MD. ALLAUDDIN KHAN versus THE STATE OF BIHAR & ORS. on 15 April 2019

876

SUPREME COURT REPORTS

[2019] 5 S.C.R.

A

MD. ALLAUDDIN KHAN

v.

THE STATE OF BIHAR & ORS.

(Criminal Appeal No.675 of 2019)

APRIL 15, 2019

B[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973:

s. 482 – Complaint u/ss. 327 And 379 r/w s. 34 IPC – Takencognizance of, by the Judicial Magistrate – In petition u/s. 482,CHigh Court quashed the complaint holding that prima facie casewas not made out in view of pending civil dispute between the partiesand that the statements of witnesses were contradictory – On appeal,held: In order to see whether prima facie case is made out againstthe accused for taking cognizance, the Court is only required toDsee the allegations in the complaint – Such ascertainment cannotbe done taking into account mere pendency of civil dispute – HighCourt also had no jurisdiction to appreciate the evidence in exerciseof jurisdiction u/s. 482 – Therefore, High Court was not right inquashing the complaint.

Allowing the appeal, the CourtE

HELD : 1.1 The High Court did not examine the case witha view to find out as to whether the allegations made in thecomplaint prima facie make out the offences falling under Sections323, 379 read with Section 34 IPC or not. Instead the High Courtgave importance to the fact that since there was a dispute pendingFbetween the parties in the Civil Court in relation to a shop asbeing landlord and tenant, it is essentially a civil dispute betweenthe parties. It is on this ground, the High Court proceeded toquash the complaint. This approach of the High Court is faulty.[Paras 10, 11, 12][879-D-F]

GState of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR1992 SC 604 : [1990] 3 Suppl. SCR 259 – relied on.

1.2 The High Court failed to see that mere pendency of acivil suit is not an answer to the question as to whether a caseunder Sections 323, 379 read with Section 34 IPC is made outagainst respondent Nos. 2 and 3 or not. [Para 14][879-G-H]H

1.3 In order to see whether any prima facie case againstthe accused for taking its cognizance is made out or not, the Courtis only required to see the allegations made in the complaint. Inthe absence of any finding recorded by the High Court on thismaterial question, the impugned order is legally unsustainable.[Para 15][880-B]

2. The High Court was also wrong in holding that therewere contradictions in the statements of the witnesses on thepoint of occurrence. The High Court had no jurisdiction toappreciate the evidence of the proceedings under Section 482 ofCr.P.C because whether there are contradictions or/andinconsistencies in the statements of the witnesses is essentiallyan issue relating to appreciation of evidence and the same can begone into by the Judicial Magistrate during trial when the entireevidence is adduced by the parties. That stage is yet to come inthe present case. [Para 17][880-C-D]

3. Therefore, the reasoning and the conclusion arrived atby the High Court for quashing the complaint filed by the appellantagainst respondent Nos. 2 and 3 is not legally sustainable andhence it deservers to be set aside. [Para 18][880-E]

Case Law Reference

[1990] 3 Suppl. SCR 259relied onPara 13

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 675 of 2019.

From the Judgment and Order dated 11.09.2017 of the High Courtof Judicature at Patna in Criminal Miscellaneous No. 27078 of 2013.

Binay Kumar Das, H. Hasibuddin, Ms. Priyanka Das, Advs. forthe Appellant.

Prabhat Ranjan Raj, Jeewesh Prakash, Ms. Ritu Dubey, ShantanuSagar, Devashish Bharuka, Ms. Ravi Bharuka, Ms. Sarvshree, JustineGeorge, Aditya Singala, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 11.09.2017 passed by the High Court of Judicature at Patna in A

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ACriminal Miscellaneous Application No.27078 of 2013 whereby the HighCourt allowed the Criminal Miscellaneous Application filed by respondentNos.2 & 3 herein and quashed the complaint filed by the appellant herein.3. A few facts need mention hereinbelow for the disposal of thisappeal, which involves a short point.B

4. By impugned order, the High Court quashed the order dated13.02.2013 passed by the Judicial Magistrate 1[st] Class, Saran at Chaprain Complaint Case No.21/2012 whereby the Judicial Magistrate tookcognizance of the complaint filed by the appellant herein againstrespondent Nos. 2 and 3 for commission of the offences punishableCunder Sections 323, 379 read with Section 34 of the Indian Penal Code,1860 (for short “IPC”) by holding that a prima facie case was made outagainst respondent Nos.2 and 3 on the basis of allegations made in thecomplaint.

5. So, the short question which arises for consideration in thisDappeal filed by the complainant is whether the Judicial Magistrate wasright in holding that a prima facie case is made out against respondentNos.2 and 3 for commission of the offences punishable under Sections323, 379 read with Section 34 IPC so as to call upon them to face thetrial on merits or whether the High Court was right in holding that noprima facie case has been made out against respondent Nos.2 and 3.E

6. Heard Mr. Binay Kumar Das, learned counsel for the appellant,Mr. Prabhat Ranjan Raj, learned counsel for respondent Nos.2 & 3 andMr. Devashish Bharuka, learned counsel for respondent No.1-State.

7. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal, setFaside the impugned order and restore the order of the Judicial Magistratedated 13.02.2013.

8. The High Court examined the case in para 6, which reads asunder:G“6. On perusal of complaint petition, I find that thecomplainant has asserted that firstly, he had contracted forpurchasing the shop premises from the land owner, but thepetitioners offered more money and got the documentregistered in their favour. There is no chit of paper onrecord to support the agreement of sale or payment of anyHamount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancyof the complainant. The petitioners have filed an EvictionSuit No.10 of 2012, in which the complainant has filed hiswritten statement admitting tenancy in the said shoppremises. The complainant has further asserted that hehas been remitting rent of the said shop regularly and whenhe learnt about the transfer of shop premises in favour ofthe petitioners, the complainant has filed a Title Suit No.2of 2012. The dispute between the parties appears to be acivil dispute. The relationship of landlord and tenant standsadmitted by the complainant in the eviction suit. I furtherfind that there are contradictions in the statement ofwitnesses on the point of occurrence. The criminalprosecution of these petitioners in the above backgroundappears to be an abuse of process of Court.”

9. On perusal of the impugned order, we find that it suffers fromtwo errors.

10. First error is that the High Court did not examine the casewith a view to find out as to whether the allegations made in the complaintprima facie make out the offences falling under Sections 323, 379 readwith Section 34 IPC or not.

11. Instead the High Court in Para 6 gave importance to the factthat since there was a dispute pending between the parties in the CivilCourt in relation to a shop as being landlord and tenant, it is essentially acivil dispute between the parties.

12. It is on this ground, the High Court proceeded to quash thecomplaint. This approach of the High Court, in our view, is faulty.

13. Though the High Court referred to the law laid down by thisCourt in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal &Ors. (AIR 1992 SC 604) but failed to apply the principle laid downtherein to the facts of this case.

14. The High Court failed to see that mere pendency of a civil suitis not an answer to the question as to whether a case under Sections323, 379 read with Section 34 IPC is made out against respondent Nos.2 and 3 or not.

15. The High Court should have seen that when a specificgrievance of the appellant in his complaint was that respondent Nos. 2

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Aand 3 have committed the offences punishable under Sections 323, 379read with Section 34 IPC, then the question to be examined is as towhether there are allegations of commission of these two offences inthe complaint or not. In other words, in order to see whether any primafacie case against the accused for taking its cognizance is made out ornot, the Court is only required to see the allegations made in the complaint.BIn the absence of any finding recorded by the High Court on this materialquestion, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held thatthere are contradictions in the statements of the witnesses on the pointof occurrence.C

17. In our view, the High Court had no jurisdiction to appreciatethe evidence of the proceedings under Section 482 of the Code OfCriminal Procedure, 1973 (for short “Cr.P.C.”) because whether thereare contradictions or/and inconsistencies in the statements of the witnessesis essentially an issue relating to appreciation of evidence and the sameDcan be gone into by the Judicial Magistrate during trial when the entireevidence is adduced by the parties. That stage is yet to come in thiscase.

18. It is due to these two errors, we are of the considered opinionthat the reasoning and the conclusion arrived at by the High Court forEquashing the complaint filed by the appellant against respondent Nos. 2and 3 is not legally sustainable and hence it deservers to be set aside.

19. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside and the order ofthe Judicial Magistrate dated 13.02.2013 is restored because it recordsFa finding that a prima facie case for taking cognizance of the complaintis made out.

20. The Judicial Magistrate is accordingly directed to proceed toconclude the trial on merits on the basis of evidence adduced by theparties in the trial strictly in accordance with law uninfluenced by anyGobservations made by the High Court in the impugned order and in thisorder made by this Court.

Kalpana K. Tripathy

Appeal allowed.

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