Waseem Haider vs State Of U.P. And Anr.

1. These two petitions i.e. Crl. Misc. Case Nos.644 of 2016 and 5543 of 2015 under Section 482 Cr.P.C. have been filed with prayer for quashing of proceedings pending before learned Chief Judicial Magistrate, Ambedkar Nagar in Case No.2996 of 2015, summoning order dated 04.11.2015, charge-sheet dated 23.10.2015 and FIR dated 11.05.2015 registered as Case Crime No.0171 of 2015 at Police Station Akbarpur, District Ambedkar Nagar under Sections 419, 420, 467, 468, 471, 504, 506 IPC.

2. The third petition i.e. Crl. Misc. Case No.2132 of 2019 under Section 482 Cr.P.C. has been filed by Jayanti Goyal, the complainant challenging the order dated 18.02.2019 passed by the trial Court on her application for issuing process/ non bailable warrant against the accused-persons in the light of the judgment of Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd and another Vs. Central Bureau of Investigation, (2018) 16 SCC 299.

3. The trial Court had rejected the said application relying on the order of the Supreme Court in the case of Sapna Arora verus State of Punjab and said that since interim order passed on 10.02.2016 by this Court in favour of the accused has not been vacated, process/non bailable warrants cannot be issued against them.

4. All these three petitions are therefore, being taken up together and are being disposed of by common judgment and order. Since, the controversy involved in these petitions are identical, I am dealing with the facts of Crl. Misc. Case No.644 of 2016.

5. Relevant facts as cull out from the pleadings exchanged by the parties are that the petitioners executed a sale deed dated 29.03.2012 in favour of the complainant, Smt. Jayanti Goyal (hereinafter referred to as 'the complainant') the respondent No.3 in respect of part of land in Khata No.121 Gata No.293/8-3-10 situated at Village Shahgahanpur Pargana and Tehsil Akbarpur, District Ambedkar Nagar claiming to have bhumidhari of the land with transferable rights. Gata No.293/8-3-10 was sub divided into Gata No.293-A/7-1-10 and Gata No.293-B/1-2-0. It is said that Gata No.293-A/7-1-10 and Gata No.293-B/1-2-0 were recorded as river land and river bed land respectively in fasli year 1359 which is base year. However, by manipulation and forgery later on, it got recorded as abadi land in favour of the petitioners' forefather.

6. On the basis of report dated 30.08.2008 given by Tehsildar, Akbarpur, the Sub-Divisional Magistrate (for short S.D.M.) passed an order dated 31.10.2008 directed that land in Gata No.293-A/7-1-10 and Gata No.293-B/1-2-0 to be recorded as river land and river bed land as it was previously recorded in fasli year 1359.

7. It is alleged that this order dated 31.10.2008 was never implemented because of criminal conspiracy of the petitioners with the concerned Lekpal and names of the petitioners remained recorded in the Khatauni dated 10.8.2010 and 21.05.2012 of two fasli years 1416 and 1419.

8. After more than three years from the date of order dated 31.10.2008 passed by the S.D.M., the petitioners preferred Revision No.830/911 on 23.01.2012 before the Commissioner Faizabad Division, Faizabad (now Ayodhya) along with an application for condoning the delay. However, the said revision was dismissed on 06.09.2013.

9. The petitioners filed Writ Petition No.103(MB) of 2012 before this Court on 04.01.2012 without disclosing the order dated 31.10.2008 passed by the S.D.M. The aforesaid writ petition was disposed of in following terms:-

"Heard learned counsel for the parties and perused the record.

Grievance of the petitioners is that the district authorities are interfering with the petitioners' peaceful possession over the land in question of which they are recorded tenure holders having bhoomidhari right. It is stated that the opposite parties are helping the private persons also to dispossess the petitioners.

It is settled proposition of law that the State or its authorities cannot interfere with the citizen's right unless some decision is taken or order is passed by the competent authority or a court having jurisdiction for the purpose.

Accordingly, we dispose of the writ petition finally providing that the opposite parties shall not interfere with the petitioners' peaceful possession over the land in question of which they are recorded tenure holders, except in accordance with law."

10. From perusal of the aforesaid order, it is evident that the petitioners did not bring to the notice of this Court the order dated 31.10.2008 passed by the S.D.M. When the revision was pending before the Divisional Commissioner, Faizabad, the petitioner filed Contempt Petition No.521(C) of 2012 on 21.02.2012 before this Court without disclosing the order dated 31.10.2008 passed by the S.D.M. and pendency of the revision before the Divisional Commissioner, Faizabad. The aforesaid contempt petition was disposed of vide order dated 25.11.2003.

11. It appears that in pursuance of notice issued by this Court, an enquiry was conducted by the District Magistrate and after conclusion of the enquiry, a report dated 06.09.2013 was prepared and was brought on record in the contempt petition by the official respondents. It was specifically stated that Gata No.293/6 was never in possession of the petitioners. This land was river bed land. In view thereof, the contempt petition was disposed of leaving it to the petitioner to approach the statutory authorities or appropriate forum to get their rights adjudicated and decided.

12. In the contempt petition following order was passed:-

"1. This petition seeks initiation of of proceedings under the Contempt of Court's Act 1971 against the respondent-contemner for willful disobedience of order dated 06.01.2012 rendered in Writ Petition No. 103 (M/B) of 2012.

2. Learned counsel appearing for the petitioners asserts that the petitioners are tenure-holders of land comprised in Gata No. 293/6, measuring two biswa.

3. The stand of respondents-contemners as conveyed through Shri Lalit Shukla is that District Magistrate got an inquiry held. Copy of document dated 06.09.2013 has been filed in the Court today. In para-4 and para-6 thereof, it has been stated that Gata No. 293/6 was never in possession of the petitioners. The land is river action land.

4. This Court has considered the rival contentions.

5. While the petitioners assert their title over the land as tenure-holder and consequent possession, the respondents assert that the land is river action land and was never in the possession of the petitioner. The writ Court has not given any specific direction in regard to specific Khasra number.

6. As a contempt Court, this Court is unable to resolve the issue, without adjudicating on rival claims of the parties. It would be more appropriate for the petitioners to approach the statutory authorities or appropriate forum to get their rights adjudicated and decided.

7. With the above observations, the petition is disposed of."

13. From the aforesaid order, it is also evident that the petitioners did not bring to the notice of the pendency of the revision nor order dated 06.09.2013 whereby the Commissioner, Faizabad Division, Faizabad dismissed the revision petition which was preferred by the petitioner against the order dated 31.10.2008 passed by the S.D.M.

14. From perusal of the report dated 30.08.2008 by Tehsildar, Akbarpur, it is evident that in Khata No.121: Gata No.293-A/7-1-10 was recorded as river land and Gata No.293-B/1-2-0 was recorded as river bed land in the Khatauni of fasli year 1359. Thus, the entire land in Gata No.293/8-3-10 was recorded as river land and river bed land in the Khatauni of fasli year 1359. However, in Khatauni of fasli year 1414, Gata No.293 was recorded in the names of several Khatedars and Gata No.293/6 was recorded as abadi without any person named as owner. In the said report, it was said that in view of the judgment of Supreme Court in the case of Hinch Lal Tiwari versus Kamla Devi: AIR 2001 SC 3215, land recorded as pond, river, lake, pokhar etc., are to be preserved and, therefore, it was said that entire land of Gata No.293 should be recorded as river and river bed land as was the case in Khatauni of fasli year 1359.

15. In view of the aforesaid report, the names of the tenure holders and khatedars in respect of the land in Gata No.293 was cancelled and as was the case in the fasli year 1359, land of Gata No.293 which was divided into Gata No.293-A/7-1-10 and Gata No.293-B/1-2-0 were ordered to be recorded as river and river bed land. Thus, with effect from 31.10.2008 names of all khatedars including the petitioners ought to have been deleted from the land of Gata No.293.

16. The revision was dismissed by the Additional Commissioner (Administration), Faizabad Division, Faizabad on 06.09.2013 against the aforesaid order passed by the S.D.M. It is also important to mention here that vide order dated 10.07.2015 on the basis of report of Lekhpal, the S.D.M., Akbarpur has passed an order under Section 33/39 of the U.P. Land Revenue Code in Case No.T20150404012799 holding that land in Gata No.293/6 was recorded in Khatauni of fasli year 1422 as abadi, however, according to the revenue record of fasli year 1359 the aforesaid land was river bed land. It was directed by the S.D.M. that on the basis of report of the Tehsildar dated 06.07.2015, land in Gata No.293/6/0-2-0 was to be recorded as river bed land.

17. Despite all these proceedings which the petitioners were fully aware, the petitioners chose to sell land in Gata No.293/6 to the complainant vide sale deed dated 29.03.2012 which is non Z.A. When the petitioner came to know about the fraud having been played with her by selling land in Gata No.293/6 river bed land to her for valuable consideration, she filed an FIR which was registered at Case Crime No.0171 of 2015 at Police Station Akbarpur, District Ambedkar Nagar under Sections 419, 420, 467, 468, 471, 504, 506 IPC. In the FIR, it was specifically alleged that the land was a river bed land and the petitioner by playing fraud showed the aforesaid land as abadi land and sold it to the complainant.

18. After registration of the FIR, the petitioners filed Writ Petition No.4784(MB) of 2015 before this Court challenging the FIR. The aforesaid writ petition was disposed of vide order dated 28.01.2016 in following terms:-

"1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No. 171 of 2015 under Sections 419,420,467,468,471,504 and 506 Indian Penal Code, Police Station Akbarpur, District Ambedkar Nagar.

2. Counter affidavit dated 10.12.2015 is available on record. In para 19 of the counter affidavit, it has been stated that charge-sheet has been filed in court.

3. Learned Senior Counsel addressing the court states that there is no impediment for the court dealing with the case, even though charge-sheet has been filed.

4. We have considered the contention.

5. Considering the fact that the entire charge-sheet would be required to be placed on record, along with all accompanying documents, so as to adjudicate the issue, we deem it appropriate to dispose of the petition with liberty to the petitioners to file a petition in challenge to the charge-sheet, under Section 482 Criminal Procedure Code.

6. Considering the fact that the dispute has a civil flavour, as argued, the petitioners shall not be taken in custody for the period of fifteen days from today, within which period the petitioners may file petition under Section 482 Criminal Procedure Code.

7. Petition is disposed of."

19. The police after investigation of the offence on 23.10.2015 has filed charge-sheet against the petitioners. Learned C.J.M., Ambedkar Nagar after taking cognizance has been pleased to issue summons to the petitioners vide order dated 04.11.2015. These two petitions have been filed challenging the charge-sheets and summoning order.

20. Heard Mr. Prashant Chandra, learned Senior Advocate assisted by Ms. Mahima Pahwa, Advocate representing the petitioners, Mr. P. K. Mishra, learned counsel, appearing for private respondent, and Mr. Anurag Varma, learned Additional Government Advocate representing respondent no. 1- the State.

21. Mr. Prashant Chandra, learned Senior Advocate has submitted that it is only vide order dated 10.07.2015 passed by S.D.M., Akbarpur, land in Gata No.293-6/0-2-0 which was recorded as abadi land in fasli year 1422 was directed to be recorded as river bed. Till the sale deed was executed on 29.03.2012 this land was recorded as abadi land and, therefore, the petitioners were well within the rights to sell the land to the complainant or any other persons.

22. It is further submitted that against the order dated 10.07.2015 passed by the S.D.M., the petitioners have filed revision before the Board of Revenue and Board of Revenue vide order dated 04.12.2015 has set aside order dated 10.07.2015 and remanded the matter back on the file of the S.D.M. and directed him to decide the matter afresh on merits after giving opportunity of hearing to the petitioners. It was also said that the petitioners should not alienate the property in favour of any third party. It appears that the fact that the land was already sold to the complainant vide sale deed dated 17.03.2012 was not brought to the notice of Board of Revenue. Otherwise, the order directing the petitioners not to create any third party right /interest in the land of Gata No.293/6 could not have been passed.

23. Learned counsel for the petitioners has also submitted that the entire gamut of facts would reveal that the dispute is of civil nature and the FIR got registered to coerce the petitioners to settle the matter for exorbitant price. He has further submitted that contents to the FIR would not disclose an offence committed by the petitioners, and therefore, the entire proceedings are nothing but an abuse of the process of the court and, therefore, liable to be quashed.

24. On the other hand, learned counsels appearing for the respondent and State have submitted that the petitioners have acted in fraudulent manner by forging the documents to get their names recorded against the land which was recorded as river bed in fasli year 1359 and by manipulation and playing fraud they have sold the land for valuable consideration to the complainant, thus the petitioners have committed the offence. It is further submitted that after concluding the investigation, charge-sheet has been filed and cognizance has been taken and summons have been issued, therefore, this Court should not interfere at the threshold to quash the proceedings and no interference is called for by this court in the ongoing proceedings.

25. I have considered the submissions of learned counsels for the parties carefully.

26. From the facts narrated above, it is evident that in fasli year 1359 entire land in Khata No.121: Gata No.293/8-3-10 which was divided into Gata No.293-A/7-1-10 and 293-B/1-2-0, was recorded as river land and river bed land. However, by manipulation in the fasli year 1414 names of several khatedars got recorded in the land in Gata No.293 and land was recorded as abadi land. The petitioners were aware of the report of the Tehsildar dated 30.08.2008 as well as order passed by S.D.M. on 31.10.2008 whereby the entire land of Gata No.293 was ordered to be recorded as per the fasli year 1359 as river and river bed land. The petitioners have challenged the aforesaid order in the revision before the Divisional Commissioner, Faizabad, however, by concealing all these facts and proceedings they had sold the land to the complainant for valuable consideration. Therefore, at this stage, it cannot be said that the petitioners have not committed the offence as alleged or the dispute is only of civil nature.

27. Considering the allegations and the facts of the case, no order is required to be passed in these petitions either to secure the ends of justice or in order to prevent the abuse of process of the Court and the proceedings before the trial court cannot be quashed. I do not find any substance in the submission of learned Senior Advocate and, therefore, the present petitions (Crl. Misc. Case Nos.644 of 2016 and 5543 of 2015) being devoid of merit and substance are hereby dismissed.

The petition U/S 482/378/407 No.-2132 of 2019 is disposed of as having become infructuous.

28. Learned Trial Court is directed to proceed with the matter expeditiously and conclude the trial preferably within a period of one year from the date a certified copy of this order is produced before it.

29. The Trial Court will conclude the proceedings without being influenced by any of the observation made hereinabove.

( Dinesh Kumar Singh, J.) Order Date:- 16th August, 2019 prateek