Let me begin at the very beginning by first and foremost explicitly pointing out that in a latest, landmark and laudable judgment titled Md. Allauddin Khan vs The State of Bihar & Ors in Criminal Appeal No. 675 of 2019 (Arising out of S.L.P.(Cri.) No. 1151 of 2018) delivered just recently on April 15, 2019 has clearly and convincingly observed that, “Mere pendency of civil case between complainant and accused is not a reason to quash criminal case.” There can be no reason to quash a criminal case just because a civil case is pending between complainant and accused. So the Apex Court has very rightly ruled so accordingly!
While setting the pitch for this extremely landmark and laudable judgment delivered by the Apex Court authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari, it is pointed out in para 2 that, “This appeal is directed against the final judgment and order dated 11.09.2017 passed by the High Court of Judicature at Patna in Criminal Miscellaneous Application No. 27078 of 2013 whereby the High Court allowed the Criminal Miscellaneous Application filed by respondent Nos. 2 & 3 herein and quashed the complaint filed by the appellant herein.”
Needless to say, it is then pointed out in para 3 that, “A few facts need mention here in below for the disposal of this appeal, which involves a short point.” Para 4 then envisages that, “By impugned order, the High Court quashed the order dated 13.02.2013 passed by the Judicial Magistrate 1st Class, Saran at Chapra in Complaint Case No. 21/2012 whereby the Judicial Magistrate took cognizance of the complaint filed by the appellant herein against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) by holding that a prima facie case was made out against respondent Nos. 2 and 3 on the basis of allegations made in the complaint.”
To put it succinctly, it is then observed in para 5 that, “So, the short question which arises for consideration in this appeal filed by the complainant is whether the Judicial Magistrate was right in holding that a prima facie case is made out against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 IPC so as to call upon them to face the trial on merits or whether the High Court was right in holding that no prima facie case has been made out against respondent Nos. 2 and 3.”
After observing in para 6 that, “Heard Mr. Binay Kumar Das, learned counsel for the appellant, Mr. Prabhat Ranjan Raj, learned counsel for respondent Nos. 2 & 3 and Mr. Devashish Bharuka, learned counsel for respondent No. 1-State.”, the Bench then goes on to add in para 7 that, “Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and restore the order of the Judicial Magistrate dated 13.02.2013.”
Furthermore, the Bench then observes in para 8 that, “The High Court examined the case in para 6, which reads as under:
“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No. 10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No. 2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court”.”
Truth be told, the Bench then minces no words in pointing out in para 9 that, “On perusal of the impugned order, we find that it suffers from two errors.” Elaborating further, para 10 then states that, “First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not.”
While highlighting the discrepancies in the High Court’s verdict, the Bench then observes in para 11 that, “Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties.”
Furthermore, while rapping the High Court on its knuckles, the Bench then minces no words to say it upfront in para 12 that, “It is on this ground, the High Court proceeded to quash the complaint. This approach of the High Court, in our view, is faulty.” Also, it is then laid bare in para 13 that, “Though the High Court referred to the law laid down by this Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 SC 604) but failed to apply the principle laid down therein to the facts of this case.”
Not stopping here, it is then pointed out in para 14 that, “The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not.”
To say the least, the Bench also sought to make it clear point blank in para 15 that, “The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.”
While pointing out the second error in the verdict of High Court, it is then held in para 16 that, “The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.”
While making the picture on this lacuna in the High Court verdict more clear, it is then held explicitly in para 17 that, “In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”
What’s more, it is then observed in para 18 that, “It is due to these two errors, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside.”
It also cannot be lost on us that it is then observed in para 19 that, “In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the order of the Judicial Magistrate dated 13.02.2013 is restored because it records a finding that a prima facie case for taking cognizance of the complaint is made out.”
Before parting, it is then finally held in the last para 20 that, “The Judicial Magistrate is accordingly directed to proceed to conclude the trial on merits on the basis of evidence adduced by the parties in the trial strictly in accordance with law uninfluenced by any observations made by the High Court in the impugned order and in this order made by this Court.”
In conclusion, it can be said with consummate ease that this extremely landmark and laudable judgment while clearly and convincingly not concurring with the High Court verdict lays down that explicitly that mere pendency of civil case between complainant and accused is not a ground to quash criminal case. It thus also directs the Judicial Magistrate to conclude the trial on the basis of evidence adduced by the parties strictly in accordance with law without being influenced in anyway by the observations of the High Court! Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.