Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 675 OF 2019
(Arising out of S.L.P.(Crl.) No.1151 of 2018)
Md. Allauddin Khan ….Appellant(s)
VERSUS
The State of Bihar & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final
judgment and order dated 11.09.2017 passed by
the High Court of Judicature at Patna in Criminal
Miscellaneous Application No.27078 of 2013
Signature Not Verified
whereby the High Court allowed the Criminal
Digitally signed by
ANITA MALHOTRA
Date: 2019.05.15
11:24:11 IST
Reason:
Miscellaneous Application filed by respondent Nos.2
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& 3 herein and quashed the complaint filed by the
appellant herein.
3. A
few facts need mention hereinbelow for the
disposal of this appeal, which involves a short point.
4. By impugned order, the High Court quashed
the order dated 13.02.2013 passed by the Judicial
st
Magistrate 1 Class, Saran at Chapra in Complaint
Case No.21/2012 whereby the Judicial Magistrate
took cognizance of the complaint filed by the
appellant herein against respondent Nos. 2 and 3
for commission of the offences punishable under
Sections 323, 379 read with Section 34 of the
Indian Penal Code, 1860 (for short “IPC”) by holding
that a case was made out against
prima facie
respondent Nos.2 and 3 on the basis of allegations
made in the complaint.
5. So, the short question which arises for
consideration in this appeal filed by the
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complainant is whether the Judicial Magistrate was
right in holding that a prima facie case is made out
against respondent Nos.2 and 3 for commission of
the offences punishable under Sections 323, 379
read with Section 34 IPC so as to call upon them to
face the trial on merits or whether the High Court
was right in holding that no prima facie case has
been made out against respondent Nos.2 and 3.
6. Heard Mr. Binay Kumar Das, learned counsel
for the appellant, Mr. Prabhat Ranjan Raj, learned
counsel for respondent Nos.2 & 3 and Mr.
Devashish Bharuka, learned counsel for respondent
No.1State.
7. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow the appeal, set aside the
impugned order and restore the order of the
Judicial Magistrate dated 13.02.2013.
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8. The High Court examined the case in para 6,
which reads as under:
“6. On perusal of complaint petition, I find
that the complainant has asserted that
firstly, he had contracted for purchasing the
shop premises from the land owner, but the
petitioners offered more money and got the
document registered in their favour. There is
no chit of paper on record to support the
agreement of sale or payment of any amount
to the land owner. The petitioners claim to
be bona fide purchaser of the shop premises,
which was in tenancy of the complainant.
The petitioners have filed an Eviction Suit
No.10 of 2012, in which the complainant has
filed his written statement admitting tenancy
in the said shop premises. The complainant
has further asserted that he has been
remitting rent of the said shop regularly and
when he learnt about the transfer of shop
premises in favour of the petitioners, the
complainant has filed a Title Suit No.2 of
2012. The dispute between the parties
appears to be a civil dispute. The
relationship of landlord and tenant stands
admitted by the complainant in the eviction
suit. I further find that there are
contradictions in the statement of witnesses
on the point of occurrence. The criminal
prosecution of these petitioners in the above
background appears to be an abuse of process
of Court.”
9. On perusal of the impugned order, we find that
it suffers from two errors.
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10. First error is that the High Court did not
examine the case with a view to find out as to
whether the allegations made in the complaint
prima facie make out the offences falling under
Sections 323, 379 read with Section 34 IPC or not.
11. Instead the High Court in Para 6 gave
importance to the fact that since there was a
dispute pending between the parties in the Civil
Court in relation to a shop as being landlord and
tenant, it is essentially a civil dispute between the
parties.
12. It is on this ground, the High Court proceeded
to quash the complaint. This approach of the High
Court, in our view, is faulty.
13. Though the High Court referred to the law laid
down by this Court in the case of
State of Haryana
& Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 SC
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604) but failed to apply the principle laid down
therein to the facts of this case.
14. The High Court failed to see that mere
pendency of a civil suit is not an answer to the
question as to whether a case under Sections 323,
379 read with Section 34 IPC is made out against
respondent Nos. 2 and 3 or not.
15. The High Court should have seen that when a
specific grievance of the appellant in his complaint
was that respondent Nos. 2 and 3 have committed
the offences punishable under Sections 323, 379
read with Section 34 IPC, then the question to be
examined is as to whether there are allegations of
commission of these two offences in the complaint
or not. In other words, in order to see whether any
prima facie case against the accused for taking its
cognizance is made out or not, the Court is only
required to see the allegations made in the
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complaint. In the absence of any finding recorded by
the High Court on this material question, the
impugned order is legally unsustainable.
16. The second error is that the High Court in para
6 held that there are contradictions in the
statements of the witnesses on the point of
occurrence.
17. In our view, the High Court had no jurisdiction
to appreciate the evidence of the proceedings under
Section 482 of the Code Of Criminal Procedure,
1973 (for short “Cr.P.C.”) because whether there are
contradictions or/and inconsistencies in the
statements of the witnesses is essentially an issue
relating to appreciation of evidence and the same
can be gone into by the Judicial Magistrate during
trial when the entire evidence is adduced by the
parties. That stage is yet to come in this case.
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18. It is due to these two errors, we are of the
considered opinion that the reasoning and the
conclusion arrived at by the High Court for
quashing the complaint filed by the appellant
against respondent Nos. 2 and 3 is not legally
sustainable and hence it deservers to be set aside.
19. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside and the order of the Judicial
Magistrate dated 13.02.2013 is restored because it
records a finding that a prima facie case for taking
cognizance of the complaint is made out.
20. The Judicial Magistrate is accordingly directed
to proceed to conclude the trial on merits on the
basis of evidence adduced by the parties in the trial
strictly in accordance with law uninfluenced by any
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observations made by the High Court in the
impugned order and in this order made by this
Court.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 15, 2019.
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