Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 662 OF 2009
(Arising out of SLP (Crl.) No.5515 of 2008)
Hira Lal & Ors. … Appellants
Versus
State of U.P. & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
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2. Appellants and the respondent No.3 (complainant) are co-sharers.
Raghuvansh Tyagi, father of respondent No.3, and Tika Ram Tyagi, father
of Smt. Suman Devi were co-khatedars in respect of Khasra No.59 having
an area of 2.0920 hectares of land situated in village Bhangel Begampur, PS
Phase II, Noida.
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Father of Respondent No.3 and Suman Devi were having 3/16 share
in the aforementioned khasra. According to the complainant, prior to 1997
a mutual agreement was entered into amongst the co-sharers, pursuant
whereto, 2000 sq. yds. of lands was allotted for the purpose of residential
house to each of the co-sharer. The complainant on his allotted land,
allegedly constructed a house and started living there. He also said to have
constructed 10 shops. Tika Ram Tyagi is said to have constructed two
houses on 600 sq. yards of land and his sons also constructed pucca houses
on the remaining 1400 sq. yds. of land in November 2006.
3. Tika Ram Tyagi executed a registered deed of sill on or about
24.2.1997 bequeathing all his moveable and immoveable properties in
favour of his grand sons.
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Husband of Smt. Suman Devi, Anil Kumar is said to have signed the
said Will as one of the attesting witnesses.
On or about 1.8.2002, however, another Will was executed by Tika
Ram Tyagi who had been suffering from throat cancer in respect of the
same property in favour of Smt. Suman Devi. Appellant No.1 Hira Lal was
a witness to the said Will.
It is stated that Suman Devi later on executed a ‘Bainama’ in favour
of Ashok Kumar Tyagi, younger brother of appellant No.1 on the basis of
the said Will. It stands admitted that in terms thereof Suman Devi got her
name mutated in the Land Revenue Record on or about 26.9.2002. She,
allegedly, sold nine shops in favour of Ashok Kumar Tyagi by reason of a
‘Bainama’ dated 22.10.2002. Yet again she sold another shop on
23.10.2002 by reason of another ‘Bainama’ in favour of Ashok Kumar
Tyagi.
4. A civil suit was filed by the respondent in the court of Civil Judge,
Senior Division, Gautam Budh Nagar, inter alia, praying for cancellation of
the said Will on the premise that the said Will was a forged one. The said
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suit was dismissed by an order dated 29.3.2006. An appeal thereagainst is
said to be pending.
Prior thereto, Respondent No.3 filed a complaint petition in the Court
of ACJM, Gautam Budh Nagar which was marked as Complaint Case
No.212 of 2003 under Section 420, 462, 467, 468 and 471 IPC, inter alia,
contending that the Will dated 1.8.2006 purported to have been executed by
Tika Ram Tyagi in favour of his daughter Suman Devi was a forged and
fabricated document. The learned ACJM, Gautam Budh Nagar, however,
dismissed the said complaint petition, stating :
“Case called. Complainant is not present. No
record has been submitted in compliance of the
earlier order. File be put up at 3 pm for order.
Photocopy of the Khatauni has been submitted by
the complainant in which the names of Mukesh
and other co-shareholders are mentioned in Khata
Khatauni No.22, Khet No.59. Only becoming a
co-shareholder of the land does not prove a sale
deed or Will as fake or sham document. Since
Tika Ram’s name is also one of the co-
shareholders and the alleged sale deed and Will
has not been declared to be fake or bogus by any
other court, therefore, in the light of the record
available in case file and oral evidence, no prima
facie case is made out against the accused persons.
The complaint under Section 203 is hereby
rejected.”
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5. We may place on record that the learned ACJM by an order dated
13.2.2003, inter alia, opined that ‘no record was available in the file which
could prove that the said Deed of Will are prima facie fake and bogus’. A
revision application was filed thereagainst by respondent No.3 which was
dismissed by an order dated 8.4.2004.
6. Respondent No.3 thereafter filed another application under Section
156(3) of the Code of Criminal Procedure, 1973 (Code) making similar
allegations. However, in the said complaint petition even the execution of
the bienamas was alleged to be fraudulent acts on the part of the accused
respondent, contending :
“That the opponent Suman did not have any right
to dispose of the plot with Khasra No.59 and no
share of the plot of Khasra No.59 came to the
share of Suman.
That opponent Suman played fraud first did Karam
Chand and Dayanand and without the permission
of Tika Ram got the Will of Tika Ram in her
favour with regard to the property in Khasra
No.59.”
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Learned First Additional Chief Judicial Magistrate by an order dated
8.7.2008 issued summons which reads as under :
“Because your presence is required to make the
reply of the charge under Section 420, 467, 468,
471, 506 IPC, therefore, you are directed to appear
either in person or through advocate before the
concerned court on 8.7.08. Fail not to do so.”
7. Appellants filed an application under Section 482 of the Code which
by reason of the impugned judgment has been dismissed. The High Court
in its impugned judgment refused to go into the merit of the matter that the
defence of the accused cannot be considered at that stage and they can raise
all contentions at the time of framing of the charges.
8. Mr. J.P. Dhandha, learned counsel appearing on behalf of the
appellant, would contend that the High Court committed a serious error
insofar as it failed to take into consideration that the second complaint
petition being not maintainable, the summons issued by the court of ACJM
was wholly illegal and without jurisdiction.
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9. Mr. Pramod Swarup, learned counsel appearing on behalf of the
State, and Mr. Vishwajit Singh, learned counsel appearing on behalf of
respondent No.3 would, however, support the impugned judgment.
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.
11. The dispute between the parties is essentially civil in nature. The
Will in question is a registered Will. Whether it is surrounded by suspicious
circumstances or not is a matter which may appropriately fall for
determination in a testamentary proceeding. Prima facie, a Civil Court has
found the said Will to be genuine. A complaint petition filed by the third
respondent has been rejected. A revision application filed thereaginst has
also been dismissed.
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In State of Haryana & Ors. v.. Ch. Bhajan Lal & Ors. [ 1992 Supp (1)
SCC 335], this Court, relying on Pratibha Rani v. Suraj Kumar and Anr.
[(1985) 2 SGC 370], stated that for the purpose of exercising its power
under Section 482 of the Code of Criminal Procedure to quash a FIR or a
complaint, the High Court would have to proceed entirely on the basis of
the allegations made in the complaint or the documents accompanying the
same.
In R. Kalyani v. Janak C. Mehta & Ors. [(2009) 1 SCC 516], this
Court stated the propositions of law, thus :
“(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
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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.”
It was furthermore observed :
“ 10 . 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 subjected to persecution and humiliation on
the basis of a false and wholly untenable
complaint.”
12. Mr. Singh would argue that Tika Ram Tyagi having executed the Will
in respect of his own share, the appellants could not have transferred the
shops in favour of third party relying on or on the basis thereof.
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13. The question as to whether the transactions are genuine or not would
fall for consideration before the Civil Court as indisputably the respondent
No.3 has filed a civil suit in the court of Civil Judge, Gautam Budh Nagar
wherein allegedly an interim injunction has been granted. What was the
share of the respective co-sharers is a question which is purely a civil
dispute; a criminal court cannot determine the same.
14. The order of learned ACJM in his order dated 2.4.2003 is not a
cryptic one. Reasons have been assigned in support thereof. In a situation
of this nature, in our opinion, a second complaint petition could not have
been filed.
Strong reliance has been placed by Mr. Singh on a decision of this
Court in Mahesh Chand v. B. Janardhan Reddy & Anr. [(2003) 1 SCC 734],
wherein it was opined that second complaint was not completely barred in
law. This Court, however, in that decision itself held that the second
complaint can lie only on fresh facts and/or if a special case is made out
therefor, stating :
“ 19. Keeping in view the settled legal principles,
we are of the opinion that the High Court was not
correct in holding that the second complaint was
completely barred. It is settled law that there is no
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statutory bar in filing a second complaint on the
same facts. In a case where a previous complaint is
dismissed without assigning any reasons, the
Magistrate under Section 204 Cr.P.C. may take
cognizance of an offence and issue process if there
is sufficient ground for proceeding. As held in
Pramatha Nath Talukdar case second complaint
could be dismissed after a decision has been given
against the complainant in previous matter upon a
full consideration of his case. Further, second
complaint on the same facts could be entertained
only in exceptional circumstances, namely, where
the previous order was passed on an incomplete
record or on a misunderstanding of the nature of
complaint or it was manifestly absurd, unjust or
where new facts which could not, with reasonable
diligence, have been brought on record in the
previous proceedings, have been adduced. In the
facts and circumstances of this case, the matter,
therefore, should have been remitted back to the
learned Magistrate for the purpose of arriving at a
finding as to whether any case for cognizance of
the alleged offence had been made out or not.”
15. The second complaint petition filed by the third respondent does not
disclose any such exceptional case. It reiterated the same allegations as
were made in the first complaint petition. No fresh fact was brought to the
notice of the court. The core contention raised in both the complaint
petitions was alleged execution of a forged Will by Tika Ram Tyagi.
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16. For the reasons aforementioned, we are of the opinion that it was not
a fit case where cognizance of the offence could have been taken or any
summons could have been issued. The impugned judgment, thus, cannot be
upheld. It is set aside accordingly. The appeal is, therefore, allowed.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
April 8, 2009