal @ Bala & Ors. vs. State of Uttar Pradesh & Ors. reported in (2023) 8 SCC 734 , paragraph no. 7 of which reads as under:-

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“7. It is relevant to note that the victim has not furnished any information in regard to the date and

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time of the commission of the alleged offence. At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge-sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge-sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any case for discharge is made out or not.” (Emphasis supplied)

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submits that in that case the Hon’ble Supreme Court of India observed that though the allegation levelled in the FIR did not inspire any confidence but in view of the fact that the investigation of the case is complete and charge sheet was ready to be filed, the appellant before the Hon’ble Supreme Court of India should prefer discharge application before the learned trial court and the learned trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge sheet.

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Learned counsel for the State and the learned counsel for the respondent no.2 further submit that in this case, the stage is two steps ahead of the case of Iqbal @ Bala & Ors. vs. State of Uttar Pradesh & Ors. (supra) as in this case not only the charge sheet is ready but the same has already been filed in the court and the learned Judicial Magistrate 1^st Class-VI, Ranchi upon application of mind has taken cognizance of the offence and neither the

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charge sheet nor the cognizance order is under challenge in this writ petition.

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It is next submitted by the learned counsel for the State and the learned counsel for the respondent no.2 by relying upon the Full Bench Judgment of Hon’ble Patna High Court in the case of Ramesh Kumar Ravi @ Ram Prasad & Etc. vs. State of Bihar & Ors. reported in 1987 SCC OnLine Pat 83 that in the said judgment the Hon’ble Full Bench of the Patna High Court answered the question “Whether the judicial orders of a criminal court (stricto sensu) under the Code of Criminal Procedure, are amenable to quashing by a writ of certiorari?” by observing thus in paragraph no.36:-

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“36. In the light of the foregoing discussions the answer to the question No. (iv) posed at the very outset is rendered in the negative and it is held that the judicial orders of a criminal court stricto sensu under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari.”

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It is further submitted by the learned counsel for the State and the learned counsel for the respondent no.2 that this settled principle of law has been reiterated by the Hon’ble Supreme Court of India albeit in response to an order passed by a civil court in the case of Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde & Ors. reported in 2024 SCC OnLine SC 3722 and relying upon its judgment in the case of Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015) 5 SCC 423 rendered by a three Judge Bench, paragraph no.25 of which is quoted in paragraph no.14 of the judgment of Municipal

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Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde & Ors. (supra) which reads as under:-

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“14. In view of such binding decision, the inescapable conclusion presenting itself is that the appellate order under challenge before the High Court was rendered by a civil court, and it is trite that orders passed by a civil court cannot be challenged in a writ petition under Article 226 of the Constitution. This point in law has been decisively reiterated in the 3-Judge Bench decision in Radhey Shyam v. Chhabi Nath⁴ . This Court, while holding that an order of the civil court could only be challenged under Article 227 of the Constitution, and not Article 226 thereof, ruled that:

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“25.***All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted above.

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27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” (Emphasis supplied)

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Hence, it is submitted that as the cognizance order by a competent court of Judicial Magistrate 1^st Class-VI, Ranchi has been passed vide order dated 27.09.2023 in G.R. Case No. 2705 of 2023 therefore, the same cannot be set at naught by invoking the power under Article 226 of the Constitution of India by this Court. 15. It is next submitted by the learned counsel for the State and the learned counsel for the respondent no.2 by relying upon the judgment of Hon’ble Supreme Court of India in the case of Central Bureau of Investigation Vs. Aryan Singh Etc. reported in 2023 SCC OnLine SC 379 , paragraph no.11 of which reads as under:-

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“11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material

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collected during the course of the investigation, which warranted the accused to be tried.” (Emphasis supplied)

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that in this case as on conclusion of investigation against the petitioner-accused, the petitioner-accused has been charge sheeted, so whether the criminal proceeding is malicious or not is not required to be considered at this stage and the same is to be considered at the conclusion of the trial. Hence, it is submitted that the ground that the prosecution of the petitioner being malicious; is not a ground for quashing of the same at this stage.

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Learned counsel for the State and the learned counsel for the respondent no.2 next relied upon the judgment of the Hon’ble Supreme Court of India in the case of Dr. Lakshman vs. State of

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Karnataka & Ors. reported in (2019) 9 SCC 677 wherein, the Hon’ble Supreme Court of India reiterated the settled principle of law that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating and submits that in this case as the petitioner undisputedly has received the entire consideration amount including the cost of boundary wall but has not handed over the possession of the land to the informant and her relatives, as yet and the same has been done with fraudulent and dishonest intention which is apparent from the fact that though the petitioner is claiming that he has cancelled agreement with the informant and her relatives but the same was never

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communicated either to the informant or her relatives. Hence, it is submitted that the criminal case is maintainable.

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Learned counsel for the State and the learned counsel for the respondent no.2 also drew attention of this Court to the judgment of the Hon’ble Supreme Court of India in the case of Vesa Holding Pvt. Ltd. & Anr. vs. State of Kerela & Ors. (supra) and submit that therein, the Hon’ble Supreme Court of India has also observed that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. It is next submitted by the learned counsel for the State and the learned counsel for the respondent no.2 that in this case the petitioner has committed the offence punishable under Sections 406, 420 and 506 of Indian Penal Code which has been found to be true by the police upon investigation of the case. Hence, it is submitted that this writ petition being without any merit be dismissed.

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Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the undisputed fact remains that in this case the petitioner has been charge sheeted and consequent upon the submission of the charge sheet; basing upon the same, the learned Judicial Magistrate 1^st Class-VI, Ranchi has taken cognizance of the offences punishable under Section 406, 420 and 506 of Indian Penal Code, against the petitioner. It is pertinent to mention here that no word has been whispered by the petitioner in the writ

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petition regarding the offence punishable under Section 506 of Indian Penal Code. It is not even the case of the petitioner, that the offence punishable under Section 506 of the Indian Penal Code is not made out.

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So far as the offence punishable under Section 420 and 406 of Indian Penal Code are concerned, there is allegation of the petitioner having played deception since the beginning of the transaction between the parties and having committed criminal breach of trust. As cognizance of the offence has been taken consequent upon the submission of the charge sheet, this Court is of the considered view that as observed by the Hon’ble Supreme Court of India in the case of Iqbal @ Bala & Ors. vs. State of Uttar Pradesh & Ors. (supra), this is a fit case where the petitioner may approach the learned trial court by filing a discharge application. This is a case where neither the charge sheet nor the cognizance order has been under challenged, without any plausible reason. It is needless to mention, is already indicated above in the forgoing paragraphs of this judgement, there is bar for issuance of writ of certiorari for quashing of judicial order passed in a criminal case. It is pertinent to mention here that allowing the prayer of the petitioner to quash the entire criminal proceeding will, by default, amount in quashing of the order taking cognizance also; the prayer for which has neither been made nor the same can be allowed in a writ petition invoking the jurisdiction of this court under Article 226 of the Constitution of India. Under such circumstances, this court is of the considered view, this is not a fit

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case where the entire criminal proceeding is to be quashed and set aside.

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