Himachal Pradesh High Court
Kapil Shankar vs Som Nath @ Swami Nath Shankar & Ors on 4 April, 2025
Neutral Citation No. ( 2025:HHC:9262 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 1156 of 2024
Reserved on: 25.03.2025
Date of Decision: 4th April 2025.
Kapil Shankar ...Petitioner
Versus
Som Nath @ Swami Nath Shankar & ors. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No
For the Petitioner : M/s Khem Raj and Anil
Shankar, Advocates.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
setting aside the judgment dated 26.04.2023 passed by learned
Additional Sessions Judge-1, Solan (Learned Revisional Court),
vide which, the order daetd 28.06.2018 passed by learned
Judicial Magistrate, First Class, Court No.2, Solan (learned Trial
Court) was upheld. (The parties shall hereinafter be referred to in
the same manner as they were arrayed before the learned Trial
Court for convenience.)
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Neutral Citation No. ( 2025:HHC:9262 )
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed an application/complaint
before the learned Trial Court under Section 156 (3) of the Code
of Criminal Procedure (Cr.P.C.) for directing the Station House
Officer (SHO) to investigate and register an FIR against the
accused. It was asserted that the accused persons are the real
uncles of the complainant. The property bearing Khata No.
464/441, Khasra No. 212, and Khata No. 465/442, Khasra No.
194, situated at Mohal Lower Bazar, Solan District, Solan, was
the joint ancestral property of the accused and the complainant.
A partition deed was executed and registered in the office of the
Sub-Registrar, Solan, on 05.08.1955. The parties entered into an
agreement on 23.09.1987, in which the accused relinquished
their share in the property situated at Solan and they acquired
half shares of property No. 3821, Galli No. 22, Khasra No. 2064
Block ‘K’ measuring 50 square yards at Arya Samaj Road,
Ragharpura, New Delhi, and property No. 4018, Gali No. 33,
Khasra No. 3100/2314, Block no. 1 measuring hundred square
yards, Ragharpura Karol Bag New Delhi. This agreement was
reduced to writing and was signed by all the members of the
family, including the accused persons. The accused sold the
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Neutral Citation No. ( 2025:HHC:9262 )
property in Delhi about a decade ago and made a huge profit
from it. They sold the property situated at Solan without any
right, title or interest in it. They had already relinquished their
shares in the property located at Solan and had acquired a share
in the property located at Delhi. The sale deeds executed by the
accused are not binding upon the complainant and other co-
sharers. The accused have been residing in Canada for the last
40 years, and they are not permanent citizens of India. They
concealed this fact from the authorities. The accused committed
fraud upon all the co-owners by selling the property located at
Solan. The complainant served a legal notice upon the accused.
He also filed a complaint at Police Station, Solan, and before
Superintendent, Police Solan; however, the police failed to take
any action; hence, an application was filed before the learned
Trial Court to take action against the accused as per the law.
3. The learned Trial Court held that the averments in
the application disclosed a dispute of a civil nature. A copy of the
Jamabandi placed on record showed that the accused and
complainant were recorded as co-owners with other persons.
The complainant has a remedy of filing a Civil Suit, and the
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Neutral Citation No. ( 2025:HHC:9262 )
criminal proceedings were not justified. Therefore, the learned
Trial Court dismissed the application filed by the complainant.
4. Being aggrieved by the judgment passed by the
learned Trial court, the complainant filed a revision, which was
decided by the learned Additional Sessions Judge, Solan (learned
Revisional Court). Learned Revisional Court concurred with the
findings recorded by learned Trial Court that the dispute
between the parties was civil and the remedy of the complainant
was in filing the civil suit rather than applying under Section
156(3) of Cr.P.C. and dismissed the revision preferred by the
complainant.
5. Being aggrieved by the judgments passed by the
learned Courts below, the complainant has filed the present
petition asserting that the learned Courts below erred in
appreciating the dispute pending before them. The police failed
to carry out a proper investigation into the matter. Learned Trial
Court dismissed the complainant’s application without any
justification. The entries in the revenue record do not confer any
title upon a person, and the learned Trial Court erred in relying
upon the entries in the Jamabandis to dismiss the complainant’s
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Neutral Citation No. ( 2025:HHC:9262 )
application. The order passed by learned Trial Court is based
upon conjectures and surmises. The learned Additional Sessions
Judge had issued warrants of arrest against the accused but
failed to secure their presence. The accused also sent a letter to
the learned Additional Sessions Judge showing that they were
aware of the proceedings pending before the learned Revisional
Court. The accused had no right to sell the property located at
Solan; therefore, it was prayed that the present petition be
allowed, judgments passed by learned courts below be set aside,
and a direction be issued to the concerned SHO to investigate
the matter; hence the petition.
6. I have heard Mr. Khemraj and Mr. Anil Shankar
learned counsel for the petitioner/complainant. Mr Anil
Shankar, learned counsel for the complainant, submitted that
the learned Courts below erred in appreciating the matter
pending before them. The accused had sold the property located
at Solan, even though they had relinquished their share in it.
They sold the property located in Delhi, which was given to
them in a family arrangement. This amounted to cheating. The
learned Trial Court should have sent the application to the
police for investigation, and the application was wrongly
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Neutral Citation No. ( 2025:HHC:9262 )
dismissed. Hence, he prayed that the present petition be
allowed, the order passed by learned Courts below be set aside,
and the application be sent to the Police for registration of the
FIR.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The complainant had filed a revision petition before
the learned Revisional Court, which was dismissed. It was laid
down by the Hon’ble Supreme Court in Krishnan Vs. In
Krishnaveni (1997) 4 SCC 241, the High Court can intervene
under Section 482 of CrPC (corresponding to Section 528 of
BNSS) when there is a grave miscarriage of justice or abuse of
the process of the Court. It was observed:
“10. Ordinarily, when revision has been barred by Section
397(3) of the Code, a person — accused/complainant —
cannot be allowed to take recourse to the revision to the
High Court under Section 397(1) or inherent powers of
the High Court under Section 482 of the Code since it may
amount to circumvention of the provisions of Section
397(3) or Section 397(2) of the Code. It is seen that the
High Court has suo motu power under Section 401 and
continuous supervisory jurisdiction under Section 483 of
the Code. So, when the High Court on examination of the
record finds that there is a grave miscarriage of justice or
abuse of the process of the courts or the required
statutory procedure has not been complied with or there
7
Neutral Citation No. ( 2025:HHC:9262 )is failure of justice or order passed or sentence imposed
by the Magistrate requires correction, it is but the duty of
the High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore,
to meet the ends of justice or to prevent abuse of the
process that the High Court is preserved with inherent
power and would be justified, under such circumstances,
to exercise the inherent power and in an appropriate case
even revisional power under Section 397(1) read with
Section 401 of the Code. As stated earlier, it may be
exercised sparingly to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of
proceedings. The object of a criminal trial is to render
public justice, to punish the criminal and to see that the
trial is concluded expeditiously before the memory of the
witness fades out. The recent trend is to delay the trial
and threaten the witness or to win over the witness by
promise or inducement. These malpractices need to be
curbed, and public justice can be ensured only when the
trial is conducted expeditiously.
11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC
551: 1978 SCC (Cri) 10], a three-judge Bench was to
consider the scope of the power of the High Court under
Section 482 and Section 397(2) of the Code. This Court
held that the bar on the power of revision was put to
facilitate expedient disposal of the cases, but in Section
482, it is provided that nothing in the Code, which would
include Section 397(2) also, shall be deemed to limit or
affect the inherent powers of the High Court. On a
harmonious construction of the said two provisions on
this behalf, it was held that though the High Court has no
power of revision in an interlocutory order, still the
inherent power will come into play when there is no
provision for redressal of the grievance of the aggrieved
party. In that case, when allegations of defamatory
statements were published in the newspapers against the
Law Minister, the State Government decided to prosecute
the appellant for an offence under Section 500 IPC. After
8
Neutral Citation No. ( 2025:HHC:9262 )obtaining the sanction, on a complaint made by the
public prosecutor, cognizance of the commission of the
offence by the appellant was taken to trial in the Sessions
Court. Thereafter, the appellant filed an application to
dismiss the complaint on the ground that the court had
no jurisdiction to entertain the complaint. The Sessions
Judge rejected all the contentions and framed the charges
under Section 406. The Order of the Sessions Judge was
challenged in revision in the High Court. On a
preliminary objection raised on maintainability, this
Court held that the power of the High Court to entertain
the revision was not taken away under Section 397 or
inherent power under Section 482 of the Code.
12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92:
1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a
four-judge Bench per majority had held that sub-section
(3) of Section 397, however, does not limit at all the
inherent powers of the High Court contained in Section
482. It merely curbs the revisional power given to the
High Court or the Sessions Court under Section 397(1) of
the Code. In the Rajan Kumar Machananda case [1990
Supp SCC 132: 1990 SCC (Cri) 537], the case related to the
release of a truck from attachment, obviously on the
filing of an interlocutory application. It was contended
that there was a prohibition on the revision by operation
of Section 397(2) of the Code. In that context, it was held
that it was not revisable under Section 482 in the exercise
of inherent powers by operation of sub-section (3) of
Section 397. On the facts in that case, it was held that by
provisions contained in Section 397(3), the revision is
not maintainable. In the Dharampal case [(1993) 1 SCC
435: 1993 SCC (Cri) 333], which related to the exercise of
power to issue an order of attachment under Section 146
of the Code, it was held that the inherent power under
Section 482 was prohibited. On the facts, in that case, it
could be said that the learned Judges would be justified in
holding that it was not revisable since it was a
prohibitory interim order of attachment covered under
9
Neutral Citation No. ( 2025:HHC:9262 )Section 397(2) of the Code but the observations of the
learned Judges that the High Court had no power under
Section 482 of the Code were not correct in view of the
ratio of this Court in Madhu Limaye case [(1977) 4 SCC 551:
1978 SCC (Cri) 10] as upheld in V.C. Shukla case [1980 Supp
SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in
view of our observations stated earlier. The ratio in the
Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also
not apposite to the facts in the present case. To the
contrary, in that case, an application for discharge of the
accused was filed in the Court of the Magistrate for an
offence under Section 498-A IPC. The learned Magistrate
and the Sessions Judge dismissed the petition. In the
revision at the instance of the accused, on a wrong
concession made by the counsel appearing for the State
that the record did not contain allegations constituting
the offence under Section 498-A, the High Court,
without applying its mind, had discharged the accused.
On appeal, this Court, after going through the record,
noted that the concession made by the counsel was
wrong. The record did contain the allegations to prove
the charge under Section 498-A IPC. The High Court,
since it failed to apply its mind, had committed an error
of law in discharging the accused, leading to the
miscarriage of justice. In that context, this Court held
that the order of the Sessions Judge operated as a bar to
entertain the application under Section 482 of the Code.
In view of the fact that the order of the High Court had
led to the miscarriage of justice, this Court had set aside
the order of the High Court and confirmed that of the
Magistrate.
13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990
SCC (Cri) 327] has no application to the facts in this case.
Therein, on a private complaint filed under Sections 452
and 323 IPC, the Judicial Magistrate, First Class had taken
cognizance of the offence. He transferred the case for
inquiry under Section 202 of the Code to the Second-
Class Magistrate, who, after examining the witnesses,
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Neutral Citation No. ( 2025:HHC:9262 )
issued a process to the accused. The High Court,
exercising the power under Section 482, dismissed the
revision. But subsequently, on an application filed under
Section 482 of the Code, the High Court corrected it. The
question was whether the High Court was right in
reviewing its order. In that factual backdrop, this Court
held that the High Court could not exercise inherent
power for the second time. The ratio therein, as stated
above, has no application to the facts in this case.
14. In view of the above discussion, we hold that though
the revision before the High Court under sub-section (1)
of Section 397 is prohibited by sub-section (3) thereof,
inherent power of the High Court is still available under
Section 482 of the Code and as it is paramount power of
continuous superintendence of the High Court under
Section 483, the High Court is justified in interfering with
the order leading to miscarriage of justice and in setting
aside the order of the courts below. It remitted the case to
the Magistrate for a decision on the merits after
consideration of the evidence. We make it clear that we
have not gone into the merits of the case. Since the High
Court has left the matter to be considered by the
Magistrate, it would be inappropriate at this stage to go
into that question. We have only considered the issue of
power and jurisdiction of the High Court in the context of
the revisional power under Section 397(1) read with
Section 397(3) and the inherent powers. We do not find
any justification warranting interference in the appeal.”
9. This position was reiterated in Rajinder
Prasad v. Bashir, (2001) 8 SCC 522, wherein it was held:
“…though the power of the High Court under Section 482
of the Code is very wide, the same must be exercised
sparingly and cautiously, particularly in a case where the
petitioner is shown to have already invoked the
revisional jurisdiction under Section 397 of the Code.
Only in cases where the High Court finds that there has
11
Neutral Citation No. ( 2025:HHC:9262 )been failure of justice or misuse of judicial mechanism or
procedure, sentence or order was not correct, the High
Court may, in its discretion, prevent the abuse of the
process or miscarriage of justice by exercise of
jurisdiction under Section 482 of the Code. It was further
held, “Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person –
accused/complainant – cannot be allowed to take
recourse to the revision to the High Court under Section
397(1) or inherent powers of the High Court under
Section 482 of the Code since it may amount to
circumvention of provisions of Section 397(3) or Section
397(2) of the Code.”
10. A similar view was taken in Kailash Verma v. Punjab
State Civil Supplies Corporation, (2005) 2 SCC 571, and it was held:
“5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118] said that
the power under Section 482 of the Criminal Procedure
Code has to be exercised sparingly and such power shall
not be utilised as a substitute for second revision.
Ordinarily, when a revision has been barred under
Section 397(3) of the Code, the complainant or the
accused cannot be allowed to take recourse to revision
before the High Court under Section 397(1) of
the Criminal Procedure Code, as it is prohibited under
Section 397(3) thereof. However, the High Court can
entertain a petition under Section 482 of the Criminal
Procedure Code when there is a serious miscarriage of
justice and abuse of the process of the court or when
mandatory provisions of the law are not complied with
and when the High Court feels that the inherent
jurisdiction is to be exercised to correct the mistake
committed by the revisional court.”
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Neutral Citation No. ( 2025:HHC:9262 )
11. This position was reiterated in Shakuntala Devi v.
Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC
OnLine SC 292, wherein it was observed: –
“24. It is well settled that the object of the introduction
of sub-section (3) in Section 397 was to prevent a second
revision to avoid frivolous litigation, but, at the same
time, the doors to the High Court to a litigant who had
lost before the Sessions Judge were not completely closed
and in special cases, the bar under Section 397(3) could
be lifted. In other words, the power of the High Court to
entertain a petition under Section 482 was not subject to
the prohibition under sub-section (3) of Section 397 of
the Code and was capable of being invoked in appropriate
cases. Mr Sanyal’s contention that there was a complete
bar under Section 397(3) of the Code debarring the High
Court from entertaining an application under Section 482
thereof does not, therefore, commend itself to us.
25. On the factual aspect, the Magistrate came to a
finding that the appellants were entitled to possession of
the disputed plot. It is true that while making such a
declaration under Section 145(4) of the Code, the
Magistrate could have also directed that the appellants be
put in possession of the same.
26. The question which is now required to be considered
is whether the High Court was right in quashing the
order passed by the Magistrate, which was confirmed by
the Sessions Judge, on the ground that the application
made by the appellants under Section 145(6) of the Code
was barred firstly by limitation under Article 137 of the
Limitation Act and also by virtue of Section 6 of the
Specific Relief Act, 1963.
12. Delhi High Court also took a similar view in Surender
Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —
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Neutral Citation No. ( 2025:HHC:9262 )
“5. The issue regarding the filing of a petition before the
High Court after having availed the first revision petition
before the Court of Sessions has come up before the
Supreme Court and this Court repeatedly. While laying
that section 397(3) Cr. P.C. laid the statutory bar of the
second revision petition, the courts have held that the
High Court did enjoy inherent power under section 82
(sic) Cr. P.C. as well to entertain petitions even in those
cases. But that power was to be exercised sparingly and
with great caution, particularly when the person
approaching the High Court has already availed remedy
of first revision in the Sessions Court. This was not that
in every case the person aggrieved by the order of the
first revision court would have the right to be heard by
the High Court to assail the same order which was the
subject matter of the revision before the Sessions Court.
It all depends not only on the facts and circumstances of
each case but as on whether the impugned order brought
about a situation that is an abuse of the process of the
court, there was a serious miscarriage of justice or the
mandatory provisions of law were not complied with. The
power could also be exercised by this Court if there was
an apparent mistake committed by the revisional court.
Reference in this regard can be made to the judgments of
the Supreme Court in Madhu Limave v. State of
Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram
Chander Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai
Kapoor v. State (Delhi Administration) 1980 Cri LJ 202,
Krishnan v. Krishnaveni and Kailash Verma v. Punjab State
Civil Supplies Corporation (2005) 2 SCC 571.”
13. Therefore, the Court can rectify a serious miscarriage
of justice or breach of a mandatory provisions of law while
exercising the jurisdiction under Section 528 of BNSS.
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Neutral Citation No. ( 2025:HHC:9262 )
14. The complainant has relied upon an agreement dated
23.09.1987, which shows that the parties had agreed to get their
shares transferred, mutated and substituted in the record of
Municipal Council, Delhi, Municipal Committee, Solan, Delhi
Development Authority, revenue or any other Authority based
on the agreement or its true copy. It is undisputed that the
agreement was not produced before the revenue authorities and
this agreement was unregistered.
15. It was laid down by the Hon’ble Supreme Court in
Shyam Narayan Prasad v. Krishna Prasad (2018) 7 SCC 646: (2018)
3 SCC (Civ) 702: 2018 SCC OnLine SC 648 that an unregistered
partition agreement could not be used for any purpose. It was
observed at page 654:
21. In Roshan Singh v. Zile Singh [Roshan Singh v. Zile
Singh, AIR 1988 SC 881: (1988) 2 SCR 1106], this Court was
considering the admissibility of an unregistered partition
deed. It was held thus: (AIR p. 885, para 9)
“9. … Section 17(1)(b) lays down that a document for
which registration is compulsory should, by its own
force, operate or purport to operate to create or
declare some right in immovable property. … Two
propositions must therefore flow:
(1) A partition may be effected orally, but if it is
subsequently reduced into the form of a
document and that document purports by itself to
effect a division and embodies all the terms of the
15
Neutral Citation No. ( 2025:HHC:9262 )bargain, it will be necessary to register it. If it is not
registered, Section 49 of the Act will prevent it from
being admitted in evidence. Secondary evidence of
the factum of partition will not be admissible by
reason of Section 91 of the Evidence Act, 1872.”
(emphasis supplied)
22. It is clear from the above judgment that the best
evidence of the contents of the document is the
document itself, and as required under Section 91 of the
Evidence Act, the document itself has to be produced to
prove its contents. But having regard to Section 49 of the
Registration Act, any document which is not registered
as required under the law would be inadmissible in
evidence and cannot, therefore, be produced and proved
under Section 91 of the Evidence Act. Since Ext. P-2 is an
unregistered document; it is inadmissible in evidence,
and as such, it can neither be proved under Section 91 of
the Evidence Act nor any oral evidence can be given to
prove its contents. Therefore, the High Court has rightly
discarded the exchange deed at Ext. P-2.”
16. Therefore, no advantage can be derived from the
unregistered agreement relied on by the complainant.
17. It was submitted that the accused committed fraud
by selling the property located at Solan. This is not acceptable.
The sale of the property by a person does not amount to making
a misrepresentation to other co-owners and does not amount to
any fraud. Only the purchaser can make a complaint regarding
the fraud committed upon him if the property is conveyed
without any title. This position was recognized in Jit Vinayak
16
Neutral Citation No. ( 2025:HHC:9262 )
Arolkar v. State of Goa, 2025 SCC OnLine SC 31 wherein it was
observed as under:
“12. It is pertinent to note that the purchasers under the
sale deeds have not made any grievance about the sale
deeds. In the case of Mohd. Ibrahim v. State of Bihar(2009)
8 SCC 751, in paragraphs 20 to 23, this Court held thus:
“20. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the
purchaser under such a sale deed to allege that the vendor
has cheated him by making a false representation of
ownership and fraudulently induced him to part with the
sale consideration. But in this case, the complaint is not
by the purchaser. On the other hand, the purchaser is
made a co-accused.
21. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or
misleading representation or by any other action or
omission, nor is it his case that they offered him any
fraudulent or dishonest inducement to deliver any
property or to consent to the retention thereof by any
person or to intentionally induce him to do or omit to do
anything which he would not do or omit if he were not so
deceived. Nor did the complainant allege that the first
appellant pretended to be the complainant while
executing the sale deeds. Therefore, it cannot be said
that the first accused by the act of executing sale
deeds in favour of the second accused or the second
accused because of being the purchaser, or the third,
fourth and fifth accused, because of being the witness,
scribe and stamp vendor in regard to the sale deeds,
deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section
415 are not found, it cannot be said that there was an
offence punishable under Sections 417, 418, 419 or
420 of the Code.
17
Neutral Citation No. ( 2025:HHC:9262 )
A clarification
23. When we say that the execution of a sale deed by a
person, purporting to convey a property which is not his,
as his property, is not making a false document and
therefore not forgery, we should not be understood as
holding that such an act can never be a criminal offence.
If a person sells a property knowing that it does not
belong to him and thereby defrauds the person who
purchased the property, the person defrauded, that is, the
purchaser, may complain that the vendor committed the
fraudulent act of cheating. But a third party who is not the
purchaser under the deed may not be able to make such a
complaint.”(emphasis added)
12.1 In this case, it is impossible to understand how the
appellant deceived the 4th respondent and how the act of
execution of sale deeds by the appellant caused or was
likely to cause damage or harm to the 4th respondent in
body, mind, reputation or property. The appellant has
not purported to execute the sale deeds on behalf of the
4th respondent. He has not purported to transfer the
rights of the 4th respondent. There is no allegation that
the appellant deceived the 4 th respondent to transfer or
deliver the subject property.
13. Taking the complaint as correct, the offence of
cheating under Section 415 of IPC was not made out
against the appellant….”
18. No other point was urged.
19. Therefore, the learned Trial Court had rightly held
that no case of cheating was made out. The dispute pending
between the parties is civil, and the remedy of the complainant
was to file a civil suit rather than apply under section 156(3) of
the CrPC. Learned Courts below had taken a reasonable view of
18
Neutral Citation No. ( 2025:HHC:9262 )
the matter, and no interference is required with it while
exercising the inherent jurisdiction of the Court.
20. In view of the above, the present petition fails, and
the same is dismissed.
21. The present petition stands disposed of, and so are
the pending miscellaneous applications, if any.
(Rakesh Kainthla)
Judge
4th April, 2025
(saurav pathania)
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