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Criminal Miscellaneous No. 1145 of 1963, decided on 12th June 1963.

S. 561-A-Abuse of process-Enforcing civil liability through Criminal Court Complainant making statement in Court that he was primarily interested in recovery of his dues and that he had resorted to Criminal Court only for that purpose-Complaint in Criminal Court, held, gross abuse of process of Courts-Proceedings quashed.

Ladha Shah v. Zaman Ali A I R 1925 Lah. 289 and S. C. Mitra v. Raja Kali Charan A I R 1928 Oudh 104 ref.

Dilawar Mahmood for Petitioner.

Dost Muhammad Khan for Respondents.

Date of hearing : 20th May 1963.

The facts leading up to this application under section 561-A of the Code of Criminal Procedure for the quashing of certain criminal proceedings against the petitioner briefly are that on the 23rd of July 1960, Imtiaz Khan, respondent filed a complaint under sections 406 and 420, P. P. C., in the Court of the Sub-Divisional Magistrate, Bannu, alleging that on the 10th of January 1960, Mahmood-ul-Hasan, petitioner and his father, Haji Faiz Bakhsh, now deceased, visited him at Bannu and told him that his brother, Shah Nawaz, a timber merchant at Bahawalpur, had asked for a truck-load of building timber mid some clothes details of which are given in the complaint, Imtiaz Khan accordingly made over one truck-load of timber, valued at Rs. 3,750 and clothes to the value of Rs. 165 to the petitioner and his father for delivery to Shah Nawaz. Two months late, Shah Nawaz happened to visit Bannu and Imtiaz Khan asked him whether he had received the articles. Shah Nawaz replied that be had never ordered them. Imtiaz Khan then pressed the petitioner and his father to return the timber and clothes, but they refused to do so.

2. Cognizance was duly taken of the complaint, but after com plainant, his brother Shah Nawaz and one Gulfam, truck driver, had been examined, the petitioner filed an application in this Court under section 526, Cr. P. C. for transfer of the case from Bannu on the ground that the proceedings were of a civil nature, the last transaction between the parties having taken place in the year 1954, and that the complaint was false, being in the nature of an attempt to bring pressure to bear on the petitioner to pay the amount due on the basis of the transac tions referred to. It was contended that as delivery of the timber was to take place at Lahore, the Bannu Courts had no jurisdiction. The petitioner further gave as his reason for filing the transfer application direct in this Court that Imtiaz Khan respondent exercised great influence in Bannu and that if the petitioner were to go there his life would be in danger.

3. Notice was issued by this Court to the respondent on the 29th of August 1962, and both parties appeared before the learned Chief Justice on the 31st of October. In the course of his order of that date his Lordship observed:-

"The complainant-respondent, who is also present in person, stated that he was really interested only in the recovery of his dues, and had gone to the Criminal Courts only because he wanted to realise them under the pressure of criminal procedure."

4. In the same order the learned Chief Justice stated that the parties had composed their differences and wished an adjourn ment for two months, within which time the petitioner would pay to the respondent the sum of money specified in the complaint. The petitioner, did not, however, keep his promise, though ornaments to the value of Rs. 3,300 were deposited either by the petitioner or by someone on his behalf, with the Deputy Registrar of this Court.

5. On the 11th of March 1963, the learned Chief Justice passed another order, in the course of which he observed that he had gained the impression that the petitioner felt that he was being compelled to make the payment, and that though the impression was incorrect it was due to his Lordship's act that on the one hand the respondent had been attending in expectation of receiving his money, and on the other the petitioner, who had come to Court with a transfer application, had become involved instead in a proceeding where the question was of payment of money It was further remarked :-

"The only solution of this situation that I can think of now 'F is that I should pay to the respondent the amount of money which it was agreed that he should receive from the petitioner; that the petitioner should get back the ornaments that he pledged ; that I should decide the transfer application of the petitioner on its own merits ; and that I should take action against the petitioner in contempt of Court for the advantage he has taken of the process of this Court. I have explained this to the parties in detail. The petitioner now says that he should be given one last chance to make the payment that he had agreed to make. He asks for two weeks. The respondent is agreeable to two weeks' adjournment. I am prepared to agree to this suggestion and direct that this case be placed before me on Monday, the 25th of March 1963, at No. 1. If no money is paid on that day, I shall proceed according to the earlier part of this order."

6. Before the two weeks' adjournment granted by the above order had expired, the operation of the order was stayed for one month by the Supreme Court, and the case was accordingly fixed for the 23rd of April 1963. On the 7th of May, the learned Chief Justice, for reasons recorded, directed that the case be placed before me.

7. The parties appeared before me on the 8th of May 1563, on which date Mahmood-ul-Hasan petitioner filed an application, dated the previous day, for quashing the proceedings. Attention was drawn therein to the statement of the respondent before his Lordship the Chief Justice that he had approached the Criminal Courts only to realise his dues under pressure of Criminal Procedure. Notice of this application was given to the respondent and arguments were heard.

8. It is well settled that an attempt to enforce civil liability through the machinery of the Criminal Courts constitutes an abuse of the process of the Court and that when a High Court has reason to believe that such a procedure has been adopted, the proceedings should be quashed. If any authority is needed on this point, reference may be made, inter alia to Ladha Shah v. Zaman Ali (A I R 1925 Lah. 289) and S. C. Mitra v. Raja Kali Charan (A I R 1928 Oudh 104). In the latter authority it was observed that criminal proceedings in a subordinate Court constitute process of the Court and that if the High Court comes to the conclusion that the process is being abused, section 561-A invests the Court with the juris diction of passing an order to set aside those proceedings so as to prevent the abuse. Again, in Miss C. Verma v. Crown (P L D 1952 Bal. 42) it was observed that although the powers of the High Court under section 561-A, Cr. P. C., will normally be sparingly used, where the circumstances indicate that there is a patent case of injustice the High Court will undoubtedly interfere at any stage which the case in question has reached.

9. I have no hesitation in holding that this is a fit case for exercising the inherent powers of the Court. The state ment of the respondent before the learned Chief Justice that he was primarily interested in the recovery of his dues and that he had had recourse to the Criminal Courts only because he wanted to realise those dues under the pressure of Criminal Procedure, sufficiently indicates the mala fides of the complaint. Attention may further be drawn to the letter (Annexure A-2' to the present petition) addressed on the 19th of February 1960 by the respondent to the petitioner. It is significant that in the letter in question the respondent makes no reference to the alleged transaction of the 10th of January 1960, which transaction sub sequently formed the basis of his complaint, but confined himself to demanding that the petitioner settle his long-standing dues. The petitioner's contention that the transactions between the parties terminated in 1954 is supported by Annexure A-1' to the present petition, a photostat copy of a letter dated the 26th of December 1957, by the respondent to the petitioner, calling attention to the fact that the latter had made no payment towards the transactions which had terminated some three years previously. I find it difficult to believe that, if the respondent had accepted the bare word of the petitioner that the respon dent's brother Shah Nawaz had ordered a truck-load of timber and certain clothes through the petitioner, the respondent would not have referred to this fact in the letter, Annexure A-2'.

10. For the above reasons I hold that the complaint in dispute constitutes a gross abuse of the process of the Criminal Courts. I accordingly accept the petition, and quash the proceedings.

11. In view of the above finding, transfer application and the bail application in connection therewith have become infructuous and automatically stand dismissed. The bail bond furnished by the petitioner is discharged.

K. B. A Proceedings quashed.

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