Raghbir Singh vs State of Haryana

S.D. Bajaj, J.

Banu Mal Aggarwal, resident of village Radaur, did not have any male issue. Through his will dated March 27, 1943, Banu Mal bequeathed his entire property to petitioner Raghubir Singh for limited life estate bereft of the power of alienation. After the death of Raghbir Singh the property was to devolve on the children and legal heirs of Banu Mal''s daughter named Smt. Mani Devi.

Smt. Muni Devi daughter of Banu Mal married one Sh. O.P. Gupta during the life time of her father. She gave birth to three sons, named Pawan Kumar, Kamal Kumar and Vinod Kumar and to three daughters named Sneh, Veena and Chander Nirwani complainant. Banu Mal died on November 14, 1984.

Unmindful of the restriction regarding want of power to alienate the property bequeathed to him by will, Raghbir Singh made a gift of 163 kanals 13 marlas of land in village Rapri and another 103 kanals of land in village Kanjnu in favour of his grandson Gopal Dass on June 30, 1958, and sold 20 kanals 18 marlas of land in village Radaur to Budh Ram on June 22, 1960.

Pawan Kumar son of Shri O.P. Gupta through Muni Devi daughter of deceased testator Banu Mal filed a suit for permanent injunction on January 5, 1972, restraining Raghbir Singh from alienating the property of Banu Mal. The decree passed therein by the court of first appeal Shri Hari Ram, the then Senior Sub Judge, Karnal, was affirmed by the High Court in R.S.A. No. 906 of 1976 and by the Supreme Court in S.L.P. No. 12260 of 1984 decided on December 20, 1985. Thereafter, Pawan Kumar aforesaid has again filed civil suit No. 186 on February 27, 1986, for challenging the gift dated June 30, 1958, made by the petitioner in favour of his grandson Gopal Dass which is still pending.

Chander Nirwani sister of Pawan Kumar filed criminal complaint under Sections 406/409/420 IPC against the petitioner in the Court of learned Additional Chief Judicial Magistrate, Kurukshetra, on June 10, 1988. First Information Report No. 100 dated June 25, 1988, has been registered in Police Station, Radaur, against the petitioner on its basis in deference to the orders passed by the learned Additional Chief Judicial Magistrate, thereon for registration of a case. Both cheating and criminal breach of trust in respect of the two alienations aforesaid have been attributed to the petitioner therein.

Criminal Miscellaneous No. 7307M of 1988 has been filed by petitioner Raghbir Singh for quashing F.I.R. No. 100 dated June 25, 1988, and the proceedings taken therein on the grounds; (i) that the learned Additional Chief Judicial Magistrate, Kurukshetra, had no power to order registration of the case; (ii) that the allegations obtaining in the FIR are not bona fide and have been made nearly 28 to 30 years after the alleged transactions of gift and sale allegedly made by the petitioner without authority; (iii) that the allegations obtaining in the complaint do not disclose criminal liability; much less for a cognizable offence; and (iv) that the validity of the transactions aforesaid is already being called into question by real brother of the complainant in Civil Court for her benefit as well.

I have heard Shri R.S. Cheema, Advocate for the petitioner and Shri Ram Chander, Advocate assisted by Shri Hament Kumar Gupta, Advocate for the complainant, for the respondentState. Relevant record has also been carefully perused.

Complaint dated June 10, 1988 came before the learned trial Court on June 13, 1988 when it passed the following order : "Present : complainant Mrs. Chandra Nirwani with her counsel Shri B.M. Sikka. Forwarded in original along with the documents filed with the complaint under Section 156(3) of the Code of Criminal Procedure to the Station House Officer, Police Station Radaur, for registration of the case and investigation. Sd/ M.L. Sharma, ACJM, Kurukshetra." It has repeatedly been held by this Court in Jai Singh v. Nand Lal, 1987(2) Recent Criminal Reports 381 : 1981 Chandigarh Criminal Cases 644 and Rattan Amol Singh v. State of Punjab, 1988(1) Recent Criminal Reports 144 that the learned Magistrate in terms of Section 156(3) of the Code of Criminal Procedure, 1973, can send the complaint to Police for investigation and not for registration of the case. View of this Court is, in fact, based on Supreme Court observations in Devara Palli Lakshminarayana Reddy v. Narayana Reddy and others, 1976 SCC (Crl.) 380. JUDGMENT passed by the learned trial Court on the complaint of Smt. Chander Nirwani dated June 10, 1988, being wholly without jurisdiction, the entire edifice built thereon by the prosecution, against the petitioner, collapses like a house of cards and falls to the ground.

Adverting now to the inordinate delay, it must be said that the impugned transactions of gift and sale are of the years 1958 and 1960 respectively while the complaint has been filed on June 10, 1988, 28 years after the sale and 30 years after the making of gift by the petitioner. In the State of Punjab v. Kailash Nath, 1989(1) RCR(crl.) 139 (SC) : 1989(1) SLR 12 and Shrinivas Gopal v. Union Territory of Arunachal Pradesh, 1988 CAR 286 (SC), their Lordships of the Supreme Court repeatedly observed : "In the aforesaid view of the matter, we are of the opinion that the proceedings cannot be proceeded any further. We allow the appeal, set aside the order of the High Court of Gauhati, dated August 14, 1987, and quash the proceedings against the appellant. The proceedings against the appellant are hereby quashed." The reasoning offered by their Lordships for reaching this conclusion is : "Indeed, this Court in State of Punjab v. Srawan Singh, 1981(3) SCR 349 observed at page 351 of the report that the object of the Criminal Procedure Code is putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. This Court reiterated that the object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. Shri Raju Ramachandram submitted that the exercise of the power under Section 473 of the Criminal Procedure Code extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking of cognizable of the offence. Reliance was placed on the bench decision of the Madras High Court in Kathamuthu v. Balammal, 1987 Crl. L.J. 310. It was held by the Punjab and Haryana High Court in the case of Ghansham Dass v. Sham Sunder Lal, 1982 Crl. L.J. 1717 that cognizance taken by the Magistrate without deciding the point in limitation was beyond his jurisdiction. In this connection, reliance may be placed to the decision of this court in Surinder Mohan Vikal v. Ascharj Lal, 1978(2) SCC 403 where at page 407 of the report, while dealing with the provisions of Section 468 of the Code of Criminal Procedure, this Court observed that it is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under Section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circumstances of the case. Our attention was also drawn to the case of Vijay Kumar Agarwalla v. State of Assam, 1986(1) GLR 421, where the Court held "that taking of cognizance without condoning delay was bad and without jurisdiction." In ordinate delay of 28 to 30 years sounds the deathknell of the prosecution case set up against the petitioner.

Third and most important aspect of the matter is that Pawan Kumar, real brother of the complainant, has been assailing these transactions for himself and on behalf of the entire body of legal heirs of Muni Devi to whom the property in dispute is to revert on the death of Raghbir Singh petitioner, from 1972 to 1985 and his civil suit No. 186 filed on February, 27, 1987 in respect of the gift transactions of the year 1958 is still pending between him and the petitioner. In similar circumstances, it was again held by the Supreme Court in Madhavrao Jivajirao Scindia v. Sambhajirao Chjandrojirao Angre, 1988(1) Recent Criminal Reports 565 : 1988 Supreme Court Cases (Crl.) 34 : "The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is break and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."

In result, Criminal Miscellaneous No. 7307M of 1988 succeeds and is allowed. Complaint dated June 10, 1988, as also the proceedings taken thereon are both quashed.