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Mir Barkat Ali Khan Bhadur Vs. Syed ShujauddIn Ahmed and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1230
AppellantMir Barkat Ali Khan Bhadur
RespondentSyed ShujauddIn Ahmed and anr.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......kondaiah, j.1. this application by the petitioner under section 561-a of the code of criminal procedure is to quash the proceedings in c.c. no. 2061 of 1972 on the file of the vith city magistrate. city criminal court. hyderabad, against him for the alleged offences punishable under sections 403 and 409 of the indian penal code.2. the material facts as per the prosecution case, leading upto this application may briefly be stated: late sardar begum, widow of nawab mir mahboob ali khan. nizam vi of hyderabad, had entrusted her iewellery (kept in a sealed box) worth about rs. 15/- crores to nawab mir osman ail khan bhahadur. nizam vii of hyderabad very soon after police action for safe-custody at her place devudi shadi khana in the presence of mahaboob ali khan and karamath ashraf. nizam vii.....
Judgment:

Kondaiah, J.

1. This application by the petitioner under Section 561-A of the Code of Criminal Procedure is to quash the proceedings in C.C. No. 2061 of 1972 on the file of the VIth City Magistrate. City Criminal Court. Hyderabad, against him for the alleged offences punishable under Sections 403 and 409 of the Indian Penal Code.

2. The material facts as per the prosecution case, leading upto this application may briefly be stated: Late Sardar Begum, widow of Nawab Mir Mahboob Ali Khan. Nizam VI of Hyderabad, had entrusted her iewellery (kept in a sealed box) worth about Rs. 15/- crores to Nawab Mir Osman Ail Khan Bhahadur. Nizam VII of Hyderabad very soon after Police action for safe-custody at her place Devudi Shadi Khana in the presence of Mahaboob Ali Khan and Karamath Ashraf. Nizam VII took away the iewellery box with him to preserve the same intact in the King Kothi Palace, Sardar Begum died i'ssueless on August 11, 1950 leaving behind her properties. movable and immovable, worth rupees sixty crores. The entrustment of the jewellery box to Nizam VII is referred to in the will of Sardar Begum dated 22nd Mav. 1950. Zainam Begum. the elder sister of Sardar Begum who succeeded to the estate of late Sardar Begum, died on February 8. 1956 leaving behind her son Nawab Mir Mahboob and daughter Nazini Begum, who succeeded to her estate. The complainant is the son of Nazini Begum. In the year 1957 the maternal uncle and the mother of the complainant reauested the then Nizam to release the properties including the jewellery box of Sardar Begum. He told them that he .got no such property and they can redress their grievance, if any by approaching a Civil Court. Thereafter, they approached the Government of India to grant permission under Section 87-B of the Code of Civil Procedure to sue the then Nizam in a Civil Court for the recovery of the properties of Sardar Begum to which they have succeeded through their mother.

The Government of India, in the year 1966, refused to accord sanction to sue the then Nizam. The Writ Petition 290 of 1966 filed by them was resisted by the then Nizam who died on February 24. 1967. The present accused succeeded to all the private properties, movable and immovable, held by the then Nizam by virtue of a certificate issued by the Government of India on February 27 1967 under clause 22 of Article 366 of the Constitution of India recognising him as the ruler of Hyderabad to succeed his grandfather with effect from February 24, 1967. In the Writ Petition the present accused was brought on record as one of the legal representatives of late Nizam. In the counters filed on behalf of the then Nizam the entrustment of any jewellery by Sardar Begum was denied in addition to the other points raised therein. The writ petition was dismissed on the ground of lack of fresh sanction. After the disposal of the Writ Appeals 101 and 102 of 1967. the further request made by the uncle and mother of the complainant to the Government of India to reconsider the grant of sanction to sue the accused was refused. They again preferred a Writ Petition No. 721 of 1968 on February 12, 1968 against the Government of India and the petitioner herein for the issuance of a writ of mandamus directing the Government of India to accord immediate sanction to them to sue the petitioner-accused in a competent Civil Court.

The petitioner-accused had filed his counter on March 12. 1968 denying the right of the writ petitioners. Mahaboob Ali Khan died on March 18. 1968. Nazini Begum (mother of the complainant) and the son and daughters of late Mahaboob Ali Khan filed a regular suit Original Suit No. 116 of 1970 on September 26. 1970 on the file of the Court of the Additional Chief Judge. Hyderabad, for appointing a commissioner to partition the suit properties and to allot the shares of the plaintiffs for delivery of possession of the entire share of the plaintiffs, movables, jewellery and immovable properties, to which they are entitled and to direct the defendants 1 and 2 to furnish account of profits from the suit properties. Admittedly the jewellery of late Sardar Begum, was one of the items of the subject-matter of the suit. On September 12. 1971 Nazini Begum died. The complainant was brought on record as one of the legal representatives of Nazini Begum in Original Suit 116 of 1970 in January. 1972. The Writ Petition 721 of 1968 was dismissed in January. 1972 with a direction to the Civil Court to decide all the questions involved in the Writ.

3. The present complaint was filed on April 10, 1972. The complainant and another were examined by the Magistrate under Section 200 of the Code of Criminal Procedure on 11-4-1972 and the case was numbered and taken on file under Section 403 of the Indian Penal Code and summons issued on May 16. 1972. Hence, this application by the Nizam to quash the proceedings, was also obtained. The complainant filed a counter-affidavit contending inter alia that this application was misconceived and premature apart from devoid of any merit and prayed for vacating the interim stay.

4. Late Mr. Chari and the Advocate-General contended before us that the allegations in the complaint and the deposition of the complainant taken at their face value do not prove the ingredients of Section 403 of Indian Penal Code, that the alleged entrustment was denied by the late Nizam himself consistently since the year 1957 and the demand for the properties of late Sardar Begum was made by Nawab Mir Mahboob Ali Khan and Nazini Begum and the accused succeeded to all the private properties of his grandfather by virtue of the certificate issued by the Government of India and the complainant may proceed to establish his claim in the Civil Court and the Criminal -Proceedings, in the circumstances, would amount to harassment of the present Nizam though no useful purpose can be served by allowing .the same to continue in the lower court and therefore, this is a fit and proper case for this court to exercise its inherent powers to quash the proceedings under Section 561-A of the Code of Criminal Procedure,

This claim of the petitioner is stoutly resisted by Mr. V. B. Sahgal, the learned Counsel for the respondent contending inter alia that this application is misconceived, premature and is devoid of any merit. According to the counsel all the ingredients of Section 403 of the Indian Penal Code have been alleged and there is sufficient evidence to prove the guilt of the accused who has misappropriated the iewellery by selling the same at Bombay and converted that property to his own use. The submission advanced on behalf of the petitioner that he cannot be made criminally liable for misappropriation even if anv entrustment was made to his grandfather is countered by Mr. Sahgal by saying that the late Nizam had kept intact the iewellery box and it is the accused that had converted the same to his own use by selling the lewellary at Bombay and that he knew that the iewellery belongs to the complainant and other plaintiffs in the suit.

5. Upon the allegations and counter allegations and the respective contentions of the parties, the following question arises for decision:

Whether on the facts and in the circumstances the petitioner has made out a case to have the proceedings in the lower Court initiated against him by the respondent, quashed by invoking the inherent powers of this court under Section 561-A of the Code of Criminal Procedure?

6. Before adverting to the merits, it is profitable and necessary to briefly refer to the scope and application of Section 561-A of the Code of Criminal Procedure which reads as follows:

561-A. Nothing in this Code shall be deemed to limit or affect the inherent power 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 anv Court or otherwise to secure the ends of justice.

Section 561-A was enacted by Section 156 of the Code of Criminal Procedure Amendment Act. 1923. as the central legislature thought it desirable to make it clear that the High Courts possess inherent jurisdiction for the purpose of securing the ends of iustice. The decision of the Allahabad High Court in C. Dunn v. King Emperor. AIR 1922 All 107 : 23 Cri LJ 349 holding that it has no power to expunge the objec- tionable matter from the record, necessitated the legislature to insert this section. This section provides for saving of inherent power of High Courts as revealed from the very title of the section. The provisions of the section manifest that this section does not specifically invest any new power or increase the existing power possessed by the High Courts on the date of its insertion. It is nothing but statutory rer cognition of inherent jurisdiction already vested in the High Courts. In other words it has preserved and safeguarded all the existing powers possessed by the High' Courts for the purpose of securing real and substantial iustice to the parties that appears in the causes before them.

As observed by the Judicial Committee in Emperor v. Khwaia Nazir Ahmed. AIR 1945 PC 18 at p. 22 : 46 Cri LJ 413 it was inserted

lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act.

(Vide Jairam Das v. Emperor AIR 1945 PC 94 at p. 98 : 46 Cri LJ 662 and State of Uttar Pradesh v. Mohammad Nairn. : [1964]2SCR363 . That apart, the inherent powers preserved by the Section are vested in the High Court by law within the meaning of Article 21, by virtue of Article 225 of the Constitution of India (Vide Ratilal Bhanuji Mithaji v. Assistant Collector of Customs AIR 1967 SC 1638 at p. 1642 = (1967 Cri LJ 1576).)

7. The inherent power invested in the High Court is of very wide import and also indefinable as seen from the opening passage 'Nothing in this Code shall be deemed to limit or affect the inherent power' used in that section. (See also Sankalchand v. Khenga--ram Vardhaji AIR 1969 Gui 342 at p. 344 : 1969 Cri LJ 1501. It is well settled that the inherent power of the Court can be exercised only with regard to matters not specifically provided by the provisions of the Code. To put it differently no inherent power exists in the High Courts to override the express provisions of the Code or any specific remedy available to meet the situation. (Vide Khushi Ram v. Hasim. AIR 1959 SC 542 at p. 544 : 1959 Cri LJ 658 and R. P. Kapur v. State of Punjab : 1960CriLJ1239 . It only preserves the inherent iurisdiction or power for purposes of moulding the procedure in a Criminal Court subject to the statutory provisions of the Code. The inherent jurisdiction has to be exercised sparingly and with care and caution and only in appropriate cases either to prevent the abuse of the process of any Court or to secure the ends of justice. (Vide T. H. Hussain v. M. P. Mondkar : 1958CriLJ701 .

8. That brings us to examine the scope of the inherent jurisdiction of this Court to quash the proceedings of any subordinate criminal Court. Normally, this court would be reluctant to interfere with the criminal proceedings instituted before an enquiry or trial Court against the accused person. Section 215 of the Code empowers this court to quash commitments made by a competent Magistrate under Section 213. if they are illegal and without jurisdiction. Where any proceedings of interlocutory nature and before commitment had to be quashed. Section 215 has no application. In such cases re-caurse should be had to the inherent powers under Section 561-A of the Code. It may be noted that it is neither possible nor desirable to frame any rule of thumb of universal application to govern the mode and manner of exercise of the inherent powers vested in the Court in this regard. Whether or not the High Court should exercise its inherent powers to quash a criminal proceeding depends upon the facts and circumstances of each case. The High Court has to exercise its inherent jurisdiction in only appropriate cases. We mav notice that in the following circumstances, this court can and has to exercise its inherent jurisdiction and powers to quash a criminal proceeding of any Subordinate Criminal Court;

(1) Where there is a legal bar. such as. absence of requisite sanction to institute or continue a criminal proceeding in respect of the offence alleged'.

(2) Where the allegations in the First Information Report or the Complaint, as the case may be taken at their face value and accepted to be correct do not constitute the alleged offence.

(3) Where there is no legal evidence or the evidence adduced clearly or manifestly fails to prove the charge.

9. It is pertinent to notice that it is not permissible to this Court to embark upon an enquiry about the reliability, adequacy or otherwise of the evidence on record at the time of the exercise of the inherent jurisdiction to quash the proceedings, as that is the function of the enquiry or trial Court. In other words, it is not open to any accused person to invoke the inherent jurisdiction under this section to quash the criminal proceedings initiated against him on the ground that the evidence on record is not sufficient or adequate to sustain the accusation made against him. (Vide : 1960CriLJ1239 . However, it should not be understood that this Court is not competent to examine whether or not there is any legal evidence to sustain the accusations made against the accused. Where this Court finds the evidence on record is tainted and unreliable and no case to go to the jury is made out. the proceedings can be quashed. However, where investigation into the facts and circumstances of an alleged cognizable offence is going on as per the provisions of the Code, it is neither just and proper nor desirable for the High Court to exercise its inherent power under this section to quash the proceedings, as such a course would impede the investigation and the jurisdiction of the statutory authorities from exercising their powers. (Vide Rajendra Nath v. Dy. Supdt, of Police, Punulia : 1972CriLJ268 and Hazari Lai v. Rameswar Prasad : 1972CriLJ298 . Where the proceedings initiated against an accused either by the State or on a private complaint appear to have been set in motion .as a clear abuse of the process of the Court, it is not only desirable, but just and proper for the Court to quash such proceedings in exercise of the inherent jurisdiction. Where the proceedings reveal to be mala fide or have been launched either by the State or by a private citizen with the avowed object of harassing the accused and if the court is of the opinion that no useful purpose will be served by allowing the proceedings to continue it has to invoke its inherent jurisdiction to quash such proceedings.

10. In the light of the foregoing discussion, we shall examine the contention advanced on behalf of the accused-petitioner, that the facts alleged in the complaint and the sworn deposition even if taken at their face value and in their entirety do not constitute an offence punishable under Section 403 of the Indian Penal Code and to allow the proceedings to continue would serve no useful purpose except harassing the accused-petitioner. In order to appreciate this plea, we may briefly refer to the scope and applicability of Section 403 of the Indian Penal Code. In order to attract the provisions of Section 403 of the I.P.C. the following three ingredients must be established:

(i) The movable property alleged to have been misappropriated or converted to his (accused's) own use was the property of the complainant.

(ii) The accused had misappropriated such movable property or converted the same to his own use. and

(iii) The accused had misappropriated or converted the property to his own use dishonestly.

If any one of the aforesaid ingredients is not proved beyond reasonable doubt, the accused cannot be convicted under Section 403 of the I.P.C. Mere misappropriation or conversion of movable property to his own use will not attract the provisions. of this section. Unless and until the element of dishonesty in misappropriating or converting the property to his own use is proved, it does not amount to criminal misappropriation punishable under Section 403 of the Indian Penal Code. Wherein a person with ,an honest and bona fide belief that the property really belongs to him and it does not belong to any one else appropriates or converts the same to his own use. he is not liable to be punished under Section 403 of the Indian Penal Code. To hold that misappropriation or conversion of movable property is dishonest, it must be found that the accused had full knowledge that the property really does not belong to him and it belongs to another and it was in his possession for and on behalf of the real owner in the capacity of a trustee. Where a person takes the property of another believing in good faith that such property belongs to him. he is not guilty of theft or criminal misappropriation. But. however, after coming to know that the property really belongs to another and he is mot the owner, and dishonestly misappropriates or converts it to his own use. he must be held to be guilty of criminal misappropriation of that property. Even temporary dishonest misappropriation amounts to criminal misappropriation within the meaning of Section 403 of the Indian Penal Code (Vide In re Ch. Venkata Sub-bayya. : 1958CriLJ228 and also Explanation 1 to Section 403 of the Indian Penal Code The burden of proving the offence of criminal misappropriation against the accused is undoubtedly on the complainant or the prosecution. (Vide Hamaswamy Nadar v. The State of Madras : 1958CriLJ228 . The use of partnership assets by a partner for his own use would not amount to an offence punishable under Section 403 of the Indian Penal Code. (Vide Velji Raghavji Patel v. State of Maharashtra : 1965CriLJ431 .

11. We may now recapitulate the .allegations and facts as disclosed from the complaint end the sworn deposition of the complainant, taking them at their face value and in their entirety; late Sardar Begum had entrusted a jewellery box containing jewellery worth about Rs. 15 crores immediately after the police action (1948) to Nizam VII the grand-father of the accused. She died in the year 1950. Her elder sister Zainab Begum who succeeded to the estate of late Sardar Begum died in the year 1956 leaving behind her son and daughter. Admittedly, no demand for the jewellery was made either by Sardar Begum or by Zainab Begum during their lifetime. When demanded by the mother and maternal-uncle of the complainant to release to them the iewellery entrusted by Sardar Begum in the year 1948. the then Nizam had categorically refused as early as in the year 1957 to accede to their request on the ground that no such property was given to him and they may approach the Civil Court to redress their grievance, if any. They approached the Government of India for permission to sue the then Nizam in a Civil Court for recovery of the jewellery and other properties of late Sardar Begum, In that connection the then Nizam had categorically informed the Government of India that no such property had been entrusted to him by late Sardar Begum and there is no truth in their allegation. The Government of India ultimately refused in the year 1966 to grant the requested permission.

Thereupon, the attempts of the mother and maternal-uncle of the complainant to obtain the necessary relief under Article 226 of the Constitution of India, were not successful. After the death of Nizam VII on 24-2-1967 the accused was recognised by the President of India in a certificate issued under clause 22 of Article 366 of the Constitution of India on 27-2-1967 as the successor of Nizam the VII. entitling him to inherit all, the private properties, movable and immovable of his grand-father. The Writ Petition No. 721 of 1968 was dismissed in January, 1972. The Original Suit 116 of 1970 is still pending adjudication of the rights of the complainant and the other plaintiffs. This Court has already directed in Writ Petition 721 of 1968 to decide all the questions raised in the writ petition, in the Civil Suit. In those circumstances the present complaint was filed on 10-4-1972.

12. The facts referred to above do not prove that the accused was entrusted with the jewellery of late Sardar Begum or by any one. But on the contrary the admitted or Droved facts establish that he became entitled to and got into possession of the same by virtue of the certificate granted to him by the Government of India on 27-2-1967. as the heir of his late grandfather Nizam VII. It is not even the case of the complainant nor is there material on record to warrant a conclusion that the accused was entrusted either by his grand-father Nizam VII or by the Government of India, the jewellery boy of late Sardar Begum, when he succeeded to the estate of his grand-father on 24-2-1967. to be kept, as a trustee in his custody for the benefit of the heirs of Sardar Begum or her elder sister. From the admitted facts and circumstances, it is not possible to infer that the appropriation or use of the jewellery, if any. by the accused would amount to dishonest misappropriation or use for his own benefit within the meaning of Section 403 of the Indian Penal Code. The accused had no knowledge that the jewellery in question does not belong to him but belongs to the complainant and others and that he had to preserve the same intact as a trustee for the benefit of the real owners. Admittedly, there was a dispute even during the lifetime of late Nizam VII about the ownership of the jewellery in question and a civil suit has been filed in the year 1970.

In the circumstances, the accused, even if the .allegations in the complaint are taken at their face value, cannot be held to be liable to be punished for the offence under Section 403 of the Indian Penal Code. The property in question has come to the possession of the accused by virtue of his being the heir of his grandfather and hence he is entitled to enjoy the same subject to the rights of the complainant and others that may be adjudicated in the civil suit now pending before the Civil Court. There is absolutely no chance or material to make the accused liable for criminal misappropriation. If at all the late Nizam VII who was alleged to have been entrusted with the jewellery by late Sardar Begum might have been responsible if all the three ingredients of Section 403 of the Indian Penal Code are established. The accused who inherited the properties of his grandfather cannot be made punishable for any criminal acts alleged to have been committed bv his grand-father. It is well settled that mere retention of the movable property belonging to another or an attempt to misappropriate would not amount to criminal misappropriation. Any person honestly believing that the property in his possession really belonged to him and to none others spends the same for his own benefit cannot be punished under Section 403 of the Indian Penal Code. At the most, he may be liable to be proceeded against in a Civil Court, if any third party proves to the satisfaction of the Court that he is the real owner of the property. Hence bona fide belief that the property belongs to the accused will take his case beyond the purview of Section 403 of the Indian Penal Code.

We may notice the decision of the Division Bench of the Assam High Court in U. M. W. Niangseh v. K E. W Non-gseh AIR 1954 Assam 259 : 1954 Cri LJ 1838 wherein misappropriation of gold ornaments and money realised by the accused from the debtors of his deceased master was not held to be criminal misappropriation within the meaning of Section 403 of the Indian Penal Code. Therein, the accused who was employed by his master to look after his money-lending business came to be in possession of considerable cash and valuable documents belonging to his deceased master at the time of his death. The accused claimed title to the property of the deceased and misappropriated the gold ornaments and money realised by him from the debtors of his master. The complainant claiming to be the sole heir of the deceased applied to the Additional Deputy Commissioner for d.eclaration that the property of the deceased remained wiih the deceased at the time of his death and for possession of the same. The accused contested that the property belonged to him. The question that fell for decision was whether the complaint against the accused for the offences punishable under Sections 193. 404, 408 and 424 of the Indian Penal Code, was liable to be quashed.

The learned _ Judges holding that there w.as a serious dispute about the right of succession to the properties in question and it involves an inquiry into not only the facts but also to the possible custom applicable to the parties amid is a matter which is more appropriate for decision by a Covil Court observed thus:

The complainant has to establish after showing that she is the heir to the deceased that property belonging to the deceased was in the hands of the petitioner and that he misappropriated it or has dishonestly disposed it of. This involves a very elaborate and complicated enquiry. The assets of the deceased have to be ascertained. If the matter were in the Civil Court a commission may have been appointed. Appointment of receiver also may have been considered necessary. Even the Civil Court would have taken some time to dispose of the matter. The Criminal Court is not a proper forum for deciding disputes about succession and also for enquiry into the assets left by a deceased. Those are complicated matters. The dispute in the case therefore is essentially of a civil nature. The Criminal Courts have to be on their guard) to see that their processes are not abused for obtaining decisions of complicated matters of ,a civil nature or for putting pressure on parties with a view to obtaining settlement of disputed questions.

The learned Judges proceeded again at paragraph 6 as follows:

The complainant cannot get the necessary relief from the Criminal Court. Even if she is the heir as alleged by her and even if there were assets left in the is found entitled to it. In these circumstances, it appears that the complainant has started from the wrong end. She should have gone to the Civil Court to establish her title as an heir to U. Rang Myllung and also what, if anv property was left by him. The Civil Court could embark on an enquiry into the assets of the deceased and also if there was any misappropriation. After the decision of the civil case, it would be appropriate for the complainant to go to the Criminal Court if the proceedings in the Civil Court disclosed that any offence or offences had been committed.

(7) Normally, this Court is very reluctant to interfere in a pending case But circumstances of this case are exceptional. It appears that no useful purpose could be served by allowing this trial to continue, particularly in view of the charges that have been framed. The complainant and the proceedings taken in the case therefore are quashed....

13. We ,are in entire agreement with the view expressed by the learned Judges of the Assam High Court in the case referred to above. In the case on hand the claim for the jewellery made over to the then Nizam by the mother and maternal uncle of the complainant in the year 1957 itselt was. categorically denied and at no time the grandfather of the accused had accepted that he was entrusted or put in possession of any jewellery of late Sardar Begum at any time before her death. Even the civil suit has been filed only in the year 1970 against the accused on the basis that the plaintiffs are co-sharers,

14. In K. C. Mukherjee v. B. N. Banerji. : AIR1954Cal547 the receipt of compensation money by the accused therein, in respect of the lands mortgaged by him to one Banerji (mortgagee) with whom he had entered into an agreement that the compensation money would first be applied towards satisfaction of the mortgage loan, and keeping the same for his own utility and refusing to pay to the mortgagee, was not held to amount to criminal misappropriation within the meaning of Section 403 of the Indian Penal Code. The contention advanced on behalf of the mortgagee that retaining the money by the mortgagor for himself amounts to misappropriating the money dishonestly was not acceded to. It is not the form but the reality of the fact underneath the form that should be looked into and so judged the Court was of the view that the compensation to carry out the terms of his contract would amount to misappropriating the money dishonestly, observed thus:

The refusal to pay every civil debt does not justify the finding of dishonesty. We are not aware of any case in which the refusal to pay a civil debt of this nature has been held to amount to dishonest misappropriation and we see no reason to extend the meaning of the word to include refusal to pay such debts.

We shall now advert to the submission of Mr. Sahgal that this application is premature and the accused will have every opportunity to set ud his defence and establish his innocence in the Criminal Court, if he has got really a good defence. As pointed out earlier, it is, not only just, proper and desirable but a statutory duty and obligation is cast on this Court to invoke its inherent jurisdiction, even at the interlocutory stage and quash the proceedings if such interference is necessitated to secure the ends of justice or to prevent the abuse of the process of any Court. It is for this Court, oa a consideration of the entire facts and circumstances to decide, whether the exercise of the inherent jurisdiction to quash the proceedings is warranted or not. Therefore, complainant cannot successfully resist the claim of the petitioner accused on the ground that the application is misconceived or premature, if the accused can make out a case justifying the interference of this Court under Section 561-A of the Code of Criminal Procedure.

15. The further contention of Mr. Sahflal that when once the Magistrate has taken cognizance of the offence, he is bound to follow the provisions of Sections 208 and 209' and the procedure prescribed in Chapter XVI of the Code and the High Court is not competent to obstruct the functioning of the Magistrate by exercising its inherent jurisdiction, cannot be acceded to. Reference to Sections 190.. 200. 202. 203. 204. 208 and 209 of the Code is neither relevant' nor_ material for the controversy on hand. The Magistrate has indeed to follow the procedure prescribed under the Code and complete the enquiry or trial, as the case may be. The High Court, normally, will not interfere under Section 561-A. Criminal P. C, where the investigation into the circumstances of a cognizable offence is carried on as per the provisions of the Code. But the present proceeding in the lower Court has arisen out of a private complaint made by the respondent to the Magistrate and no investigation by the police is being carried on in the case on hand. Hence this submission advanced on behalf of the complainant respondent is without any substance.

16. In the view, which we propose to take on merits we prefer not to1 decide the question relating to the preliminary objection, except indicating the point raised by Mr. Advocate General. According to him. the Magistrate has no jurisdiction to take cognizance of the offence alleged to have been committed by the accused herein, a ruler of Indian State, as no previous sanction of the Central Government has been obtained. Relying upon the passages at page Nos. 555 and 574 in the judgment of the Supreme Court in Madhav Rao Scindia v. Union of India. : [1971]3SCR9 , it was contended on behalf of the Petitioner that the protection afforded to a citizen under the statute exists or continues until the statute is repelled by a competent enactment. This plea of the accused has been countered by Mr. San-gal by stating that the provisions of Section 197-A (h) of the Code of Criminal Procedure have become redundant as there is no ruler in view of the 26th Amendment to the Constitution of India inserting a new Article 363-A. where-under the ex-rulers have been de-recognised, and therefore the Nizam, who is no longer a ruler, cannot take aid of Section 197-A applicable only to a ruler. Further, it is stated that Section 197-A is repugnant to Article 13 and hence void.

17. In short the alleged entrust-ment of property by late Sardar Begum was in the year 1948 to the then Nizam. No demand either by Sardar Begum or by her sister Zainab Begum during their lifetime for the release of the oropertv alleged to have been entrusted, was made. The attempt by the mother and the. maternal uncle of the complainant during their lifetime was only to obtain sanction of the Government of India to due the then Nizam in a Civil Court for the recovery of the property in question on the ground that they are the rightful heirs of the matruka property of the late Sardar Begum through their mother Zainab Begum. Admittedly, there is no evidence that any attempt was made by them till their death to proceed against the then Nizam in a Criminal Court for criminal misappropriation or criminal breach of trust punishable under Sections 403 and 409 of the Indian Penal Code. The then Nizam had categorically denied, as early as in the year 1957, any entrustment of the property or jewellery by the late Sardar Begum in the year 1948. To the same effect was his reply to the Government of India when his attitude was sought to be known on the application of the mother and maternal uncle of the complainant for Permission to sue him in a Civil Court for recovery of the said property. Till the time of the death of late Nizam, there appears to be no change in his attitude on this aspect. Ultimately a civil suit has been filed in the lower Court for partition and separate possession of the plaintiffs' shares. The basis for their claim, as revealed from the plaint in the suit is that they are co-owners with the Nizam. The dispute, at best, appears to be one of civil nature. The complainanj who is added as one of the legal representatives of her mother who instituted this suit along with the legal representatives of her late brother and the other plaintiffs, can pursue their remedies to recover the property in the Civil Court by establishing their claims.

It may be noticed that the rights of the complainant and other plaintiffs would not in any way finally and effectively be decided in the criminal proceeding. Taking the allegations in the complaint and the sworn depositions, at their face value, we have no hesitation to hold that the ingredients of criminal misappropriation punishable under Section 403 of the Indian Penal Code have not been made out beyond reasonable doubt. We are of the firm view that the accused-petitioner came into possession of the properties in dispute by virtue of his being recognised as the heir of his late grand-father Nawab Mir Osman Ali Khan Bahadur. Nizam VII. and the certificate issued by the Government of India in that regard and therefore, any use or appropriation of the property in dispute by the accused does not amount to criminal misappropriation and the criminal proceedings against the accused in the instant case are not only inappropriate but also misconceived. There is inordinate delay in filing the complaint by a private citizen. The complaint appears to have been filed in terrorem. On a careful consideration of the entirp facts and circumstances, we hold that this Court is not only empowered but has also a statutory duty and Oligation to invoke its inherent jurisdiction and prevent fallacious and spiteful criminal prosecutions for actions of civil nature as continuation of such proceedings would amount to abuse of the process of the Court, and we therefore, quash the proceedings allowing this application.

18. We may add that any observations made herein should be confined to the disposal of this application to quash the criminal proceedings pending in the lower Court and they should not be construed as deciding the rights of the parties to- the property in question. The rights of the parties, in respect, of the suit properties, shall be governed by the decision of the Civil Court in the regular suit, which is now pending disposal.


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