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2005 Supreme(Raj) 2891

RAJASTHAN HIGH COURT AT JAIPUR BENCH
H.R.Panwar, J.
Tikamchand - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Revision No. 122 of 04.
Decided On : 4-01-2005

Advocates:
For the Petitioner:Ramesh Guleria, Advocate.
For the State: J.P.S. Choudhary, Public Prosecutor.
For the Respondent No. 2:M.P. Pareek, Advocate.

Headnote:Criminal Procedure Code, 1973 – S. 397 read with 401 Indian Penal Code, 1860 – S. 308 and 454 – The complainant had constructed a room and kitchen etc. on his share of the land and his brother in his absence stole ornaments, clothes and other domestic items from his room – after the investigation under – S. 156(3) the police filed a negative report stating that the matter was of civil nature – the trial court took cognizance on the said protest report – the present petition is a revision petition against the said cognizance – held, after perusing the evidence on record, the statement of the witnesses was completely reliable and there no illegality or error in the order of cognizance.

Judgement Key Points

The legal document details a criminal revision case challenging the order of cognizance issued by a trial court. The key points are as follows:

  1. The respondent filed a complaint alleging house-breaking and theft, which was referred to the police for investigation under Section 156(3) of the Criminal Procedure Code. The police submitted a negative final report, stating the matter was civil in nature (!) .

  2. The complainant filed a protest petition, and witnesses examined by the complainant provided evidence supporting the allegations, including details of the construction on shared land and subsequent theft committed by the accused brothers during the complainant's absence (!) (!) .

  3. The trial court, after reviewing the evidence, found sufficient grounds to proceed against the petitioner for offences under Sections 454 (house-breaking) and 380 (theft) of the Indian Penal Code, and accordingly took cognizance and issued process (!) (!) .

  4. The revision petition contends that the matter is civil in nature and should not lead to criminal proceedings. However, the court emphasized that criminal proceedings can proceed even if a civil remedy exists, especially when prima facie evidence indicates the commission of an offence (!) (!) .

  5. The court highlighted that the mere existence of a civil dispute or civil profile of the act does not bar criminal proceedings, provided the facts establish an offence. It also clarified that the jurisdiction to initiate criminal proceedings is independent of civil remedies and that the investigation and cognizance are within the court's domain (!) (!) (!) .

  6. The court underscored that at the stage of cognizance, the magistrate's role is to determine whether there are sufficient grounds to proceed, not to assess the evidence for conviction. The evidence on record, including witness statements, was deemed reliable, and there was no illegality in the order of cognizance (!) (!) .

  7. The court dismissed the revision petition, affirming that the order of the trial court was justified and did not suffer from any error warranting interference. The stay petition was also dismissed (!) (!) .

In summary, the court reaffirmed that criminal proceedings can be initiated and continued based on prima facie evidence of offence, regardless of civil disputes or claims, and that the order of cognizance was proper and lawful.


JUDGMENT

1. - By this criminal revision petition under Section 397 r/w 401 Cr.P.C., the petitioner has challenged the order dated 24.1.2004 passed by Judicial Magistrate, 1st Class, No.1, Sujangarh, District Churu (for short 'the trial court') whereby the trial court took cognizance of the offences punishable under Sections 454 and 380 IPC against the petitioner and issued process.

2. Heard learned counsel for the petitioner and the public prosecutor as also the counsel appearing for the respondent No.2.

3. A complaint was filed by the respondent No.2 against the petitioner which was sent to the police for investigation u/s 156 (3) Cr.P.C. The police filed final negative report solely on the ground that the matter is of civil nature. The protest petition was filed by the complainant respondent No.2. CW-1 Champalal, the complainant and two other witnesses viz. C.W.2 Malchand and C.W.-3 Champa were examined as complainant's witnesses. The trial court, on perusal of the material placed before it, came to the conclusion that there is a prima facie case to proceed against the petitioner for the offences noticed above and took the cognizance of the offence and issued the process. Aggrieved by order impugned taking cognizance and issue of process, the accused petitioner filed the instant revision.

4. It has been contended by the learned counsel for the petitioner that the dispute is of a civil nature and as such the criminal proceedings should not be allowed.

5. In a catena of decisions, the Hon'ble Supreme Court held that apart from civil remedy if the criminal act is established, then the criminal proceeding cannot be quashed on the ground that simultaneously a civil proceeding can also be initiated.

6. The Hon'ble Apex Court, in State of Haryana v. Bhajan Lal, 1992 (Suppl.) 1 SCC 335 has held that quashing of FIR or a complaint, in exercise of inherent powers of the High Court, should be limited to very extreme exceptions. Same view has been reiterated in Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 wherein the Hon'ble Apex Court held that merely because an act has a civil profile, is not sufficient to denude it of its criminal outfit. The Court further observed as under:-

"It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions."

7. In Trisuns Chemicals Industry v. Rajesh Agarwal & ors., 1999 Cr.L.R.(SC) 677 the Hon'ble Supreme Court held that merely because dispute is of civil nature and Magistrate had no jurisdiction to take cognizance, the same cannot be a sufficient ground for quashing the FIR, particularly when act Prima facie constitutes an offence. The Hon'ble Supreme Court held as under:-

"We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very extreme cases."

8. In Vitoori Pradeep Kumar v. Kaisula Dharamaiah & ors., (2002) 9 SCC 581 the Hon'ble Supreme Court held that the so-called civil suit is a suit for specific performance. We see no justification on the part of the High Court under such circumstances to direct















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