Sau. Saraswatibai vs Lalitabai

1 NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 118­119 OF 2019 [Arising out of SLP (Crl.) Nos. 4152­4153 of 2014]

Sau Saraswatibai .. Appellant

Versus

Lalitabai & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and orders dated 22.11.2013 and 29.11.2013 in

Criminal Application No.1113/2012 with Criminal Application

No.919/2013 passed by the High Court of Bombay, Bench at

Aurangabad, by which in exercise of powers under Section 482

of the CrPC, the High Court has quashed the criminal

Signature Not Verifiedproceedings including the Final Report arising out of Crime Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2019.01.22

No.85 of 2011, the original complainant has preferred the 17:56:56 IST Reason:

present appeals. 2

3. That the appellant herein­original Complainant filed a

Criminal Complaint against the private Respondents herein­ the

original accused before the learned Magistrate alleging, inter alia,

that the complainant purchased a plot from Respondent No.1 by

way of a registered sale deed in the year 2005. After sale of the

plot, the original owner­accused No.1 fraudulently resold the

plot in 2010 in favour of Accused No.2 by re­designating as “Plot

No.24”. It is required to be noted that the plot which was sold to

the complainant was numbered as “Plot No.1” in ” Survey

No.121”. It was alleged that the very plot which was sold to the

complainant was sold by the owner by changing the Number and

by re­designating the same as “Plot No.24”. It was alleged that

the second purchaser Respondent No.2­Accused No.2 was none

other than the husband of the original Respondent No.1­

Accused No.1. It was further alleged that Respondent No.2

thereon sold the very Plot/property in 2011, in favour of the

Respondent No.3­Accused No.3. Therefore, it was alleged that

the all accused persons and one another have committed

offences under Sections 420, 464, 465, 467, 468, 471 read with

Section 34 of IPC. That the learned Magistrate passed an order

for investigation under Section 156(3) of the Cr.PC. That the

police lodged an FIR for the aforesaid offences. That the accused 3 thereafter approached the High Court to quash the FIR by way

of a Petition under Section 482 of Cr.PC.

4 3.1 It appears that, by the time, the matter was taken up for

final hearing by the High Court, the Investigating Officer

completed the investigation in the matter and having found the

prima facie case against the accused, submitted the Final

Report under Section 173 of the Cr.PC concluding that the

accused had colluded and committed offences, as alleged, under

Sections 420, 464, 465, 467, 468, 471 read with Section 34 of

IPC. Despite the fact that, after conclusion of the investigation,

a Final Report under Section 173 was submitted, by the

impugned judgment and order dated 22.11.2013, the High

Court in exercise of powers under Section 482 of the Cr.PC has

quashed the criminal proceedings including the Final Report

arising out of Crime No.85 of 2011 dated 02.12.2011. The High

Court noted that the original Complainant also does not press

the prosecution and considered the statement made by the

learned counsel appearing on behalf of Original Accused that

Plot No.1 of Original Complainant is distinct and has nothing to

do with Plot No. 24. The High Court opined that there is no act

of criminality to cheat the complainant­the purchaser of the

property. It appears that immediately thereafter it was

mentioned before the High Court by the complainant that he

desires to withdraw the statement made by him, which was the 5 basis for disposal of criminal application No.1113/2012. By

order dated 29.11.2013 the High Court declined withdrawal of

the statement.

3.2 Being aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court in quashing and

setting aside the criminal proceedings including the Final

Report, the Original Complainant has preferred the present

appeals.

4. Having heard the learned counsel appearing on behalf of

the respective parties and considering the impugned judgment

and order passed by the High Court by which the High Court

has quashed and set aside the criminal proceedings and the

Final Report, in exercise of powers under Section 482 of the

Cr.PC, we are of the opinion that the impugned order quashing

the proceedings cannot be sustained.

6 4.2 It is required to be noted that, as such, after the conclusion

of investigation, the Investigating Officer submitted the Final

Report under Section 173 of the Cr.PC, concluding that the

accused have colluded and committed offences under Sections

420, 464, 465, 467, 468, 471 read with Section 34 of IPC. Once

the Final Report was submitted under Section 173 of the Cr.PC,

normally the accused, if aggrieved by the Final Report shall be

relegated to approach the Magistrate for discharge. Even the

High Court in the impugned order has also observed so. Despite

the above, the High Court has without further discussing

anything on merits of the Final Report has quashed the entire

criminal proceedings, including the Final Report. On reading of

the impugned order and judgment passed by the High Court, it

appears that the High Court has not even observed anything on

merits of the Final Report and solely relying upon the statement

of the counsel for the Accused as recorded in paragraph 4, has

believed the same and has quashed the criminal proceedings

and the Final Report. Therefore, on merits also, the impugned

judgment and orders passed by the High Court deserve to be

quashed and set aside. At this stage, it is required to be noted

that there was no explanation as to why the original Land

Owner­Accused No.1 sold one plot to her husband (A2) first and 7 the same plot was sold to A3. That, in the facts and

circumstances of the case, once the Investigating Officer

submitted the Final Report on conclusion of the investigation,

the High Court was not justified in interfering with the criminal

proceedings in exercise of power under Section 482 of the Cr.PC

and particularly when in the Final Report it was specifically

concluded on the basis of the material on record that a prima

facie case is made out for the offences alleged against the

accused persons. Therefore, we are of the opinion that, in the

facts and circumstances of the case, the High Court has clearly

erred in exercise of powers under Section 482 of the Cr.PC and

in quashing and setting aside the criminal proceedings including

the Final Report.

4.3 In view of the above and for the reasons stated above, the

present appeals succeed. The impugned judgment and order

passed by the High Court dated 22.11.2013 passed in Criminal

Application No.1113/2012 is hereby quashed and set aside.

Consequently, the prosecution against the Accused to proceed

further in accordance with law, and on its own merits. 8

5. The appeals are allowed accordingly.

………………………………………………J. (L. NAGESWARA RAO)

………………………………………………J. (M. R. SHAH)

New Delhi, January 22, 2019