Daud Jahangir vs The State Of Jharkhand on 9 January, 2025

Jharkhand High Court

Daud Jahangir vs The State Of Jharkhand on 9 January, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P. (Cr.) No. 475 of 2023


                 Daud Jahangir, aged about 56 years, son of late Haji Mohammad
                 Kabiruddin, resident of Imli Tola, Main Road, P.O.-G.P.O., P.S.-
                 Hindpiri, Dist.-Ranchi
                                                    ....            Petitioner
                                        Versus

                 1. The State of Jharkhand
                 2. Usha Kumari, wife of late Ashok Kumar, resident of Quarter
                   No. CD-554, Sector-2, Site-5, Dhurwa H.E.C. Colony, P.S.-
                   Jagannathpur, Dist.-Ranchi
                                                    ....              Respondents

                                        PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
: Ms. Aprajita Bhardwaj, Advocate
: Mr. Kushal Kumar, Advocate
: Ms. Akriti Shree, Advocate
For the State : Mr. Manoj Kumar, GA III
: Mr. Deepankar, AC to GA III
: Mr. Vineet Kr. Vashistha, Spl. P.P.
For Respondent No.2 : Mr. Rishi Pallava, Advocate
…..

By the Court:-

I.A. No. 976 of 2024

1. Heard the parties.

2. Learned Senior Advocate appearing for the petitioner does not

press this interlocutory application.

3. Accordingly, this interlocutory application is rejected as not

pressed.

(Anil Kumar Choudhary, J.)

W.P. (Cr.) No.475 of 2023
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W.P. (Cr.) No. 475 of 2023

1. Heard the parties.

2. This Writ Petition has been filed invoking the jurisdiction of this

Court under Article 226 of the Constitution of India with a prayer

to quash the entire criminal proceeding in connection with Nagri

P.S. Case No. 114 of 2023 registered for the offence punishable

under Sections 406, 420 and 506 of Indian Penal Code and

consequential reliefs.

3. The undisputed fact remains that in the meanwhile, the police

completed investigation of the case and after completion of

investigation police submitted charge sheet against the petitioner

for having committed the offence punishable under Sections 406,

420 and 506 of Indian Penal Code and vide order dated 27.09.2023

the learned Judicial Magistrate 1st Class-VI, Ranchi has taken

cognizance of the said offences punishable under Sections 406, 420

and 506 of Indian Penal Code against the petitioner and ordered

for issuance of summons.

4. It is pertinent to mention here that the charge sheet or the

cognizance order have not been made the subject matter of this

writ petition nor the same has been challenged by the petitioner.

5. The allegation against the petitioner is that the petitioner being

the director of Barira Developers and Construction Pvt. Ltd.

played deception with the informant and her relatives by

inducing them to purchase the plots of land in a project of the said

builder. The informant and her relatives being induced by the

W.P. (Cr.) No.475 of 2023
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petitioner agreed to purchase four plots of land bearing numbers

LIG Plot Nos. 4 to 6 and LIG Plot No. 103 and paid the entire

consideration amount including the cost of constructing the

boundary wall and the cost of the agreement but the petitioner

cheated the informant and her relatives by not delivering the

possession of the said plots of land for which the petitioner has

received the entire consideration amount nor got the same

registered in favour of the informant and her three relatives and

ultimately, refused to hand over the possession of the land

purchased by the informant and her relatives which led the

informant to lodge a written report with the Officer-in-Charge of

Nagri Police Station, Ranchi basing upon which Nagri P.S. Case

No. 114 of 2023 has been registered and police after investigation

of the case found the allegation to be true and submitted charge

sheet.

6. It is submitted by the learned Senior Advocate appearing for the

petitioner that the petitioner admits having entered into an

agreement with the informant and her relatives for sell of land to

them. The learned senior counsel for the petitioner further

contended that after the said agreement, time and again the

informant was served with letters for payment of installment due

to be payable by her but the informant has not taken any step to

start construction of the building over the plot of land in question.

It is next by the learned Senior Advocate appearing for the

petitioner that the relatives of the informant have not come

forward to lodge any FIR. It is then submitted by the learned

W.P. (Cr.) No.475 of 2023
3
Senior Advocate appearing for the petitioner that the informant is

well aware about the cancellation of the agreement by the

company of the petitioner in the year 2008 and there is an

inordinate delay and laches on the part of the informant in

lodging of the FIR hence, on this score alone, the entire criminal

proceeding is to be quashed. In this respect, the learned Senior

Advocate appearing for the petitioner relied upon the judgment of

the Hon’ble Supreme Court of India in the case of Kishan Singh

(dead) Through LRs. vs. Gurpal Singh & Ors. reported in (2010)

8 SCC 775 wherein, the Hon’ble Supreme Court of India inter alia

observed that in cases where there is delay in lodging the FIR, the

court has to look for a plausible explanation for such delay and in

absence, of such an explanation, the delay may be fatal. In this

respect, the learned Senior Advocate appearing for the petitioner

also relied upon the judgment of the Hon’ble Supreme Court of

India in the case of Robert John D’Souza & Ors. vs. Stephen V.

Gomes & Anr. reported in (2015) 9 SCC 96, wherein, the Hon’ble

Supreme Court of India in the facts and circumstances of that case

when none of the offence for which the appellants of that case

were summoned was made out against them, from the perusal of

complaint and the materials in the record, the Hon’ble Supreme

Court of India observed that it is nothing but abuse of process of

law on the part of the complainant to implicate the appellants of

that case before the Hon’ble Supreme Court of India in a criminal

case; after a lapse of period of 12 years for execution of the

registered sale deed in question.

W.P. (Cr.) No.475 of 2023
4

7. It is next submitted by the learned Senior Advocate appearing

for the petitioner that even if the entire allegation made in the FIR

are considered to be true in their entirety, still, neither the offence

punishable under Section 406 nor the offence punishable under

Section 420 of Indian Penal Code is made out. It is further

submitted by the learned Senior Advocate appearing for the

petitioner that the allegation does not contain any specific date,

time or place and the dispute between the parties is a purely civil

dispute and a cloak of criminal case has been given to a purely

civil dispute. Relying upon the judgment of the Hon’ble Supreme

Court of India in the case of Indian Oil Corpn. vs. NEPC India

Limited & Ors. reported in (2006) 6 SCC 736, it is submitted by

the learned Senior Advocate appearing for the petitioner that the

Hon’ble Supreme Court of India in that case has taken note of the

prevalent impression that civil law remedies are time consuming

and do not adequately protect the interests of lenders/creditors

and hence if a person, somehow be entangled in a criminal

prosecution, there is a likelihood of imminent settlement and

submits that this case is just a similar effort made by the

informant, as the limitation for filing a civil suit has already

expired. In this respect, learned Senior Advocate appearing for the

petitioner also relied upon the judgment of the Hon’ble Supreme

Court of India in the case of G. Sagar Suri & Anr. vs. State of U.P.

& Ors. reported in (2000) 2 SCC 636 as well as Vesa Holding Pvt.

Ltd. & Anr. vs. State of Kerela & Ors. reported in (2015) 8 SCC

W.P. (Cr.) No.475 of 2023
5
293 as well as Randheer Singh vs. State of Uttar Pradesh & Ors.

reported in 2021 SCC OnLine SC 942.

8. Learned Senior Advocate appearing for the petitioner next relied

upon the judgment of the Hon’ble Supreme Court of India in the

case of Vishnu Kumar Shukla & Anr. vs. State of Uttar Pradesh

& Anr. reported in 2023 SCC OnLine SC 1582 wherein, the

Hon’ble Supreme Court of India reiterated the settled principle of

law by observing that in a deserving case a duty is cast upon the

High Court to intervene and discharge the appellant before it.

Learned Senior Advocate appearing for the petitioner next relied

upon the judgment of the Hon’ble Supreme Court of India in the

case of Haji Iqbal @ Bala Through S.P.O.A. vs. State of U.P. &

Ors. reported in 2023 SCC OnLine SC 948 and submits that the

Hon’ble Supreme Court of India has observed in that case that in

frivolous and vexatious proceeding, the court owes a duty to look

into many other attending circumstances emerging from the

record of the case, over and above the averments and if need be,

with due care and circumspection try to read in between the lines.

9. Relying upon the judgment of the Hon’ble Supreme Court of

India in the case of Mahmood Ali & Ors. vs. State of Uttar

Pradesh & Ors. reported in 2023 SCC OnLine SC 950, it is

submitted by the learned Senior Advocate appearing for the

petitioner that as inter alia observed in the case, that a court while

exercising its jurisdiction under Section 482 of the Code of

Criminal Procedure or Article 226 of the Constitution of India

need not restrict itself only to the stage of a case but is empowered

W.P. (Cr.) No.475 of 2023
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to take into account the overall circumstances leading to the

initiation/registration of the case as well as the materials collected

in the course of investigation.

10. Learned Senior Advocate appearing for the petitioner next relied

upon the judgment of this Court in the case of Chandan Kumar

Gupta & Anr. vs. The State of Jharkhand & Anr. in Cr.M.P. No.

1221 of 2022 wherein in the facts of that case, as the accused

persons of that case did not execute the sale deed after receiving

the advance amount where the victim was in possession of the

land and continued in possession after constructing the house,

merely because registration was not done because of the death of

the father of the accused person of that case, who entered into an

agreement with the victim of that case, this Court quashed the

entire criminal proceeding and submits that in this case also the

ratio of the case of Chandan Kumar Gupta & Anr. vs. The State

of Jharkhand & Anr. (supra) is applicable. Hence, it is submitted

that the prayer as made in this writ petition be allowed.

11. Learned counsel for the State and the learned counsel for the

respondent no.2 on the other hand oppose the prayer made by the

petitioner in this writ petition. It is submitted by the learned

counsel for the State and the learned counsel for the respondent

no.2 by relying upon the judgment of the Hon’ble Supreme Court

of India in the case of Iqbal @ Bala & Ors. vs. State of Uttar

Pradesh & Ors. reported in (2023) 8 SCC 734, paragraph no. 7 of

which reads as under:-

“7. It is relevant to note that the victim has not
furnished any information in regard to the date and
W.P. (Cr.) No.475 of 2023
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time of the commission of the alleged offence. At the
same time, we also take notice of the fact that the
investigation has been completed and charge-sheet is
ready to be filed. Although the allegations levelled in the
FIR do not inspire any confidence more particularly in
the absence of any specific date, time, etc. of the alleged
offences, yet we are of the view that the appellants
should prefer discharge application before the trial court
under Section 227 of the Code of Criminal Procedure
(CrPC). We say so because even according to the State,
the investigation is over and charge-sheet is ready to be
filed before the competent court. In such circumstances,
the trial court should be allowed to look into the
materials which the investigating officer might have
collected forming part of the charge-sheet. If any such
discharge application is filed, the trial court shall look
into the materials and take a call whether any case for
discharge is made out or not.” (Emphasis supplied)

submits that in that case the Hon’ble Supreme Court of India

observed that though the allegation levelled in the FIR did not

inspire any confidence but in view of the fact that the

investigation of the case is complete and charge sheet was ready

to be filed, the appellant before the Hon’ble Supreme Court of

India should prefer discharge application before the learned trial

court and the learned trial court should be allowed to look into the

materials which the investigating officer might have collected

forming part of the charge sheet.

12. Learned counsel for the State and the learned counsel for the

respondent no.2 further submit that in this case, the stage is two

steps ahead of the case of Iqbal @ Bala & Ors. vs. State of Uttar

Pradesh & Ors. (supra) as in this case not only the charge sheet is

ready but the same has already been filed in the court and the

learned Judicial Magistrate 1st Class-VI, Ranchi upon application

of mind has taken cognizance of the offence and neither the

W.P. (Cr.) No.475 of 2023
8
charge sheet nor the cognizance order is under challenge in this

writ petition.

13. It is next submitted by the learned counsel for the State and the

learned counsel for the respondent no.2 by relying upon the Full

Bench Judgment of Hon’ble Patna High Court in the case of

Ramesh Kumar Ravi @ Ram Prasad & Etc. vs. State of Bihar &

Ors. reported in 1987 SCC OnLine Pat 83 that in the said

judgment the Hon’ble Full Bench of the Patna High Court

answered the question “Whether the judicial orders of a criminal

court (stricto sensu) under the Code of Criminal Procedure, are

amenable to quashing by a writ of certiorari?” by observing thus

in paragraph no.36:-

“36. In the light of the foregoing discussions the answer
to the question No. (iv) posed at the very outset is
rendered in the negative and it is held that the judicial
orders of a criminal court stricto sensu under the Code
of Criminal Procedure are not amenable to quashing by
a writ of certiorari.”

14. It is further submitted by the learned counsel for the State and

the learned counsel for the respondent no.2 that this settled

principle of law has been reiterated by the Hon’ble Supreme

Court of India albeit in response to an order passed by a civil court

in the case of Municipal Corporation of Greater Mumbai and

Ors. vs. Vivek V. Gawde & Ors. reported in 2024 SCC OnLine

SC 3722 and relying upon its judgment in the case of Radhey

Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015) 5 SCC

423 rendered by a three Judge Bench, paragraph no.25 of which is

quoted in paragraph no.14 of the judgment of Municipal

Ors. (supra) which reads as under:-

“14. In view of such binding decision, the inescapable
conclusion presenting itself is that the appellate order
under challenge before the High Court was rendered by a
civil court, and it is trite that orders passed by a civil
court cannot be challenged in a writ petition under
Article 226 of the Constitution. This point in law has
been decisively reiterated in the 3-Judge Bench decision
in Radhey Shyam v. Chhabi Nath4. This Court, while
holding that an order of the civil court could only be
challenged under Article 227 of the Constitution, and
not Article 226 thereof, ruled that:

“25.***All the courts in the jurisdiction of a High
Court are subordinate to it and subject to its control
and supervision under Article 227. Writ jurisdiction
is constitutionally conferred on all the High Courts.
Broad principles of writ jurisdiction followed in
England are applicable to India and a writ of
certiorari lies against patently erroneous or without
jurisdiction orders of tribunals or authorities or
courts other than judicial courts. There are no
precedents in India for the High Courts to issue writs
to the subordinate courts. Control of working of the
subordinate courts in dealing with their judicial
orders is exercised by way of appellate or revisional
powers or power of superintendence under Article

227. Orders of the civil court stand on different
footing from the orders of authorities or tribunals or
courts other than judicial/civil courts. While
appellate or revisional jurisdiction is regulated by the
statutes, power of superintendence under Article 227
is constitutional. The expression “inferior court” is
not referable to the judicial courts, as rightly observed
in the referring order [Radhey Shyam v. Chhabi
Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted
above.

W.P. (Cr.) No.475 of 2023
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***

27. Thus, we are of the view that judicial orders of
civil courts are not amenable to a writ of certiorari
under Article 226. We are also in agreement with the
view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC
616] of the referring Bench that a writ of mandamus
does not lie against a private person not discharging
any public duty. Scope of Article 227 is different from
Article 226.” (Emphasis supplied)

Hence, it is submitted that as the cognizance order by a

competent court of Judicial Magistrate 1st Class-VI, Ranchi has

been passed vide order dated 27.09.2023 in G.R. Case No. 2705 of

2023 therefore, the same cannot be set at naught by invoking the

power under Article 226 of the Constitution of India by this Court.

15. It is next submitted by the learned counsel for the State and the

learned counsel for the respondent no.2 by relying upon the

judgment of Hon’ble Supreme Court of India in the case of

Central Bureau of Investigation Vs. Aryan Singh Etc. reported in

2023 SCC OnLine SC 379, paragraph no.11 of which reads as

under:-

“11. One another reason pointed by the High Court is
that the initiation of the criminal
proceedings/proceedings is malicious. At this stage, it is
required to be noted that the investigation was handed
over to the CBI pursuant to the directions issued by the
High Court. That thereafter, on conclusion of the
investigation, the accused persons have been
chargesheeted. Therefore, the High Court has erred in
observing at this stage that the initiation of the criminal
proceedings/proceedings is malicious. Whether the
criminal proceedings was/were malicious or not, is not
required to be considered at this stage. The same is
required to be considered at the conclusion of the trial.
In any case, at this stage, what is required to be
considered is a prima facie case and the material

W.P. (Cr.) No.475 of 2023
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collected during the course of the investigation, which
warranted the accused to be tried.” (Emphasis supplied)

that in this case as on conclusion of investigation against the

petitioner-accused, the petitioner-accused has been charge

sheeted, so whether the criminal proceeding is malicious or not is

not required to be considered at this stage and the same is to be

considered at the conclusion of the trial. Hence, it is submitted

that the ground that the prosecution of the petitioner being

malicious; is not a ground for quashing of the same at this stage.

16. Learned counsel for the State and the learned counsel for the

respondent no.2 next relied upon the judgment of the Hon’ble

Supreme Court of India in the case of Dr. Lakshman vs. State of

Karnataka & Ors. reported in (2019) 9 SCC 677 wherein, the

Hon’ble Supreme Court of India reiterated the settled principle of

law that where there exists a fraudulent and dishonest intention at

the time of the commission of the offence, law permits the victim

to proceed against the wrongdoer for having committed an

offence of criminal breach of trust or cheating and submits that in

this case as the petitioner undisputedly has received the entire

consideration amount including the cost of boundary wall but has

not handed over the possession of the land to the informant and

her relatives, as yet and the same has been done with fraudulent

and dishonest intention which is apparent from the fact that

though the petitioner is claiming that he has cancelled agreement

with the informant and her relatives but the same was never

W.P. (Cr.) No.475 of 2023
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communicated either to the informant or her relatives. Hence, it is

submitted that the criminal case is maintainable.

17. Learned counsel for the State and the learned counsel for the

respondent no.2 also drew attention of this Court to the judgment

of the Hon’ble Supreme Court of India in the case of Vesa

Holding Pvt. Ltd. & Anr. vs. State of Kerela & Ors. (supra) and

submit that therein, the Hon’ble Supreme Court of India has also

observed that a given set of facts may make out a civil wrong as

also a criminal offence and only because a civil remedy may be

available to the complainant that itself cannot be a ground to

quash a criminal proceeding. It is next submitted by the learned

counsel for the State and the learned counsel for the respondent

no.2 that in this case the petitioner has committed the offence

punishable under Sections 406, 420 and 506 of Indian Penal Code

which has been found to be true by the police upon investigation

of the case. Hence, it is submitted that this writ petition being

without any merit be dismissed.

18. Having heard the rival submissions made at the Bar and after

going through the materials available in the record, it is pertinent

to mention here that the undisputed fact remains that in this case

the petitioner has been charge sheeted and consequent upon the

submission of the charge sheet; basing upon the same, the learned

Judicial Magistrate 1st Class-VI, Ranchi has taken cognizance of

the offences punishable under Section 406, 420 and 506 of Indian

Penal Code, against the petitioner. It is pertinent to mention here

that no word has been whispered by the petitioner in the writ

W.P. (Cr.) No.475 of 2023
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petition regarding the offence punishable under Section 506 of

Indian Penal Code. It is not even the case of the petitioner, that

the offence punishable under Section 506 of the Indian Penal Code

is not made out.

19. So far as the offence punishable under Section 420 and 406 of

Indian Penal Code are concerned, there is allegation of the

petitioner having played deception since the beginning of the

transaction between the parties and having committed criminal

breach of trust. As cognizance of the offence has been taken

consequent upon the submission of the charge sheet, this Court is

of the considered view that as observed by the Hon’ble Supreme

Court of India in the case of Iqbal @ Bala & Ors. vs. State of Uttar

Pradesh & Ors. (supra), this is a fit case where the petitioner may

approach the learned trial court by filing a discharge application.

This is a case where neither the charge sheet nor the cognizance

order has been under challenged, without any plausible reason. It

is needless to mention, is already indicated above in the forgoing

paragraphs of this judgement, there is bar for issuance of writ of

certiorari for quashing of judicial order passed in a criminal case.

It is pertinent to mention here that allowing the prayer of the

petitioner to quash the entire criminal proceeding will, by default,

amount in quashing of the order taking cognizance also; the

prayer for which has neither been made nor the same can be

allowed in a writ petition invoking the jurisdiction of this court

under Article 226 of the Constitution of India. Under such

circumstances, this court is of the considered view, this is not a fit

W.P. (Cr.) No.475 of 2023
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case where the entire criminal proceeding is to be quashed and set

aside.

20. Accordingly, this writ petition being without any merit is

dismissed.

21. The interim order granted earlier stands vacated.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi
Dated the 9th January, 2025
AFR/Sonu-Gunjan/-

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