MD. ALLAUDDIN KHANversusTHE STATE OF BIHAR & ORS.

876                       [2019]
               SUPREME COURT     5 S.C.R. 876
                              REPORTS                     [2019] 5 S.C.R.


A                          MD. ALLAUDDIN KHAN
                                        v.
                        THE STATE OF BIHAR & ORS.
                        (Criminal Appeal No.675 of 2019)
                                 APRIL 15, 2019
B
                      [ABHAY MANOHAR SAPRE AND
                        DINESH MAHESHWARI, JJ.]
            Code of Criminal Procedure, 1973:
            s. 482 – Complaint u/ss. 327 And 379 r/w s. 34 IPC – Taken
      cognizance of, by the Judicial Magistrate – In petition u/s. 482,
C     High Court quashed the complaint holding that prima facie case
      was not made out in view of pending civil dispute between the parties
      and that the statements of witnesses were contradictory – On appeal,
      held: In order to see whether prima facie case is made out against
      the accused for taking cognizance, the Court is only required to
D     see the allegations in the complaint – Such ascertainment cannot
      be done taking into account mere pendency of civil dispute – High
      Court also had no jurisdiction to appreciate the evidence in exercise
      of jurisdiction u/s. 482 – Therefore, High Court was not right in
      quashing the complaint.
            Allowing the appeal, the Court
E
            HELD : 1.1 The High Court did not examine the case with
      a view to find out as to whether the allegations made in the
      complaint prima facie make out the offences falling under Sections
      323, 379 read with Section 34 IPC or not. Instead the High Court
      gave importance to the fact that since there was a dispute pending
F     between the parties in the Civil Court in relation to a shop as
      being landlord and tenant, it is essentially a civil dispute between
      the parties. It is on this ground, the High Court proceeded to
      quash the complaint. This approach of the High Court is faulty.
      [Paras 10, 11, 12][879-D-F]
G           State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR
            1992 SC 604 : [1990] 3 Suppl. SCR 259 – relied on.
             1.2 The High Court failed to see that mere pendency of a
      civil suit is not an answer to the question as to whether a case
      under Sections 323, 379 read with Section 34 IPC is made out
      against respondent Nos. 2 and 3 or not. [Para 14][879-G-H]
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                                      876
  MD. ALLAUDDIN KHAN v. THE STATE OF BIHAR & ORS.                       877


      1.3 In order to see whether any prima facie case against          A
the accused for taking its cognizance is made out or not, the Court
is only required to see the allegations made in the complaint. In
the absence of any finding recorded by the High Court on this
material question, the impugned order is legally unsustainable.
[Para 15][880-B]
                                                                        B
      2. The High Court was also wrong in holding that there
were contradictions in the statements of the witnesses on the
point of occurrence. The High Court had no jurisdiction to
appreciate the evidence of the proceedings under Section 482 of
Cr.P.C because whether there are contradictions or/and
inconsistencies in the statements of the witnesses is essentially       C
an issue relating to appreciation of evidence and the same can be
gone into by the Judicial Magistrate during trial when the entire
evidence is adduced by the parties. That stage is yet to come in
the present case. [Para 17][880-C-D]
      3. Therefore, the reasoning and the conclusion arrived at         D
by the High Court for quashing the complaint filed by the appellant
against respondent Nos. 2 and 3 is not legally sustainable and
hence it deservers to be set aside. [Para 18][880-E]
                       Case Law Reference
                                                                        E
[1990] 3 Suppl. SCR 259        relied on               Para 13
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 675 of 2019.
      From the Judgment and Order dated 11.09.2017 of the High Court
of Judicature at Patna in Criminal Miscellaneous No. 27078 of 2013.     F
      Binay Kumar Das, H. Hasibuddin, Ms. Priyanka Das, Advs. for
the Appellant.
      Prabhat Ranjan Raj, Jeewesh Prakash, Ms. Ritu Dubey, Shantanu
Sagar, Devashish Bharuka, Ms. Ravi Bharuka, Ms. Sarvshree, Justine
George, Aditya Singala, Advs. for the Respondents.                      G

      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J. 1. Leave granted.
      2. This appeal is directed against the final judgment and order
dated 11.09.2017 passed by the High Court of Judicature at Patna in     H
878              SUPREME COURT REPORTS                        [2019] 5 S.C.R.


A     Criminal Miscellaneous Application No.27078 of 2013 whereby the High
      Court allowed the Criminal Miscellaneous Application filed by respondent
      Nos.2 & 3 herein and quashed the complaint filed by the appellant herein.
            3. A few facts need mention hereinbelow for the disposal of this
      appeal, which involves a short point.
B           4. By impugned order, the High Court quashed the order dated
      13.02.2013 passed by the Judicial Magistrate 1st Class, Saran at Chapra
      in Complaint Case No.21/2012 whereby the Judicial Magistrate took
      cognizance of the complaint filed by the appellant herein against
      respondent Nos. 2 and 3 for commission of the offences punishable
C     under Sections 323, 379 read with Section 34 of the Indian Penal Code,
      1860 (for short “IPC”) by holding that a prima facie case was made out
      against respondent Nos.2 and 3 on the basis of allegations made in the
      complaint.
             5. So, the short question which arises for consideration in this
D     appeal filed by the complainant is whether the Judicial Magistrate was
      right in holding that a prima facie case is made out against respondent
      Nos.2 and 3 for commission of the offences punishable under Sections
      323, 379 read with Section 34 IPC so as to call upon them to face the
      trial on merits or whether the High Court was right in holding that no
      prima facie case has been made out against respondent Nos.2 and 3.
E
            6. Heard Mr. Binay Kumar Das, learned counsel for the appellant,
      Mr. Prabhat Ranjan Raj, learned counsel for respondent Nos.2 & 3 and
      Mr. Devashish Bharuka, learned counsel for respondent No.1-State.
             7. Having heard the learned counsel for the parties and on perusal
F     of the record of the case, we are constrained to allow the appeal, set
      aside the impugned order and restore the order of the Judicial Magistrate
      dated 13.02.2013.
               8. The High Court examined the case in para 6, which reads as
      under:
G              “6. On perusal of complaint petition, I find that the
               complainant has asserted that firstly, he had contracted for
               purchasing the shop premises from the land owner, but the
               petitioners offered more money and got the document
               registered in their favour. There is no chit of paper on
               record to support the agreement of sale or payment of any
H              amount to the land owner. The petitioners claim to be bona
  MD. ALLAUDDIN KHAN v. THE STATE OF BIHAR & ORS.                               879
            [ABHAY MANOHAR SAPRE, J.]

      fide purchaser of the shop premises, which was in tenancy                 A
      of the complainant. The petitioners have filed an Eviction
      Suit No.10 of 2012, in which the complainant has filed his
      written statement admitting tenancy in the said shop
      premises. The complainant has further asserted that he
      has been remitting rent of the said shop regularly and when
                                                                                B
      he learnt about the transfer of shop premises in favour of
      the petitioners, the complainant has filed a Title Suit No.2
      of 2012. The dispute between the parties appears to be a
      civil dispute. The relationship of landlord and tenant stands
      admitted by the complainant in the eviction suit. I further
      find that there are contradictions in the statement of                    C
      witnesses on the point of occurrence. The criminal
      prosecution of these petitioners in the above background
      appears to be an abuse of process of Court.”
      9. On perusal of the impugned order, we find that it suffers from
two errors.                                                                     D
       10. First error is that the High Court did not examine the case
with a view to find out as to whether the allegations made in the complaint
prima facie make out the offences falling under Sections 323, 379 read
with Section 34 IPC or not.
       11. Instead the High Court in Para 6 gave importance to the fact         E
that since there was a dispute pending between the parties in the Civil
Court in relation to a shop as being landlord and tenant, it is essentially a
civil dispute between the parties.
     12. It is on this ground, the High Court proceeded to quash the
complaint. This approach of the High Court, in our view, is faulty.             F
       13. Though the High Court referred to the law laid down by this
Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal &
Ors. (AIR 1992 SC 604) but failed to apply the principle laid down
therein to the facts of this case.
                                                                                G
       14. The High Court failed to see that mere pendency of a civil suit
is not an answer to the question as to whether a case under Sections
323, 379 read with Section 34 IPC is made out against respondent Nos.
2 and 3 or not.
      15. The High Court should have seen that when a specific
grievance of the appellant in his complaint was that respondent Nos. 2          H
880             SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A     and 3 have committed the offences punishable under Sections 323, 379
      read with Section 34 IPC, then the question to be examined is as to
      whether there are allegations of commission of these two offences in
      the complaint or not. In other words, in order to see whether any prima
      facie case against the accused for taking its cognizance is made out or
      not, the Court is only required to see the allegations made in the complaint.
B
      In the absence of any finding recorded by the High Court on this material
      question, the impugned order is legally unsustainable.
             16. The second error is that the High Court in para 6 held that
      there are contradictions in the statements of the witnesses on the point
      of occurrence.
C
             17. In our view, the High Court had no jurisdiction to appreciate
      the evidence of the proceedings under Section 482 of the Code Of
      Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there
      are contradictions or/and inconsistencies in the statements of the witnesses
      is essentially an issue relating to appreciation of evidence and the same
D     can be gone into by the Judicial Magistrate during trial when the entire
      evidence is adduced by the parties. That stage is yet to come in this
      case.
             18. It is due to these two errors, we are of the considered opinion
      that the reasoning and the conclusion arrived at by the High Court for
E     quashing the complaint filed by the appellant against respondent Nos. 2
      and 3 is not legally sustainable and hence it deservers to be set aside.
             19. In view of the foregoing discussion, the appeal succeeds and
      is accordingly allowed. The impugned order is set aside and the order of
      the Judicial Magistrate dated 13.02.2013 is restored because it records
F     a finding that a prima facie case for taking cognizance of the complaint
      is made out.
             20. The Judicial Magistrate is accordingly directed to proceed to
      conclude the trial on merits on the basis of evidence adduced by the
      parties in the trial strictly in accordance with law uninfluenced by any
G     observations made by the High Court in the impugned order and in this
      order made by this Court.

      Kalpana K. Tripathy                                            Appeal allowed.


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