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2000 DIGILAW 53 (PAT)

Sushila Srivastava v. State Of Bihar

2000-01-13

CHOUDHARY, S.N.MISHRA

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Judgment Choudhary S.N.Mishra, J. 1. In this writ application, the petitioners are the purchasers of the different holdings situated on the alleged leasehold land. The prayer of the petitioners is for quashing of the investigation in Kotwali P.S. Case No. 371/1995 instituted on the basis of the first information report by the informant the Assistant Administrator of the Patna Municipal Corporation. The sum and substance of the allegation is that the holdings inquestion, were leased out to the then Patna Administration Committee - the predecessor of the Patna Municipal Corporation for a period of 35 years. Subsequently, the Patna Administration Committee executed a deed of lease in favour of several persons including one Mirza Muzatab for a period of 35 years with option of renewal for the purpose of construction of the shops by the lessee who admittedly made several constructions over the plot inquestion. Initially the petitioner No.1 Smt. Sushila Srivastava was inducted as tenant on plot No. 22 subsequently by a deed of lease the said property was assigned to the petitioner by a registered deed dated 17-1-1987 and accordingly, the name of the petitioner was mutated with respect to the land by the Patna Municipal Corporation, which is apparent from annexure-1 to the writ application. The petitioner and other shop owners apprehending demolition of their shop by respondents authority, filed a writ application C.W.J.C. No. 10476/1995 praying there in for issuance of an appropriate writ in the nature of Mandamus commanding the respondents authority not to demolish the construction made over the leasehold property. This Court vide its interim order dated 1-12-1995 passed in C.W.J.C. No. 10476 of 1995 restrained the authority from demolishing the constructions made over the land inquestion and ultimately the said writ application was allowed. Surprisingly on the next date i.e., 2-12-1995 the Assistant Administrator of Patna Municipal Corporation has lodged the instant first information report for initiating a criminal proceedings against the petitioner and others on the ground that both the lessee as well as the purchasers purchased leasehold property in contravention of the terms and conditions of the lease agreement. Surprisingly on the next date i.e., 2-12-1995 the Assistant Administrator of Patna Municipal Corporation has lodged the instant first information report for initiating a criminal proceedings against the petitioner and others on the ground that both the lessee as well as the purchasers purchased leasehold property in contravention of the terms and conditions of the lease agreement. Learned Counsel appearing on behalf of the petitioners has challenged the very initiation of the criminal proceedings against the petitioners, firstly, on the ground that even if the allegation made in the first information report is taken, on its face value, no criminal offences, much less the offence alleged against the petitioners is made out. It is further submitted that first information report was filed with male fide intention, in as much as, this Court has issued an interim order restraining the authority not to demolish the constructions made over the leasehold property but curiously on the following day the instant first information report was lodged which clearly goes to show that the authority has acted male fide in order to implicate the petitioners in the instant case for the reasons based known to them. Not only the first information report was lodged, the husband of the petitioner was also arrested in the instant case who was, no doubt, subsequently released by order of this Court dated 7-12-1995. The learned counsel has next submitted that the informant, namely, the Assistant Administrator of Patna Municipal Corporation has no locus standi in the matter to lodge the first information report for the offence alleged. In opposition, learned counsel appearing on behalf of the respondents, however, submits that the case is still under investigation and, as such, this Court is not supposed to interfere with the investigation in a case of cognizable offence. In support of his contention, learned counsel has relied upon a decision in this case of State of West Bengal V/s. S.N. Basak. The preposition of law laid down in the aforesaid decision is not in dispute. It is true that the police is the exclusive authority to investigate the case and this Court generally do not interfere with the investigation so long a prima facie case is made out in the first information report. In the instant case mere perusal of the First Information Report it would be apparent that no criminal offence has been made out. In the instant case mere perusal of the First Information Report it would be apparent that no criminal offence has been made out. The sum and substance of the allegation as stated above, in that the lesson as well as lessee has acted in contravention of the terms and conditions of the lease which is punishable in terms of Clause 19 of the lease-deed. A copy of the lease-deed has been produced in course of bearing. Clause 19 of the said clause reads as follows: "That except with the previous consent of the Chairman, Patna Administration Committee, the lessee shall not sell, mortgage, transfer, assign, sublet or part with possession of the whole or any part of the said land or the whole or any part of any building for the time being erected thereon." Clause 21 of the said agreement further envisages: "That in the event of the breach of non-conservance by the lessee of any of the foregoing terms and conditions, the Chairman Patna Administration Committee may, in addition and without prejudice to any other remedy to which the lessor may be entitled, enter on the said land and any building thereon and at the cost of the lessee, do all work necessary to make good such breach and recover the cost incurred in and for all such works from the lessee as an arrears of rent and may recover such penalty by means of Public Demands Recovery Act in force at the time." 2. I failed to understand as to how the petitioner who are the purchasers of the property inquestion, can be prosecuted for the alleged breach of the terms and conditions of the said lease deed. That apart in the light of the submissions made by the learned counsel for the petitioner, I have perused the first information report where from it appears that even if the allegation made in the first information report is taken on its face value, in my view, no criminal offence is made, much less the offence alleged against the petitioner. It is well settled principle of law that the allegation made in the first information report is taken on its entirety, if no offence is made out, this Court can interfere with the investigation and quash the proceeding. Reference may be made to the decision in the case of State of U.P.C.B.I.S.P.E. Lucknow V/s. R.K. Srivastava and another. It is well settled principle of law that the allegation made in the first information report is taken on its entirety, if no offence is made out, this Court can interfere with the investigation and quash the proceeding. Reference may be made to the decision in the case of State of U.P.C.B.I.S.P.E. Lucknow V/s. R.K. Srivastava and another. After having heard the learned counsel for the parties and going through the materials on record, I am of the view that the very initiation of the criminal proceedings against the petitioners is an abuse of the process of the Court and accordingly, it is quashed. However, before I part with the case I may observe that the respondent authority, if so, advised, may proceed in accordance with law for taking possession of the property inquestion in accordance with law. 3. This criminal writ application is accordingly, allowed to the extent indicated above.