GUR DAYAL Vs. STATE OF J&K & ANR

JUDGEMENT

(1.) Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner inter alia seeks quashing of the FIR No.70/2017 dated 15.12.2017, registered with Police Station, Ramgarh, Tehsil and District Samba under Sections 420/467/468/471/34 RPC against him.

(2.) Briefly, the material facts narrated in this petition are that; the petitioner and the private respondent No.2 are locked in civil litigation over land measuring 01 kanal 06 marla falling under Khasra No.480, land measuring 02 kanals 09 marla falling under Khasra No.481, land measuring 04 kanal 15 marla falling under Khasra No.441 and land measuring 01 kanal falling under khasra No.320 min (total land measuring 10 kanals) situated at village Palouta-Ramgarh, Tehsil and District Samba. That another suit has been filed against the petitioner herein by one Sansaro Devi with regard to different piece of land. Injunctions have been issued in both the civil suits, which are pending adjudication before the civil courts at Samba. In the suit filed by the petitioner herein, interim order has been made absolute vide order dated 09.08.2012. With a view to over-reach the pending civil suits and in order to render the civil proceedings infructuous, the respondent has approached the learned Magistrate at Samba with frivolous complaint as regards forgery of agreement to sell. The learned Magistrate, Samba without complying with the mandate of Hon'ble the Supreme Court in Priyanka Srivastava's case, also directed in a mechanical manner and directed lodging of the FIR on 28.11.2017. Accordingly, FIR No.70/2017 dated 15.12.2017 has been registered pursuant to the orders passed by the learned Magistrate in 156(3) proceedings on 28.11.2017. It is further stated that in the face of civil suits pending between the parties and issue being directly and substantially pending in the civil court, the police cannot hold investigation as regards the offences of forgery of the Agreements to Sell in question on the part of respondent no.2 in attempting to seek the police investigation in civil case is clearly hit by the mandate laid down by Hon'ble Supreme Court in Sardool Singh vs Naseeb Kour, 1987 Supp1 SCC 146. The continuation of investigation as criminal proceedings in civil case constitutes abuse of process of law because criminal proceedings being used as lever by the private respondent to force the petitioner to agree to her dictates and to give up his claims rose in the civil suit. The lodging of the FIR is an attempt to convert civil proceedings into criminal one. The learned Magistrate ought to have first followed the principles laid down by the Supreme Court in Prinyanka Srivastava's case (supra) and then only directed investigation in application under Section 156(3) CrPC.

(3.) The objections filed by State/respondent No.1 wherein it is stated that the present petition is not maintainable under law and the same is required to be dismissed out rightly; that the law is well settled by the courts that inherent powers under Section 561-A Cr.P.C. can only be exercised when a prima facie case is made out for quashing of the FIR or other criminal proceedings. In the present case, the petitioner is involved in a serious criminal offences under Sections 420/467/468/471/34 RPC registered at Police Station, Ramgarh, District Samba and the case for the proper investigation has been registered against the petitioner along with other accused persons and after getting the report from FSL, it has been established that the petitioner is also involved along with other accused persons in forging the document regarding agreement to sell executed between the petitioner and the respondent no.2 dated 19.08.2004 allegedly registered before the Notary public at Jammu and accordingly a prima facie case for the above said offence is clearly made out against the petitioner as well; that there is no specific bar to continue with the investigation in FIR No.70/2017 during the pendency of civil suit as well; that a prima facie case for the offences mentioned herein is made out against the petitioner and others, as such the petitioner cannot be said to be innocent nor the criminal proceedings initiated against the petitioner. Moreover under the provisions 561-A Cr.P.C., High Court has to exercise its powers cautiously, carefully and sparingly and the court has not to function as a court of appeal or revision.