Code of Criminal Procedure, 1973 – s.482 – Quashing – Civil suit filed by the complainant against the appellants seeking specific performance of the Agreement to Sell; soon thereafter an FIR was also filed inter alia u/ss.405, 406, 415, 417, 418, 420, IPC – Appellants filed petition seeking quashing of the FIR, dismissed by High Court – Propriety:
Held: The same person cannot be simultaneously charged for offences punishable u/s.406 and 420 w.r.t one particular transaction – Under s.405, criminal breach of trust would arise only in a situation where the accused in any manner has been entrusted with property, or with any dominion over property and dishonestly misappropriates or converts the same to his own use, or dishonestly uses or disposes of that property – In the present case, accused were not entrusted with the subject property as they had title over the subject property – Thus, s.406 cannot be invoked – Further, it is not found that by deceiving the complainant, the appellants had fraudulently or dishonestly induced him to deliver the property to them or to any other person or to consent that any person shall retain any property or intentionally induced the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived – Even the pleadings of the complainant himself show that possession of the subject property was never given to the complainant and rather, stipulation was made for such possession being handed over after execution of Sale Deed – s.420 is also not attracted – No criminal aspect in the allegations ex-facie – Moreover, the complainant has filed a civil suit for reliefs – In the absence of the element of criminality, continuation of both civil and criminal cases, will be abuse of the process of Court – FIR and all consequential orders including the chargesheet and the cognizance order are quashed qua the appellants as well as co-accused-‘VVS’ (the daughter of appellant no.1, who is not in appeal). [Paras 34, 37, 39-42, 47, 48] Abuse of Process of Law – Code of Criminal Procedure, 1973 – s.482 – Quashing – Civil proceedings already instituted with regard to the same issue, element of criminality absent – Criminal proceedings ought to be quashed:
Held: Stricto sensu, is that there is no bar to simultaneous civil and criminal proceedings and both can be maintained on the very same set of allegations qua the same person(s) – If the element of criminality is there, a civil case can co-exist with a criminal case on the same facts – The fact that a civil remedy has already been availed of by a complainant, ipso facto, is not sufficient ground to quash an FIR – The obvious caveat being that the allegations, even if having a civil flavour to them, must prima facie disclose an overwhelming element of criminality – In the absence of the element of criminality, if both civil and criminal cases are allowed to continue, it will amount to abuse of the process of the Court and any such criminal proceeding ought to be stopped, where civil proceedings have already been instituted with regard to the same issue, and the element of criminality is absent. [Para 42] Directions by Supreme Court issued in Priyanka Srivastava case – Nature and operation:
Held: Directions issued in Priyanka Srivastava case are mandatory – Guidelines laid therein operate prospectively – Non-filing of the supporting affidavit is a curable defect, but must be cured before the Magistrate passes any substantive order on the complaint/application – If the Magistrate proceeds without the requisite affidavit, such order/any consequential orders/proceedings can be quashed on the sole ground of non-compliance with Priyanka Srivastava – In the present case, the impugned judgment does not militate against the law laid down in Priyanka Srivastava. [Paras 45, 46]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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