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Judgment
The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973, (in short Cr.P.C.) seeking quashing of the order dated 29.09.2016 passed by the learned Judicial Magistrate, Gopalganj, in Complaint Case No. 4229 of 2016 (Trial No. 2274 of 2016), whereby cognizance has been taken for the offences punishable under Sections 147, 148, 323, 504, 384 and 427/34 of the Indian Penal Code (in short I.P.C.), together with the consequential criminal proceedings.
The prosecution case, as emerging from the complaint and the materials referred to in the present application, is that the dispute between the parties relates to a piece of land situated at village Sareya, P.S. Gopalganj, District Gopalganj, comprising Plot Nos. 1232, 1233 and 1234. The dispute primarily concerns the title, possession, identification and boundary of the aforesaid plots, over which the petitioners and opposite party No. 2 have set up competing claims.
On 21.06.2016 levelling aforesaid allegations, the complainant, namely, Mukul Kumar Tiwary filed a complaint case in the Court of learned Chief Judicial Magistrate, Gopalganj, implicating many persons including the petitioners upon which Complaint Case No. 4229 of 2016 was instituted. Thereafter solemn affirmation of the Complainant was recorded on 02.07.2016 and statement of inquiry witnesses, namely, Baban Chaudhary, Surendra yadav and Vishwakarma Baitha were also recorded and having perused the same and the materials brought on record, the learned Magistrate vide order dated 29.09.2016 took cognizance of offences under Sections 147, 148, 323, 504, 384 and 427/34 of the I.P.C.
Assailing the order dated 29.09.2016, issuance of process against the petitioners, Mr. Ranjan Kumar Srivastava, learned counsel appearing on behalf of the petitioners submitted that the impugned criminal proceedings is an abuse of the process of the Court which has been instituted with the sole object of harassing the petitioners and exerting pressure upon them in relation to a property dispute.
Learned counsel for the petitioners submits that petitioner No. 1, namely, Dr. Dhruo Deo Mali is a child specialist whereas petitioner No. 2, namely, Kumari Kavita is his wife.
It was contended that the dispute between the parties is essentially civil in nature and relates to the ownership, possession, measurement and boundary of the land comprised in Plot Nos. 1232, 1233 and 1234. The petitioners have relied upon the registered sale deeds and the documents annexed to the application to demonstrate that the land has been in the possession of their predecessors since 1983.
Learned counsel submitted that the complainant has attempted to give a criminal colour to a dispute concerning the identification of the land and the respective rights of the parties. The allegations in the complaint, when considered in the light of the registered conveyances and the previous possession of the petitioners, do not disclose the commission of the offences alleged against them.
It was further submitted that the dispute concerning the boundary wall cannot, by itself, constitute the offences alleged in the complaint, particularly when the parties are asserting competing claims over the same property and the question of the precise boundary requires determination in appropriate civil proceedings.
Learned counsel also drew the attention of the Court to the earlier criminal proceedings instituted in connection with the same dispute, including Gopalganj Town P.S. Case No. 258 of 2016 and Complaint Case No. 4300 of 2016. It was submitted that the institution of successive proceedings demonstrates the attempt of opposite party No. 2 to use the criminal process as an instrument of pressure.
By referring to the supplementary affidavit, learned counsel submitted that the subsequent developments in the civil proceedings and the documents relating to the title and possession of the property further demonstrate the civil character of the controversy. It was contended that the supplementary affidavit deserves to be considered along with the original petition while examining whether continuation of the criminal proceedings would serve any legitimate purpose.
Learned counsel argues that the allegations of assault, intimidation, extortion and damage to property have been made in the background of the existing land dispute and are not supported by circumstances sufficient to establish the essential ingredients of the offences alleged against the petitioners.
It was lastly contended that the criminal proceedings have been instituted maliciously with ulterior motive to wreak vengeance upon the petitioners. Continuation of the prosecution, in the circumstances of the case, would amount to an abuse of the process of law, warranting interference by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C.
Per contra, Mr.Vyas Kumar Mishra learned counsel appearing on behalf of opposite party No. 2 opposed the application and submitted that the allegations made in the complaint disclose the commission of cognizable offences and that the learned Magistrate, after following the procedure prescribed under the Cr.P.C., has rightly taken cognizance of the offences alleged against the petitioners.
It was contended that the complainant has specifically alleged that the petitioners, in furtherance of their common intention and with the object of interfering with the complainant's possession over the disputed property, committed the acts attracting the penal provisions of the Indian Penal Code. The complaint is stated to disclose allegations of unlawful assembly, assault, criminal intimidation, extortion and damage to property.
Learned counsel submitted that the petitioners' reliance upon the registered sale deeds and their claim of title cannot, by itself, be a ground for quashing the criminal proceedings. The existence of a civil dispute between the parties does not exclude the possibility of criminal liability where the allegations, taken at their face value, disclose the commission of criminal offences.
He also contends that the complaint was duly considered by the learned Magistrate, who examined the complainant on solemn affirmation and the witnesses during the inquiry under Section 202 of the Cr.P.C. The impugned order, therefore, cannot be said to have been passed without application of judicial mind.
Learned counsel lastly argues that the defence of the petitioners, including their claim regarding the original boundary, the identity of the plots and the genuineness and effect of the respective sale deeds, involves disputed questions of fact which cannot appropriately be adjudicated in proceedings under Section 482 of the Cr.P.C.
It was, accordingly, submitted that the allegations made in the complaint and the materials collected during the inquiry justify continuation of the criminal proceedings and that the petitioners ought to raise their defence before the learned Court below in accordance with law.
Mr. Rajendra Singh Shastri, learned Additional Public Prosecutor for the State opposed the application and submitted that the impugned order has been passed by the learned Magistrate upon consideration of the complaint and the materials available at the stage of inquiry.
It was submitted that the inherent jurisdiction of this Court is to be exercised sparingly and only in cases where the allegations, even if accepted in their entirety, do not disclose commission of any offence or where continuation of the criminal proceedings would amount to an abuse of the process of the Court.
Learned Additional Public Prosecutor contended that the truthfulness of the allegations, the respective claims of possession and the evidentiary value of the documents relied upon by the petitioners, are matters which ought to be considered by the competent Court, in the course of the trial.
It was, thus, submitted that no interference with the impugned order is required at the present stage.
Heard rival submissions advanced on behalf of the respective parties and having given thoughtful consideration to the submissions so advanced and having perused the materials and documents brought on record, this Court proceeds to examine the allegation vis-a-vis the dispute between the parties inter se, keeping in mind the settled legal principles and judicial pronouncement in this regard.
The dispute between the parties, as emerges from the averments made in the complaint petition, as well as from the arguments advanced and the documents brought on record, prima facie, appears to be a matter of rival claim over the piece of land and the boundary constructed thereon with a gate affixed over the same.
Three plots numbered as 1232, 1233 and 1234 appertaining to Khata No. 130, village Sareya, district – Gopalganj, are subject matter of dispute between the petitioners and opposite party No. 2, which constitute a single block of land indisputably belonging to Most. Jyotia Devi, Nand Lal Sah, Most. Parwati Devi including their minor wards, namely, Brij Lal, Mohan Lal and Chhotey lal.
There appears to be four transactions in connection with the aforesaid land relating to its sale which is discussed hereunder for the sake of clarity in order to appreciate the basic nature of dispute between the parties :-
The first transaction took place on 21.06.1983 where the aforesaid original land owners, by way of 5 registered sale deeds, sold 02 katha 10 dhurs of land to one Dr. Subhash Chandra Rai and his wife, namely, Smt. Veena Rai. While executing the aforesaid sale deeds, the vendors, i.e., the original landlords, kept 12 feet wide entrance from the road side to their own use, which is evident from the sale deed executed on 21.06.1983. After the sale, the possession of land was duly handed over to Dr. Subhash Chandra Rai and his wife, who came in peaceful possession over the same after completing all the formalities, including mutation etc.
Thereafter, the said Dr. Subhash Chandra Rai constructed a boundary wall over the land with an iron gate fixed on it.
The second transaction with respect to the aforesaid land took place on 10.06.1994 and 14.08.1997 respectively. On 10.06.1994 original landlord, namely, Parwati Devi, sold 01 bigha and 15 dhurs of land to one, Veena Srivastava and Rajendra Prasad Srivastava through registered Sale Deed No. 13526 dated 10.06.1994. Later on her son, namely, Brij Lal also transferred 11.1/2 dhurs of land to Smt. Veena Srivastava on 14.08.1997 through registered Sale Deed No. 11673, thereafter these purchasers came in peaceful possession over the said land.
The third transaction took place on 08.04.2015 when Dr. Subhash Chandra Rai and Veena Rai, the first purchaser of the aforesaid land in the year 1983, sold their entire share along with boundary wall and trees over the aforesaid land of 2 katthas and 10 dhurs to Dr. Dhruo Deo Mali and his wife, namely, Kumari Kavita (petitioners herein) vide Sale Deed No. 3481 and 3482, both dated 08.04.2015.
The fourth and last transaction over the aforesaid piece of land took place on 03.03.2016, when the second purchasers, Rajendra Prasad Srivastava sold 1.18 katthas of land to Mukul Kumar Tiwary (opposite party No. 2 herein) and his wife, who after coming over peaceful possession of the land purchased, after some time, started making inroads over the piece of land of petitioners by damaging the boundary wall constructed thereon.
Thus, it becomes evident that from the large chunk of land, both petitioners and opposite party No. 2 have purchased respective shares of land from their rightful owners and the main bone of contention between the parties appears to be boundary wall which had been constructed by the first purchasers in the year 1983.
The opposite party No. 2 encroached upon the land of petitioners and demolished the boundary wall, whereafter petitioner No. 1 reported the matter to the police upon which Gopalganj P.S. Case No. 258 of 2016, dated 20.06.2016, was registered for the offences under Sections 144, 323, 447, 427, 386, 504, 506 and 34 of the I.P.C.
Immediately thereafter on 21.06.2016, opposite party No. 2, i.e., the Complainant, filed the instant complaint case in the Court of learned Chief Judicial Magistrate, Gopalganj, which was registered as Complaint Case No. 4229 of 2016, implicating the petitioners and others.
The opposite party No. 2 was arrested by police in course of investigation of Gopalganj Town P.S. Case No. 265 of 2016 lodged by petitioner No. 1 and was put behind bar and from the custody, opposite party No. 2 again filed another complaint case No. 4300 of 2016 dated 25.06.2016 against the petitioners and S.H.O. of the Gopalganj Town Police Station.
It is evident from the records that opposite party No. 2 has purchased the piece of land in March 2016 and, after lodging of F.I.R. against him by petitioner No. 1, he filed a complaint case in retaliation thereof on 21.06.2016, implicating the petitioners.
The perusal of the entire complaint petition indisputably reflects the pure civil nature of dispute between the parties, wherein, with respect to competing claims regarding possession and control over the passage and gate, the criminal prosecution has been initiated. The very civil nature of dispute between the parties is also evident not only from the averments made in the complaint application but also from the statement of Complainant and inquiry witnesses recorded by the learned Court on oath.
The aforesaid contention is further fortified from the Title Suit No. 889 of 2017 pending between the parties before the competent Court of civil jurisdiction at Gopalganj.
As a matter of fact, the present complaint case appears to be a counter measure lodged by opposite party No. 2 against the petitioners for registering a police case against him and just in order to settle score on the very next day of filing of the police case, opposite party No. 2 filed a complaint case implicating the petitioners and others. Not only that but when he was arrested by the police in connection with Gopalganj Town P.S. Case No. 265 of 2016 lodged by petitioner No. 1, from custody he filed another case No. 4300 of 2016 arranging the petitioners and others and the S.H.O. of the Gopalganj Town Police Station as accused.
From the statement of complainant and inquiry witnesses recorded by the Court, it is evident that boundary wall was there prior to purchase of the land by opposite party No. 2 and having purchased the land in the year 2016, opposite party No. 2 started creating all sorts of disturbance and nuisance.
The petitioners in order to save their property took recourse to the law enforcing machinery which was not liked by the opposite party No. 2, who immediately swung into action by resorting to filing cases by way of retaliation, implicating the petitioners.
This practice of settling civil dispute between the parties by taking recourse to criminal prosecution and setting the criminal Courts in motion, have severely been deprecated by the Hon’ble Supreme Court, in the most unequivocal terms, in copious of its judgment, which is the binding law of the land.
In the case of Indian Oil Corporation Vs. NEPC India Ltd., reported in (2006) 6 SCC 736, the Hon’ble Supreme Court has deprecated the tendency to convert civil dispute into criminal proceedings.
In the case of Inder Mohan Goswami Vs. State of Uttaranchal, reported in (2007) 12 SCC 1, the Hon’ble Supreme Court has emphasized that criminal prosecution must not be permitted as an instrument of harassment or private vendetta. Furthermore, in the case of Ganga Dhar Kalita Vs. State of Assam, reported in (2015) 9 SCC 647, the Hon’ble Supreme Court has once again reiterated that criminal complaint in respect of the property dispute of civil nature, filed solely to harass the accused or to exert pressure in civil litigation, constitute an abuse of the process.
In the case of Sarbjit Kaur Vs. State of Punjab and Another, reported in 2023 5 SCC 360, the Hon’ble Supreme Court has unequivocally held that entire idea to convert a civil dispute into criminal by the Complainant, in order to put pressure on the accused for return earnest money, could not be allowed to be done through criminal prosecution. The criminal Courts are not meant to be used for settling score or pressurize parties to settle civil dispute and allowing such a aforesaid proceedings to continue would be abuse of the process of the Court.
Likewise, In the case of Shailesh Kumar Singh @ Shailesh R. Singh Vs. State of Uttar Pradesh, reported in 2025 INSC 869 the Hon’ble Supreme Court has disapproved the practice of using criminal proceedings as a substitute for civil remedy observing that money recovery cannot be enforced through criminal prosecution where the dispute is essentially civil.
The aforesaid legal principles have authoritatively been upheld by the Hon’ble Supreme Court in the case of Ankul Singh Vs. State of Uttar Pradesh and Another, reported in 2025 SCC OnLine SC 2060, which are held hereunder:-
“…..20. Applying the above principles to the facts of the present case, it is manifest that the dispute – concerning repayment of loan money and the alleged coercion in execution of documents – is purely civil in character. The essential ingredients of cheating or forgery are not prima facie made out. The institution of multiple FIRs in quick succession, particularly after the appellant had already initiated lawful proceedings, reinforces the inference of mala fides…..”
In the instant case, the dispute between the parties appears to be not only purely civil in nature primarily on account of dispute relating to boundary between the parties, for which a civil Court of competent jurisdiction has already been moved by filing a Title Suit and the same is pending between the parties before the learned Civil Judge of Gopalganj, the very initiation of the criminal prosecution against the petitioners by opposite party No. 2, appears to be malicious one and has ostensibly been launched with a view to settle score, as a counterblast to the case lodged earlier by petitioner No. 1.
In the case of Eicher Tractor Limited and Others Vs. Harihar Singh and Another, reported in 2008 16 SCC 763, the Hon’ble Supreme Court has categorically held that:-
“….14. The case at hand squarely falls within the parameters indicated in Category (7) of Bhajan Lal case. The factual scenario as noted above clearly shows that the proceedings were initiated as a counterblast to the proceedings initiated by the appellants. Continuance of such proceedings will be nothing but an abuse of process of law. Proceedings are accordingly quashed……”
In the totality of the factual and legal matrix discussed hereinabove, this Court comes to a conclusive finding that instant prosecution of the petitioners is nothing but an abuse of the process of the Court and which is not only vexatious but has also been initiated as a retaliatory measure, which cannot be and ought not to be allowed to be continued, in view of well settled judicial principles as enunciated in the case of State of Haryana Vs. Bhajan Lal, reported in 1992 Supp. (1) SCC 335 which applies with full force in the present case, in para 102 categories (5 & 7) which is as follows:
"102.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Thus, in the aforesaid conspectus of factual and legal discussion made hereinabove, the order taking cognizance appears to be not only bad in law but is also reflective of total non-application of judicial mind, where the learned Trial Court have failed to apply his judicial mind, while going through the averments made in the complaint application as well as at the time of perusing the Statements of complainant and witnesses recorded on oath, the perusal of which gives a clear, unambiguous and explicit nature of civil dispute between the parties.
As a consequence, the order taking cognizance, being bad in law, is fit to be set aside and as such accordingly, order dated 29.09.2016 passed by the learned Judicial Magistrate, Gopalganj in Complaint Case No. 4229 of 2016 (Trial No. 2274 of 2016) taking cognizance of offences under Sections 147, 148, 323, 504, 384 and 427/34 of the I.P.C. is quashed and set aside, qua the petitioners.
All the criminal proceedings emanating therefrom are also quashed and set aside, qua the petitioners.
Accordingly, the present application stands allowed.
All Interlocutory application(s), if any, also stands disposed off accordingly.