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1. IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl.
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M No.18613 of 2009 Date of Decision:February 19, 2013 Jaspal Kaur and another ..........Petitioners Versus Manraj Singh Kang ..........Respondent Coram: Hon'ble MRS.Justice Sabina Present: Mr.G.S.Sidhu,Advocate for the petitioneRs.Mr.D.S.Gurna,Advocate for the respondent.
** Sabina, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of complaint dated 30.9.2008 (Annexure P2) under Sections 465, 466, 467, 468, 477-A,167,120-B of the Indian Penal Code,1860 (`IPC' for short) and summoning order dated 25.2.2009 (Annexure P4) passed by the Judicial Magistrate FiRs.Class along with all subsequent proceedings arising therefrom.
The facts of the present case to some extend are not in much dispute.
Admittedly, Gurbachan Singh was owner of the property in dispute.
Petitioner No.1 -Jaspal Kaur is the daughter-in-law of Gurbachan Singh.
Gurbachan Singh died on 08.05.1990.
Ajit Crl.
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2. Singh,husband of petitioner No.1, died on 19.2.1991.
Petitioners became owner of the house in dispute.
The case of the petitioners is that petitioner No.1 had become the absolute owner of the property in question, whereas, the case of the complainant is that petitioner No.1 had only 1/12th share in the property but she had sold the entire property.
Admittedly, petitioner No.1 executed a sale deed in favour of Mehar Singh on 21.7.2008.
The said sale deed was challenged by the respondent by filing a complaint.
The complaint filed by the respondent was dismissed vide order dated 04.12.2008 by the Chief Judicial Magistrate.
Thereafter, the revision filed by the respondent was dismissed by the Court of revision vide order dated 11.5.2010.
The Court of revision, while dismissing the revision petition, filed by the respondent, observed as under:- “No doubt, as per criminal jurisprudence any one can set or put the criminal law into motion, but there are some cases where the nature of case is of civil.
In those cases, where the facts of the case disclosed a case of civil nature, there only an affected person can set the law into motion.
In the present case also, the complainant is neither co-sharer not having any share in the property in dispute.
No sale deed has been executed in his favour.
Allegedly, Jaspal Kaur executed the sale deed in favour of Mehar Singh accused no.4 and accused No.4 Gulkaran Singh Sandhu and accused no.3 Hargobind Singh are the attesting witnesses of the sale deed.
The allegations of the revision petitioner Crl.
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3. are that all the four accused knew that Jaspal Kaur accused no.1 has 1/12 share in the property or house in dispute, but the sale deed is executed for the whole of the property/house in dispute, which was succeeded from Gurbachan Singh.
Thus, they have cheated the other Co.sharers of the property and the house.
It is also held in the authority relied upon by learned counsel for the revision petitioner 2000 CRI.L.J.3915 in case Ajai Bansal and others versus Sirendra Kumar and another, that in such like case, the complaint of alleged forgery of sale deed of land filed by a co-sharer of the land is competent.
So, in the present case, the complainant/revision petitioner is not a Co.sharer and is not competent to file complaint.
Otherwise also, learned Chief Judicial Magistrate has held that from the document Ex.P1 copy of mutation of inheritance of Gurbachan Singh deceased, Avtar Singh son, Paramjit Kaur daughter equal 2/3 share and Jaspal Kaur widow, Ravi Sher Singh son, Iqbal Singh son and Jot Kaur daughter of Ajit Singh succeeded in equal share i.e.1/3 share.
Copy of assessment register of house tax is in the name of Gurbachan Singh and Ex.P4 is the copy of Jamabandi for the year 1987-88 showing the property of said Gurbachan Singh, but copy of assessment register in which Gurbachan Singh has been shown as the person responsible for payment of house is mentioned at Sr.No.76 in the House Tax Assessment Register,whereas, Crl.
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4. the sale deed show that the serial number of the house which was sold is 75.
So, the document regarding house is not same belonging to Gurbachan Singh.
Learned Chief Judicial Magistrate has also held that if the other co-sharers might have relinquished their right in favour of accused no.1 with their consent.
Moreover, the affected person of the sale deed of the disputed property or house were the other co-sharer and none of the co-sharers have come forward for challenging the disputed sale deed or to file the complaint.
The allegations of the complaint also show that even if for argument sake, it is taken that Jaspal Kaur has sold the share more than her share in the property in dispute or in the house in dispute and that is to be determined at the time of partition.
She is a joint share holder and such a sale is liable for adjustment at the time of partition.
It is not the case of the complainant that accused no.1 Jaspal Kaur was not having any share in the property or house in dispute.
On this account also the complaint is not maintainable and the accused cannot be proceeded against.”
Thereafter, the respondent has filed the present complaint in question.
The case of the complainant, in brief, is that petitioner No.1 in connivance with petitioner No.2 had altered/tampered and forged the T.S.-I Form (House Tax Assessment register) to show the name of petitioner No.1 in place of Gurbachan Singh son of Jiwa Crl.
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5. Singh.
Respondent led his preliminary evidence in support of his case.
The trial Court vide impugned order dated 25.2.2009 (Annexure P4).ordered the summoning of the petitioners to face the trial under Sections 465, 466, 467,468, 477-A,167 and 120-B IPC.
Learned counsel for the petitioners has submitted that the respondent had no locus standi to file the complaint.
It is not the case that petitioner No.1 had absolutely no right in property of Gurbachan Singh.
None of the co-sharers or the vendees had filed a complaint against petitioner No.1 qua any criminal offence committed by her.
Further, earlier complaint filed by the petitioners had been dismissed by the competent Court.
Learned counsel for the respondent, on the other hand, has submitted that the cause of action in both the complaints was different.
In fact, during the pendency of the earlier complaint, both the petitioners in connivance with each other had tampered with the record of the Municipal Committee.
After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
It has been held in State of Haryana versus Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C.Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to Crl.
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6. secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised 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 fiRs.information report or the complainant, 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 fiRs.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 no 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 Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint Crl.
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7. 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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.
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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8. The present complaint has been filed by the respondent against the petitioners on the allegation that they had tampered with the record of the Municipal Committee.
Admittedly, Gurbachan Singh was the owner of the property-in-dispute.
Petitioner No.1 is,admittedly, daughter-in-law of Gurbachan Singh.
Gurbachan Singh had died on 08.05.1990,whereas, the husband of petitioner No.1 had died on 19.2.1991.
Respondent is neither one of the legal heirs of deceased Gurbachan Singh not he is a co-sharer in the property in dispute.
The sale deed has also not been executed in favour of the respondent.
Rather petitioner No.1 has executed the sale deed in favour of Mehar Singh.
In case, any of the co-sharer is aggrieved by the sale of the property or by tampering of the record of the Municipal Committee by petitioner No.1, they could have filed a complaint against petitioner No.1.
However, respondent, who has no concern with the suit property, could not have filed the present complaint.
It is possible that all the co-sharers/legal heirs of Gurbachan Singh, deceased might have agreed that the property in question be entered only in the name of petitioner No.1 in the record of the Municipal committee.
Apparently, for this reason, none of the co-sharers or other legal heirs of Gurbachan Singh have lodged a complaint against petitioner No.1.
Further respondent had been unsuccessful in the complaint filed by him against petitioner No.1 with regard to sale deed executed by her in favour of Mehar Singh.
In the facts and circumstances of the present case, continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
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9. Accordingly, this petition is allowed.
Complaint dated 30.9.2008 (Annexure P2) under Sections 465, 466, 467,468, 477- A,167,120-B IPC along with all subsequent proceedings arising therefrom including summoning order dated 25.2.2009 (Annexure P4) are quashed.
(SABINA) JUDGE February 19, 2013 arya