MOSIRUDDIN MUNSHI Vs MD.SIRAJ
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: Crl.A. No.-001168-001168 / 2014
Diary number: 32773 / 2010
Advocates: C. K. RAI Vs
MITHILESH KUMAR SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1168 OF 2014 [ Arising out of SLP (Crl.) No.5529 OF 2011]
Mosiruddin Munshi … Appellant(s)
versus
Md. Siraj and another … Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. Leave granted. CRMP No.12896 of 2011 seeking
impleadment as a party is dismissed.
2. This appeal is preferred against order dated June 29,
2010, passed by the High Court of Calcutta in CRR No.1978
of 2006 in FIR No.251 dated 10.11.2005 on the file of
Amherst Street Police Station registered for the alleged
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offences under Section 420/120B IPC including the order
dated 28.10.2005 in case No.C/949 of 2005 passed by the
Additional Metropolitan Magistrate, Calcutta.
3. Briefly the facts are as follows : The appellant
herein/ complainant was looking for a plot of land for
construction of residential house in January 2005 and
accused No.2, Masud Alam, a public servant represented
that he could arrange for the said plot and introduced the
appellant to respondent No.1/accused No.1 who stated that
he had a plot of land and the appellant believing the
representation made by the accused No.2 entered into an
agreement for sale with respondent No.1 herein/accused
No.1 and also paid a sum of Rs.5,00,001/- in cash. The
respondent No.1 herein refused to hand over the necessary
title documents to the appellant which led to issuance of
legal notice by the appellant. All other methods to compel
respondent No.1 to complete the sale having failed the
appellant filed a complaint on 28.10.2005 in the Court of
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Additional Chief Metropolitan Magistrate, Calcutta against
respondent No.1 herein/accused No.1 and accused No.2 for
the offences punishable under Section 420, read with
Section 120B of the IPC. The Additional Chief Metropolitan
Magistrate forwarded the complaint to the officer in-charge
of the Amherst Street Police Station for causing
investigation under Section 156(3) of Criminal Procedure
Code by treating the complaint as First Information Report.
Respondent No.1 herein/accused No.1 filed application
under Section 482 of Cr.PC for quashing the said
proceedings including the FIR. Though the appellant
herein/complainant was impleaded as a party no attempt
was made to serve notice on him with the result that the
learned single Judge of the High Court quashed the
complaint proceedings in the absence of the appellant
herein. Challenging the said order the appellant herein
preferred appeal to this Court in Criminal Appeal No.852 of
2008 and this Court by judgment dated May 09, 2008
allowed the appeal and remitted the case to the High Court
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for a fresh decision in accordance with law. Thereafter the
High Court heard both the parties and by impugned order
dated June, 29, 2010 allowed the application under
Section 482 Cr.P.C and quashed the complaint proceedings.
Aggrieved by the same the complainant has preferred the
present appeal.
4. The learned counsel for the appellant contended
that the contents of the complaint would disclose the
commission of the cognizable offences alleged and the
High Court at the preliminary stage would not be justified
in embarking upon an inquiry and quashing the
proceedings and hence the impugned order is liable to be
set aside. Per contra the learned counsel for the
Respondent No.1/accused No.1 contended that the dispute
involved in the complaint is of civil nature and none of the
acts allegedly committed by the Respondent No.1 gave rise
to any criminal liability as rightly held by the High Court. In
support of the submission he relied on the following
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decisions of this Court in Hridaya Ranjan Prasad Verma
and others Vs. State of Bihar and another (2000) 4 SCC
168, Murari Lal Gupta Vs. Gopi Singh (2005) 13 SCC 699
and Ram Biraji Devi and another Vs. Umesh Kumar
Singh and another (2006) 6 SCC 669.
5. The legal position with regard to exercise of
jurisdiction by the High Court for quashing the First
Information Report is now well settled. It is not necessary
for us to delve deep thereinto as the propositions of law
have been stated by this Court in R. Kalyani Vs. Janak C.
Mehta (2009) 1 SCC 516 in the following terms :
“15. Propositions of law which emerge from the said decisions are :
(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.
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(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 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.
6. Yet again in Mahesh Chaudhary Vs. State of
Rajasthan (2009) 4 SCC 443) this Court stated the law
thus :
“11. The principle providing for exercise of the power by a High Court
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under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence.”
7. In the present case the complaint does make
averments so as to infer fraudulent or dishonest
inducement having been made by Respondent No.1
herein and accused No.2 pursuant to which the appellant
parted with money. It is the case of the appellant that
Respondent No.2 does not have title over the property
since the settlement deed was not a registered one and
Respondent No.1 herein and accused No.2 had entered
into criminal conspiracy and they fraudulently induced
the appellant to deliver a sum of Rs.5,00,001/- with no
intention to complete the sale deal. The averments in
the complaint would prima facie make out a case for
investigation by the authority.
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8. In the decisions relied on by the learned counsel for
the respondent No.1, cited supra, this Court on the facts
therein held that the allegations in the complaint read as
a whole prima facie did not disclose commission of
offences alleged and quashed the criminal proceedings.
Those decisions do not apply to the fact situation of the
present case.
9. The High Court has adopted a strictly
hypertechnical approach and such an endeavour may
be justified during a trial, but certainly not during the
stage of investigation. At any rate it is too premature a
stage for the High Court to step in and stall the
investigation by declaring that it is a civil transaction
wherein no semblance of criminal offence is involved.
10. The appellant, is therefore right in contending that
the First Information Report should not have been
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quashed in this case and the investigation should have
been allowed to proceed.
11. We, therefore, allow this appeal and set aside the impugned order.
…………………………….J. (T.S. Thakur)
……………………………J. (C. Nagappan)
New Delhi; May 9, 2014