JUDGMENT
P.K. Mohanty, J.
1. In the present application the petitioner has sought for quashing the order of the learned Subdivisional Judicial Magistrate, Sadar, Berhampur in I.C.C. No. 18 of 1996 taking cognizance of the offences punishable under Sections 420/294/506 I.P.C. and issuing process against him.
2. The opp. party-complainant in the Court below filed I.C.C, No. 18 of 1996 against the petitioner alleging therein that the petitioner who is a journalist, working in the Indian Express and the cpmplainant, a practising advocate of Berhampur Bar, were friends since about last twenty years. The accused-petitioner having approached the complainant and induced him to purchase a house site belonging to him at Gajapatinagar, Berhampur, he (complainant) believing him, advanced a sum of Rs. 25,000/- on 9.2.93 in presence of witnesses out of an agreed consideration of Rs. 50,000 – for the said plot of land. Subsequently the complainant arranged the balance amount and approached the accused for executing the sale-deed but the accused postponed the same on some pretext or the other and avoided to execute the sale-deed. The complainant made an enquiry and came to know that the accused does not have any house site at Gajapatinagar to sell and, therefore, he asked the accused to return the advance amount of Rs. 25,000/- but the accused instead of returning the amount, threatened him with dire consequences. It is alleged that the accused fraudulently induced the complainant to part with Rs. 25,000/- and retained the same whereas he has no plot to sell and cheated the complainant. When the matter stood thus, on 20.1.96 at about 12.30 p.m. while the complainant was going to court, the accused obstructed the complainant in front of the Tahsil Office and abused him in filthy language, removed a knife and wanted to stab the stomach of the complainant but due to timely intervention of the witnesses, the life of the complainant was saved and he ran away. It is further alleged that the matter was reported to the Officer-in-charge, Baidyanathpur Police Station on the same day and the police by siding the accused, did not take any action and finally on 12.2.96, refused to take any action against the accused and instructed the complainant to go to court and hence the complaint is said to have been filed.
3. The learned Magistrate recorded the initial statement of the complainant Prabir Kumar Satpathy, an advocate of the Berhampur Bar. The statement discloses that the accused insisted him to purchase a plot belonging to him at Gajapatinagar and at last he agreed to purchase the plot and paid a sum of Rs. 25,000/- on 9.2.93 as advance. The price was finalised at Rs. 50,000/-. He collected the balance money in 1995 and asked the accused to receive the balance money to execute the sale-deed in his favour but the accused started avoiding him. He also enquired about the plot of the accused and came to know that the accused has no land at Gajapatinagar but falsely induced him to purchase the land and took away Rs. 25,000/-. It is further alleged that on 16.1.96 when he asked to return the money, he did not pay back the money and on 20.1.96 at about 12.30 p.m. while the complainant was coming to the court, accused kept his scooter in his front near the Tahsil Office, abused him in filthy language, brought out a knife from his pocket and pointed the same towards his body. The witnesses interfered and complainant left the place and came to court running. He lodged an FIR and ran to the Police Station several times but at last on 12.2.96 he was informed to take shelter in the court expressing their inability to take action against the accused because he is a journalist.
4. On the basis of the aforesaid complaint and the statement of the complainant recorded under Section 200, Cr.P.C., the learned S.D.J.M. found a prima facie evidence regarding commission of the offence under Sections 420/294/506 I.P.C. and took cognizance of the said offences and directed issuance of summons.
5. The petitioner had earlier moved this Court in Crl. Misc. Case No. 1076 of 1996 against the order of the learned S.D.J.M. and this Court in order dated 8.4.96 disposed of the application with the observation that the petitioner may move the learned Magistrate for recall of the order of cognizance. The petitioner filed the application for recall of the order before the learned S.D.J.M. which having been rejected by order dated 3.3.97, the present application has been filed for quashing the aforesaid orders.
6. The learned counsel for the petitioner has urged that the order of cognizance and the direction for issuance of process against the petitioner are illegal and liable to be quashed for the following grounds :
(a) the allegation made in the complaint even if taken on their face value do not make out a case against the petitioner;
(b) the allegations made in the complaint are so absurd and inherently improbable, on the basis of which no prudent person can even reach a just conclusion that there is any sufficient ground for proceeding against the petitioner;
(c) the complaint is manifestly attended with mala fide and are maliciously instituted against the petitioner-Opp. party with ulterior motive for wreacking vengeance on the petitioner with a view to spite him due to personal grudge;
(d) the complaint was belated and the transactions of 1993 were sought to be agitated in the year 1996 and such complaint was made after the criminal cases were instituted against the Opp. party at the instance of the petitioner; and
(e) the snorn statement differs in material particulars raising serious a doubt regarding genuineness and correctness of the allegations made and further the allegations are not supported with any material whatsoever.
7. It is submitted that the petitioner is an eminent journalist of a leading English daily ‘Indian Express’ since last ten years and he was a member of the Senate of Berhampur University between 1990 & 1993 and presently the President of Orissa Union of Journalist of Ganjam district.
8. In order to appreciate the contentions raised, let us consider the scope of interference by the High Court in the order of cognizance, in exercise of powers under Section 482, Cr.P.C..
The apex Court in the case of State of Bihar v. Murad Ali Khan reported in AIR 1989 SC 1 has laid down that the jurisdiction under Section. 482, Cr.P.C. which saves the inherent power of the High Court, to make such order 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 a detailed enquiry whether the allegations in the complaint are likely to be established by evidence or not since that is the function of the Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate its jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash the proceeding at the stage of 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.
9. The Supreme Court in the case of Mrs. Dhanalaxmi v. R. Prasanna Kumar reported in AIR 1990 SC 494 have laid that Section 482 empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court. It is the settled position of law that the court is also to take into consideration any special feature which appears 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 because the court cannot be utilized for an 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 proceeding even if it may be at a preliminary stage.
10. In the case at hand the opp. party-complainant is a practising advocate. The allegation is made that he made an advance of Rs. 25,000/- as part consideration for purchase of a land belonging to the accused-petitioner who happens to be a friend since last about twenty years. No description of property has been given either in the complaint or in the initial statement of the complainant himself. No document was created while paying the advance consideration nor any terms and conditions were either settled in writing or agreed to oralfy in presence of the witnesses when the money was advanced to the accused-petitioner except at consideration money. The area of land intended to be sold by the accused and purchased by the complainant is neither given in the complaint petitioner or in the statement of complainant recorded by the Magistrate, which is the sole basis of taking cognizance. The advance said to have been paid on 9.2.93 and it is in the complaint petition as well as the statement of the complainant that the balance consideration was arranged in the year 1995 and the petitioner was asked to execute the document on receipt of the same. No date or even month has been disclosed during which the accused-petitioner was offered the balance consideration, excepting that it was in the year 1995. The complainant-opp. party is said to have been made an enquiry and found that the petitioner does not have any property in that area to be sold. A practising advocate claiming to be a friend of the accused-petitioner since last twenty years neither knew whether the accused had any property in the area which is sought to be sold nor wanted to verify the same before he was induced to pay advance of Rs. 25, 000/- that to without any document whatsoever. Admittedly, two G.R. Cases were pending against the complainant being G.R. Case Nos. 60/96 and 76/96 under Sections 341/294/323 and 506 I.P.C. at the instance of the accused-petitioner prior to the date of occurrence. The allegation is made that on 20.1.96 accused-petitioner abused the complainant while he was going to court and threatened him to kill by taking out a knife from his pocket, but for the timely intervention of the witnesses, the complainant ran towards the court. It is also alleged that the complainant rushed to the Police Station, lodged the information in writing on the date of occurrence, i.e., 20.1.96 but no action was taken by the police, till 12.2.96 when he was informed that no steps shall be taken since the accused-petitioner is a journalist. A practising advocate of the local bar went to the police station, gave a written complaint but did not bother to obtain a copy of the F.I.R. as provided under law and waited till 12.2.96 to see whether any action is taken and he having been informed that the police will not take any action, filed the complaint petition.
11. On perusal of the complaint petition as well as thestatement of the complainant recorded under Section 200, Cr.P.C., which is the sole basis for the learned Magistrate to fake cognizance as discussed in the foregoing paragraph, it iacks in material particulars about the alleged offence and not a scrap of paper with regard to advance of the consideration money neither is said to have been obtained nor produced. The entire allegation read as a whole appears improbable and absurd and does not appeal to common sense on the basis of which the criminal proceeding is initiated more so in case of a land deal made by a learned Advocate for himself. Admittedly two criminal cases as against the opp. party-complainant at the instance of the accused-petitioner were pending on the dates of the alleged occurrences,
12. In the peculiar facts and circumstances of the case as discussed in the foregoing paragraphs and in absence of necessary ingredients and material particulars relating to the commission of offences, the criminal prosecution against the petitioner, would be not in the interest of justice and it may be an abuse of the process of the court and, therefore, the order of cognizance should be quashed for the ends of justice, in view of the settled position of law as discussed earlier.
13. In the result, this petition is allowed. The order of the learned Magistrate dated 13.2.96 passed in I.C.C. No. 18 of 1996 and the order dated 3.3.97 rejecting the petitioner’s application for recall of the order, are quashed.
The lower court records be transmitted back forthwith.