बुधवार, २७ जनवरी २०१०
मंगलवार, १२ मई २००९
Supreme Court of India: Criminal Appeal No. 908 of 2009
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 908 OF 2009
[Arising out of SLP (Criminal) No. 1793 of 2008]
HARMANPREET SINGH AHLUWALIA
& ORS.. APPELLANTS
Versus
STATE OF PUNJAB & ORS. ... RESPONDENTS
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. Appellants are before us aggrieved by and dissatisfied with a judgment and order dated 13.12.2007 passed by a learned single judge of the
Punjab and Haryana High Court in Criminal Miscellaneous No. M-40020 of 2007 dismissing an application praying for quashing FIR No. 141 dated
30.5.2006 under Section 406/420 of the Indian Penal Code (for short, "IPC") in exercise of its jurisdiction under Section 482 of the Code of Criminal
Procedure (for short, "the Code")
3. The basic fact of the matter is not in dispute. Appellant No.1 is the husband of the respondent No.3. The other appellants are his parents. Respondent No. 3 was married with one Ravinder Singh Jaspal in Canada in the year 1995. A son was born out of the said wedlock on or
about 25.8.1996. As disputes and differences arose between them, respondent No. 3 filed an affidavit for grant of divorce on or about 30.9.1998. In the said proceedings, a decree for divorce was granted by a Canadian court on or about 22.4.2000.
Almost immediately thereafter, that is, on 21.5.2000, respondent No.3 and appellant No.1 got married at Jalandhar as per Sikh rites. After a month's stay in India, respondent No. 3 left for Canada. On or about 6.3.2001, respondent No.3 gave birth to a female child in Canada.
Appellant No.1 went to Canada on the sponsorship of respondent No.3 on 14.4.2001. He got an employment there as a driver. Disputes and differences arose between the appellant No.1 and the respondent No.3 in the year 2003. Allegedly, she left with all her belongings and withdrew Canadian $ 24500 from the joint account of the
parties.
It is neither denied nor disputed that she had been contacting lawyers
with regard to her matrimonial disputes and even cancelled the sponsorship
of the application for grant of permanent residence of appellant No.1 as also
his family.
In those circumstances, Appellant No.1 initiated a divorce
proceedings before the Ontario Court of Justice, inter alia, stating:
"On 28th August, 2003, when the applicant had
gone to work, the respondent left the matrimonial
home to live with her parents. She took with her
all her personal effects, jewelleries and withdrew
$23,000.00 from their joint bank account.
The respondent is threatening to hurt herself
and get the applicant involved with the police to
deport him from Canada.
The applicant is afraid and believes, that if
she is allowed to come back to his home, she may
hurt herself or may hurt the applicant.
The respondent wants the applicant to be
deported and may do anything to cause physical
violence.
4
Inderpal Singh is the father of the
respondent, Paramjit Kaur and the father in law of
the applicant.
Surinder Singh is the brother of the
respondent, Paramjit Kaur and the brother-in-law
of the applicant."
However, differences between them were sorted out and respondent
No.3 affirmed an affidavit on or about 30.9.2003 admitting her mistake,
stating:
"On September 20, 2003, I decided to return to the
house of my husband without advising him that I
was coming back. My husband is reluctant and
fearful to have me back in the house. I have
promised my husband that I would not harass him
any more and that I am very sorry for all the
problems that I have created for him.
I am making this affidavit to satisfy the concerns
and fear of my husband, HARMANPREET
SINGH AHLUWALIA with respect to my motive
of returning to his house. Harmanpreet Singh
Ahluwalia fears that I have voluntarily returned to
him cause more damage and problems for him. I
have, however, returned to my husband because I
have realized that I had made a big mistake by
taking the steps mentioned above and I am truly
remorseful for my actions."
On or about 5.2.2006, parents of appellant No.1 visited Canada as
appellant No.2 developed a heart problem.
Disputes and differences again arose between the parties in the year
2006 as a result whereof they started living separately with effect from
29.3.2006.
It is only thereafter, the father of the respondent No. 3, namely Inter
Pal Singh, a retired Police Inspector and permanent resident of Canada,
while on a trip to India, lodged a complaint against the appellants under
Section 406/420 IPC on or about 21.4.2006 along with an affidavit of
respondent No.3 inter alia alleging that the appellants demanded dowry and
misappropriated the dowry articles.
It was furthermore alleged:
"11. That the marriage of Harmanpreet Singh
was conducted with my daughter with preplanned
ulterior and malafide motive in order to deceive
and misappropriate and misuse the dowry articles
which were entrusted to the accused as mentioned
above and had got pre-planned, ulterior and
malafide motive. At the time of living home, the
aforesaid Harmanpreet Singh also withdrawn the
amount from the bank from the joint account."
In view of separation between appellant No.1 and respondent No.3,
appellant filed a second divorce petition on or about 1.5.2006 in the Superior
Court of Brampton, Ontario seeking divorce and custody of the Indisputably, an FIR bearing No. 141 dated 30.5.2006 was registered under Section 406/420 IPC at Division No. 4, The Superintendent of Police, Jalandhar made an enquiry with regard the aforementioned matter. He submitted a report on or about 30.3.2007, concluding portion whereof reads as "From the investigation conducted till now, I have to this conclusion that although the
marriage of Paramjit Kaur daughter of Inderpal and Harmanpreet Singh Ahluwalia son of
Sh. Harbhajan Singh had been solemnized at Hotel Mahal, Jalandhar, but the misunderstanding/
altercation between them had been developed after reaching in Canada. This fact has also been
proved/clarified here that during the period from year 2000 upto the year 2005, both of them
(husband-wife) had been living amicably but later again misunderstanding developed between
them due to calling of his parents by Harmanpreet to Canada. But the allegations leveled by
the plaintiff in the suit/case are baseless and of facts which has not been proved and neither
there are solid proof available in this regard."
He made recommendations for cancellation of the said suit/case, "From the enquiry till now made into the case under FIR No. 141 dated 30.5.2006
under Section 406/420 IPC at P.S. Division No. 4,
Jalandhar, the allegations leveled by the plaintiff
have not been proved and neither the offence has
been found to be done. If approved, then S.H.O.
P.S. Division No.4 Jalandhar may be advised to
submit the cancellation report of this suit case."
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 908 OF 2009
[Arising out of SLP (Criminal) No. 1793 of 2008]
HARMANPREET SINGH AHLUWALIA
& ORS.. APPELLANTS
Versus
STATE OF PUNJAB & ORS. ... RESPONDENTS
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. Appellants are before us aggrieved by and dissatisfied with a judgment and order dated 13.12.2007 passed by a learned single judge of the
Punjab and Haryana High Court in Criminal Miscellaneous No. M-40020 of 2007 dismissing an application praying for quashing FIR No. 141 dated
30.5.2006 under Section 406/420 of the Indian Penal Code (for short, "IPC") in exercise of its jurisdiction under Section 482 of the Code of Criminal
Procedure (for short, "the Code")
3. The basic fact of the matter is not in dispute. Appellant No.1 is the husband of the respondent No.3. The other appellants are his parents. Respondent No. 3 was married with one Ravinder Singh Jaspal in Canada in the year 1995. A son was born out of the said wedlock on or
about 25.8.1996. As disputes and differences arose between them, respondent No. 3 filed an affidavit for grant of divorce on or about 30.9.1998. In the said proceedings, a decree for divorce was granted by a Canadian court on or about 22.4.2000.
Almost immediately thereafter, that is, on 21.5.2000, respondent No.3 and appellant No.1 got married at Jalandhar as per Sikh rites. After a month's stay in India, respondent No. 3 left for Canada. On or about 6.3.2001, respondent No.3 gave birth to a female child in Canada.
Appellant No.1 went to Canada on the sponsorship of respondent No.3 on 14.4.2001. He got an employment there as a driver. Disputes and differences arose between the appellant No.1 and the respondent No.3 in the year 2003. Allegedly, she left with all her belongings and withdrew Canadian $ 24500 from the joint account of the
parties.
It is neither denied nor disputed that she had been contacting lawyers
with regard to her matrimonial disputes and even cancelled the sponsorship
of the application for grant of permanent residence of appellant No.1 as also
his family.
In those circumstances, Appellant No.1 initiated a divorce
proceedings before the Ontario Court of Justice, inter alia, stating:
"On 28th August, 2003, when the applicant had
gone to work, the respondent left the matrimonial
home to live with her parents. She took with her
all her personal effects, jewelleries and withdrew
$23,000.00 from their joint bank account.
The respondent is threatening to hurt herself
and get the applicant involved with the police to
deport him from Canada.
The applicant is afraid and believes, that if
she is allowed to come back to his home, she may
hurt herself or may hurt the applicant.
The respondent wants the applicant to be
deported and may do anything to cause physical
violence.
4
Inderpal Singh is the father of the
respondent, Paramjit Kaur and the father in law of
the applicant.
Surinder Singh is the brother of the
respondent, Paramjit Kaur and the brother-in-law
of the applicant."
However, differences between them were sorted out and respondent
No.3 affirmed an affidavit on or about 30.9.2003 admitting her mistake,
stating:
"On September 20, 2003, I decided to return to the
house of my husband without advising him that I
was coming back. My husband is reluctant and
fearful to have me back in the house. I have
promised my husband that I would not harass him
any more and that I am very sorry for all the
problems that I have created for him.
I am making this affidavit to satisfy the concerns
and fear of my husband, HARMANPREET
SINGH AHLUWALIA with respect to my motive
of returning to his house. Harmanpreet Singh
Ahluwalia fears that I have voluntarily returned to
him cause more damage and problems for him. I
have, however, returned to my husband because I
have realized that I had made a big mistake by
taking the steps mentioned above and I am truly
remorseful for my actions."
On or about 5.2.2006, parents of appellant No.1 visited Canada as
appellant No.2 developed a heart problem.
Disputes and differences again arose between the parties in the year
2006 as a result whereof they started living separately with effect from
29.3.2006.
It is only thereafter, the father of the respondent No. 3, namely Inter
Pal Singh, a retired Police Inspector and permanent resident of Canada,
while on a trip to India, lodged a complaint against the appellants under
Section 406/420 IPC on or about 21.4.2006 along with an affidavit of
respondent No.3 inter alia alleging that the appellants demanded dowry and
misappropriated the dowry articles.
It was furthermore alleged:
"11. That the marriage of Harmanpreet Singh
was conducted with my daughter with preplanned
ulterior and malafide motive in order to deceive
and misappropriate and misuse the dowry articles
which were entrusted to the accused as mentioned
above and had got pre-planned, ulterior and
malafide motive. At the time of living home, the
aforesaid Harmanpreet Singh also withdrawn the
amount from the bank from the joint account."
In view of separation between appellant No.1 and respondent No.3,
appellant filed a second divorce petition on or about 1.5.2006 in the Superior
Court of Brampton, Ontario seeking divorce and custody of the Indisputably, an FIR bearing No. 141 dated 30.5.2006 was registered under Section 406/420 IPC at Division No. 4, The Superintendent of Police, Jalandhar made an enquiry with regard the aforementioned matter. He submitted a report on or about 30.3.2007, concluding portion whereof reads as "From the investigation conducted till now, I have to this conclusion that although the
marriage of Paramjit Kaur daughter of Inderpal and Harmanpreet Singh Ahluwalia son of
Sh. Harbhajan Singh had been solemnized at Hotel Mahal, Jalandhar, but the misunderstanding/
altercation between them had been developed after reaching in Canada. This fact has also been
proved/clarified here that during the period from year 2000 upto the year 2005, both of them
(husband-wife) had been living amicably but later again misunderstanding developed between
them due to calling of his parents by Harmanpreet to Canada. But the allegations leveled by
the plaintiff in the suit/case are baseless and of facts which has not been proved and neither
there are solid proof available in this regard."
He made recommendations for cancellation of the said suit/case, "From the enquiry till now made into the case under FIR No. 141 dated 30.5.2006
under Section 406/420 IPC at P.S. Division No. 4,
Jalandhar, the allegations leveled by the plaintiff
have not been proved and neither the offence has
been found to be done. If approved, then S.H.O.
P.S. Division No.4 Jalandhar may be advised to
submit the cancellation report of this suit case."
4. However, despite the same, a charge-sheet was issued. In the mean
time, divorce application filed by the appellant in Canada, were allowed by
the Ontario Superior Court of Justice by its order dated 19.10.2007.
On receipt of the summons, appellants filed an application under
Section 482 of the Code which by reason of the impugned judgment has
been dismissed.
time, divorce application filed by the appellant in Canada, were allowed by
the Ontario Superior Court of Justice by its order dated 19.10.2007.
On receipt of the summons, appellants filed an application under
Section 482 of the Code which by reason of the impugned judgment has
been dismissed.
5. Mr. Rajiv K. Garg, learned counsel appearing on behalf of the
appellants would submit:
i. Having regard to the factual backdrop of the matter, it evident that the Jalandhar Court had no territorial jurisdiction to
make an investigation into the matter.
ii. The proceedings initiated against the appellant amounts to an
abuse of the process of law as the FIR was deliberately filed at
Jalandhar although the offences, if any, had taken place only at
Ontario in Canada.
8
6. Mr. Vineet Dhanda, learned counsel appearing on behalf of the
respondent, on the other hand, urged:
i. That the appellants have committed criminal breach of trust in
respect of the articles which were given in dowry.
ii. Appellant No.1 married respondent No.3 only for the purpose
of going to Canada and, thus, an offence under Section 420 of
IPC must also be held to have been committed.
7. The allegations made in the FIR show that the appellant Nos. 2 and 3
could go to Canada on joint sponsorship of the appellant No.1 as also the
respondent No.3. It is only at Canada that alleged demand of a sum of Rs.5
lakhs was made on the premise that they intended to buy some property. In
the FIR, it was alleged that she left her residence for attending her duties at
about 0630 hrs in the morning on 29.3.2006 leaving behind her husband as
also two kids aged 5 and 9 years. However, when she returned home around
1700 hrs, she found some articles missing. She was admittedly informed by
the concerned police officers telephonically as regards the filing of divorce
petition by the appellant and, thus, she should not bother him anymore. It is
only thereafter the first informant Inder Pal Singh came to India and lodged
the FIR. He is a retired police officer. In his report, he alleged:
9
"9. That at the time of departure, the accused
were fully made aware of the fact that all the
articles of dowry mentioned above constitutes the
Streedhan of the daughter of the applicant namely
Paramjit Kaur and are meant for the exclusive use
and the same should be given to her for her
personal use whenever she demands the same from
them from time to time. After whole incident my
daughter Smt. Paramjit Kaur is living under
depression and cruelty.
10. That when I demanded the dowry articles
and Streedhan property, the above mentioned
persons refused to return the dowry articles."
8. Parties admittedly live at Ontario in Canada. Offence, if any, had
been committed in Canada. FIR, however, has been lodged at Jalandhar
only after the divorce application was filed. No allegation has been made in
the FIR that appellants at the time of marriage or thereafter demanded any
dowry. The demand of a sum of Rs.5 lakhs allegedly was made only in
Canada and that too after the appellant Nos. 2 and 3 arrived in Canada in
March 2006, i.e., almost after a period of five years from the date of
marriage. We have noticed hereinbefore the opinion of the Superintendent of
Police. He recommended `cancellation' of the FIR for one reason or the
other. However, the said recommendation had not been accepted. A charge-
sheet has been filed.
10
9. Mr. Dhanda submits that the jurisdiction of a High Court under
Section 482 of the Code should be used in exceptional cases and very
sparingly. According to the learned counsel, allegation of mala fide against
the first informant cannot be a ground for quashing a criminal proceeding
after a charge-sheet has been filed. Strong reliance in this behalf has been
placed on State of Karnataka v. M. Devendrappa [2002(3) SCC 89].
In the aforesaid judgment, this Court was considering a case of
quashing of a criminal proceeding for commission of offence punishable
under Section 465, 468, 471 and 420 read with Section 120B of the IPC.
Respondents therein were excise officials. This Court held:
"9. As noted above, the powers possessed by the
High Court under Section 482 of the Code are very
wide and the very plenitude of the power requires
great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is
based on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. The High Court being the highest
court of a State should normally refrain from
giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be
laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. {See: Janata
Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and
11
Raghubir Saran (Dr) v. State of Bihar [AIR 1964
SC 1]}. It would not be proper for the High Court
to analyse the case of the complainant in the light
of all probabilities in order to determine whether a
conviction would be sustainable and on such
premises arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the High
Court to quash the same in exercise of the inherent
powers under Section 482 of the Code. It is not,
however, necessary that there should be
meticulous analysis of the case before the trial to
find out whether the case would end in conviction
or acquittal. 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 vexatious, in that event there would be
no justification for interference by the High Court.
When an 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 themselves be the basis for quashing the
proceedings."
Recently in R. Kalyani vs. Janak C. Mehta & Ors. [(2009) 1 SCC
516], this Court opined:
12
"15. Propositions of law which emerge from the
said decisions are:
(1) The High Court ordinarily would not
exercise its inherent jurisdiction to quash a
criminal proceeding and, in particular, a First
Information Report unless the allegations
contained therein, even if given face value and
taken to be correct in their entirety, disclosed no
cognizable offence.
(2) For the said purpose, the Court, save and
except in very exceptional circumstances, would
not look to any document relied upon by the
defence.
(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR
disclose commission of an offence, the court shall
not go beyond the same and pass an order in
favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute,
the same by itself may not be a ground to hold that
the criminal proceedings should not be allowed to
continue.
16. It is furthermore well known that no hard
and fast rule can be laid down. Each case has to be
considered on its own merits. The Court, while
exercising its inherent jurisdiction, although would
not interfere with a genuine complaint keeping in
view the purport and object for which the
provisions of Sections 482 and 483 of the Code of
Criminal Procedure had been introduced by the
Parliament but would not hesitate to exercise its
jurisdiction in appropriate cases. One of the
paramount duties of the Superior Courts is to see
that a person who is apparently innocent is not
13
subjected to persecution and humiliation on the
basis of a false and wholly untenable complaint."
We must, however, also notice that in State of Haryana & Ors. vs.
Bhajan Lal [1992 Supp (1) SCC 335], this Court inter alia laid down the law
in the following terms:
"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."
Sub-Para (7) of the said Para reads as under:
"(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."
Does this case come within the purview of the aforementioned dicta is
the question.
14
10. Parties were married in May 2000. Disputes between the parties arose
for the first time in the year 2003. Respondent No.3, however, on an
application filed by the appellant No.1 apprehending danger to his life,
categorically admitted her fault and guilt. Even at that point of time no
allegations of cheating and/or non-return of the Stridhan were made. It is
only after a period of three years when the disputes and differences between
the parties wrecked up once again and on filing of an application for divorce,
the father of the respondent No.3 came from Canada to Jalandhar to lodge
FIR. The facts pleaded in the application for quashing of FIR before the
High Court are not denied or disputed. In fact, most of the documents relied
on by the appellant are annexed to the counter affidavit filed on behalf of the
respondent No.3 herself. We, therefore, do not have to consider any
document which the appellant intends to place before us by way of defence.
It is also not a case where this court has to undertake a difficult task of
appreciating the evidence brought on record by the parties.
Mr. Dhanda's submission that the marriage between the appellant
No.1 and respondent No.3 was solemnized only for the purpose of getting
the family settled at Canada is far fetched. For the purpose of constituting
an offence for criminal breach of trust and/or cheating, the ingredients
15
thereof as contained in Section 405 and 415 respectively must be borne out
from the records.
11. Criminal breach of trust is defined in Section 405 of IPC. The
ingredients of an offence of the criminal breach of trust are:
"1. Entrusting any person with property or with
any dominion over property.
2. That person entrusted (a) dishonestly
misappropriating or converting to his own
use that property; or (b) dishonestly using or
disposing of that property or willfully
suffering any other person so to do in
violation--
(i) of any direction of law prescribing the
mode in which such trust is to be
discharged, or
(ii) of any legal contract made touching
the discharge of such trust."
Section 415 of the IPC defines cheating as under :
"Section 415.--Cheating--Whoever, by
deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any
property to any person, or to consent that any
person shall retain any property, or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were
not so deceived, and which act or omission causes
or is likely to cause damage or harm to that person
in body, mind, reputation or property, is said to
`cheat'."
16
An offence of cheating cannot be said to have been made out unless
the following ingredients are satisfied:
"i) deception of a person either by making a
false or misleading representation or by
other action or omission;
(ii) fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any property and
finally intentionally inducing that person to do or omit to
do anything which he would not do or omit."
12. For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation. Even in a case
where allegations are made in regard to failure on the part of the accused to
keep his promise, in absence of a culpable intention at the time of making
initial promise being absent, no offence under Section 420 of the Indian
Penal Code can be said to have been made out.
13. We may reiterate that one of the ingredients of cheating as defined in
Section 415 of the Indian Penal Code is existence of an intention of making
initial promise or existence thereof from the very beginning of formation of
contract.
17
In Ajay Mitra v. State of M.P. (2003) 3 SCC 11, this Court held:
15. Section 420 IPC says that
"whoever cheats and thereby dishonestly
induces the person deceived to deliver any
property to any person ... shall be punished with
imprisonment ...".
Cheating has been defined in Section 415 IPC and
it says that:
"415. Whoever, by deceiving any person,
fraudulently or dishonestly induces the person
so deceived to deliver any property to any
person, or to consent that any person shall
retain any property, or intentionally induces the
person so deceived to do or omit to do anything
which he would not do or omit if he were not so
deceived, and which act or omission causes or
is likely to cause damage or harm to that person
in body, mind, reputation or property, is said to
`cheat'."
16. A guilty intention is an essential ingredient
of the offence of cheating. In other words "mens
rea" on the part of the accused must be established
before he can be convicted of an offence of
cheating. (See Jaswantrai Manilal Akhaney v.
State of Bombay [AIR 1956 SC 574). In Mahadeo
Prasad v. State of W.Bi [AIR 1954 SC 724] it was
held as follows: (AIR paras 4-5)
Where the charge against the accused is
under Section 420 in that he induced the
complainant to part with his goods, on the
understanding that the accused would pay for
the same on delivery but did not pay, if the
accused had at the time he promised to pay cash
against delivery an intention to do so, the fact
that he did not pay would not convert the
transaction into one of cheating. But if on the
other hand he had no intention whatsoever to
pay but merely said that he would do so in
order to induce the complainant to part with the
goods then a case of cheating would be
established."
18
In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257], this Court
held :
"40. It is settled law, by a catena of decisions, that
for establishing the offence of cheating, the
complainant is required to show that the accused
had fraudulent or dishonest intention at the time of
making promise or representation. From his
making failure to keep promise subsequently, such
a culpable intention right at the beginning that is at
the time when the promise was made cannot be
presumed. It is seen from the records that the
exemption certificate contained necessary
conditions which were required to be complied
with after importation of the machine. Since the
GCS could not comply with it, therefore, it rightly
paid the necessary duties without taking advantage
of the exemption certificate. The conduct of the
GCS clearly indicates that there was no fraudulent
or dishonest intention of either the GCS or the
appellants in their capacities as office-bearers right
at the time of making application for exemption."
{See also Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006)
6 SCC 736]}
In Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373],
noticing, inter alia, the aforementioned decision, this Court held:
"8. The dispute between the parties herein is
essentially a civil dispute. Non-payment or
underpayment of the price of the goods by itself
does not amount to commission of an offence of
cheating or criminal breach of trust. No offence,
having regard to the definition of criminal breach
19
of trust contained in Section 405 of the Penal Code
can be said to have been made out in the instant
case."
It was furthermore opined:
"13. The ingredients of Section 420 of the Penal
Code are as follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) To consent that any person shall retain any
property and finally intentionally inducing
that person to do or omit to do anything
which he would not do or omit.
No act of inducement on the part of the appellant
has been alleged by the respondent. No allegation
has been made that he had an intention to cheat the
respondent from the very inception.
14. What has been alleged in the complaint
petition as also the statement of the complainant
and his witnesses relate to his subsequent conduct.
The date when such statements were allegedly
made by the appellant had not been disclosed by
the witnesses of the complainant. It is really absurd
to opine that any such statement would be made by
the appellant before all of them at the same time
and that too in his own district. They, thus, appear
to be wholly unnatural.
15. In law, only because he had issued cheques
which were dishonoured, the same by itself would
not mean that he had cheated the complainant.
Assuming that such a statement had been made,
the same, in our opinion, does not exhibit that
there had been any intention on the part of the
20
appellant herein to commit an offence under
Section 417 of the Penal Code.
16. Furthermore, admittedly, their residences are in
different districts. Whereas the appellant is a
resident of the district of Ajamgarh, the respondent
is a resident of the district of Rampur. Cheques
were admittedly issued by the appellant at his
place. There is nothing on record to show that any
part of the cause of action arose within the
jurisdiction of the court concerned. Even if such
statements had been made, the same admittedly
have been made only at the place where the
appellant resides. The learned Magistrate,
therefore, had no jurisdiction to issue the
summons."
The said principle has been reiterated in All Cargo Movers (I) Pvt.
Ltd. v. Dhanesh Badarmal Jain & Anr. [2007 (12) SCALE 391], stating:
"For the said purpose, allegations in the complaint
petition must disclose the necessary ingredients
therefor. Where a civil suit is pending and the
complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are
prima facie cannot notice the correspondences
exchanged by the parties and other admitted
documents. It is one thing to say that the Court at
this juncture would not consider the defence of the
accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it
is impermissible also to look to the admitted
documents. Criminal proceedings should not be
encouraged, when it is found to be mala fide or
otherwise an abuse of the process of the Court.
Superior Courts while exercising this power should
also strive to serve the ends of justice."
21
(See also Sharon Michael & ors. vs. State of Tamil Nadu & Anr.
[2009 (1) SCALE 627]
14. It is, therefore, evident that the element of wrongful intention should
ordinarily exist from the inception of the contract. FIR does not satisfy the
aforementioned test. So far as the allegation in regard to criminal breach of
trust is concerned, it related to the dowry articles. No allegation has been
made that the appellants are guilty of commission of offence punishable
under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has
been given, the same would attract the provisions of the special act in
preference to the general statute. Furthermore, if any article is given by way
of dowry, the question of entrustment thereof for or on behalf of the bride
would not arise.
Allegations made in the FIR merely disclose that at the time of
leaving the house, appellants had taken with them certain articles. The said
articles ought to be in lawful possession of the respondent No.3. The
offence of theft might have been committed. But when they are in joint
possession, even no offence of theft would also be made out.
Furthermore, the larger part of offence, if any, has been committed
only in Canada. Why the father of respondent No. 3 had to come from
22
Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent
No.3 and the first informant do not say that the inquiry report submitted by
the Superintendent of Police on the representation made by the appellant
No.2 was incorrect. It has also not been stated that as to on what material,
the charge-sheet had been submitted. We, in the peculiar facts and
circumstances of this case, have absolutely no doubt in our mind that the
allegations contained in the FIR had been made with an ulterior motive to
harass the appellants. Continuance of the criminal proceeding against them
would, therefore, amount to abuse of process of the court.
In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr.
[2007 (12) SCALE 391], this Court held:
"For the said purpose, allegations in the complaint
petition must disclose the necessary ingredients
therefor. Where a civil suit is pending and the
complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are
prima facie cannot notice the correspondences
exchanged by the parties and other admitted
documents. It is one thing to say that the Court at
this juncture would not consider the defence of the
accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it
is impermissible also to look to the admitted
documents. Criminal proceedings should not be
encouraged, when it is found to be mala fide or
otherwise an abuse of the process of the Court.
23
Superior Courts while exercising this power should
also strive to serve the ends of justice."
{See also V.Y. Jose & Anr. vs. State of Gujarat & Anr. [2008 (16)
SCALE 167]}
In Hira Lal & Ors. vs. State of U.P. & Ors. [2009 (5) SCALE 418],
this Court held:
"10. The parameters of interference with a
criminal proceeding by the High Court in exercise
of its jurisdiction under Section 482 of the Code
are well known. One of the grounds on which
such interference is permissible is that the
allegations contained in the complaint petition
even if given face value and taken to be correct in
their entirety, commission of an offence is not
disclosed. The High Court may also interfere
where the action on the part of the complainant is
mala fide."
15. Upon taking a holistic view of the matter vis-`-vis the statutory
provisions, we are of the opinion that the appellants had made out an
exceptional case to invoke the inherent jurisdiction of the High Court under
Section 482 of the Code. It was, in our opinion, obligatory on the part of the
High Court to exercise its discretionary jurisdiction to prevent the abuse of
process of the court.
24
16. For the aforementioned reasons, the impugned judgment and order of
the High Court is set aside. The appeal is allowed.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009
appellants would submit:
i. Having regard to the factual backdrop of the matter, it evident that the Jalandhar Court had no territorial jurisdiction to
make an investigation into the matter.
ii. The proceedings initiated against the appellant amounts to an
abuse of the process of law as the FIR was deliberately filed at
Jalandhar although the offences, if any, had taken place only at
Ontario in Canada.
8
6. Mr. Vineet Dhanda, learned counsel appearing on behalf of the
respondent, on the other hand, urged:
i. That the appellants have committed criminal breach of trust in
respect of the articles which were given in dowry.
ii. Appellant No.1 married respondent No.3 only for the purpose
of going to Canada and, thus, an offence under Section 420 of
IPC must also be held to have been committed.
7. The allegations made in the FIR show that the appellant Nos. 2 and 3
could go to Canada on joint sponsorship of the appellant No.1 as also the
respondent No.3. It is only at Canada that alleged demand of a sum of Rs.5
lakhs was made on the premise that they intended to buy some property. In
the FIR, it was alleged that she left her residence for attending her duties at
about 0630 hrs in the morning on 29.3.2006 leaving behind her husband as
also two kids aged 5 and 9 years. However, when she returned home around
1700 hrs, she found some articles missing. She was admittedly informed by
the concerned police officers telephonically as regards the filing of divorce
petition by the appellant and, thus, she should not bother him anymore. It is
only thereafter the first informant Inder Pal Singh came to India and lodged
the FIR. He is a retired police officer. In his report, he alleged:
9
"9. That at the time of departure, the accused
were fully made aware of the fact that all the
articles of dowry mentioned above constitutes the
Streedhan of the daughter of the applicant namely
Paramjit Kaur and are meant for the exclusive use
and the same should be given to her for her
personal use whenever she demands the same from
them from time to time. After whole incident my
daughter Smt. Paramjit Kaur is living under
depression and cruelty.
10. That when I demanded the dowry articles
and Streedhan property, the above mentioned
persons refused to return the dowry articles."
8. Parties admittedly live at Ontario in Canada. Offence, if any, had
been committed in Canada. FIR, however, has been lodged at Jalandhar
only after the divorce application was filed. No allegation has been made in
the FIR that appellants at the time of marriage or thereafter demanded any
dowry. The demand of a sum of Rs.5 lakhs allegedly was made only in
Canada and that too after the appellant Nos. 2 and 3 arrived in Canada in
March 2006, i.e., almost after a period of five years from the date of
marriage. We have noticed hereinbefore the opinion of the Superintendent of
Police. He recommended `cancellation' of the FIR for one reason or the
other. However, the said recommendation had not been accepted. A charge-
sheet has been filed.
10
9. Mr. Dhanda submits that the jurisdiction of a High Court under
Section 482 of the Code should be used in exceptional cases and very
sparingly. According to the learned counsel, allegation of mala fide against
the first informant cannot be a ground for quashing a criminal proceeding
after a charge-sheet has been filed. Strong reliance in this behalf has been
placed on State of Karnataka v. M. Devendrappa [2002(3) SCC 89].
In the aforesaid judgment, this Court was considering a case of
quashing of a criminal proceeding for commission of offence punishable
under Section 465, 468, 471 and 420 read with Section 120B of the IPC.
Respondents therein were excise officials. This Court held:
"9. As noted above, the powers possessed by the
High Court under Section 482 of the Code are very
wide and the very plenitude of the power requires
great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is
based on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. The High Court being the highest
court of a State should normally refrain from
giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be
laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. {See: Janata
Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and
11
Raghubir Saran (Dr) v. State of Bihar [AIR 1964
SC 1]}. It would not be proper for the High Court
to analyse the case of the complainant in the light
of all probabilities in order to determine whether a
conviction would be sustainable and on such
premises arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the High
Court to quash the same in exercise of the inherent
powers under Section 482 of the Code. It is not,
however, necessary that there should be
meticulous analysis of the case before the trial to
find out whether the case would end in conviction
or acquittal. 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 vexatious, in that event there would be
no justification for interference by the High Court.
When an 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 themselves be the basis for quashing the
proceedings."
Recently in R. Kalyani vs. Janak C. Mehta & Ors. [(2009) 1 SCC
516], this Court opined:
12
"15. Propositions of law which emerge from the
said decisions are:
(1) The High Court ordinarily would not
exercise its inherent jurisdiction to quash a
criminal proceeding and, in particular, a First
Information Report unless the allegations
contained therein, even if given face value and
taken to be correct in their entirety, disclosed no
cognizable offence.
(2) For the said purpose, the Court, save and
except in very exceptional circumstances, would
not look to any document relied upon by the
defence.
(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR
disclose commission of an offence, the court shall
not go beyond the same and pass an order in
favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute,
the same by itself may not be a ground to hold that
the criminal proceedings should not be allowed to
continue.
16. It is furthermore well known that no hard
and fast rule can be laid down. Each case has to be
considered on its own merits. The Court, while
exercising its inherent jurisdiction, although would
not interfere with a genuine complaint keeping in
view the purport and object for which the
provisions of Sections 482 and 483 of the Code of
Criminal Procedure had been introduced by the
Parliament but would not hesitate to exercise its
jurisdiction in appropriate cases. One of the
paramount duties of the Superior Courts is to see
that a person who is apparently innocent is not
13
subjected to persecution and humiliation on the
basis of a false and wholly untenable complaint."
We must, however, also notice that in State of Haryana & Ors. vs.
Bhajan Lal [1992 Supp (1) SCC 335], this Court inter alia laid down the law
in the following terms:
"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."
Sub-Para (7) of the said Para reads as under:
"(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."
Does this case come within the purview of the aforementioned dicta is
the question.
14
10. Parties were married in May 2000. Disputes between the parties arose
for the first time in the year 2003. Respondent No.3, however, on an
application filed by the appellant No.1 apprehending danger to his life,
categorically admitted her fault and guilt. Even at that point of time no
allegations of cheating and/or non-return of the Stridhan were made. It is
only after a period of three years when the disputes and differences between
the parties wrecked up once again and on filing of an application for divorce,
the father of the respondent No.3 came from Canada to Jalandhar to lodge
FIR. The facts pleaded in the application for quashing of FIR before the
High Court are not denied or disputed. In fact, most of the documents relied
on by the appellant are annexed to the counter affidavit filed on behalf of the
respondent No.3 herself. We, therefore, do not have to consider any
document which the appellant intends to place before us by way of defence.
It is also not a case where this court has to undertake a difficult task of
appreciating the evidence brought on record by the parties.
Mr. Dhanda's submission that the marriage between the appellant
No.1 and respondent No.3 was solemnized only for the purpose of getting
the family settled at Canada is far fetched. For the purpose of constituting
an offence for criminal breach of trust and/or cheating, the ingredients
15
thereof as contained in Section 405 and 415 respectively must be borne out
from the records.
11. Criminal breach of trust is defined in Section 405 of IPC. The
ingredients of an offence of the criminal breach of trust are:
"1. Entrusting any person with property or with
any dominion over property.
2. That person entrusted (a) dishonestly
misappropriating or converting to his own
use that property; or (b) dishonestly using or
disposing of that property or willfully
suffering any other person so to do in
violation--
(i) of any direction of law prescribing the
mode in which such trust is to be
discharged, or
(ii) of any legal contract made touching
the discharge of such trust."
Section 415 of the IPC defines cheating as under :
"Section 415.--Cheating--Whoever, by
deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any
property to any person, or to consent that any
person shall retain any property, or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were
not so deceived, and which act or omission causes
or is likely to cause damage or harm to that person
in body, mind, reputation or property, is said to
`cheat'."
16
An offence of cheating cannot be said to have been made out unless
the following ingredients are satisfied:
"i) deception of a person either by making a
false or misleading representation or by
other action or omission;
(ii) fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any property and
finally intentionally inducing that person to do or omit to
do anything which he would not do or omit."
12. For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation. Even in a case
where allegations are made in regard to failure on the part of the accused to
keep his promise, in absence of a culpable intention at the time of making
initial promise being absent, no offence under Section 420 of the Indian
Penal Code can be said to have been made out.
13. We may reiterate that one of the ingredients of cheating as defined in
Section 415 of the Indian Penal Code is existence of an intention of making
initial promise or existence thereof from the very beginning of formation of
contract.
17
In Ajay Mitra v. State of M.P. (2003) 3 SCC 11, this Court held:
15. Section 420 IPC says that
"whoever cheats and thereby dishonestly
induces the person deceived to deliver any
property to any person ... shall be punished with
imprisonment ...".
Cheating has been defined in Section 415 IPC and
it says that:
"415. Whoever, by deceiving any person,
fraudulently or dishonestly induces the person
so deceived to deliver any property to any
person, or to consent that any person shall
retain any property, or intentionally induces the
person so deceived to do or omit to do anything
which he would not do or omit if he were not so
deceived, and which act or omission causes or
is likely to cause damage or harm to that person
in body, mind, reputation or property, is said to
`cheat'."
16. A guilty intention is an essential ingredient
of the offence of cheating. In other words "mens
rea" on the part of the accused must be established
before he can be convicted of an offence of
cheating. (See Jaswantrai Manilal Akhaney v.
State of Bombay [AIR 1956 SC 574). In Mahadeo
Prasad v. State of W.Bi [AIR 1954 SC 724] it was
held as follows: (AIR paras 4-5)
Where the charge against the accused is
under Section 420 in that he induced the
complainant to part with his goods, on the
understanding that the accused would pay for
the same on delivery but did not pay, if the
accused had at the time he promised to pay cash
against delivery an intention to do so, the fact
that he did not pay would not convert the
transaction into one of cheating. But if on the
other hand he had no intention whatsoever to
pay but merely said that he would do so in
order to induce the complainant to part with the
goods then a case of cheating would be
established."
18
In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257], this Court
held :
"40. It is settled law, by a catena of decisions, that
for establishing the offence of cheating, the
complainant is required to show that the accused
had fraudulent or dishonest intention at the time of
making promise or representation. From his
making failure to keep promise subsequently, such
a culpable intention right at the beginning that is at
the time when the promise was made cannot be
presumed. It is seen from the records that the
exemption certificate contained necessary
conditions which were required to be complied
with after importation of the machine. Since the
GCS could not comply with it, therefore, it rightly
paid the necessary duties without taking advantage
of the exemption certificate. The conduct of the
GCS clearly indicates that there was no fraudulent
or dishonest intention of either the GCS or the
appellants in their capacities as office-bearers right
at the time of making application for exemption."
{See also Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006)
6 SCC 736]}
In Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373],
noticing, inter alia, the aforementioned decision, this Court held:
"8. The dispute between the parties herein is
essentially a civil dispute. Non-payment or
underpayment of the price of the goods by itself
does not amount to commission of an offence of
cheating or criminal breach of trust. No offence,
having regard to the definition of criminal breach
19
of trust contained in Section 405 of the Penal Code
can be said to have been made out in the instant
case."
It was furthermore opined:
"13. The ingredients of Section 420 of the Penal
Code are as follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) To consent that any person shall retain any
property and finally intentionally inducing
that person to do or omit to do anything
which he would not do or omit.
No act of inducement on the part of the appellant
has been alleged by the respondent. No allegation
has been made that he had an intention to cheat the
respondent from the very inception.
14. What has been alleged in the complaint
petition as also the statement of the complainant
and his witnesses relate to his subsequent conduct.
The date when such statements were allegedly
made by the appellant had not been disclosed by
the witnesses of the complainant. It is really absurd
to opine that any such statement would be made by
the appellant before all of them at the same time
and that too in his own district. They, thus, appear
to be wholly unnatural.
15. In law, only because he had issued cheques
which were dishonoured, the same by itself would
not mean that he had cheated the complainant.
Assuming that such a statement had been made,
the same, in our opinion, does not exhibit that
there had been any intention on the part of the
20
appellant herein to commit an offence under
Section 417 of the Penal Code.
16. Furthermore, admittedly, their residences are in
different districts. Whereas the appellant is a
resident of the district of Ajamgarh, the respondent
is a resident of the district of Rampur. Cheques
were admittedly issued by the appellant at his
place. There is nothing on record to show that any
part of the cause of action arose within the
jurisdiction of the court concerned. Even if such
statements had been made, the same admittedly
have been made only at the place where the
appellant resides. The learned Magistrate,
therefore, had no jurisdiction to issue the
summons."
The said principle has been reiterated in All Cargo Movers (I) Pvt.
Ltd. v. Dhanesh Badarmal Jain & Anr. [2007 (12) SCALE 391], stating:
"For the said purpose, allegations in the complaint
petition must disclose the necessary ingredients
therefor. Where a civil suit is pending and the
complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are
prima facie cannot notice the correspondences
exchanged by the parties and other admitted
documents. It is one thing to say that the Court at
this juncture would not consider the defence of the
accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it
is impermissible also to look to the admitted
documents. Criminal proceedings should not be
encouraged, when it is found to be mala fide or
otherwise an abuse of the process of the Court.
Superior Courts while exercising this power should
also strive to serve the ends of justice."
21
(See also Sharon Michael & ors. vs. State of Tamil Nadu & Anr.
[2009 (1) SCALE 627]
14. It is, therefore, evident that the element of wrongful intention should
ordinarily exist from the inception of the contract. FIR does not satisfy the
aforementioned test. So far as the allegation in regard to criminal breach of
trust is concerned, it related to the dowry articles. No allegation has been
made that the appellants are guilty of commission of offence punishable
under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has
been given, the same would attract the provisions of the special act in
preference to the general statute. Furthermore, if any article is given by way
of dowry, the question of entrustment thereof for or on behalf of the bride
would not arise.
Allegations made in the FIR merely disclose that at the time of
leaving the house, appellants had taken with them certain articles. The said
articles ought to be in lawful possession of the respondent No.3. The
offence of theft might have been committed. But when they are in joint
possession, even no offence of theft would also be made out.
Furthermore, the larger part of offence, if any, has been committed
only in Canada. Why the father of respondent No. 3 had to come from
22
Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent
No.3 and the first informant do not say that the inquiry report submitted by
the Superintendent of Police on the representation made by the appellant
No.2 was incorrect. It has also not been stated that as to on what material,
the charge-sheet had been submitted. We, in the peculiar facts and
circumstances of this case, have absolutely no doubt in our mind that the
allegations contained in the FIR had been made with an ulterior motive to
harass the appellants. Continuance of the criminal proceeding against them
would, therefore, amount to abuse of process of the court.
In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr.
[2007 (12) SCALE 391], this Court held:
"For the said purpose, allegations in the complaint
petition must disclose the necessary ingredients
therefor. Where a civil suit is pending and the
complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are
prima facie cannot notice the correspondences
exchanged by the parties and other admitted
documents. It is one thing to say that the Court at
this juncture would not consider the defence of the
accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it
is impermissible also to look to the admitted
documents. Criminal proceedings should not be
encouraged, when it is found to be mala fide or
otherwise an abuse of the process of the Court.
23
Superior Courts while exercising this power should
also strive to serve the ends of justice."
{See also V.Y. Jose & Anr. vs. State of Gujarat & Anr. [2008 (16)
SCALE 167]}
In Hira Lal & Ors. vs. State of U.P. & Ors. [2009 (5) SCALE 418],
this Court held:
"10. The parameters of interference with a
criminal proceeding by the High Court in exercise
of its jurisdiction under Section 482 of the Code
are well known. One of the grounds on which
such interference is permissible is that the
allegations contained in the complaint petition
even if given face value and taken to be correct in
their entirety, commission of an offence is not
disclosed. The High Court may also interfere
where the action on the part of the complainant is
mala fide."
15. Upon taking a holistic view of the matter vis-`-vis the statutory
provisions, we are of the opinion that the appellants had made out an
exceptional case to invoke the inherent jurisdiction of the High Court under
Section 482 of the Code. It was, in our opinion, obligatory on the part of the
High Court to exercise its discretionary jurisdiction to prevent the abuse of
process of the court.
24
16. For the aforementioned reasons, the impugned judgment and order of
the High Court is set aside. The appeal is allowed.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009
शुक्रवार, ८ मई २००९
Supreme Court of India: Civil Appeal No. 3146 of 2009
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3146 OF 2009
@ Special Leave Petition (Civil) No.116 of 2008
Roy Estate ......Appellant
Versus
State of Jharkhand & Ors. ...... Respondents
JUDGMENT
HARJIT SINGH BEDI, J.
1. Leave Granted.
2. The facts leading to the appeal are as under: The property in dispute known as `Katras House' built over an area of 1.7 acres of land on Circular Road, Ranchi was purchased by Late Shri Ganesh Chandra Dey vide registered sale deed dated 26th January 1933. World War-II broke out on 3rd September 1939 on which the Viceroy promulgated the Defence of India Ordinance 1939 under which the Defence of India Rules were issued. On 25th April 1942, Rule 75 A was inserted in the Defence of India Rules empowering the Central Government to requisition any property necessary or expedient for securing the defence of British India and other related matters. Japan entered World War-II on the side of Nazi Germany on the 7th December 1941, after its attack on the United States Seventh Fleet in Pearl Harbour, Hawai and soon after a string of victories over the Allies in South East Asia and upto Burma brought the Imperial Japanese Army to India's Eastern doorstep. It was thereafter thought prudent to shift the headquarters of the Indian Army's Eastern Command from Kolkata to Ranchi. Vast areas of land and other residential property were accordingly requisitioned under Rule 75 (A) ibid. Katras House too was requisitioned for this purpose. The World War ended in 1945 but the property continued to be remain under requisition. The Requisitioning and Acquisitioning of Immovable Property Act 1952 ( hereinafter called `the Act') was thereafter promulgated and Section 23 thereof provided that all the old requisitions were now deemed to have been made under Section 3 of the Act but by virtue of an amendment made in 1970 Section 6 (1-A), the Central Government was not authorized to retain any property under requisition for a period beyond 17 years. The Deputy Commissioner, Ranchi however, on a misconception of the law transferred Katras House, undoubtedly a requisitioned property, to the Civil Surgeon, Ranchi without the consent of its owner and on vacation of the said property by the Civil Surgeon, vide by Order dated 30th April 1958, transferred the property to the Principal, Ranchi Women's College (Respondent no.3 herein) under Section 11 (2) (b) of the Bihar Building Lease Rent and Eviction Control Act 1947 (hereinafter called the `Rent Act' ) subject to a monthly payment of rent directly to the owner. In July 1995, the then owner of the property through his attorney, filed an Eviction Title suit no.8 of 1995 under the provisions of the Rent Act for eviction of Respondent no.3 alleging that the college was a tenant in the demised premises. Respondent No. 3 as well as the Deputy Commissioner, Ranchi appeared in the said Suit as Defendants and filed their written statements. Respondent no.3 took a categorical stand that Katras House had been requisitioned for purposes of the Army during World War-II and had been allotted to it by the Deputy Commissioner under the Act, and an application for its vacation would lie before the Deputy Commissioner, and as such the Court Civil had no jurisdiction to entertain the Suit. This Suit was eventually dismissed in default for non-prosecution in the year 1998. The compensation payable under Section 8 (2) of the Act was, however, regularly paid by Respondent no.3 to the owner. Katras House was purchased by Shri L.N. Dey from its owner by a registered sale deed dated 9th January 2001 and pursuant thereto the necessary mutations were made in the revenue record and it is the admitted position that the rent/compensation is now being received by the new owner. It is the case of the Appellant that a letter dated 23rd November 2002 was received from the Administrator, Ranchi
Municipal Corporation that on inspection it had been found that Katras House was in a dangerous and uninhabitable state and a direction was issued under Section 247 (1) of the Ranchi Municipal Corporation Act 2001 that the building which had been declared as dangerous, should either be demolished or subjected to extensive repairs to make it habitable. The Appellant thereupon served a copy of this notice on the Deputy Commissioner on 8th July 2003 requesting him to de-requisition the building so that it could be demolished or repaired, as the case may be, failing which there was a possibility that the girls residing in the building which was being used as a hostel, may suffer some injury.
The request of the Appellant was accepted and an order was made by the Deputy Commissioner on 8th July 2003, de- requisitioning the property and directing its return to its owner. Vide order dated 25th August 2003, however, the Deputy Commissioner, in partial supersession of the order of 8th July 2003, referred the matter to the Secretary, Human Resource Development, Government of Jharkhand, Ranchi and the Vice Chancellor, Ranchi University to take a final decision with respect to the ownership and title of the said property. On receiving the revised order, the Appellant approached the Secretary, Department of Education on 14th October 2003 giving evidence as to his ownership of the property. The Joint Secretary of the Ministry, however, wrote a letter of 1st March 2004 to the Secretary, Building & Construction Department to arrange for an inspection of the property and to ascertain as to whether it was unsafe and unfit for habitation. The inspection was held over several days in May & June 2004 and a report was tendered that as the building had been constructed before the year 1919 and as the quality of the construction had deteriorated, the building was no longer fit for habitation. This report was forwarded to the Secretary, Human Resource Development Department by the Chief Engineer, Building Construction Department on 21st June 2004 but it appears that no result followed on which the Appellant filed Writ Petition (Civil) No.4955 of 2004 in the High Court seeking a direction to the Respondents, specifically to Respondent No.3 to relinquish the possession of the property forthwith to the owner so that the building could be
demolished or repaired to make it safe. Respondent No.3 filed its counter affidavit admitting that Katras House had been originally requisitioned for Army purposes during World War- II and had later been allotted to the Civil Surgeon and on its vacation by the Civil Surgeon, had been allotted to the respondent on 30th April 1958 under Section 11(2)(b) of the Rent Act and that it had been in use as a hostel for girls for more than 45 years. The matter was heard by a learned
Single Judge, who in his Judgment dated 20th September 2005 observed that it was not possible to determine the question of right, title and possession over the land and building in writ proceedings under Article 226 of the Constitution of India and that this matter could not be decided by the Secretary, Human Resource Development Department or the Vice Chancellor of the Ranchi Universityand therefore, the Order dated 25th August 2003 was bad to extent. It was, however, left to the Competent Authority under the `Act' to determine whether the building in question should be de-requisitioned or retained by the Government.
3. Aggrieved by the aforesaid Judgment, the Appellant preferred a Letters Patent Appeal before the Division Bench on6th January 2006, but simultaneously pursued the liberty granted by the Single Bench in the judgment dated 20th December 2005 and filed a representation before the Deputy Commissioner, Ranchi (being the Competent Authority under the Act) seeking an order of de-requisition of Katras House. The Deputy Commissioner by his Order dated 4th April 2006 ordered that the property should be released and handed over to the Appellant with effect from 4th April 2006. Faced with this situation Respondent No.3, the Principal, Women's College, Ranchi filed Title Suit No.134 of 2006 in the Court of the Munsif, Ranchi challenging the Order dated 4th April 2006 pleading that the aforesaid Order was without jurisdiction and also seeking on interim injunction during the pendency of the Suit. The Appellant filed its written statement on 2nd August 2006 pleading inter alia that the jurisdiction of the Civil Court was barred under Section 19 of the Act, and also an application under Order VII, Rule 11 of the CPC that the question of jurisdiction be treated as a preliminary issue. This prayer was rejected by the Munsif vide Order dated 14th November 2006. The Appellant thereupon preferred Writ Petition (Civil) No.7497 of 2006 pleading that the proceeding before the Civil Court were barred by Sections 18 and 19 of the Act. The High Court disposed off the writ petition with the direction that the Munsif should re-consider the pleas raised in the application aforesaid without being prejudiced by his earlier Order dated 14th November 2006.
This order of the High Court was challenged by way of a Letter Patent Appeal. The Appellant also moved an application for review of the Order dated 14th November 2006 which too was
rejected. These facts were brought to the notice of the Division Bench of the High Court in the Letters Patent Appeal proceedings vide an affidavit dated 7th September 2007. The High Court, however, by its Judgment and Order dated 1st October 2007, dismissed the Letters Patent Appeal in spite of the changed circumstances holding that the remedy of the Appellant lay elsewhere and that it was for the Civil Court to decide the question of jurisdiction raised in the application under Order 7 Rule 11 of the CPC. It is in these circumstances that the matter is before us by way of Special Leave Petition.
4. Several arguments have been addressed before us by Mr. K. Venugopal, the learned Senior Advocate for the appellant. He has emphasized that it was the admitted position that Katras House had been requisitioned under Rule 75 A of the Defence of India Rules in the year 1942 and by operation of law, the said requisition would now deemed to have been made under the Act. He has pointed out that the Order of the Division Bench observing that only the Civil Court could to go into the matter was not in accordance with law as the provisions of the Act were applicable and Section 19 thereof specifically barred any proceedings before the Civil Court. He has further pointed out that Respondent No.3 in its written statement filed in 1995 in the eviction suit filed by the power of attorney holder of the earlier owner had admitted that the property had been requisitioned for the army and had pleaded that proceedings before the Civil Court were barred. He has pointed out that this volte face had been made in order to frustrate the Order of the Deputy Commissioner dated 4th April 2006 which had been validly made under Section 6 (1A)
of the Act. He has further pointed out that the requisition of a property could not continue indefinitely as the original purpose of the requisition had ceased to exist and more articularly as the requisition could not continue beyond the year 1987 i.e. a period of 17 years from the year 1970 as provided by Section 6 (1A) ibidem.
For these two submissions Mr. Venugopal has placed reliance on H.D. Vora vs. State of Maharashtra and Ors. (1984) 2 SCC 337, and Grahak Sanstha Manch and Ors. Vs. State of Maharashtra (1994) SCC 192. Mr. Venugopal has further pointed out that theDeputy Commissioner was not authorized to transfer Katras House to Respondent No.3 vide Order dated 30th April 1958 purportedly under Section 11 (2) of the Act as the conditions for the applicability of this provision did not exist. He has also pleaded that as RespondentNo.3 in the Suit filed in the year 1995 had claimed that the Civil Court had no jurisdiction in the matter, it was now estopped from the claiming to the contrary and saying that the Civil Court had the jurisdiction in proceedings which were now pending in the Civil Court.
5. Mr. Dholakia, the learned senior counsel appearing for Respondent No.3 has, at the very outset, very fairly conceded, that the question of title was not disputed but as the question as to whether the relationship of landlord and tenant existed inter se the parties was a matter which could be examined only by the Civil Court and that this procedure that had been adopted by the respondent by filing a civil suit challenging the order dated 4th April, 2006 of de-requisition made by the Deputy Commissioner.
6. We have heard the learned counsel for the parties and gone through the record. Although, a feeble attempt has been made by the learned counsel for the Respondent doubting the factum of the requisition made in the year 1942 for the purpose of the Army, it stands virtually admitted now that such an order had indeed been made under Rule 75 A of the Defence of India Rules. It is also the conceded position that by virtue of various provisions made in subsequent laws, the said order would now be deemed to be one made under Section 3 of the Act. In this view of the matter, the question would arise as to whether the Civil Court would have jurisdiction in the matter or that the remedy of the parties elsewhere. It is significant that in the civil suit filed in the year 1995 by the previous owner of the property, a comprehensive written statement had been filed by the Principal of Respondent No.3, and the positive stand taken was that the building in question had been requisitioned by the Deputy Commissioner-cum-District Magistrate, Ranchi for military purposes under the Defence of India Rules in the year 1942 and that the Deputy Commissioner had allotted the said premises to the Ranchi Women's College by order dated 4th April 1958 under Section 11 (2) of the Rent Act and as such the civil suit was barred and the remedy for de-requisition lay only before the Competent Authority, that is the Deputy Commissioner-cum-District Magistrate, Ranchi. Concededly, this suit was dismissed in default and was not pursued any further. It is equally true that the appellant herein too has taken a vacillating stand with regard to the jurisdiction of the Civil Court or otherwise in other legal proceedings inter se the parties. However, as per findings of all the Courts and as per
written statement filed, the fact that the property had indeed been requisitioned in the year1942 under Rule 75 A of theDefence of India Rules stands virtually admitted. In this view of the matter the controversy would be covered by Sections 3, 6 & 19 of the Act.
7. Section 3 of this Act gives power to the Competent Authority to requisition any immovable property for any public purpose, being a purpose of the Union and Section 4 thereof gives the power to the Competent Authority to take over the possession of the requisitioned property. Section 6 deals with release from requisition and insofar as is relevant, is reproduced below:
6. Release from requisitioning. (1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force:
Provided that where the purposes for which any requisitioned property was being used cease to exist, the Central Government shall, unless the property is acquired under section 7, release that
property, as soon as may be, from requisition.
"(1-A) Notwithstanding anything contained in sub-section (1), the Central Government shall release from requisition, -
(a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of Requisitioning and Acquisition of Immovable Property (Amendment) Act, 1970, on or before the expiry of a period of [seventeen years] from such commencement;
(b) any property requisitioned under this Act after such commencement, on or before the expiry of a period of [seventeen years] from the date on which possession of such property was surrendered or delivered to, or taken by, the competent authority under section 4,unless such property is acquired under section 7 within the period of" [seventeen years] aforesaid.]
(2) Where any property is to be released from requisition, [under sub-section (1) or under sub-section (1-A)] the competent authority may, after such inquiry, if any, as it may in any case consider necessary to make or cause to be made, specify by order in writing the person to whom
possession of the property shall be given and such possession shall, as far as practicable, be given to the person from whom possession was taken at the time of the requisition or to the successors-in- interest of such person.
[3] The delivery of possession of the property to the person specified in an order under sub-section (2) shall be full discharge of the Central Government from all liability in respect of the property, but shall not prejudice any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is given.
8. A bare perusal of Section 6 (1-A) and 6(2) would show that the property cannot be requisitioned permanently and that the maximum period fixed by the Amendment Act of 1970 is 17 years from that date and that Section 6 (2) further provides that unless the requisitioned property is acquired under Section 7 within the period of 17 years aforesaid, it shall be released to its owner and as far as practicable, be given to the person from whom the possession had been taken at the time of the requisition or to the successor in interest of such person. Concededly, the appellant herein is the successor in interest of the owner from whom the property had been requisitioned in the year 1942. It is, therefore, obvious that the requisition could not have been continued beyond the year 1987 unless the property had been acquired, which is concededly not the case before us.
9. Mr. Dholakia has, however, emphasized that the status inter se the parties was that of landlord and tenant, the appellant being the landlord, and as the appellant had been accepting rent and had also sought and received an enhancement thereof on several occasions , the suit could not be dismissed on the ground that the civil court's jurisdiction was barred. We are of the opinion, however, that the payment of rent in such matters would not change the legal position with regard to the rights and obligations of the requisitioning authority and the person from whom the property had been requisitioned. It is impossible to accept the plea that if the appellant whose property has been requisitioned in desperation seeks an enhancement of the rent, that would ipso-facto create a tenancy so as to preclude the obligations imposed on the Central Government under the Act. While repelling a similar submission in H.D. Vora's case this is what this Court had to say:
"There was also one other contention urged on behalf of the appellant in a desperate attempt to
protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as his possession of the flat is concerned. This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order or requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukkanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of his occupation of the flat or make him a tenant of Rukmanibai in respect of the flat". Some of the observations in H.D. Vora's case were modified on some other matters in Grahak Sanstha Manch case (Supra) but the observation in paragraph 7 afore-quoted were
duly affirmed.
10. To our mind there exists yet another circumstance which militates against the case of Respondent No. 3 with regard to the creation of a tenancy vis-`-vis the appellant. Admittedly, Respondent No.3 had been inducted into Katras House under the order of the Deputy Commissioner dated 30th April 1958, under Section 11 (2) of the Rent Act. This provision reads as under:
"(2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building, he shall give fifteen day's previous notice in writing of his intention to do so to the landlord, and to the District Magistrate who shall under intimation to the landlord, within a week of the receipt of the notice either allot building to any other servant of the Government whom the District Magistrate thinks suitable, subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government, or direct that the landlord shall be put in possession of the building:
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.
(a] xxx xxx xxx xxx
(b) Where a building is vacated by a servant of the Government, any person occupying such building other than the persons referred to in clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed:
Provided that, after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person".
11. It would be clear from a bare perusal of Section 11(2) (a) that it postulates several conditions for the transfer of a building already in possession of a Servant of the Government to any other servant of the Government, but it does not authorize the transfer of such a building to any other person. It has been conceded before us that respondent No.3, the Ranchi Women's College, is not run or controlled by the Government but is a private college under private management. To our mind, therefore, the very order of allotment made on 30th April, 1958 was completely unauthorized. Concededly also Katras House was under requisition with the Union of India for purpose of the Union and there is no provision under the Act for transfer of such a property to any other person. Even assuming for a moment, the Act did authorize such a transfer, the condition of transfer visualized under section 11(2)(a) did not exist and the transfer
was thus, bad at the very outset.
12. In this background, the question now arises is as to whether the jurisdiction of the Civil Court was barred and whether the appellant should undergo a trial on facts which are admitted. Section 19 of the Act is reproduced hereunder:
"Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the competent authority or arbitrator is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act".
13. A bare perusal of this provision would show that it is only the Competent Authority (read Deputy Commissioner) who would have jurisdiction in respect of any matter under the Act, and the jurisdiction of the Civil Court was explicitly barred. We also find that in the suit filed in the year 1995, Respondent No.3 had taken a specific plea that it was only the Competent Authority under the Act who could make an order of de-requisition sought by the owner and the jurisdiction of the Civil Court was barred. Mr. Dholakia has, however, (and rightly), pointed out that Appellant too had been taken a vacillating stand in a different set of proceedings. We find that both appellant and the respondent have been equally ambivalent with respect to their relationship and rights inter- se with the sole purpose of defeating the other party's rights by whatever means possible. To our mind, this ambivalence would not be determinative of the legal issues that have been raised on the basis of admitted facts. It is the admitted fact that the property had been requisitioned in the year 1942 for Army purposes under Rule 75 A of the Defence of India Rules which would be deemed to be a requisition under Section 3 of the Act. The maximum period for requisition in such cases is 17 years and ought to have ended in the year 1987, but has in fact continued for almost 22 years thereafter. The creation of the so called tenancy in favour of a respondent of a requisitioned property is not visualized under the Act and
even otherwise the conditions for the creation of such a tenancy by virtue of Section 11 (2) of the Rent Act do not exist.
The Competent Authority under the Act was, therefore, under an obligation imposed under Section 6(2) to return it to its owner. To our mind, therefore, the observations of the Munsif
and High Court, that the appellant must have his remedies in the Civil Court is adding insult to injury in a situation where almost none of the material facts are in dispute.
14. Mr. Venugopal has also raised a plea of estoppel based on the conflicting stand on the question of jurisdiction taken by respondent no.3 from time to time. In view of the fact that the appellant has been equally guilty of a similar stand and our findings on the other issues, we are disinclined to go into this aspect.
15. We accordingly allow the appeal, set aside the Order of the Division Bench and direct that Katras House and the entire requisitioned property shall be released in favour of the appellant by the end of this year. The respondent is directed to pay all the arrears of rent due as of now and the rent upto December and also files an undertaking to vacate the premises as ordered within a period of two months from today. Should such an undertaking not be filed, we issue a direction to the Competent Authority, that is the Deputy Commissioner, Ranchi to take steps to evict the respondent and hand over the property to the appellant forthwith. The appellant will also have its costs from Respondent No.3 which we determine at Rs. One lakh.
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J. (DALVEER BHANDARI)
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J. (HARJIT SINGH BEDI)
New Delhi,
Dated: May 1, 2009
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