U.C Dhyani, J. (Oral)
Since both these applications under Section 482 of Cr.P.C have arisen out of same summoning order, therefore, they are being decided of by this common judgment and order, for the sake of brevity.
2) The applicants, by means of present applications/petitions under Section 482 of Cr.P.C, seek to quash the summoning order dated 22.07.2010 as well as the charge-sheet, as also the proceedings of criminal case no. 2959 of 2010, State v. Asgar, under Sections 420, 504, 506, 120B of IPC (arising out of case crime no. 220 of 2010), relating to police station, Kotwali, Roorkee, pending in the Court of Judicial Magistrate, Roorkee, District Haridwar.
3) Informant (respondent no. 2 herein) lodged an FIR against the accused-applicants on 24.04.2010, at police station, Roorkee, which was registered as case crime no. 220 of 2010, under Sections 420, 504, 506, 120B of IPC. After the investigation of the case, a charge-sheet was submitted against the accused persons for the selfsame offences. Cognizance was taken on said charge-sheet and accused-applicants were summoned to face the trial for the offences complained of against them. Aggrieved against the same, present applications under Section 482 of Cr.P.C were filed by the applicants.
4) According to the complainant, he alongwith his brother Mohd. Islam purchased a piece of land from Smt. Sahfiyan on 01.07.1994 The said land was situated in Pargana Bhagwanpur, Tehsil Roorkee. The complainant and his brother obtained possession over the said land. After execution of the sale deed, Smt. Sahfiyan filed a suit before the Consolidation Officer, which suit no. 2702/754, captioned as Sahfiyan v. Mahfooz was dismissed on 25.07.2003 Complainant's name was mutated in the revenue records. Smt. Sahfiyan filed a civil suit no. 176 of 2006 in the court of Civil Judge (Senior Division), Roorkee, titled as Sahfiyan v. Mahfooz Ali, for cancellation of sale deed. The parties entered into a compromise. Smt. Sahfiyan admitted that the sale deed executed by her was correct. Original suit was, therefore, decided on 22.04.2009, in terms of compromise. Smt. Sahfiyan also admitted execution of sale deed in complainant's favour before the Collector, Haridwar also, who maintained mutation in the name of Mahfooz Ali. The parties also entered into compromise before the Collector, Haridwar. Asgar is the son of Smt. Sahfiyan. Sahfiyan executed a registered power of attorney in favour of her son on 01.07.2009, knowing it fully well that the land in question belonged to the complainant. Asgar thereafter sold the same land to Rao Taimur, who knew it fully well that the complainant was the real owner of the land in question. When the complainant came to know of the same, he approached the Sub Registrar, Roorkee, obtained a certified copy of the sale deed, met the applicants, who hurled abuses at him and threatened him with dire consequences. According to the complainant, the accused persons (applicants herein) have committed cheating by executing a sale deed in one of the applicant's name.
5) Learned counsel for the applicants stated that applicant Rao Taimur has died. Learned counsel for respondent no. 2 did not dispute this fact. Applicant Hans Kumar is the witness of sale deed, which was executed by Asgar in favour of Rao Taimur on 14.10.2009 Applicant Hans Kumar simply identified the thumb impressions of the vendor and purchaser. He had no other role to play except identifying the thumb impressions of the persons concerned. This fact has not been specifically brought on record that he conspired with the vendor to sell the land in favour of purchaser. Hans Kumar was, therefore, not a conspirator in the alleged crime. The complainant has simply said in his complaint that all the accused persons hatched a conspiracy to cheat him by executing a sale deed, but the conspiracy on the part of witness Hans Kumar has not been divulged. In such a situation, it is held that the foundation of criminal offence is not laid against applicant Hans Kumar. The application under Section 482 of Cr.P.C thus filed on his behalf should succeed.
6) So far as the other applicants, namely, Sahfiyan and Asgar are concerned, learned counsel for the applicants contended that the facts given in the complaint of Mahfooz Ali are correct, except the allegation that the accused persons (applicants herein) cheated him by executing a sale deed in favour of Rao Taimur. Learned counsel also contended that there is a boundary dispute between parties and Sahfiyan alongwith Asgar never intended to cheat Mahfooz Ali. Learned counsel further contended that Sahfiyan was recorded tenure-holder of a big chunk of land and she sold out a part of such land to Mahfooz Ali and Rao Taimur. Learned counsel tried hard to explain as to how much of the land was sold off by Sahfiyan in favour of Mahfooz Ali and Islam and, thereafter, how much of the land was sold by her in favour of Rao Taimur. In all humility, this Court is of the opinion that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. This Court, therefore, should not transgress into the territory of trial court.
7) The narrow inspection hole through which this Court is expected to look into the matter is-whether foundation of criminal offence is laid against the accused or not. If foundation of criminal offence is laid, there is hardly any scope of interference by this Court in the proceedings of the court below in exercise of its inherent jurisdiction in view of the pronouncement of Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander, (2013) 1 SCC (Cri) 986. The court will only go by the contents of the complaint and documents filed on behalf of the applicants.
8) The Hon'ble Apex Court has provided the guidelines as regards the exercise of jurisdiction under Section 482 Cr.P.C in the pronouncement of Rajiv Thapar v. Madan Lal Kapoor(2013) 3 SCC 330, wherein the Hon'ble Supreme Court has desired the High Courts to follow the following steps while dealing with applications under Section 482 of Cr.P.C The same reads as under:
Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e the material is of sterling and impeccable quality?
Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused, i.e, the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e, the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
9) Hon'ble Apex Court has directed the High Courts to interfere in the proceedings of the court below only when the reply to all the aforesaid four questions is found in the affirmative. In the instant case, the replies to all the aforesaid four questions is not in the affirmative and, therefore, the application under Section 482 of Cr.P.C filed on behalf of applicants Sahfiyan and Asgar will not succeed.
10) Inherent powers of this Court under Section 482 Cr.P.C should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. In the instant case, the accused-applicants Sahfiyan and Asgar are unable to pass those tests. The net result of the above discussion is that whereas the application under Section 482 of Cr.P.C filed on behalf of applicant Hans Kumar succeeds, the application filed on behalf of applicants Sahfiyan and Asgar fails.
11) Application under Section 482 of Cr.P.C filed on behalf of Hans Kumar is allowed. Summoning order dated 22.07.2010 as well as the charge-sheet, as also the proceedings of criminal case no. 2959 of 2010, State v. Asgar, under Sections 420, 504, 506, 120B of IPC (arising out of case crime no. 220 of 2010), relating to police station, Kotwali, Roorkee, pending in the Court of Judicial Magistrate, Roorkee, District Haridwar are hereby quashed qua applicant no. 2 Hans Kumar. Applicant no. 1 Rao Taimur has died and, therefore, application under Section 482 of Cr.P.C filed on his behalf has rendered infructuous.
12) Application under Section 482 of Cr.P.C filed on behalf of applicants Sahfiyan and Asgar fails and is, accordingly, dismissed. It is, however, provided that if the applicants Sahfiyan and Asgar surrender before the court below on or before 31.01.2014, and seek bail, their bail applications shall be decided by the Magistrate concerned at an early date and without unreasonable delay.
13) Let a copy of this judgment alongwith the lower court records be sent to the court below for ensuring compliance.