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CHHEDI LAL KEDIA & OTHERS versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Chhedi Lal Kedia & Others v. State Of U.P. & Another - APPLICATION U/s 482 No. 4390 of 2001 [2006] RD-AH 2917 (8 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                           RESERVED

CRIMINAL MISC. APPLICATION NO. 4390 OF 2001

Chhedi Lal Kedia and others  . .  Vs.  . .  . .State of U.P& another.

  ---

Hon'ble R.K.Rastogi,J.

This is an application under section 482 Cr.P.C. for quashing  the charge sheet in Criminal Case no. 1372 of 2001, State Vs. Chhedi Lal Kedia and others, under sections 420, 465, 468 and 471 I.P.C.  pending in the court of Addl. Chief Judicial Magistrate, Deoria district Deoria.

The facts relevant for disposal of this application are that  on 27.10.1999 Ajay Pratap Singh, opposite party no. 2 of the present case, lodged a report at police station Kotwali Deoria against the accused applicants with these allegations that Ajay Pratap Singh resides at his house in Barhaj Wali Gali Sation Road  police station Kotwali Deoria. This house was purchased by him from  Smt. Phulmati Devi for Rs.1,00,000/-  in the first week  of July, 1975, and  thereafter Smt. Phulmati Devi  executed a memo in November, 1975 showing receipt of Rs. 1,00,000/- . The accused applicants wanted to take this house  and so they in pursuance of a conspiracy for that purpose  got a fictitious gift deed  of the said property prepared and  got it registered  in the office of the Sub-Registrar, Salempur, though its registration should have been  done in the office of the Sub Registrar, Deoria. The accused with a view to conceal this fact from  the informant,  got  the above   deed  registered  in the office of the Sub Registrar, Salempur; and for the purpose of  registration of the deed at Salempur,   they included half Decimal land and a mango tree  of village Nandana in that deed. Actually Smt. Phulmati Devi never  owned any land at village Nandana nor any tree in that village. This deed was registered on 26.4.1989. Thereafter they  moved an application for mutation of their names in the office of the Nagarpalika Parishad  Deoria on 25.5.1989 relying upon  this fictitious deed. The informant  filed  his  objection in that case but the orders for mutation in favour of the accused were passed. Then the informant filed  an appeal against that order before the District Magistrate, Deoria. The District Magistrate, Deoria passed an order in favour of  the informant on 29.3.1993 and on the basis of that order the informant's  name was  mutated in the municipal record. Thereafter the informant moved this application for registration of the case against the accused persons for forgery and fraud committed by them.

On the basis of the above report the police  of P.S. Kotwali  Deoria  registered case crime no. 332/97  under sections 420, 465, 468 and 471 I.P.C., and after completion of investigation the police submitted a charge sheet  against them in respect of the above noted offences. The accused applicants  have moved the  present application for quashing  that charge sheet.

The accused applicants have in their application under section 482 Cr.P.C.  admitted that Smt. Phulmati was owner of the disputed house. They have, however, alleged that this house was let out by Smt. Phulmati to the informant opposite party no. 2 in 1975. Thereafter in the year 1989 Smt. Phulmati Devi executed a registered deed  and  transferred her property to a charitable trust  which was to function in the name of Kedia Charitable Trust, Barhaj, Deoria. Since the property situate in village Nandana was also included in the deed,  it was got registered at Tahsil Salempur. On the basis of the above  deed,  Kedia Charitable Trust came  into existence,  and an application for its registration was moved before  the Registrar, Chits, Societies and Firms Gorakhpur, on 1.5.1993. The Opposite party objected to  registration of the trust but his objections were rejected. An application for mutation  of his name was also rejected. Thereafter the informant opposite party no. 2  filed two appeals  before the District Magistrate, Deoria. Those appeals were allowed, and the case was remanded  back to Nagarpalika Parishad for reconsideration. However, opposite party no. 2  moved a review application before the District Magistrate. By that time,  Nagar Palika, Deoria had been dissolved,  and so the District Magistrate had no jurisdiction in the matter,  and the jurisdiction vested in the Commissioner. Even then the District Magistrate allowed the review application and passed an order for mutation in favour of the informant opposite party no. 2 vide his order dated 29.3.1993. Aggrieved with that order Vinod Kumar Kedia, applicant no. 5 filed Civil misc. Writ Petition no. 25062 of 1993 before this Court  which is still pending. The applicants also filed  suit no. 79 of 2000 for eviction of  opposite party no. 2 from the disputed house in the court of the Civil Judge, (Junior Division ) Deoria, which is still pending. Thereafter opposite party no. 2,  with a view to pressurize  the applicants, lodged a false F.I.R. against  them which was registered  as case crime no. 332 of 1999. The dispute between the parties  is of  civil nature,  and as such there was no justification for registration of the criminal case against the applicants. Even then the police had submitted a charge sheet in the case. It was, therefore, prayed that the charge sheet filed against the applicants should be quashed. The applicants filed the affidavit of  Vinod  Kumar Kedia, applicant no.5  in the present case.

A counter affidavit was filed by opposite party no. 2  Ajay Pratap Singh corroborating  the allegations made in the F.I.R. against the applicant. Another counter affidavit was filed by Sri R.U. Khan, Senior Sub Inspector of police station Salempur on behalf of the State. A rejoinder affidavit was also filed  by the applicant no.5, Vinod Kumar Kedia.

I have heard the  learned counsel for the parties and have perused the record.

It was contended by the learned counsel for the applicants that the dispute between the parties  is of civil nature, and  so there was no question of lodging of the  F.I.R. against the applicants, and this F.I.R. was lodged with false allegations against the accused applicants simply with a view to pressurize them,  so that they may abstain from doing  Pairvi in the  civil suit against the informant. On the other hand, the learned counsel for the  opposite party no.2  submitted before me  that the allegations against the accused applicants were  well founded and supported with  evidence  and that is why the Investigating Officer,  after completion of the investigation submitted a charge sheet against them in the case. He also  referred to a ruling of the Hon'ble Apex Court  in 'Kamladevi Agarwal Vs. State of West Bengal & others' reported in 2002(1) JIC 5 (S.C.) in support of his contention  that the pendency of the civil suit is not a sufficient ground for quashing  the proceedings of the criminal case.

I have carefully gone through this ruling. The Hon'ble Apex Court  in para 7 of this ruling  has specified the following three categories of  cases  where powers under sections 482 Cr.P.C. ( section 561-A of the old  Cr.P.C.) can be exercised :

(1)Where there is a legal  bar against  institution or continuance of  criminal proceedings, for example, absence of requisite sanction;

(2)Where the allegations in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence ;

(3)Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence  adduced clearly or manifestly fails to prove the charge.

Their Lordships held that in the first two categories of cases the proceedings can be quashed in view of the legal  bar and in view of the fact that the allegations did not constitute  any offence,  but regarding the third category, it was observed that in this category the High Court  would not embark upon an inquiry as to whether the evidence in question  is reliable or not, and this work is to be done by the Magistrate  and in such a case it is not open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of evidence, the allegations made against the accused would not be sustained and so in such a  category of cases where appreciation of evidence is involved, the power under section 482 Cr.P.C.  is not to be exercised.

As regards the plea  that since  a civil suit was pending between the parties in respect of the same transactions, the  criminal proceedings should not have been initiated,  their Lordships have made  the following observations in paragraph no. 15 :

"15. We have already noticed that the nature and scope of civil and criminal  proceedings and the standard of proof   required  in both matters is different and distinct, whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard  of proof of 'beyond reasonable doubt'. A Constitution Bench of this Court, dealing with the similar   circumstances, in M.S. Sheriff and another V. State of Madras and others, AIR 1954 SC 397, held that where civil and  

criminal cases are pending, precedence shall be given to criminal proceedings. Detailing  the reasons for the conclusions, the Court held:

" As between the civil and criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of  opinion in the High Courts  of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility   of conflicting  decisions in the Civil and Criminal Courts is relevant consideration. The law envisages such an eventuality when it expressly   refrains  from making the decisions of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages.  The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable  that a criminal prosecution should  wait till everybody concerned has forgotten   all about the crime. The public interests demand that criminal justice should be swift   and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent  should be absolved as early as is consistent   with a fair  and impartial trial. Another reason is that it is undesirable  to let things slide till memories have grown too dim to trust."

This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course  more expedient and just. For example, the civil case or  the other criminal proceeding may be so near its end  as to make it expedient  to stay it in order  to give precedence to a prosecution ordered under Section 476. But in this case, we are of the  view that the civil suits should be stayed till the criminal proceedings have finished."

Their Lordships concluded the legal position in this regard  in para 17 of the judgment  which runs as under:

"17. In view of the preponderance  of authorities to the contrary, we are  satisfied that the High Court was not justified in quashing the proceedings initiated  by the appellant against the respondents. We are also not impressed  by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal Cases have to be proceeded with in accordance with the procedure as prescribed  under the Code of Criminal Procedure and the pendency of a civil action in a different Court  even though higher in status  and authority, cannot be made a basis for quashing of the proceedings."

It is thus clear from the discussion  attempted above that  pendency of civil suit is not a ground for staying criminal proceedings. It is also to be seen that this case is not such a case where there might have been legal bar to  the taking of the cognizance  or where  allegations made in the F.I.R. would not have  constituted  any  offence. The allegations made in the F.I.R. Prima facie constitute offence against  the accused persons and the Investigating Officer  has, after  collection of the evidence ,  submitted  a charge sheet  in the case. There is no good ground for quashing  of the charge sheet. The application under section 482 Cr.P.C., in this way, has got no force and is liable to be dismissed,  and the stay order  granted  earlier is liable to be vacated. However, it is made clear  that in case the accused applicants appear before the Magistrate and move bail applications the same shall be  decided by the courts below  expeditiously taking into consideration  the observations made by this Court in 'Smt. Amarawati and another Vs. State of U.P.' reported in 2004 (57) A.L.R. 390.

With the aforesaid observations, the application under section 482 Cr.P.C. is dismissed and the stay order dated 3.9.2001 is vacated.

Dated:

RPP


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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