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RAM CHANDRA MAURIYA versus STATE OF U.P. THROUGH ITS. HOME SECY. LKO

High Court of Judicature at Allahabad

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Ram Chandra Mauriya v. State Of U.P. Through Its. Home Secy. Lko - CRIMINAL MISC. WRIT PETITION No. 3117 of 2003 [2003] RD-AH 171 (11 June 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT 34.

CRIMINAL MISC. WRIT PETITION NO. 3117 OF 2003

R.C.Maurya.    .... Petitioner.

                        Vs.

Stateof U.P. & Ors.                         .... Respondents.

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ashok Bhushan,J

(By Hon'ble Dr. Justice B.S.Chauhan, J.)

This Criminal Writ Petition has been filed for issuing a direction to the respondent no.6 to lodge and register the F.I.R. of the petitioner Under Section 154(1) Cr.P.C. and to investigate the matter and to restore the possession of the premises in dispute, along with books, general files and stationeries etc.

The petitioner, in person, an Advocate of this Court has submitted that he came into possession of two rooms, kitchen, latrine and bathroom in the first floor of House No. 28-D/1, Khalasi Line, Kydganj, Allahabad by an oral agreement of tenancy at the rate of Rs 200 Per Month as rent in December 1999. He asked for the issuance of the rent receipt in December 2000 for the first time, but the land lady-respondent no. 8 refused to issue the same, however he regularly paid the rent every month. In the month of December 2002 the landlady-respondent no. 8 stopped receiving the rent. Thus the petitioner approached the Civil Court by filing application under Section 30 (1) of the U.P. Act No. 13 of1972, wherein the rent was deposited upto April 2003. In spite of paying the rent regularly, he has forcibly been dispossessed by the land lady-respondent no. 8 in collusion with the police authorities on 29th May 2003. Petitioner tried his best to get the F.I.R. lodged, but in vain. Hence this petition for aforesaid reliefs.

The learned counsel for the respondent nos. 8 and 9 have submitted that the petitioner had executed a rent deed (Annexure 2CA) which was duly notorised and he agreed to pay the rent at the rate of Rs.1800 Per Month. However, the petitioner did not pay any rent whatsoever and started harassing the land lady threatening her with dire consequences merely being an advocate stating that he was the law unto himself and could do whatever he wanted to do. Being aggrieved the land lady wrote several complaints to the Secretary Bar Council of U.P., Hon'ble chief Justice of this court and to other authorities, copies of which have been filed as Annexure CA-3. Subsequently, large number of persons intervened and a written compromise was reached on 25.5.2003 between the parties which was reduced in writing on a stamp paper, wherein the petitioner agreed to vacate the premises and pay the arrears of rent in installments and  the said compromise deed  had been duly signed by the petitioner, several witnesses including two advocates  of this court on behalf of the petitioner. In pursuance of the said compromise deed he vacated the tenanted premises and got another premises in the neighbourhood as House No. 212A Krishna Nagar, Kydganj, Allahabad on rent and the rent agreement dated 25.5.2003 with the owner of the said house has also been filed as Annexure CA-5.

Thus, according to the learned counsel for the respondents petitioner willfully vacated the house and agreed to pay the arrears of rent in installments and it is only to harass the land lady with the intention not to pay the arrears of rent, this petition has been filed.

It is further submitted that petitioner has been guilty for concealing the material fact as he had filed a Writ Petition No. 1346 of 2003 earlier alleging that he was apprehending danger to his life from land lady for seeking police protection. This court dismissed the said writ petition vide order dated 1st April 2003 doubting the bona fides of the petitioner and holding that the writ petition was a rogue  not to pay the rent and a misuse of his robes of being an advocate.

Therefore, in view of the above it is contended by the learned counsel for the respondents that petition was liable to be rejected with a very heavy cost. The learned standing counsel adopted the arguments taken by Shri S.K.Srivastava, learned counsel for the land lady and further contented that presenting the writ petition in such a manner was nothing but an abuse of process of law and thus such a litigant should be dealt with a heavy hand by the court.

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

There is no dispute regarding the settled legal proposition that getting the F.I.R. lodged and registering it is a statutory right of any of the person and police authorities are bound to lodge the F.I.R in view of the provisions of Section 154 Cr.P.C.

The  object of lodging the F.I.R.  is  to put the police  in motion in order to investigate into the  crime.   Its evidentiary value  is  not very much  as  it is not a substantive  piece  of evidence   but   its  value    depends   on   the circumstances  of each case including the  nature of the crime  and  the position of the  informant etc.  The   receipt   and    recording   of   the information  by  the police, though may not be  a condition  precedent  for setting in motion of  a criminal  proceeding but it is a statutory  right of the complainant  to  lodge  a report  for  the reason that  an informant has a right to set  the criminal law in motion and also from the point of view of the  investigating  authorities   it   is important  for  obtaining information  about  the alleged criminal   activity   so   as   to   take appropriate  and  suitable steps for tracing  and bringing at the book the guilty party.

Section  154 of the Code has three-folded objects,  i.e.   (i) it keeps the police and  the District  Magistrate  to inform;  (ii)  it  makes available  to the Judicial Officer the  material on which  the investigation commences;  and (iii)  it is a safe-guard   against   embellishment   or forgetfulness.  Moreso, it is not necessasry that there must be a complete or satisfactory proof of the offence  at  the time as the information  may merely indicate   that  the   offence  has   been committed.   The F.I.R.  must be recorded at-once and the police  cannot  wait until it is  certain that the   offence  has   been  committed.  The information can be lodged by any person and it is not necessary  that the offender or the witnesses should be named therein.

The  issue:  whether F.I.R., when lodged,  must be lodged  or not, has been considered  from time to time by the courts.  In A.R.  Antuley Vs.  Ramdas Sriniwas  Nayak,  AIR  1984  SC  718,  the Constitution  Bench of the Hon'ble Supreme  Court has held  that  "any  one  can  set  or  put  the criminal  law in motion except where the  statute enacting  or creating an offence indicates to the contrary.   The  scheme of the Code  of  Criminal Procedure  envisages two parallel and independent agencies  for taking criminal offences to  Court.  Even for  most serious offence of murder, it  was not disputed that a private complaint cannot only be filed  but  can be entertained  and  proceeded with in accordance with law.  Locus standi of the complainant  is a concept foreign to the criminal jurisprudence.

In  State  of Haryana Vs.  Bhajan  Lal  & ors., AIR 1992 SC 604, the Hon'ble Sujpreme Court observed as under:-

"At  the stage of registration of a crime or a case on the basis of the information disclosing   a  cognizable   offence   in compliance  with  the mandate of  Section 154 (1) of the Code, the concerned police officer cannot embark upon an enqujiry as to  whether the information lodged by the informant  is  reliable  or  genuine   or otherwise  and refuse to register a  case on the ground that the information is not reliable  or  credible  .  On  the  other hand,  the  Officer Incharge of a  Police Station   is  statutorily    obliged   to register  a case and then to proceed with the  investigation  if he has  reason  to suspect  the  commission  of  an  offence which  he is empowered under Section  156 of  the  Code to investigate, subject  to the  proviso to Section 157......  Be  it noted  that Section 154 (1) of the  Code,  the   Legislature  in   its  wisdom   has carefully   and  consciously   used   the expression     'information'      without qualifying  the same as in Section 41 (1)  (1)  or  (g)  of  the  Code  wherein  the expressions  'reasonable  complaint'  and 'credible    information'     are   used.  Evidently,  the non-qualification of  the word  'information'  in Section  154  (1)  unlike  in Section 41 (1) (a) and (g)  of the  Code may be for the reason that  the Police  Officer  should   not  refuse  to record  an  information relating  to  the commission of a cognizable offence and to register  a  case thereon on  the  ground that  he  is  not   satisfied  with   the reasonableness  or  credibility   of  the information.In other words 'reasonableness'  or 'credibility' of the said  information  is   not  a  condition precedent for registration of a case."

From  the above, it becomes apparent that the only  condition  precedent for recording  the F.I.R., is  that  there  must be  an  information disclosing commission of a cognizable offence and once such an information is furnished, it becomes sine-qua-non for lodging the report and in such a situation  when information disclosing commission of a cognizable   offence  is   conveyed  to  the Officer Incharge  of a Police Station, he cannot refuse to  register a case on the ground that the information  is not reliable or credible,  rather he is under  legal obligation to register a  case on the said information.  Needless to say that he has an option  under  Section  157  of  the  Code subsequent  thereto  to make up his mind  as  to whether he  would  or  would   not  enter  on  an investigation.

Even  otherwise, under the Scheme of  the Code, on registration of a case under Section 154  (1) of the  Code,  irrespective  of  whether  the investigation is embarked upon or not, the matter is bound  to be placed before an independent  and impartial  judicial  forum  and  when  it  is  so placed, various  options  are  available  to  the judicial  officer.   Therefore,  to  accept   the submissions  made  on behalf of the  State  would have the effect of the matter never coming to the guise of the judicial scrutiny.  Such a situation has not been contemplated by the Code.

In  Kuldeep Singh Vs.  State, 1994 (2) AD  (Delhi) 445,  the Delhi High Court, in a  similar case, held as under:-

"Confirment  of absolute and  uncanalised discretion  to  the police to register  a cognizable  offence  or   not,  would  be violative of equality clause enshrined in our  Constitution.  The Code vests  power in judiciary to control the discretion of the  police.   The judiciary will  remain unaware  in  absence  of  recording   the F.I.R.   Whenever  the   police  officer, after   recording  of   the  F.I.R.,  has reasonable  doubt about the commission of a cognizable offence, he has power not to proceed  with  investigation but that  is subject  to check by the  judiciary......  on  information  being   led  before  the police about the commission of cognizable offence,  the police has no option but to register  the  case and then  to  proceed with  investigation of the case under the provisions   of   Chapter   XII  of   the Code.....   The  police has no  right  to refuse  registgration  of a case  on  the information being led before it about the commission  of  cognizable   offence  and instead  proceed  with  an  enquiry   and refuse  registration as a result of  said enquiry."

In  Mohindro Vs. State of Punjab  &  ors., 2001 Cr.L.R. (SC)  132,  the Hon'ble Supreme Court rejected the submission of the investigating  agency  that   F.I.R. under Section 154  (1) of the Code cannot be registered for the reason  that  enquiry in the  matter  had already been  conducted  and  held  that  enquiry cannot be  conducted without registering a  case.  The Hon'ble Supreme Court directed that a case be registered on the basis of the report at the Police Station having territorial jurisdiction and to duly investigate into the matter and  to take appropriate action according to law.

To facilitate the matter further, it has been repeatedly held by the Hon'ble Supreme Court that the information/ report can be lodged at a police station   even  having    no   territorial jurisdiction  over the place of crime or power to investigate the matter in case of complaint about a cognizable offence.  In State of Andhra Pradesh Vs.  Punati  Ramalu & ors., AIR 1993 SC 2644, the Hon'ble Supreme Court held that not recording the report on  the  ground that the concerned  police station has  no territorial jurisdiction over the place of  crime, amounts to dereliction from duty and in such an event, the report must be accepted and furnished  to the police having  jurisdiction over the  place of crime.  Similar view has been retierated  in Satvindra Kaur Vs.  State, JT 1999  (8) SC 25.

In  Suresh  Chandra Jain Vs.   State,  JT 2001 SC 81,  the  Apex Court held that it is  the duty of the  Officer Incharge of a police station to register  an F.I.R.  regarding the  cognizable offence disclosed  by the complainant because the Police Officer   would    take    further   steps contemplated  in  Chapter  XII of the  Code  only thereafter.

But at the time of argument the petitioner in person did not ask the court to grant the said relief, thus no direction is required to be issued in this respect.

It is settled legal proposition that even a trespasser is to be dispossessed with due process of the law. No one is to be thrown out of possession forcibly as where a person is in settled possession of property, even on the assumption that he has no right to remain in possession, he can be evicted only by recourse to law. In Ram Ratan v State of U.P., A.I.R 1977 SC. 619 the Hon'ble Supreme Court held that an owner of the property has every right to dispossess or throw-out a trespasser while he is in the act of or process of trespassing , but this right is not available to the true owner, if the trespasser has been successful  in accomplishing his possession to the knowledge of the true owner. In such a circumstance, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies provided under the law. Similar view has been taken in Lallu Yeshwant Singh (dead) by his legal representative v Rao Jagdish Singh & ors., A.I.R. 1968 S.C. 620; and Krishna Ram Mahale v Mrs.  Shobha Venkat Rao, A.I.R. 1989 SC 2097, wherein the Apex Court considered and approved the law laid down by the Privy Council  in Midnapur Zamindari Company Ltd; v Naresh Narain Roy, A.I.R. 1924 PC 144.

In Nagarpalika, Jind v Jagat Singh, A.I.R. 1995 S.C. 1377, the Hon'ble Apex court has observed that "Section 6 of the Specific Relief Act, 1963,is based on the principle that even a trespasser is entitled to protect his possession except against the true owner and purports to protect a person in possession from being dispossessed except in due process of law."

Thus, it is evident from the aforesaid discussion that any person, who is in settled possession of the property, cannot be thrown out forcibly without resorting to the procedure prescribed by law.

The case is required to be considered in the light of the aforesaid settled legal proposition. In the instant case admittedly there is a rent note (Annex. 2 CA) showing that the petitioner had agreed to pay the rent at the rate of Rs.1800/- per month. Petitioner in person had been served the copy of the said rent note, but he has not made any averment in rebuttal. Further, there is a compromise deed duly signed by the petitioner and the document has also been witnessed by several persons including two Advocates, that he would vacate the said premises and hand over the possession to the land lady-respondent no.8 and would pay the arrears of rent in installments. Petitioner has not rebutted this averment taken by the land lady in the counter affidavit. Further there are documents filed by the respondents showing that the petitioner is residing at a different house and the rent deed of the same has been filed. No attempt has been made by the petitioner even by making a bald statement to deny the same.

Therefore, there is nothing on record to substantiate the allegations made by the petitioner in this petition and it appears that he is misusing his position being a practicing advocate. He had earlier filed a writ petition seeking police protection apprehending the danger of his life from the land lady and this court vide order dated 1st April 2003 dismissed the said writ petition No. 1346 of 2003 observing as under:

"The petitioner is occupying a house as a monthly tenant under the respondents- landlords. The learned A.G.A. called both the petitioner and the respondent-landlord to bring out a settlement between them. The petitioner is in arrears of house rent and on the suggestion of Sri Singh landlord agreed to receive payment in installments, besides the rent for the current month. Later on the petitioner intimated Sri Singh over phone that he does not agree to the settlement.

The petitioner wants to take benefit of his robe. He wants to continue to occupy the tenanted premises without making any payment to the landlord. So, by filing the present petition he has prayed for providing necessary protection by the police. In other words, he wants to occupy the house with the help of the police without paying rent. If any protection is given to the petitioner it would be a misplaced sympathy".

Thus, it appears that the petition has been filed to achieve ulterior purpose and walk out from the compromise entered into by the petitioner to pay the arrears of rent in installments. During the course of argument, the petitioner could not satisfy the court as if the agreed rent had been Rs.1800 Per Month then how could he pay the rent @ Rs.200/- per month and whether it was possible for him to get the accommodation in dispute at such a cheaper rate in the heart of the city of Allahabad and why he had never insisted and asked the land lady to issue the receipt of rent paid by the petitioner every month.

The judgments i.e., Commander N.P.Kulshreshtha & Ors Vs. State of U.P. & Ors, 1996(2) AWC 1052; Sanjay Singh Vs State of U.P. & Ors, 2001 (1) JIC 754 (All); and a judgment passed by this court in C.M.W.P. No. 17599 of 1999,  Shiv Patti Devi Vs. District Magistrate, Gorakhpur & Ors passed on 22.4.2003, referred to and relied upon by the petitioner in person are of no assistance to him as these rent cases where the land lord/land lady had been dispossessed forcibly by the house grabbers and the said encroachers had been evicted by this court in exercise of writ jurisdiction, thus the petitioner has referred to and relied upon the said judgments without realizing the principles of law enunciated therein.

On proper appreciation of facts as placed by the parties, we reach the inescapable conclusion that petitioner had been a monthly tenant of the respondent no. 8 at the agreed rate of rent of Rs. 1800/- per month. He did not make the payment of rent regularly. On being asked to pay the rent and its arrears, petitioner approached this Court for police protection. After meeting his waterloo in the Court, he considered it proper to settle the matter and in pursuance thereof he signed the settlement deed and vacated the premises, giving undertaking to pay the arrears in installment. He approached this Court by filing this petition only to avoid his liability to pay the arrears of rent. It is so evident from petitioner's conduct, as he did not ask for issuing a direction for registration of the FIR. The petition is totally misconceived, afterthought and product of a crafty mind. Petitioner did not disclose that he had approached this Court earlier for police protection but could not succeed. Thus he is not only guilty of suppressing the material facts but also abusing the process of the Court.

When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & ors. , (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim " Jure Naturae Aequum Est Neminem cum Alterius  Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

In Nooruddin v. Dr. K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"..........Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."  

Similarly, in Ramniklal N. Bhutta V. State of Maharashtra, AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art.226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ............the interest of justice and public interest coalesce. They are very often one and the same. .........The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art.226..... indeed any of their discretionary powers. (Emphasis added)"

In  Dr.   Buddi  Kota  Subbarao  Vs.   K Parasaran, AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-                    

"No  litigant  has a right  to  unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.  However, access to  justice  should not be misused  as  a licence   to   file    misconceived   and frivolous petitions."

Similar view has been  reiterated by the Supreme  Court  in  K.K.  Modi  Vs.   K.N. Modi, (1998)  3 SCC 573.                                        

In  Sabia Khan & ors.  Vs.  State of U.P. & ors., (1999)  1 SCC 271, the Hon'ble Apex Court held that  filing  totally misconceived  petition amounts to  abuse of the process of the Court and such litigant  is  not required to be dealt  with lightly.

In  Abdul Rahman Vs.  Prasoni Bai & Anr., 2003 AIR  SCW 14, the Hon'ble Supreme Court  held that wherever  the Court comes to the  conclusion that the  process  of the Court is being  abused, the Court  would  be  justified  in  refusing  to proceed further   and  refuse   the  party  from pursuing the remedy in law.

In view of the above we find no force in the petition, it is accordingly dismissed.    

11.6.2003

SB/AKSI                        


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