REPORTABLE

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

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellants  and  the  respondent  No.3  (complainant)  are  co-sharers.

Raghuvansh Tyagi, 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.   

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Husband of Smt. Suman Devi, Anil Kumar is said to have signed the

said Will as one of the attesting witnesses.   

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

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suit was dismissed by an order dated 29.3.2006.  An appeal thereagainst is

said to be pending.  

Prior thereto, 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 :

“Case  called.   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.”

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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 :

“That the 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  Khasra No.59.”

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Learned First Additional Chief Judicial Magistrate by an order dated

8.7.2008 issued summons which reads as under :

“Because  your  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 jurisdiction.

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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.

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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

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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 observed :

“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.

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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

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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.

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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.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; April 8, 2009

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