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2012 DIGILAW 2914 (ALL)

DEEPAK SINGH v. STATE OF U. P.

2012-12-17

RAMESH SINHA

body2012
Ramesh Sinha, J. Heard Sri Manish Tiwary, learned counsel for the applicant, Sri Anil Kumar Singh, learned counsel for the opposite party no.2. By means of the present 482 application, the applicant has prayed for quashing the order dated 2.11.2012 passed in Case No.107 of 2012, Case Crime NO.285 of 2012, u/s 419, 420, 467, 468, 471, 506 IPC, P.S. Aurai, distsrict Sant Ravidas Nagar/Bhadohi and to direct the A.C.J.M., Bhadohi Gyanpur to direct the I.O. to have the specimen signatures of the first informant taken in Court and sent the same for analysis with the dispute signatures. The brief facts are that on 21.8.2012, the informant came to know that the applicant along with other co-accused persons had executed a sale-deed with respect to the plot no.314, 323, 317, 318, 319, 320, 322, 315 and 316 Ka situated at Mauja Kathaura, P.S. Aurai, district Sant Ravi Das Nagar in his village and he went to the Tehsil Aurai and obtained a copy of Khatauni from his counsel and he came to know that on 15.6.2012, in a mutation proceedings, bearing case no.542 of 2012, the name of the applicant Deepak Singh has been mutated on the basis of forged and fictitious documents in the place of the informant namely Ashok Kumar Barnwal, opposite party no.2. Theinformant/opposite party no.2 thereafter filed restoration application against the order dated 15.6.2012 before the concerned authority and also obtained a certified copy of the sale deed from the Sub-Registrar Office which is said to have been executed on 5.5.2012 by the informant in favour of the applicant. The value of the property in question was to the tune of Rs.1,30,00,000/-. The informant did not know about the execution of the sale deed prior to 21.8.2012 and he apprehended that under some conspiracy, the applicant along with co-accused persons in order to grab his property with the help of officers/employees of the Sub-Registrar of the office, the alleged sale-deed dated 5.5.2012 has been fabricated by the accused persons by the purchaser along with the witnesses and the execution of the same has been made by producing an imposter. The informant stated that he has neither put his signatures nor he put his thumb impression on the sale-deed nor he executed the same and the informant was further threatened on several occasion and also apprehended danger to his family. The informant stated that he has neither put his signatures nor he put his thumb impression on the sale-deed nor he executed the same and the informant was further threatened on several occasion and also apprehended danger to his family. It is contended by the learned counsel for the applicant that the FIR of the incident was lodged by the informant on 21.8.2012, though he came to know to knowledge about execution of the sale-deed on 21.8.2012 and there is no explanation for the delay given by the informant as to why no FIR was lodged against the applicant and other accused persons for the last 10 days after coming to know about the execution of the sale-deed in question on 21.8.2012. It is further contended that the applicant has invested the huge amount to the tune of Rs.1,30,00,000/- in lieu of the property in dispute and also paid Rs.6,30,000/- as stamp duty being a bonafide purchaser of the agricultural land from the informant. The applicant neither manipulated anything nor obtained the land on the basis of forged and fictitious documents nor created any imposter in order to grab the land in dispute nor he is a land mafia. It is further submitted that during investigation, the I.O has not sent the actual signatures of the informant/opposite party no.2 Ashok Kumar and has sent the left thumb impression of some other persons in order to create false evidence against the applicant. He pointed out that the said thumb impression was not produced before any court nor any procedure has been followed up for taking thumb impression as has been provided under the law. Hence the applicant had moved an application on 8.10.2012 u/s 311 A Cr.P.C before the Magistrate with a prayer that the informant/opposite party no.2 be summoned in the court and his thumb impression and finger prints and signatures may be obtained before the Court and sent for it's examination to the authorised concerned handwriting expert/Vidhi Vigyan Prayogshala, which may be compared with the signatures and thumb impressions and finger print on the disputed document. Learned Magistrate rejected the said application of the applicant by passing the impugned order dated 2.11.2012 by misinterpreting and misreading the proviso of Section 311-A Cr.P.C. and made it applicable to complainant which is applicable to an accused, hence the same may be set-aside by this Court. Learned Magistrate rejected the said application of the applicant by passing the impugned order dated 2.11.2012 by misinterpreting and misreading the proviso of Section 311-A Cr.P.C. and made it applicable to complainant which is applicable to an accused, hence the same may be set-aside by this Court. Learned counsel for the opposite party no.2 Sri Anil Kumar Singh could not dispute the proposition of law as has been laid down by the proviso to Section 311 A Cr.P.C and justify the reasons for rejecting the application of the applicant by passing the impugned order. He submitted that the informant/opposite party no.2 is ready to appear before the court concerned and give his thumb impression/finger print/signatures as may be required for comparing the same on the disputed document which said to have been executed between the applicant and the informant/opposite party no.2 i.e. sale-deed dated 5.5.2012 provided the applicant produces the copy of the said original sale-deed before the Magistrate within a stipulated period of time to which Sri Manish Tiwari, learned counsel for the applicant states that the applicant shall produce the disputed sale-deed dated 5.5.2012 before the Magistrate for the said purpose. Considered the submissions made by learned counsel for the parties. From the perusal of the provisions of Section 311 A Cr.P.C is absolutely clear than the Magistrate may for the purpose of any investigation or proceedings under this Code direct any person including an accused to give specimen signatures or handwriting and he may make an order to that effect and in that case, the person to whom the order relates, shall be produced or shall attend at the time or place specified for the Magistrate and shall give his specimen signatures or handwrigting. The proviso to the aforesaid Section makes it clear that no order shall be made under the Section 311 A Cr.P.C, unless the person has had some time been arrested in connection with such investigation or proceedings, meaning thereby that if an accused of a case has been arrested in a case at any point of time then no orders shall be passed in the aforesaid Section against him for the aforesaid purpose. From the perusal of the impugned order, it appears that the learned Magistrate has misread the proviso to Section 311 A Cr.P.C and had made applicable to the informant/opposite party no.2 that he has never been arrested as the said fact has not been stated by the applicant in his application. Hence it is apparent from the impugned order that the said proviso has been applicable to the complainant of the case by the Magistrate. In the present case, the application was moved by the applicant who is an accused in the case and the Magistrate erred in observing that the complainant/opposite party no.2 has not been arrested at any point of time in the present case, hence he cannot be directed to be produced before the court for giving his specimen signatures or thumb impressions for being compared on the disputed document. Hence the impugned order passed by the learned Magistrate is not sustainable in the eyes of law. Therefore, it is hereby quashed. The informant/opposite party no.2 is hereby directed to appear before the concerned Magistrate within ten days from today and the applicant may also within the same period file the original copy of the sale-deed dated 5.5.2012 which is said to have been executed between the applicant and informant/opposite party no.2 Ashok Kumar and the learned Magistrate shall pass order afresh on the application of the applicant dated 8.10.2012 within a week thereafter and obtain a report from the concerned handwriting expert/Vidhi Vigyan Prayogshala which shall be make available within four weeks thereafter and transmit a copy of the same in a sealed cover to this court which is required to be perused for deciding of Criminal Misc. Bail Application No.30564 of 2012 of the co-accused persons which was also heard along with the present 482 Cr.P.C application and has been fixed for 21.1.2013. The petition stands allowed. Office is directed to connect this petition with Criminal Misc. Bail Application No.30564 of 2012 which is fixed for 21.1.2013.