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2011(3) LAW HERALD (P&H) 2814
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Augustine George Masih
Crl. Misc. No. M-24856 of 2008
Sher Mohd. Khan
v.
Madan Lal & Anr.
{Decided on 05/08/2011}
In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it--This is a plenary power of the High Court being a Superior Court and a Court of Record--When favourable orders are obtained by playing fraud on the Court, the High Court, as a Court of Record, has jurisdiction to set aside the order--The High Court has inherent powers by virtue of this Article to prevent abuse of process of Court--Jurisdiction in contempt is an independent jurisdiction of original nature which also flow from this Article. (Para 36)
(B) Criminal Procedure Code, 1973, S.362 & 482--Quashing of FIR--Altering of Judgment--The bar of Section 362 Cr.P.C. for a petition under Section 482 Cr.P.C. is applicable only in such cases where successive applications are preferred under Section 482 Cr.P.C. by the same person where the earlier petition stands decided and the judgment or final order disposing of the case stands signed by the Court in the same main case or by preferring a fresh petition under Section 482 Cr.P.C. without there being any change in the facts and circumstances--But where there is change in circumstances and new facts have come into existence, the bar of this Section would not be applicable and it would thus, be in accordance with law for the High Court to exercise its inherent jurisdiction in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of Court. (Paras 24 & 33)
(C) Criminal Procedure Code, 1973, S.362 & 482--Quashing of FIR--Setting aside of order--The basis for quashing of the FIR i.e. finality of the civil proceedings and the findings of the Civil Court being binding on the Criminal Court, were falsely pleaded by respondent no.1--In such circumstances, exercise of powers under Section 482 Cr.P.C. setting aside the order which is a nullity and non-est in the eyes of law as the same had been obtained by playing fraud on the Court, would not amount to altering or reviewing the earlier order and would not fall within the bar under Section 362 Cr.P.C. as provided therein. (Para 34)
Mr. Augustine George Masih, J.: - This petition under Article 215 of the Constitution of India read with Sections 482 and 340 of the Code of Criminal Procedure has been preferred by the petitioner for setting aside/declaration as nullity the order dated 14.08.2008 passed by this Court quashing FIR No. 470 dated 18.07.1995 registered under Sections 420, 467, 468, 471 and 120-B IPC at Police Station Sadar, Gurgaon having been obtained by fraud and misrepresentation and for initiation of proceedings under Section 340 Cr.P.C. against respondent No. 1 for having committed an offence referred in Section 194 Cr.P.C. against respondent No. 1.
2. Briefly the facts of the case are that a Registered Co-operative Society by the name of Chanderlok Maruti Employees Co-operative House Building Society, Chakarpur (hereinafter referred to as ‘the Society”) was formed. The said Society was registered with the Assistant Registrar of the Co-operative Society, Gurgaon, under the provisions of Haryana Cooperative Societies Act, 1984. The Society in furtherance of its aims and objects got constructed 200 residential flats from D.L.F. within a short period of 2 years and the allotment of flats was made by draw of lots before its general body presided over by Assistant Registrar, Gurgaon on 27.02.1994. Out of 200 flats, possession of 192 flats was delivered and remaining 8 flats could not be handed over to the members of the Society as they failed to deposit the balance payment due to the Society. Some of these members of the Society filed complaints before the Deputy Registrar of the Co-operative Societies, Gurgaon against the Managing Committee of the Society. That apart, Complaint was filed by the petitioner-Sher Mohd. Khan along with two other members of the Society to the Deputy Commissioner, Gurgaon in an open public grievance meeting against the Managing Committee. He marked the enquiry to the Additional Deputy Commissioner, Gurgaon, who, after holding an enquiry, submitted his report dated 30.05.1995. In the said report, allegations against the Managing Committee, of which Madan Lal-respondent No. 1 was also a member, were found to be prima-facie correct. The Deputy Commissioner, Gurgaon forwarded the said enquiry report to the Senior Superintendent of Police, Gurgaon. On the basis of this enquiry report, FIR No. 470 dated 18.07.1995 under Sections 420/467/468/471 IPC was registered at Police Station Sadar, Gurgaon. After completion of the investigation, challan was presented before the competent Court on 23.08.2006 and thereafter, charge was framed against respondent No. 1-Madan Lal and other coaccused on 18.10.1996 and the trial was going on.
3. On 23.11.2007, respondent No. 1 filed Crl. Misc. No. 52302-M of 2007 titled as Madan Lal vs. State of Haryana under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No. 470 dated 18.07.1995 primarily on the ground that the Society filed a suit for permanent injunction seeking a decree of declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon is illegal, null and void, without jurisdiction, arbitrary, discriminatory, unconscionable being against the principles of natural justice and without affording opportunity of hearing to the Society and further a decree of permanent injunction restraining the Deputy Commissioner, Gurgaon from getting dismissed the Managing Committee of the Society prior to expiry of its tenure on 14.06.1997 and also from getting the members of the Managing Committee of the Society arrested under FIR No. 470 dated 18.07.1995, Police Station Sadar, Gurgaon. This civil suit was partly allowed, wherein a decree for declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner is illegal, null and void and without jurisdiction and not binding on the Managing Committee of the Society and that the Deputy Commissioner, Gurgaon was not entitled to take any action against
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