Criminal Misc.No.55373-M of 2006 :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc.No.55373-M of 2006
Date of Decision: September 24, 2008
Bachan Singh
...Petitioner
VERSUS
State of Punjab & others
...Respondents
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.L.S.Goraya, Advocate,
for the petitioner.
Mr.A.S.Brar, DAG, Punjab,
for the State.
Mr.B.S.Sidhu, Advocate,
for respondent No.3.
*****
RANJIT SINGH, J.
FIR No.1 dated 30.7.2006 is lodged by respondent No.3,
a serving D.S.P. in the Punjab Police against petitioner Bachan
Criminal Misc.No.55373-M of 2006 :2 :
Singh. Complainant-DSP has made allegations against the petitioner
for offences under Sections 447, 379, 148 and 149 IPC. Terming this
to be a misuse of process of court, the petitioner has filed the present
petition for quashing of this FIR.
Complainant-respondent No.3 was posted as DSP(D),
Punjab Police at Amritsar and is alleged to have lodged this FIR by
misusing his authority with an aim to grab the land of the petitioner.
The dispute appears to be in regard to a land measuring 2 kanals 1
marlas. Complainant and his mother had got sanctioned a mutation
for a land measuring 1 kanal out of this 2 kanals 1 marla land in
Khewat No.40, Khatoni No.127 and Khasra No.444 from A.C.2nd
Grade, Pathankot. The petitioner challenged this order dated
26.6.1995 and his appeal was accepted and the order was set-aside.
Complainant-DSP then challenged this order without success before
the Collector, Pathankot. He, however, was successful before
Financial Commissioner, Jalandhar, who allowed the appeal filed by
the complainant. Now it was the turn of the petitioner to challenge the
orders by way of Civil Writ Petition No.5602 of 2004. This writ was
admitted on 28.3.2006 and status- quo in regard to possession was
ordered to be maintained.
The petitioner also filed a civil suit before Civil Judge
(Junior Division), Pathankot seeking declaration that he is owner in
possession of the land. This suit was decreed in favour of the
petitioner on 17.12.1996. This decision was challenged by
complainant, it being an ex-parte order, but his application for recall
of the order was dismissed. Subsequently, however, the Appellate
Court has set aside this order and has remanded the case back to
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Civil Judge (Junior Division) for fresh adjudication on merits. The
petitioner also filed a complaint against respondent No.3 under
various sections and the complainant and SHO Sohan Singh have
been summoned to face trial under sections 323 and 452 IPC. The
complainant on his part has allegedly used his position and authority
to lodge the present FIR against the petitioner under sections 447,
379, 148 and 149 IPC.
The contents of the FIR would make an interesting
reading. The complainant has stated that his mother had a house
situated on College Road near Dhaki Chowk, Pathankot which he
sold in 1999. As per the FIR, a land measuring 2 kanals 1 marla
adjoining the house was in the name of his mother Sukhvinder Kaur.
It is then mentioned that this land was mutated in the name of
Bachan Singh petitioner, which order was challenged by him.
Reference has also been made to ex-parte order, referred to above,
which has been set-aside by District Judge, Gurdaspur. It is
accordingly alleged that the petitioner has taken illegal possession of
the above land and has also taken loan on the said land. It is then
mentioned that “Bachan Singh is a man of bad reputation, who was
indulging in smuggling of Rice from Himachal Pradesh. Whenever I
after taking leave from my duty or any person deputed by me, to look
after the abovesaid land, all the accused attempted to attack us. I
being a police official do not want to enter in any sort of quarrel.
Legal action may be taken against them.”
I have heard the counsel for the parties.
It can be observed that the dispute basically is of a civil in
nature concerning possession of land which is pending adjudication
Criminal Misc.No.55373-M of 2006 :4 :
before the civil court. The possession of the petitioner is apparently
established over the land and has been protected by this court. The
petitioner has also filed a civil suit which was decreed in his favour
though ex-parte. The same has been set-aside and the case
remanded back to the Magistrate but still it cannot be said that the
possession of the petitioner over the suit land is disturbed by judicial
intervention. Accordingly, the allegation of trespass by the petitioner
on this land really cannot be made out. If any such allegations are
made, these would be in clear violation of the order passed by this
court in the writ petition, wherein directions have been issued for
maintaining status-quo in regard to possession. It is also required to
be noticed that the mother of the complainant has also sold her
house and the complainant now apparently is making an effort to
possess this plot which was adjoining the said house. The FIR
apparently is with an aim to pressurise the petitioner to leave this plot
and that way would be an abuse of process of the court.
Reference has also been made to contents of the FIR.
The mutation relied upon by the complainant is concededly in the
name of the petitioner. That order may be under challenge, but still
will hold the field. On the basis of documents on record, it cannot be
said that the petitioner is in illegal possession of this land. It is
basically a civil dispute which is pending before the civil court and
has been given a colour of criminal liability apparently because of the
position of the complainant. He has been able to manage this FIR
only because he is an senior serving police officer. No case of theft,
criminal trespass or cheating is made out from the contents of the
FIR.
Criminal Misc.No.55373-M of 2006 :5 :
During the course of arguments, the counsel appearing
for respondent No.3 could not point out as to what offence would be
made out from the contents of the FIR. This FIR, thus, is nothing but
an abuse of the process of the court. As held in State of Madhya
Pradesh v. Awadh Kishore Gupta & Ors, AIR 2004 SC 517, where
the uncontroverted allegations made in the FIR do not disclose the
commission of any offence, then the said FIR can be ordered to be
quashed. Power under Section 482 Cr.P.C. can be exercised to
prevent the abuse of the process of the court or to otherwise secure
the ends of justice. This power is to be exercised ex debito justitiate
to do real and substantial justice for the administration of which alone
the courts exist. The court has the power to prevent any abuse where
an attempt is made to abuse the authority so as to produce injustice.
The present case is the one where the FIR is clearly seen to be
lodged with an aim to abuse the process of court and the
proceedings, if allowed to continue, would lead to injustice.
The present petition is accordingly allowed. The FIR and
the subsequent proceedings arising therefrom are hereby quashed
and set-aside.
September 24, 2008 ( RANJIT SINGH ) ramesh JUDGE