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2007 DIGILAW 3002 (ALL)

RAMWATI. v. Up-ZILA MAGISTRATE

2007-12-14

M.K.MITTAL

body2007
JUDGMENT Hon’ble M.K. Mittal, J.—The application has been filed for quashing the charge-sheet and the proceedings in Case Crime No. C-1 of 2006 under Section 198-A of U.P. Z.A. & L.R. Act (hereinafter referred as Act) P.S. Jewar, District Gautam Budh Nagar, pending in the Court of Up-Zila Magistrate, Jewar, District Gautam Budh Nagar. 2. Heard Sri Rajiv Sharma learned Counsel for the applicant, Sri V. Singh learned Counsel for the opposite party, learned AGA and perused the material on record. Counter and rejoinder affidavits have been exchanged between the parties. 3. The brief facts of the case are that the opposite party No. 2 Dinesh Kumar filed an application under Section 156(3), Cr.P.C. in the Court of Sub-Divisional Magistrate, alleging that the land was allotted to him through the resolution dated 5.1.2005 by Bhumi Prabandhak Samiti, which was approved by the Sub-Divisional Magistrate, on 8th April, 2005 and the possession was also delivered on 5.5.2005 on gata No. 0151 area 114 and 151 area .300. The accused threatened to dispossess and the complainant gave an application to Sub-Divisional Magistrate, who directed the police for necessary action and the accused were instructed not to interfere in the possession of the complainant. When the complainant sowed the wheat crop the accused again threatened to dispossess him. The Sub-Divisional Magistrate also passed an order on 12.11.2005 for registering a case under Sections 192A and 198A of the Act but no action was taken against the accused and thereafter the complainant gave an application to S.S.P. and then filed the application under Section 156(3), Cr.P.C. The learned Sub-Divisional Magistrate vide order dated 30.1.2006 directed for registration and investigation of the case under Section 198A of the Act and after investigation charge-sheet has been submitted against the accused persons. Feeling aggrieved, this application has been filed. 4. According to the applicants the complainant was not competent to file the application under Section 156(3) Cr.P.C. in the Court of Sub-Divisional Magistrate and the Magistrate was also not competent to direct for registration and investigation of the case. According to the applicants a matter was initiated in the Court of Collector by Veerpal and others under Section 198(4) of the Act regarding the property of the land management committee and by order dated 18.5.2005 the parties were directed to maintain status quo and thereafter that order was confirmed on 21.9.2005. According to the applicants a matter was initiated in the Court of Collector by Veerpal and others under Section 198(4) of the Act regarding the property of the land management committee and by order dated 18.5.2005 the parties were directed to maintain status quo and thereafter that order was confirmed on 21.9.2005. According to the applicants the matter is already pending before the Collector and the allegations as made do not make out any case against the applicants and if the proceedings are not quashed they will be put to unnecessary harassment and it will be misuse of the process of the Court. 5. The complainant filed counter affidavit and contended that Sub-Divisional Magistrate rightly directed for registration and investigation of the case because the accused had tried to interfere in the possession of the complainant. In the rejoinder affidavit the case taken by the applicants has been reiterated. 6. Learned Counsel for the applicants has contended that the Sub-Divisional Magistrate had no right to direct for registration and investigation of the case. Under Section 156(3), Cr.P.C the words used are ‘any Magistrate empowered under Section 190, Cr.P.C. may order such investigation’ (as provided under Section 154(1), Cr.P.C.) Section 190, Cr.P.C., deals with the power of the Magistrate to take cognizance of offence. According to the Section any Magistrate of the first class or any Magistrate of the second class empowered by the Chief Judicial Magistrate can take cognizance. 7. Section 198A (7) of the Act provides that in order to expedite the trial of the offence under this section the State Government may in consultation with the High Court by notification constitute Special Courts consisting of an officer not below the rank of Sub-Divisional Magistrate. In this connection notification Rajaswa Anubhag-1 Notification No. 18621/1-2002-9-2(5)-2002-105-Revenue-1 dated September 7, 2002 has been published in the U.P. Gazette dated 7th September, 2002. In this connection notification Rajaswa Anubhag-1 Notification No. 18621/1-2002-9-2(5)-2002-105-Revenue-1 dated September 7, 2002 has been published in the U.P. Gazette dated 7th September, 2002. It reads as under : "In exercise of the powers under sub-section (7) of Section 198A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951), the Governor in consultation with the High Court of Judicature at Allahabad, is pleased to constitute with effect from the date of publication of this notification in the Gazette, for the purposes of speedy trial of offences under the said section, Special Courts in all the sub-divisions of the Uttar Pradesh consisting of Sub-Divisional Magistrates and to direct that such Court shall subject to the provisions of the Code of Criminal Procedure, 1973 exercise the powers of a Judicial Magistrate of the First Class in relation to the offences under the said section." 8. Therefore the learned Sub-Divisional Magistrate was fully competent to initiate action under Section 156(3), Cr.P.C. and the plea as raised by the learned Counsel for the applicant is not correct. 9. Section 198A of the Act provides that if a person is admitted as a bhumidhar or as Aasami or any land is allotted to him and any other person is in possession of that land in contravention of the provision of this Act, the Assistant Collector may of his own motion and on application of the allottee or lessee as the case may be put him in possession of such land and may, for that purpose, use or cause to be used such force as he considers necessary. If a person evicted re-occupies the land or part of the land without lawful authority, such person is liable to be punished under Section 198A(2) of the Act. In the instant case the allegations as made by the complainant only show that the accused persons attempted to interfere in the possession of the complainant. It has not been mentioned in the complaint or even in the counter affidavit that the accused actually dispossessed the complainant and re-entered the disputed plot. In the circumstances, no offence is made out under Section, 198A of the Act as alleged. It is settled law that in order to ascertain whether any offence is made out against a person, the allegations as made in the first information report or the complaint have to be seen. In the circumstances, no offence is made out under Section, 198A of the Act as alleged. It is settled law that in order to ascertain whether any offence is made out against a person, the allegations as made in the first information report or the complaint have to be seen. In the instant case the allegations as made, even if taken on their face value, do not constitute the offence and the charge-sheet has therefore been wrongly submitted against the applicants which is liable to be quashed. 10. In the circumstances, the application under Section 482, Cr.P.C. is to be allowed. The application under Section 482, Cr.P.C. is hereby allowed. The charge-sheet and the criminal proceedings in case No. C-1 of 2006 as referred above are hereby quashed. The interim order dated 12.9.2006 stands vacated. 11. Copy of the order be sent to the Court concerned within 7 days. ————