Himachal Pradesh High Court
Reserved On: 3.4.2025 vs State Of H.P on 22 April, 2025
2025:HHC:10434
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 730 of 2023
Reserved on: 3.4.2025
Date of Decision: 22.04.2025.
Om Chand ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Desh Raj Thakur, Advocate.
For Respondent : Mr. Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
setting aside the order dated 15.11.2022, passed by learned
Judicial Magistrate First Class, Sarkaghat, District Mandi, H.P. in
Cr.MA No. 129 of 2022, titled Om Chand Vs. Bipin Singh and
others, vide which the prayer to send the application to the
police for registration of FIR was declined. (The parties shall
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
2025:HHC:10434
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience).
2. Briefly stated the facts giving rise to the present
petition are that the petitioner/complainant filed an application
under Section 156(3) of Cr.P.C. for the registration of the FIR for
the commission of offences punishable under Sections 420, 465,
466, 467, 468, and 471 read with Section 34 of the Indian Penal
Code (IPC). It was asserted that accused No.1 Vipin Singh filed an
application before Deputy Commissioner, Mandi under Section
14 of the National Trust Act and became the guardian of Prem
Singh and Titu Ram. Titu Ram and Prem Singh were deaf and
dumb. He filed a civil suit No. 142 of 2015, titled Vipin Singh Vs.
General Public and became the guardian of Prem Singh and Titu
Ram to maintain and look after their property. Titu Ram died on
29.11.2019 leaving behind his property which was to be inherited
by his brother Prem Singh. The accused got attested Mutation
No. 604 in Village Banji Mohal and mutation No. 787 in Mohin
Mohal regarding the immovable property of Titu Ram. Assistant
Collector, 2nd Grade attested the mutation based on the Will
stated to have been written by Kashmir Singh and witnessed by
Ramesh Chand and Roshan Lal. The property was transferred in
3
2025:HHC:10434
the name of Vipin Singh being the beneficiary of the Will. The
deceased Titu Ram was unable to execute the Will due to his
medical condition. Legal heirs were not summoned. Vipin Singh
sold the land vide Sale Deed No. 337 of 2021, dated 15.7.2021 to
Virender Kumar. The complainant filed the complaint before the
police but no action was taken. Hence an application was filed
before the Court to refer the matter to the police for registration
of the FIR.
3. Learned Trial Court held that the complainant had no
locus standi to file the application. A decree was passed by the
competent Court and mutation was attested by competent
authority. These allegations in the complaint do not constitute
any cognizable offence. No sanction was obtained to prosecute
accused No.2, 6 and 7. Hence the application was dismissed.
4. Being aggrieved from the order passed by the learned
Trial Court, the petitioner has filed the present petition
asserting that the learned Trial Court did not appreciate the
relevant material. It was wrongly held that the
petitioner/complainant had no locus standi. The concept of locus
standi does not apply to criminal cases and any person can set
4
2025:HHC:10434
the criminal law into motion. Accused No.1 was wrongly
appointed as legal guardian. The Will of Titu Ram was forged. It
was wrongly held that the allegations in the application do not
constitute the commission of cognizable offence. The offences
of cheating and forgery of the documents do not require
sanction. The order of mutation was passed without summoning
the legal heirs. Therefore, it was prayed that the present petition
be allowed and the order passed by the learned Trial Court be set
aside.
5. Mr. Ajit Sharma, learned Deputy Advocate General,
for the respondent-State supported the order passed by the
learned Trial Court and submitted that no interference is
required with it.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The present petition has been filed under Section 482
of Cr.P.C. even though the remedy of revision is available to the
petitioner. It was laid down by the Hon'ble Supreme Court in
Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30: (2016) 4
SCC (Cri) 801: 2016 SCC OnLine SC 905 that the High Court can
5
2025:HHC:10434
exercise extraordinary jurisdiction in case of abuse of process of
the Court even if the remedy of revision is available. It was
observed at page 32:-
5. Mr Goswami also placed strong reliance upon the
judgment of Krishna Iyer, J. in a Division Bench in Raj
Kapoor v. State [Raj Kapoor v. State, (1980) 1 SCC 43: 1980
SCC (Cri) 72]. Relying upon the judgment of a Bench of
three Judges in Madhu Limaye v. State of
Maharashtra [Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551: 1978 SCC (Cri) 10] and quoting therefrom,
Krishna Iyer, J. in his inimitable style made the law
crystal clear in para 10 which runs as follows:(Raj Kapoor
case [Raj Kapoor v. State, (1980) 1 SCC 43: 1980 SCC (Cri)
72], SCC pp. 47-48)
"10. The first question is as to whether the inherent
power of the High Court under Section 482 stands
repelled when the revisional power under Section
397 overlaps. The opening words of Section 482
contradict this contention because nothing of the
Code, not even Section 397, can affect the
amplitude of the inherent power preserved in so
many terms by the language of Section 482. Even
so, a general principle pervades this branch of law
when a specific provision is made: easy resort to
inherent power is not right except under
compelling circumstances. Not that there is the
absence of jurisdiction but that inherent power
should not invade areas set apart for specific power
under the same Code. In Madhu Limaye v. State of
Maharashtra [Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551: 1978 SCC (Cri) 10] this Court has
exhaustively and, if I may say so with great respect,
correctly discussed and delineated the law beyond
mistake. While it is true that Section 482 is
pervasive it should not subvert legal interdicts
6
2025:HHC:10434
written into the same Code, such, for instance, in
Section 397(2). Apparent conflict may arise in some
situations between the two provisions and a happy
solution
'would be to say that the bar provided in sub-
section (2) of Section 397 operates only in the
exercise of the revisional power of the High
Court, meaning thereby that the High Court
will have no power of revision in relation to
any interlocutory order. Then in accordance
with one of the other principles enunciated
above, the inherent power will come into
play, there being no other provision in the
Code for the redress of the grievance of the
aggrieved party. But then, if the order
assailed is purely of an interlocutory
character which could be corrected in the
exercise of the revisional power of the High
Court under the 1898 Code, the High Court
will refuse to exercise its inherent power. But
in case the impugned order clearly brings
about a situation which is an abuse of the
process of the court or for the purpose of
securing the ends of justice interference by
the High Court is absolutely necessary, then
nothing contained in Section 397(2) can limit
or affect the exercise of the inherent power by
the High Court. But such cases would be few
and far between. The High Court must
exercise the inherent power very sparingly.
One such case would be the desirability of the
quashing of a criminal proceeding initiated
illegally, vexatiously or as being without
jurisdiction'. (SCC pp. 555-56, para 10)
In short, there is no total ban on the exercise of
inherent power where abuse of the process of the
court or other extraordinary situations excites the
Court's jurisdiction. The limitation is self-restraint,
nothing more. The policy of the law is clear that
7
2025:HHC:10434
interlocutory orders, pure and simple, should not
be taken up to the High Court resulting in
unnecessary litigation and delay. At the other
extreme, final orders are capable of being
considered in the exercise of inherent power, if
glaring injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J. has
pointed out for example, where it is more than a
purely interlocutory order and less than a final
disposal. The present case falls under that category
where the accused complains of harassment
through the court's process. Can we state that in
this third category, the inherent power can be
exercised? In the words of Untwalia, J. : (SCC p. 556,
para 10)
'10. ... The answer is obvious the bar will not
operate to prevent the abuse of the process of
the court and/or to secure the ends of justice.
The label of the petition filed by an aggrieved
party is immaterial. The High Court can
examine the matter in an appropriate case
under its inherent powers. The present case
undoubtedly falls for the exercise of the
power of the High Court in accordance with
Section 482 of the 1973 Code, even assuming,
although not accepting, that invoking the
revisional power of the High Court is
impermissible.'
I am, therefore clear in my mind that the inherent
power is not rebuffed in the case situation before
us. Counsel on both sides, sensitively responding to
our allergy for legalistic, rightly agreed that the
fanatical insistence on the formal filing of a copy of
the order under cessation need not take up this
Court's time. Our conclusion concurs with the
concession of counsel on both sides that merely
because a copy of the order has not been produced,
despite its presence in the records in the court, it is
not possible for me to hold that the entire revisory
8
2025:HHC:10434
power stands frustrated and the inherent power
stultified."
6. In our considered view any attempt to explain the law
further as regards the issue relating to inherent power of
the High Court under Section 482 CrPC is unwarranted.
We would simply reiterate that Section 482 begins with a
non-obstante clause to state:
"482. Saving of inherent powers of High Court.--
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to
make such orders as may be necessary to give effect
to any order under this Code, or to prevent abuse of
the process of any court or otherwise to secure the
ends of justice."
A fortiori, there can be no total ban on the exercise of
such wholesome jurisdiction where, in the words of
Krishna Iyer, J.
“abuse of the process of the court or other
extraordinary situation excites the Court’s
jurisdiction. The limitation is self-restraint,
nothing more”. (Raj Kapoor case [Raj
Kapoor v. State, (1980) 1 SCC 43: 1980 SCC (Cri) 72],
SCC p. 48, para 10)
We venture to add a further reason in support. Since
Section 397 CrPC is attracted against all orders other than
interlocutory, a contrary view would limit the availability
of inherent powers under Section 482 CrPC only to petty
interlocutory orders! A situation is wholly unwarranted
and undesirable.
7. As a sequel, we are constrained to hold that the Division
Bench, particularly in para 28, in Mohit [Mohit v. State of
U.P., (2013) 7 SCC 789 : (2013) 3 SCC (Cri) 727] in respect of
inherent power of the High Court in Section 482 CrPC
does not state the law correctly. We record our respectful
disagreement.
8. This judgment was followed in Vijay Vs. State of
Maharashtra (2017) 13 SCC 317: (2017) 4 SCC (Cri) 622 and it was
9
2025:HHC:10434
held that the mere availability of alternative remedy of revision
is no bar to the exercise of jurisdiction under Section 482 of
Cr.P.C. It was observed:-
“7. After hearing the counsel and also after perusing the
impugned order, we are of the considered opinion that
the order of the High Court has no legs to stand in view of
the law laid down by this Court in Prabhu Chawla [Prabhu
Chawla v. State of Rajasthan, (2016) 16 SCC 30]. In the
above referred case, in view of the divergent opinions of
this Court in Dhariwal Tobacco Products Ltd. [Dhariwal
Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC
370 : (2009) 1 SCC (Cri) 806] and Mohit v. State of
U.P. [Mohit v. State of U.P., (2013) 7 SCC 789 : (2013) 3 SCC
(Cri) 727], the matter was placed before the three-Judge
Bench of this Court. The three-judge Bench took the view
that Section 482 CrPC begins with a non-obstante clause
to state:
“482. Saving of inherent powers of High Court.–
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to
make such orders as may be necessary to give effect
to any order under this Code, or to prevent abuse of
the process of any court or otherwise to secure the
ends of justice.”
As Section 397 CrPC is attracted against all orders other
than interlocutory, a contrary view would limit the
availability of inherent powers under Section 482 CrPC
only to petty interlocutory orders! A situation which is
wholly unwarranted and undesirable. The three-judge
Bench has confirmed the law laid down by this Court
in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco
Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 :
(2009) 1 SCC (Cri) 806]
8. In view of the above-settled law, the mere availability
of alternative remedy cannot be a ground to disentitle the
10
2025:HHC:10434relief under Section 482 CrPC and, apart from this, we feel
that the learned Judge without appreciating any of the
factual and legal position, in a mechanical way, passed
the impugned order, which warrants interference by this
Court. Accordingly, the order of the High Court is set
aside and the matter is remanded to the High Court for
reconsideration in the light of the settled legal position.”
9. Therefore, this Court has to see whether the order
passed by the learned Trial Court amounts to an abuse of the
process of the Court or whether it is necessary to set it aside to
secure the ends of justice.
10. Learned Trial Court held that no cognizable offence
was committed. This conclusion cannot be faulted. As per the
application, Vipin Kumar was appointed as a guardian under
Section 14 of the National Trust Act, which empowers a relative
of a person with a disability to apply for guardianship and the
local authority can process such an application. Therefore, no
offence is committed by applying to a competent authority
constituted under the law and the authority exercising its power.
11. It was further asserted that Vipin Kumar filed Civil
Suit No. 142 of 2015 and obtained a decree in his favour. The
decree was void. Obtaining a decree from a competent person is
11
2025:HHC:10434not cheating or forgery and even if the decree is incorrect, the
remedy of a person is to file an appeal to get it set aside.
12. It was asserted that Titu Ram was not competent to
execute the Will because he was deaf and dumb. There is no
restriction in the execution of a Will by a person who is deaf and
dumb. Explanation 2 of Section 59 of the Indian Succession Act
clearly provides that persons who are deaf and dumb or blind are
not incapacitated from making a Will if they know what they do
by it. Hence, a deaf, dumb or blind person can execute a Will and
the submission that Titu Ram was incapable of executing the
Will is not correct. Whether Titu Ram knew about the nature of
the act or not is a question of fact that cannot be determined in
the criminal proceedings.
13. The allegations in the application show that the Will
was stated to be written by Kashmir Singh and was witnessed by
Ramesh Chand and Roshan Lal. Therefore, the Will was executed
as per the provisions of Section 63 of the Indian Succession Act
and merely calling the Will to be fraudulent or forged is not
sufficient unless the proceedings are taken to declare to be so.
12
2025:HHC:10434
14. It was stated in the application that the mutation was
attested based on the fraudulent Will and the mutation is a
forgery. It is not asserted that Patwari and Kanungo were not
competent to enter the mutation of the Will or that Assistant
Collector 2nd Grade was not competent to attest it. Even if the
attestation was wrong, an authority having jurisdiction is not
divested of the jurisdiction vested in it because a wrong decision
was taken.
15. The term forgery has been defined in Section 463 of
IPC as under:
“463. Forgery.–Whoever makes any false documents or
electronic record part of a document or electronic record
with, intent to cause damage or injury], to the public or
any person, or to support any claim or title, or to cause
any person to part with property, or to enter into any
express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits
forgery.”
16. It is apparent from the definition that a person has to
make a false document before he can be said to have committed
forgery. Making a false document is defined in Section 464 of
IPC. It reads as under:
464. Making a false document. –A person is said to
make a false document or false electronic record–
First.–Who dishonestly or fraudulently–
13
2025:HHC:10434
(a) makes, signs, seals or executes a document
or part of a document;
(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any electronic signature on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that such
document or part of a document, electronic record
or electronic signature was made, signed, sealed, exe-
cuted, transmitted or affixed by or by the authority of a
person by whom or by whose authority he knows that it
was not made, signed, sealed, executed or affixed; or
Secondly.–Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a docu-
ment or an electronic record in any material part thereof,
after it has been made, executed or affixed with electronic
signature either by himself or by any other person,
whether such person be living or dead at the time of such
alteration; or
Thirdly.–Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature on
any electronic record knowing that such person by reason
of unsoundness of mind or intoxication cannot, or that by
reason of deception practised upon him, he does not
know the contents of the document or electronic record
or the nature of the alteration.
17. It was laid down by the Hon’ble Supreme Court in
Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that
the prosecution is required to prove that the accused had forged
14
2025:HHC:10434
a document by creating a false document to establish the offence
of forgery. A false document is when a document is executed
claiming to be executed by someone else or authorised by
someone else or a document is tempered or signatures are
obtained by practising deception. It was observed:-
“[10] An analysis of section 464 of the Penal Code shows
that it divides false documents into three categories:
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with
the intention of causing it to be believed that such
document was made or executed by some other
person, or by the authority of some other person, by
whom or by whose authority he knows it was not
made or executed.
10.2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful
authority, after it has been made or executed by
either himself or any other person.
10.3) The third is where a person dishonestly or
fraudulently causes any person to sign, execute or
alter a document knowing that such person could
not because of (a) unsoundness of mind; or (b)
intoxication; or (c) deception practised upon him,
know the contents of the document or the nature of
the alteration.
[11] In short, a person is said to have made a ‘false
document’, if (i) he made or executed a document
claiming to be someone else or authorised by someone
else; or (ii) he altered or tampered with a document; or
(iii) he obtained a document by practising deception, or
from a person not in control of his senses.”
15
2025:HHC:10434
18. Therefore, the execution of a document whose
contents are wrong does not constitute any forgery and
assuming the allegations to be correct, no offence punishable
under Sections 465, 466, 467, 468 and 471 of IPC is made out
against the accused.
19. The application also mentions Section 420 of IPC.
Nothing is stated about any misrepresentation made by any
person which led another person to deliver property which he
would not have delivered but for the misrepresentation made to
him. Hence the ingredients of Section 420 of IPC are also not
satisfied.
20. It was laid down by the Hon’ble Supreme Court in Om
Prakash Ambadkar v. State of Maharashtra, 2025 SCC OnLine SC
238 that the Magistrate must apply his mind to determine if a
cognizable offence is made out before ordering an investigation
under Section 156 (3) of CrPC. It was observed:
“11. However, what is important to observe is that
whenever any application is filed by the complainant
before the Court of Judicial Magistrate seeking police
investigation under Section 156(3) of the Cr. P.C., it is the
duty of the concerned Magistrate to apply his mind for
the purpose of ascertaining whether the allegations
levelled in the complaint constitute any cognizable
offence or not. In other words, the Magistrate may not
16
2025:HHC:10434undertake the exercise to ascertain whether the
complaint is false or otherwise, however, the Magistrate
is obliged before he proceeds to pass an order for police
investigation to closely consider whether the necessary
ingredients to constitute the alleged offence are borne out
on plain reading of the complaint.”
21. In the present case, the learned Trial Court had
rightly held that the commission of any cognizable offence was
not disclosed in the application and had rightly refused to order
the investigation. There is no perversity in the order passed by
the learned Trial Court which can be interfered with while
exercising inherent jurisdiction under Section 482 of Cr.P.C.
22. Consequently, the present petition fails and the same
is dismissed, so also the pending miscellaneous application(s),
if any.
23. The record of the learned Trial Court be returned,
forthwith.
(Rakesh Kainthla)
Judge
22nd April, 2025
(Chander)
[ad_1]
Source link