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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 168 OF 2020

Govind Prasad Kejriwal      .. Appellant(s)

Versus

State of Bihar & Anr.        .. Respondent(s)

J U D G M E N T

M. R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 21.04.2017 passed by the High Court of

Judicature at Patna in Criminal Misc.No.30284 of 2011  by which

the High Court has dismissed the said quashing petition preferred

by the original accused  and  has refused to quash the criminal

proceedings  in Complaint  Case No.  464 of  2001 for the offences

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under Sections 323, 341 and 379 IPC, original Accused has

preferred the present appeal.

2. That the private respondent herein Gopal Prasad son of Shri

Shyam S. Prasad, brother of one Ramesh Kumar – a partner of a

firm called Kejriwal Films filed the criminal complaint being

Complaint Case No.464 of 2001 in the Court of  Additional Chief

Judicial Magistrate, Barh against the appellant herein – one of the

partner of Kejriwal Films, for the offences under Sections 379, 323,

504,  506,  406,  452,  147,  148/34  IPC.  The complaint reads as

under:

“1.  That the complainant is the brother of Ramesh Kumar, who is a partner of a firm called Kerjiwal Firms.  The accused Balabhadra Prasad Kejriwal is also a partner in the said firm.   Both the accused persons are father and son by relation.

2.   That the aforementioned Kejriwal Films has taken the Savera Chitra Mandir on lease and carry on their film  business there,  whose licence was taken in the name of Govind Prasad Kejriwal.

3.  That in order to cause loss to the complainant’s brother and  his partner  Satyanarayan, both the accused persons had hatched a conspiracy and thereby had surrendered the cinema filming licence before the District Magistrate.  As such, the cinema filming  has been closed since 5.2.2000  and the building has been  locked.  The complainant and

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his  brother  were looking  after the  building from outside.   The complainant’s brother is staying outside for the last some days.

4.  That  during the time  of the  occurrence, the complainant was going towards the market.  When the  complainant reached  near the  Savera  Chitra Mandir, saw the gate open.  Seeing the gates open, the complainant went inside the Savera Chitra Mandir and saw that the accused persons Govind Prasad Kejriwal and Balbhadra Prasad Kejriwal and 4­5 other unknown people have broke the lock of the cinema hall and its office and had kept their Maruti Car No. HR 51D 8974 inside.  The accused Govind Prasad Kejriwal was putting the documents of the cinema hall in a baggage.   The accused Balbhadra Prasad Kejriwal was removing the electric fan and other machines by some other people.   The accused Balabhadra Prasad Kejriwal himself was holding an electric starter in his hand.

5. That when the complainant objected, the accused persons Govind Prasad Kejriwal and Balabhadra Prasad Kejriwal gave a kick to the complainant and threatened him to kill.  The other unknown accused persons pointed their pistol on the complainant and rove him away from the cinema hall.

6.   That the accused persons Govind Prasad Kejriwal and Balabhadra Prasad Kejriwal kept the bag containing the documents in their car whose number is HR 51D 8974.   The other accused persons removed the fan etc. and kept those in the car.

7.   That the accused persons Govind Prasad Kejriwal and Balabhadra Prasad Kejriwal and two unknown accused persons went towards the market in their car. They asked their other people

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to put their new lock in the cinema hall and threw the  old locks.   Then the other accused  persons came out of the hall and fled in an auto rickshaw towards the market.

8. That those accused persons, with ill­ intention, and cause loss to the complainant’s brother and partner Ramesh Kumar and with the intention to misappropriate the properties of partnership firm had entered inside the cinema hall by breaking its locks and taken away all the valuable instruments.  They  had  broken the  old lock of the cinema hall and put new locks in it and caused damage inside the hall driving out the complainant from the premises.

9.   That the complainant’s brother had suffered a loss of Rs.50,000/­ due this theft.   There is possibility of causing irreparable loss on account of theft of important documents.   The description of these documents can be known only when the complainant’s brother arrives.

10.   That after the occurrence, the complainant had gone to the local police station to lodge a report thereof.  But the police  did  not lodge the report.  Then the  complainant  went to the  Sub­ Divisional Police Officer, but he did not accept the report of the complainant.  There is illegal collusion between the police and the accused persons.  

Hence, it is being prayed to summon the accused persons and punish them adequately.”   

3. That the said complaint was filed on 19.12.2001.   From the

record it appears that prior thereto, a written report was lodged by

the appellant herein ­ Govind Prasad Kejriwal, against Ramesh

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Kumar and others for the offence under Section 379 IPC.  After the

investigation, the I.O. filed the  charge­sheet  against  all the four

accused persons including the complainant herein and even

Ramesh Kumar for the offence under Section 379 IPC.   That the

Learned Trial Court has taken cognizance against all the accused

persons including Original private respondent herein – original

complainant under Section 379 IPC.  That the said trial is pending.

That the complaint filed by the private respondent – original

complainant herein ­ Gopal Prasad being Complaint No.464 of 2001

came to be dismissed by the Learned Judicial Magistrate vide Order

dated 14.02.2003.  That the Original complainant filed the Revision

Application before the  Learned  Additional  Sessions  Judge,  Barh.

Vide Order dated 01.12.2004, the Learned Sessions Judge,  Barh

allowed the said revision application and set aside the order passed

by the  Learned  Magistrate  dated  14.02.2003  and remanded the

case back to the Learned Magistrate for further inquiry and to pass

fresh order in accordance with law.   That pursuant to the remand

order, the complainant deposed one witness in support of his case.

Thereafter the Learned Magistrate vide order dated 25.07.2005 had

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taken cognizance against the appellant herein under Sections 323,

341 and 379 IPC, against the order passed by the Learned

Magistrate taking cognizance  under Sections 323,  341,  379  IPC,

the  appellant  herein  preferred  quashing  petition  before the  High

Court being Criminal Miscellaneous Application No.34168 of 2005.

That vide order dated 16.05.2006, the High Court declined to

interfere, however observed that the appellant is at liberty to move

the Learned Lower Court.   That thereafter brother of the original

complainant – Ramesh Kumar filed a title suit against the appellant

and the  partnership firm  for  dissolution  of the  partnership  and

rendition of accounts.   That the said suit came to be dismissed,

against which the First Appeal was preferred   by the said Ramesh

Kumar which came to be dismissed as withdrawn vide order dated

17.01.2011.   That Thereafter the appellant filed an application for

discharge.  Learned Magistrate vide order dated 04.08.2011 rejected

the prayer of the appellant for discharge.   That thereafter the

appellant filed an application before the High Court for quashing of

order dated 04.08.2011 passed by the Learned Judicial Magistrate

rejecting the discharge application. Vide impugned Judgment and

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order the High Court has dismissed the said application and has

refused to discharge the appellant and has refused to quash the

criminal proceedings.  Hence, the original accused has preferred the

present appeal.

4. Mr. Pankaj Bhagat, Learned Advocate appearing on behalf of

the appellant has vehemently submitted that in the facts and

circumstances of the case the High Court has materially erred in

dismissing the application and confirming the order passed by the

Learned Trial Court dismissing the discharge application.

4.1 Learned Advocate  appearing  on behalf  of the  appellant  has

vehemently submitted that the High Court has materially erred in

not considering the facts and circumstances of the case and even

considering the averments and the allegations in the complaint as

they are, they do not constitute any offence against the appellant

that too for the offences under Sections 323, 341, 379 IPC.

4.2 It is further submitted by Learned Advocate Mr. Pankaj Bhagat

that the High Court has not appreciated the fact that the

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complainant has tried to convert a civil dispute into criminal, which

is nothing but an abuse of process of law and the Court.

4.3 It  is submitted that therefore the High Court has materially

erred in not exercising the jurisdiction vested in it.   

4.4 Making the above submissions it is prayed to allow the present

appeal and consequently discharge the appellant by quashing and

setting aside the order passed by the Learned Magistrate as well as

the High Court.

5. The present appeal is vehemently opposed by Mr. Pavan

Kumar, learned Advocate appearing for the original complainant.  It

is vehemently submitted by Learned Advocate for Respondent No.2

– original complainant that in the facts and circumstances of the

case and more particularly when after holding the inquiry under

Section  202 Cr.P.C.  when  the  Trial  Court  has taken  cognizance

against the appellant for the offences under Sections 323, 341, 379

IPC, the Learned Trial Court thereafter has rightly refused to

discharge the appellant – original accused and the High Court has

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committed no error in confirming the order passed by the Learned

Trial Court taking cognizance and not discharging the accused.

5.1 It is vehemently submitted by the Learned Advocate appearing

on behalf  of  the original complainant that at the time of  inquiry

under Section 202 Cr.P.C. and at the time of taking cognizance, the

Trial  Court is required to  hold  a limited inquiry to  satisfy itself

whether there  is  any prima  facie  case.   In support  of  his  above

submission, learned counsel for the complainant has heavily relied

upon the decision of this Court in the case of  National Bank of

Oman vs. Barakara Abdul Aziz, (2013) 2 SCC 488.

5.2. It is further submitted by the Learned Advocate appearing on

behalf of the original complainant that in any case, the allegations

are for the offence under Section 323 IPC also and the case is made

out against the accused for the offence under Section 323 IPC also.

5.3 It is further submitted that in fact earlier the Learned Sessions

Court set aside the order passed by the Learned Magistrate

dismissing the complaint and remanded the matter to the Learned

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Magistrate.   It is submitted thereafter on remand and after holding

necessary inquiry the Learned Trial Court has taken the cognizance

against the accused.  It is submitted therefore that no interference

of this Court is called for in exercise of powers under Article 136 of

the Constitution of India more particularly when both, the Learned

Trial Court and the High Court has refused to discharge the

accused.   It is submitted that whatever the submissions are made

on behalf of the accused are his defenses, which are required to be

considered at the time of the trial.

Making the above submissions it is prayed to  dismiss the

present appeal.

6.  Heard the Learned Advocates appearing on behalf of the

respective parties at length.

6.1 We have perused and considered the allegations made in the

complaint as well as the order passed by the learned Trial Court

taking cognizance against the accused.  At the outset, it is required

to be noted that summons have been issued against the accused for

the offences under Sections 323, 341 and 379 of the IPC.   Having

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heard the learned counsel appearing for the respective parties and

even considering/taking  the allegations  in the complaint  as  they

are, we are of the opinion that  initiation of  criminal proceedings

against the accused is nothing but an abuse of process of law and

the Court.   A purely civil dispute is tried to be given a colour of

criminal dispute.

6.2 It is required to  be noted that the original  complainant,  as

such, has nothing to do with the partnership firm called Kejriwal

Films.   The original complainant claims to be the brother of one

Ramesh Kumar who is a partner of the said partnership firm.  The

main allegations in the complaint are with respect to the

partnership firm.  Partner of the partnership firm has not made any

complaint.  The allegations  in  the  complaint  are  with respect to

surrender of cinema license before the District Magistrate.

Admittedly, one of the accused – Accused No.2 is a partner in the

aforementioned partnership firm.   Appellant – Accused No.1 is the

son of the said partner – Balbadhadra Prasad Kejriwal.   The

appellant is issued summons for the offences under Sections 379

and 341 of the IPC along with for the offence under Section 323 of

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the IPC.   None of the ingredients for making out the case under

Sections 341 and 379 are satisfied.  At this stage, it is required to

be noted that prior to the impugned complaint/criminal

proceedings, the appellant/petitioner lodged an FIR on 06.12.2001

alleging that one HMT Generator set was stolen from the premises

of the  Cinema.   In  the  said case,  a charge­sheet  has  been  filed

against the private respondent herein Gopal Prasad and others for

having  committed  the theft. It is  also required  to  be  noted that

subsequently  even one title suit  was  filed  by the  brother  of the

complainant – Ramesh Kumar against the partnership firm and its

partners which came to be dismissed, against which an appeal was

preferred which came to be withdrawn by the said Ramesh Kumar.

Therefore, the impugned proceedings are nothing but an abuse of

process of law and the Court.  A  purely  civil  dispute  is  given a

colour  of criminal  proceedings.  As  observed above,  none of the

ingredients of Sections 341 and 379 of the IPC, are satisfied.

6.3 Even none of the ingredients of Section 323 of the IPC, are

satisfied.   Therefore, even considering the allegations in the

complaint as they are, to continue the criminal proceedings against

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the  accused even  for the  offence under Section 323 shall  be an

abuse of process of the Court and the law.  Therefore, we are of the

opinion that this is a fit case to exercise the powers under Section

482 Cr.P.C., and to quash the impugned criminal proceedings.   

6.4 Insofar as the reliance placed upon the decision of  Learned

Additional Sessions Judge, Barh, in Criminal Revision Application

No.31/235 of 2003 relied upon by the learned counsel for the

complainant is concerned, it is required to be noted that in the said

order there are  no finding on  merits  by the  Learned  Revisional

Court.  Revisional Court had only remanded the matter back to the

Learned Judicial Magistrate for further inquiry and to pass a fresh

order in accordance with law.

6.5 Now so far as the reliance placed on the decision of this Court

in the case of National Bank of Oman vs. Barakara Abdul Aziz

(Supra) relied upon by the Learned Advocate appearing on behalf of

the complainant  is  concerned, we are of the opinion that in  the

facts and circumstances of the case, the said decision shall not be

of any assistance to the complainant.   It cannot be disputed that

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while holding the inquiry under Section 202 Cr.P.C. the Magistrate

is required to take a broad view and a prima facie case.  However,

even while conducting/holding an inquiry under Section 202

Cr.P.C., the Magistrate is required to consider whether even a prima

facie case is made out or not and whether the criminal proceedings

initiated are an abuse of process of law or the Court or not and/or

whether the dispute is purely of a civil nature or not and/or

whether the civil dispute is tried to be given a colour of criminal

dispute or not.   As observed hereinabove, the dispute between the

parties can be said to be purely of a civil nature.  Therefore, this is a

fit case to quash and set aside the impugned criminal proceedings.

7. In view of the reasons stated hereinabove, the present Appeal

succeeds. The order passed by the Learned Magistrate taking

cognizance against the accused and issuing the summons against

the accused for the offences under Sections 341, 323 and 379 of

the IPC and also the impugned Judgment and order passed by the

High Court are hereby quashed and set aside.   The impugned

criminal proceedings initiated against the accused arising out of the

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Criminal  Complaint  No.464 of  2001 are hereby quashed and set

aside.

…………………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi, January 31, 2020