TMI Blog2007 (10) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 9-10-2007 - BALAKRISHNAN, K.G., R.V. RAVEENDRAN AND BHANDARI, DALVEER CHAND , JJ. JUDGMENT Dalveer Bhandari, J. Leave granted. This appeal is directed against the judgment dated 16th July, 2004 passed in Criminal Miscellaneous Application No.248 of 2003 under section 482 of the Code of Criminal Procedure (for short Cr. P.C.) by the High Court of Uttaranchal at Nainital. The appellants had to file an application under Section 482 Cr. P.C. because the Special Judicial Magistrate, Rishikesh issued a non-bailable warrant against the appellants on the basis of First Information Report under Sections 420/467 IPC filed by the respondents. Basic Facts In 1923, Pt. Madan Mohan Malviya founded Sanatan Dharma Pratinidhi Sabha, Punjab (hereinafter referred as the Sabha ). Some of the objects of the Sabha are to open and maintain temples, dharamshalas, ashrams and to manage schools and colleges for the overall development of children. Moreover, it seeks to open hospitals for the poor and to develop the physical and mental state of the youth etc. It is averred that the Sabha from its inception is engaged in the work of uplifting backward and downtrodden people and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 5.5.1999 stated that he had not defaulted in payment of the remaining amount. He stated in the reply that as per the agreement the land had to be measured and that he was ready to pay the balance amount once that was done. Pt. Mohan Lal Sharma, the President of the Sabha, expired on 30.8.1999. On 5.1.2000, both the parties i.e. the representative of the Sabha and the representatives of M/s Ahuja Builders met at the site of the disputed land in the presence of Patwari (Revenue Official). The land of old Khasra No.140 and new Khasra Nos.61, 62, 63, 64, 65, 66, 67, 68 and part of 89, 90 was measured by the Patwari. The balance land, after adjusting the land given in lieu of construction of the Ghat, came out to be 11.19 Bighas. The total sale consideration for this land worked out to be Rs.15,10,650/-. Respondent no.3 had already paid Rs.4,00,000/- as earnest money out of this amount. He had paid a further sum of Rs.1,00,000/- on 21.3.1997. On the request of respondent no.3, the Sabha reduced the amount owed of Rs.1,50,000/- to him in view of the existence of a passage on the said land. Out of the balance of Rs.8,60,650/-, a further concession of Rs.60,650/- was given to Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nor was Rs.8,00,000/- paid. In these circumstances, appellant no. 1 (I. M. Goswami) cancelled the power of attorney issued in favour of respondent no.4 and informed respondent no. 4 accordingly. A public notice of the same was also published by the Sabha in a local newspaper Amar Ujala, a Hindi daily on 25.10.2002. The notice informed the general public about the cancellation of the General Power of Attorney given to respondent no.4. According to the appellants, in order to protect the interest of the Sabha, the remaining land of 11.19 Bighas of Khasra No.140 was sold to one Sunil Kumar on as is where is basis on 18.12.2002. Having committed breach of his contractual obligations, respondent no.3 filed a criminal complaint to the SHO of Raiwala, Rishikesh police station on 23.4.2003 against the appellants and three other persons alleging that he had been cheated by the appellants in connivance with other persons by selling a portion of his land to a third party and by cancelling the General Power of Attorney. After examining the matter, the SHO arrived at the conclusion that no cognizable offence had been committed and the dispute in question was of civil nature for which the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprising in Khasra No.140 (new Khasra Nos.61 to 68, 89 and 90) without returning the earnest money of respondent nos.3 and 4. The High Court by order dated 16.7.2004 dismissed the petition under Section 482 Cr.P.C. filed by the appellants on the ground that the records show that the allegations in the FIR constitute an offence as alleged by the complainant. The said order is challenged in this appeal by special leave. The appellants submitted that first appellant cancelled the power of attorney by a registered cancellation deed after informing respondent no.4. The cancellation was necessary to protect its interests because respondent no.4 was selling the Sabha s land by misusing the power of attorney. The Sabha sold the land to Sunil Kumar only after respondent nos.3 and 4 failed to fulfill their obligations under the contract and had mala fide intention to grab the land without paying the balance amount. Accordingly, the sale deeds executed by respondent no.4 in favour of respondent no.3 were illegal. The appellants cancelling the power of attorney and selling a part of the land to Sunil Kumar to protect the interests of the Sabha by no stretch of the imagination attracts ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l proceedings against the appellants. We have heard the learned counsel for the parties at length. The appellants who are office-bearers of a charitable organization, namely, Sanatan Dharma Pratinidhi Sabha, in order to protect the interests of the Sabha cancelled the Power of Attorney by executing a registered Cancellation Deed after giving notice to the Power of Attorney holders. The appellants sold only that part of the land to Sunil Kumar on behalf of the Sabha for which an agreement to sell with the complainants (respondents) had already been terminated. The respondent s earnest money had been forfeited. All of this was only done after appellants had given respondents due notice. The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and respondent no.3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court. Scope and ambit of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 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. The 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 should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they 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 proceedings at any stage. This court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. In State of Haryana Others v. Bhajan Lal Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. 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 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that 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 to myriad kinds of cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. In G. Sagar Suri Another v. State of UP Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature. This court in Roy V.D. v. State of Kerala (2000) 8 SCC 590 observed thus:- 18. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of law Firstly, we shall deal with the section 420 IPC. Cheating is defined in section 415 IPC and is punishable under section 420 IPC. Section 415 is set out below: 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 . Explanation: A dishonest concealment of facts is a deception within the meaning of this section. Section 415 IPC thus requires 1. deception of any person. 2. (a) fraudulently or dishonestly inducing that person- (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect, the case for prosecution under sections 420 and 467 IPC is not made out against the appellants. To prevent abuse of the process and to secure the ends of justice, it becomes imperative to quash the FIR and any further proceedings emanating therefrom. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept in accordance with the procedure prescribed by law. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: * it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon; or * it is considered that the person could harm someone if not placed into custody immediately. As far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
