Hira Lal & Ors. Vs.
State of U.P. & Ors.  INSC 698 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 662 OF 2009 (Arising
out of SLP (Crl.) No.5515 of 2008) Hira Lal & Ors. ... Appellants Versus
State of U.P. & Ors. ... Respondents
S.B. Sinha, J.
1. Leave granted.
2 2. Appellants and
the respondent No.3 (complainant) are co-sharers.
father of respondent No.3, and Tika Ram Tyagi, father of Smt. Suman Devi were
co-khatedars in respect of Khasra No.59 having an area of 2.0920 hectares of
land situated in village Bhangel Begampur, PS Phase II, Noida.
Father of Respondent
No.3 and Suman Devi were having 3/16th share in the aforementioned khasra.
According to the complainant, prior to 1997 a mutual agreement was entered into
amongst the co-sharers, pursuant whereto, 2000 sq. yds. of lands was allotted
for the purpose of residential house to each of the co-sharer. The complainant
on his allotted land, allegedly constructed a house and started living there.
He also said to have constructed 10 shops. Tika Ram Tyagi is said to have
constructed two houses on 600 sq. yards of land and his sons also constructed
pucca houses on the remaining 1400 sq. yds. of land in November 2006.
3. Tika Ram Tyagi
executed a registered deed of sill on or about 24.2.1997 bequeathing all his
moveable and immoveable properties in favour of his grand sons.
3 Husband of Smt.
Suman Devi, Anil Kumar is said to have signed the said Will as one of the
On or about 1.8.2002,
however, another Will was executed by Tika Ram Tyagi who had been suffering
from throat cancer in respect of the same property in favour of Smt. Suman
Devi. Appellant No.1 Hira Lal was a witness to the said Will.
It is stated that
Suman Devi later on executed a `Bainama' in favour of Ashok Kumar Tyagi,
younger brother of appellant No.1 on the basis of the said Will. It stands
admitted that in terms thereof Suman Devi got her name mutated in the Land
Revenue Record on or about 26.9.2002. She, allegedly, sold nine shops in favour
of Ashok Kumar Tyagi by reason of a `Bainama' dated 22.10.2002. Yet again she
sold another shop on 23.10.2002 by reason of another `Bainama' in favour of
Ashok Kumar Tyagi.
4. A civil suit was
filed by the respondent in the court of Civil Judge, Senior Division, Gautam
Budh Nagar, inter alia, praying for cancellation of the said Will on the
premise that the said Will was a forged one. The said 4 suit was dismissed by
an order dated 29.3.2006. An appeal thereagainst is said to be pending.
Respondent No.3 filed a complaint petition in the Court of ACJM, Gautam Budh
Nagar which was marked as Complaint Case No.212 of 2003 under Section 420, 462,
467, 468 and 471 IPC, inter alia, contending that the Will dated 1.8.2006
purported to have been executed by Tika Ram Tyagi in favour of his daughter
Suman Devi was a forged and fabricated document. The learned ACJM, Gautam Budh
Nagar, however, dismissed the said complaint petition, stating :
Complainant is not present. No record has been submitted in compliance of the
earlier order. File be put up at 3 pm for order.
Photocopy of the
Khatauni has been submitted by the complainant in which the names of Mukesh and
other co-shareholders are mentioned in Khata Khatauni No.22, Khet No.59. Only
becoming a co-shareholder of the land does not prove a sale deed or Will as
fake or sham document. Since Tika Ram's name is also one of the co-
shareholders and the alleged sale deed and Will has not been declared to be
fake or bogus by any other court, therefore, in the light of the record
available in case file and oral evidence, no prima facie case is made out
against the accused persons.
The complaint under
Section 203 is hereby rejected."
5. We may place on
record that the learned ACJM by an order dated 13.2.2003, inter alia, opined
that `no record was available in the file which could prove that the said Deed
of Will are prima facie fake and bogus'. A revision application was filed
thereagainst by respondent No.3 which was dismissed by an order dated 8.4.2004.
6. Respondent No.3
thereafter filed another application under Section 156(3) of the Code of
Criminal Procedure, 1973 (Code) making similar allegations. However, in the
said complaint petition even the execution of the bienamas was alleged to be
fraudulent acts on the part of the accused respondent, contending :
opponent Suman did not have any right to dispose of the plot with Khasra No.59
and no share of the plot of Khasra No.59 came to the share of Suman.
That opponent Suman
played fraud first did Karam Chand and Dayanand and without the permission of
Tika Ram got the Will of Tika Ram in her favour with regard to the property in
6 Learned First
Additional Chief Judicial Magistrate by an order dated 8.7.2008 issued summons
which reads as under :
presence is required to make the reply of the charge under Section 420, 467,
468, 471, 506 IPC, therefore, you are directed to appear either in person or
through advocate before the concerned court on 8.7.08. Fail not to do so."
7. Appellants filed
an application under Section 482 of the Code which by reason of the impugned
judgment has been dismissed. The High Court in its impugned judgment refused to
go into the merit of the matter that the defence of the accused cannot be
considered at that stage and they can raise all contentions at the time of
framing of the charges.
8. Mr. J.P. Dhandha,
learned counsel appearing on behalf of the appellant, would contend that the
High Court committed a serious error insofar as it failed to take into
consideration that the second complaint petition being not maintainable, the
summons issued by the court of ACJM was wholly illegal and without
9. Mr. Pramod Swarup,
learned counsel appearing on behalf of the State, and Mr. Vishwajit Singh,
learned counsel appearing on behalf of respondent No.3 would, however, support
the impugned judgment.
10. The parameters of
interference with a criminal proceeding by the High Court in exercise of its
jurisdiction under Section 482 of the Code are well known. One of the grounds
on which such interference is permissible is that the allegations contained in
the complaint petition even if given face value and taken to be correct in
their entirety, commission of an offence is not disclosed. The High Court may
also interfere where the action on the part of the complainant is mala fide.
11. The dispute
between the parties is essentially civil in nature. The Will in question is a
registered Will. Whether it is surrounded by suspicious circumstances or not is
a matter which may appropriately fall for determination in a testamentary
proceeding. Prima facie, a Civil Court has found the said Will to be genuine. A
complaint petition filed by the third respondent has been rejected. A revision
application filed thereaginst has also been dismissed.
8 In State of
Haryana & Ors. v.. Ch. Bhajan Lal & Ors. [1992 Supp (1) SCC 335], this
Court, relying on Pratibha Rani v. Suraj Kumar and Anr. [(1985) 2 SGC 370],
stated that for the purpose of exercising its power under Section 482 of the
Code of Criminal Procedure to quash a FIR or a complaint, the High Court would
have to proceed entirely on the basis of the allegations made in the complaint
or the documents accompanying the same.
In R. Kalyani v.
Janak C. Mehta & Ors. [(2009) 1 SCC 516], this Court stated the
propositions of law, thus :
"(1) The High
Court ordinarily would not exercise its inherent jurisdiction to quash a
criminal proceeding and, in particular, a First Information Report unless the
allegations contained therein, even if given face value and taken to be correct
in their entirety, disclosed no cognizable offence.
(2) For the said
purpose, the Court, save and except in very exceptional circumstances, would
not look to any document relied upon by the defence.
(3) Such a power
should be exercised very sparingly. If the allegations made in the FIR disclose
commission of an offence, the court shall not go beyond the same and pass an 9
order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation
discloses a civil dispute, the same by itself may not be a ground to hold that
the criminal proceedings should not be allowed to continue."
It was furthermore
"10. It is
furthermore well known that no hard and fast rule can be laid down. Each case
has to be considered on its own merits. The Court, while exercising its
inherent jurisdiction, although would not interfere with a genuine complaint
keeping in view the purport and object for which the provisions of Sections 482
and 483 of the Code of Criminal Procedure had been introduced by the Parliament
but would not hesitate to exercise its jurisdiction in appropriate cases. One
of the paramount duties of the Superior Courts is to see that a person who is
apparently innocent is not subjected to persecution and humiliation on the
basis of a false and wholly untenable complaint."
12. Mr. Singh would
argue that Tika Ram Tyagi having executed the Will in respect of his own share,
the appellants could not have transferred the shops in favour of third party
relying on or on the basis thereof.
13. The question as
to whether the transactions are genuine or not would fall for consideration
before the Civil Court as indisputably the respondent No.3 has filed a civil
suit in the court of Civil Judge, Gautam Budh Nagar wherein allegedly an
interim injunction has been granted. What was the share of the respective
co-sharers is a question which is purely a civil dispute; a criminal court
cannot determine the same.
14. The order of
learned ACJM in his order dated 2.4.2003 is not a cryptic one. Reasons have
been assigned in support thereof. In a situation of this nature, in our
opinion, a second complaint petition could not have been filed.
Strong reliance has
been placed by Mr. Singh on a decision of this Court in Mahesh Chand v. B.
Janardhan Reddy & Anr. [(2003) 1 SCC 734], wherein it was opined that
second complaint was not completely barred in law. This Court, however, in that
decision itself held that the second complaint can lie only on fresh facts
and/or if a special case is made out therefor, stating :
"19. Keeping in
view the settled legal principles, we are of the opinion that the High Court
was not correct in holding that the second complaint was completely barred. It
is settled law that there is no 11 statutory bar in filing a second complaint
on the same facts. In a case where a previous complaint is dismissed without
assigning any reasons, the Magistrate under Section 204 Cr.P.C. may take
cognizance of an offence and issue process if there is sufficient ground for
proceeding. As held in Pramatha Nath Talukdar case second complaint could be
dismissed after a decision has been given against the complainant in previous
matter upon a full consideration of his case. Further, second complaint on the
same facts could be entertained only in exceptional circumstances, namely,
where the previous order was passed on an incomplete record or on a
misunderstanding of the nature of complaint or it was manifestly absurd, unjust
or where new facts which could not, with reasonable diligence, have been
brought on record in the previous proceedings, have been adduced. In the facts
and circumstances of this case, the matter, therefore, should have been
remitted back to the learned Magistrate for the purpose of arriving at a
finding as to whether any case for cognizance of the alleged offence had been
made out or not."
15. The second
complaint petition filed by the third respondent does not disclose any such
exceptional case. It reiterated the same allegations as were made in the first
complaint petition. No fresh fact was brought to the notice of the court. The
core contention raised in both the complaint petitions was alleged execution of
a forged Will by Tika Ram Tyagi.
16. For the reasons
aforementioned, we are of the opinion that it was not a fit case where
cognizance of the offence could have been taken or any summons could have been
issued. The impugned judgment, thus, cannot be upheld. It is set aside
accordingly. The appeal is, therefore, allowed.
[Dr. Mukundakam Sharma]
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