ORDER
1. This is an unfortunate case in which the daughter and her mother, who has taken a second husband are at loggerheads to such an extent that they are involved in Civil as well as Criminal litigation.
2. Respondent Mrs. Farida G. Devacha is the daughter of first petitioner Mrs. Nina Nargis Devaud. Second petitioner Mr. Henri Devaud is the second husband of the 1st petitioner. Respondent is the daughter born to the first petitioner out of her wedlock with her former husband F. K. Irani who appears to have died in 1985. Thereafter, first petitioner is said to have married the second petitioner who is of Swiss Nationality, in 1988. F. K. Irani owned a spacious building with a vast compound bearing old No. 1 (New No. 3) in the Museum Road, Civil Station, Bangalore 1. The said house and the space adjoining it also abuts the Church street on the otherside. There is sharp controversy as to whether the respondent or the petitioners are in lawful and exclusive physical possession of that property. On 5-12-89, first petitioner is said to have addressed a letter to her daughter, the respondent, which reads thus :
“My Dear Farida,
This is to request you to make immediate arrangement for removal of your equipment and material stored in our premises. The car No. MEO 6527 and Motorbike No. CAO 7935 should be removed immediately on receipt of this letter and various miscellaneous building material is to be removed within 24 hours. If you fail to clear everything within the stipulated time, the same shall be removed by us at your own risks and cost. We shall not be responsible for any losses or damages”.
After receipt of that letter, respondent filed a suit against the petitioners on 7-12-89 in the Court of the City Civil Judge, Mayo Hall, Bangalore for a perpetual injunction restraining the defendants (petitioners herein) from interfering with her peaceful possession and enjoyment of the plaint schedule property including the furniture, equipment, vehicles and other moveables thereon and also from inducting any third party into the whole or any portion of the schedule property or making any permanent additions or alterations to the schedule property, by mentioning in the plaint that the cause of action for the said suit had arisen on 5-12-1989. Schedule property referred to in the plaint is stated to be the above mentioned building and vacant space. The plaint was registered as O.S. No. 10719/89. Respondent also filed I.A.I. in that suit on 7-12-89 itself under Order 39 Rules 1 and 2 C.P.C. for an order of temporary injunction against the defendants in the above terms pending disposal of the suit. Along with I.A.I., respondent had also produced with a list, the letter dated 5-12-89 referred to above.
3. On a perusal of that letter which is mentioned as notice, additional City Civil Judge, sitting at Mayo Hall, Bangalore, passed an order on 7-12-89 as under :
“Hence, it is ordered to maintain status-quo as on the date of this order. EN, SS, status-quo order returnable by 12-12-1989”.
Respondent filed a private complaint under S. 200, Cr.P.C. against the petitioners by arraying them as accused Nos. 1 and 2 respectively in the Court of the Metropolitan Magistrate, VI, Court, Bangalore (for short ‘the Magistrate’) on 18-12-89 alleging that the accused (Petitioners herein) had committed offences punishable under section s. 454, 380, 427 and 341, IPC and, therefore, they may be punished in accordance with law. The learned Magistrate referred that complaint under Section 156(3), Cr.P.C. to the PSI of Cubbon Park Police Station with a direction to investigate into the allegations made in the complaint and to submit his report. Thereupon, Cubbon Park Police after making necessary investigation submitted a ‘B’ report dated 12-1-90 requesting the learned Magistrate to treat the case as civil in nature. Respondent was notified of that report. Thereafter, she filed a protest petition to the ‘B’ report in PCR 138/89 which was the number given to her complaint by the learned Magistrate stating therein that the ‘B’ report submitted by the Police was a lopsided report prepared with the obvious intention of favouring the accused without making proper investigation into the allegations made in the complaint and, therefore, the said report may be set aside and she may be given an opportunity to proceed with her complaint in accordance with law. Thereupon, the learned Magistrate recorded the sworn statement of the respondent-complainant on 8-5-90. On a consideration of the allegations made in the complaint, the contents of the ‘B’ report and the sworn statement of the respondent, the learned Magistrate passed an order on 10-5-90 rejecting the ‘B’ report and further taking cognizance of the offences under section s. 341, 380, 427 and 448 read with S. 34, IPC against both the accused (petitioners herein). He further ordered registration of the case against both the accused and issue of process to them and for calling the case on 17-5-90. Accordingly, a case is registered against the petitioners in C.C. 676/90 and process is issued against them. Petitioners have filed the present petition under Section 482, Cr.P.C. on 4-8-90 with xerox copies of several documents for quashing the order dated 10-5-90 made in PCR 138/89 pursuant to which C.C. 676/90 is registered on the file of the learned Magistrate and to grant them such other reliefs to which they are entitled.
4. Notice on the point of admission was ordered to the respondent. Thereupon, she has entered appearance through her Advocate Sri S. A. Nazeer. Sri G. M. Rego learned counsel for the petitioners and Sri S. A. Nazeer, learned counsel for the respondent, agreed that this Criminal Petition may be disposed of on merits at the admission stage itself. Learned counsel for the respondent has also produced with the counter-affidavit of the respondent, xerox copies of the letter dated 5-12-89 referred to above, Order sheet in O.S. 10719/89, Telephone bill of Telephone No. 571806 dated 11-8-89, respondent’s complaint dated 18-12-89, her objections to the ‘B’ report, her sworn statement recorded on 8-5-90 and the impugned order of the learned Magistrate and also of a Will dated 8-1-1933. Learned counsel on both sides are heard on the merits of the Petition on 20-11-1990.
5. Sri G. M. Rego, argued that several documents produced by the petitioners with their Petition would prima facie indicate that the dispute between the petitioners and the respondent is purely one of civil nature; that the respondent having filed a frivolous suit against the petitioners and obtained an ununderstandable order of status-quo against the petitioners in her suit has subsequently filed a false and frivolous complaint against the petitioners in order to harass them by dragging them to the Criminal Court and that even the status-quo order passed in the Civil suit on 5-12-89 is subsequently vacated by the XVIII Additional City Civil Judge, by dismissing respondent’s application I.A.I. and allowing the application-I. A. III filed by the petitioners by order dated 19-7-90. He argued that taking into consideration the said circumstances, the entire proceedings in C.C. 676/90 may be quashed in exercise of the inherent power under section 482, Cr.P.C. In support of the said argument, Sri Rego placed reliance on two decisions of the Supreme Court in Madhavrao Jiwajirao Scindia v. Sambhaji Rao Chandroji Rao Angre, and State of U.P. v. R. K. Srivastava, .
6. On the other hand, Sri S. A. Nazeer, argued that the petitioners have not made out any case whatsoever for quashing the impugned order of the learned Magistrate in exercise of the inherent power of this Court under section 482, Cr.P.C. According to him, the petition is liable to be dismissed in the light of the law laid down by the Supreme Court in the matter of exercise of inherent power under section 482, Cr.P.C. and in the matter of Criminal proceedings at the initial stage in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and State of Bihar v. Murad Ali Khan, .
7. In the course of his argument, Sri Rego attempted to make a detailed reference to the contents of copies of several documents produced with the petition. Therefore, it has to be stated at the very outset that except the copies of the complaint filed by the respondent, ‘B’ report submitted by the Police, the impugned order of the learned Magistrate dated 10-5-90, the remaining documents cannot be looked into in view of the observations of the Supreme Court in the case of Smt. Nagawwa that having regard to the limited scope of an inquiry under S. 202, Cr.P.C. the accused has no locus-standi and the learned Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them at the stage of S. 202 or S. 204, Cr.P.C. and that if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate, then an inquiry under section 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted.”
8. What the Magistrate is expected to do on receipt of a complaint filed under section 200, Cr.P.C. and in the course of the inquiry under section 202, Cr.P.C. has been considered by the Supreme Court in the case of Smt. Nagawwa, and other decisions referred to above.
9. It is observed towards the end of para 2 at p. 740 (of (1976) 3 SCC) : (at p. 1950 of AIR) of the decision in Smt. Nagawwa’s case as under :
“It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one”.
It is also observed in the said decision that an order of the Magistrate issuing process against an accused can be quashed or set aside by the High Court under the following circumstances :
“(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”
It is then mentioned that the said four circumstances are purely illustrative and provide sufficient guidelines to indicate the contingencies where the High Court can quash the proceedings.
10. The Supreme Court has again observed in the case of Madhavrao Jiwajirao Scindia on which strong reliance was placed by Sri Rego in para 7 at p. 771 as under :
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a Criminal prosecution to continue the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage”.
11. Jurisdiction of the High Court to quash Criminal proceedings in exercise of the inherent power under section 482, Cr.P.C. has also been considered by the Supreme Court in State of Bihar v. Murad Ali Khan, on which reliance was placed by Sri S. A. Nazeer. This is what the Supreme Court has observed in para 6 at p. 5 :
“It is trite that Jurisdiction under section 482, Cr.P.C. which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would in the circumstances, amount to an abuse of the process of the court or not.”
12. On the point whether Criminal proceedings can be quashed under section 482, Cr.P.C. at the initial stage of lodging the FIR or the charge-sheet the Supreme Court has observed in State of U.P. v. R. K. Srivastava in as under :
“It is now a well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the Criminal proceedings instituted on the basis of such FIR should be quashed.”
13. Let me now examine whether the impugned order is liable to be quashed in the light of the principles enunciated in the above mentioned decisions.
14. Respondent has filed the complaint on 18-12-89 against both the petitioners whose ages are mentioned as 67 years and 62 years respectively and she has furnished her own age as 50 years. It is stated that the respondent was in occupation of a portion of the above mentioned house property and the vacant space in which she used to park her car No. MEQ 6527 and her son’s motorbike beareing No. CAO 7935 and the said vehicles were being taken in and out of the said premises through the main gate and she had also retained her telephone, several items of furniture in the main building of No. 1, Museum Road even while permitting the petitioners to occupy a portion of the said house on their return from Switzerland. She has also alleged that she had locked the portion of the house in her occupation and in which she had kept several materials, equipment and other moveables. She has then referred to the letter dated 5-12-89 sent to her by the first petitioner. In paragraph 6 of the complaint, reference is made to the suit filed by the respondent against the petitioners in O.S. 10719/89 on 7-12-1989. She has then averred that she had obtained an ad interim order of injunction directing the accused persons to maintain the status quo and the said order was brought to the notice of the petitioners on the same day but formally served on them on 8-12-1989. It would be convenient to mention at this stage that no order of injunction as such was issued against the petitioner in O.S. 10719/89 and all that the learned Civil Judge had done was to direct the parties to maintain status quo. The said order is as nebulous as it possibly could be as it is not possible to make out which portion of the house was in possession of the respondent and the petitioners with reference to the house in dispute on the date of filing of the suit on 7-12-89. Respondent has also not produced any material to show that the petitioners-accused were notified of the status quo order on 7-12-89 itself or the status quo order was formally served on them on 8-12-89. It is stated in para 7 onwards of the complaint that the petitioners in violation of the status quo order dated 7-12-89 broke open the lock she had put on the closed door of her house and entered the room with the intention of committing theft of her articles stored therein and also to intimidate, insult and annoy her. It is alleged that the criminal act committed by the petitioners brushing aside the respondent and ignoring her protests and objections and by doing so they have committed the offence of house breaking under section 445, IPC. It is stated in para 8 that the petitioners had intentionally damaged the articles of the respondent by throwing the same helter and skelter out of the premises and thereby causing loss to her. By doing so, they have committed the offence of mischief under section 425, IPC. It is stated in para 9 that the petitioners had stationed a watchman at the main gate in order to prevent her from having ingress and egress from the portion of the house in her occupation and thereby they had committed the offence of wrongful restraint under section 339, IPC. It is stated in para 10 that the respondent had lodged a complaint at Cubbon Park Police Station on 27-11-89, 7-9-89 and on 8-12-89 but the said Police had not given any relief to her and, therefore, she had to file the complaint in the Court itself. It is further stated in para 10 that the petitioners had committed offences under section s. 454, 380, 427 and 341, IPC at premises No. 1, Museum road, Bangalore-1 where they were presently residing.
15. Apart from making such vague allegations, respondent has not stated in her complaint at what time on 7-12-1989 the petitioners committed the above mentioned acts alleged against them and whether the said acts of the petitioners were actually witnessed by her or any other witnesses. As a matter of fact, names of witnesses are not furnished in the complaint and it is also not stated in the complaint that the several acts alleged against the petitioners were witnessed by the respondent only and not by any independent witnesses. It was incumbent on the part of the respondent to do so in view of the provisions of Sections 200, 202 and 203, Cr.P.C. wherein it is provided that the Magistrate on receiving the complaint shall examine upon oath the complainant and the witnesses, if any, present and take cognizance of the offences mentioned in the complaint; that if he decides to make the inquiry himself then also he has to record the statements of the witnesses and he can dismiss the complaint under section 203, Cr.P.C. if after considering the statements on oath of the complainant and the witnesses examined under section 202 he is of the opinion that there is no sufficient ground for proceeding against the accused. In spite of the said lacuna in the complaint, the learned Magistrate has proceeded to refer the complaint under section 156(3), Cr.P.C. to the jurisdictional police for investigation and submission of report. Cubbon Park Police have submitted a ‘B’ report wherein it is stated that the dispute between the respondent and the petitioners was of a civil nature. After having filed Protest petition to the said ‘B’ report, the respondent has examined herself only on 8-5-90 and not any witnesses. Even in the course of her sworn statement, she has not stated at what time on 7-12-89 and in whose presence the petitioners indulged in the above mentioned acts. In the course of his order dated 10-5-90, the learned Magistrate has dealt with the matter in a superfluous manner and has taken cognizance of the offences under section s. 341, 380, 427 and 448 read with S. 34, IPC against both the petitioners although a combined reading of the complaint averments and the sworn statement of the respondent do not establish the essential ingredients of the said offences. In my opinion, the averments made in the complaint and the sworn statement of the respondent would read as if they were made in an application filed by the respondent as plaintiff in the suit referred to above for taking action against the petitioners-defendants for violating the status quo order dated 7-12-89. Therefore, I am constrained to hold that having regard to the relationship between the respondent and the petitioners, the ages of the petitioners and the background in which the respondent had filed the suit against the petitioners for the bare relief of perpetual injunction only and the admission made by the respondent in the complaint that she had permitted both the petitioners to reside in a portion of the house property, the Criminal proceedings launched by the respondent against the petitioners were without any basis and if at all the dispute between the respondent and the petitioners was only a civil wrong and would not constitute any of the above mentioned Criminal offences. Therefore, Sri. Rego was justified in arguing that the daughter had filed the complaint against her mother and her second husband for wrecking private vengence by using the machinery of the Criminal Court in order to subject them to harassment and force them to come to terms with her in the suit she had filed against the petitioners in the Civil Court on 7-12-89. Therefore, I am of the opinion that the observations made by the Supreme Court in the case of Madhavrao Scindia mentioned above to the effect that no useful purpose is likely to be served by allowing the Criminal prosecution to continue and in such an event, the proper course is to quash the Criminal proceedings even though they may be at a preliminary stage apply in all fours to the facts of the case on hand.
16. In the result, the Petition is allowed and the impugned order dated 10-5-90 in PCR No. 138/90 on the file of the VI Metropolitan Magistrate, Mayo Hall, Bangalore and all further proceedings emanating therefrom in registering the private complaint of the respondent as C.C. 676/90 and directing issue of process to the petitioners are hereby quashed.
17. Petition allowed.