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Himachal Pradesh High Court · body

2016 DIGILAW 697 (HP)

Ajay Kumar v. State of H. P.

2016-05-06

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 Cr.P.C. for quashing FIR No. 6 of 2013 dated 7.6.2013 registered in Police Station State Vigilance and Anticorruption Bureau Shimla-2 under Sections 420, 120-B of Indian Penal Code and under Section 13(i)(d) read with Section 13(2) of Prevention of Corruption Act 1988 against petitioner and other co-accused. It is pleaded that petitioner is Managing Director of M/s Shimla Goel Buildwell Private Limited with its registered office at Goel Plaza Ram Bazar Shimla. It is pleaded that petitioner signed the agreement of collaboration with land owner Himinder Lal son of Mohinder Lal resident of village Mehli Tehsil and District Shimla for development of Khasra No. 1266/100 Khatauni No. 179, Khewat No. 80 situated at Mauza Mehli District Shimla vide agreement of collaboration dated 13.3.2000. It is pleaded that map of building was approved for three storeys building. It is pleaded that SADA had ordered the demolition of unauthorised construction of sixth storey of building and appeal was filed by petitioner against order of demolition which was dismissed by the appellate authority. It is pleaded that land owner has deposited an amount of Rs. 170552/- (Rupees one lac seventy thousand five hundred fifty two only) for deviation of construction on 20.7.2009. It is pleaded that revised construction plan also approved on 21.9.2012 by competent authority of law. Prayer for acceptance of petition sought. 2. Per contra response filed on behalf of non-petitioner pleaded therein that FIR was registered on the basis of inquiry report. It is pleaded that investigation is completed and investigation report prepared under Section 173 Cr.P.C. and challan prepared on 27.8.2015. It is pleaded that in the instant case Mr. A.N. Sharma IPS officer then Commissioner MC Shimla, Mr. Mahinder Pal Sood HAS officer then Commissioner MC Shimla, Mr. Himinder Lal owner of building and petitioner Ajay Kumar GPA holder of land owner have been involved for commission of criminal offence. It is pleaded that as present case is related to two gazetted officers matter has been submitted to the Government on 5.11.2015 by investigating agency for seeking necessary prosecution sanction against Mr. A.N. Sharma and Mr. Mahinder Pal Sood under Section 197 of Code of Criminal Procedure 1973 and prosecution sanction is still awaited. It is pleaded that as present case is related to two gazetted officers matter has been submitted to the Government on 5.11.2015 by investigating agency for seeking necessary prosecution sanction against Mr. A.N. Sharma and Mr. Mahinder Pal Sood under Section 197 of Code of Criminal Procedure 1973 and prosecution sanction is still awaited. It is admitted that petitioner is Managing Director of M/s Goel Buildwell Private Limited and it is also admitted that general power of attorney was executed in the month of December 2003 between Himinder Lal owner of land and petitioner. It is pleaded that approved construction plan was sanctioned for three floors and one parking floor. It is pleaded that construction was not carried out as per approved construction plan. It is pleaded that owner applied for compounding unauthorised buildings construction under retention policy 2004. It is pleaded that notice was issued not to raise illegal construction but despite notice illegal construction continued. It is pleaded that on 28.8.2004 order was passed against co-accused Himinder Lal not to carry out any construction work and order of disconnection of electricity connection and water connection passed by competent authority. It is pleaded that at site construction work remained continued despite notice of stopage of construction work by competent authority of law. It is pleaded that construction of sixth storey was carried out after cut off date i.e. 31.12.2003 of the retention policy. It is pleaded that as per retention policy construction in restricted area was restricted upto five storeys including parking floor. It is pleaded that competent authority decided to consider the case under retention policy for five storeys of Block A and B. It is pleaded that construction relating to sixth storey of both Blocks A and B was ordered to be demolished within 15 days from the receipt of notice under Section 39 of H.P. Town and Country Planning Act failing which the demolition order was to be executed by the concerned official of SADA New Shimla entirely at the risk and cost of Himinder Lal. It is pleaded that construction upto five storeys was approved as per retention policy and penalty was imposed as compounding fee subject to demolish of sixth storey of building. It is pleaded that appeal filed by owner was rejected by the competent authority of law. It is pleaded that construction upto five storeys was approved as per retention policy and penalty was imposed as compounding fee subject to demolish of sixth storey of building. It is pleaded that appeal filed by owner was rejected by the competent authority of law. It is pleaded that as per direction of Hon’ble High Court inspection was conducted by Commissioner MC Shimla personally assisted by Civil Engineer and Architect Planner and it was observed that petitioner had constructed two additional storeys beyond the approved construction plan in ground floor of basement. It is pleaded that there is misrepresentation of facts. It is pleaded that during investigation it was found that co-accused A.N. Sharma abused his official position by illegally regularizing the building structure. It is pleaded that co-accused A.N. Sharma ignored the demolition order of sixth storey by competent authority of law. Prayer for dismissal of petition sought. 3. Court heard learned counsel appearing for the petitioner and learned Deputy Advocate General appearing on behalf of non-petitioner and also perused the entire record carefully. 4. Following points arise for determination in present petition:- 1. Whether it is expedient in the ends of justice to quash FIR No. 6 of 2013 dated 7.6.2013 registered under Sections 420 and 120-B IPC and Section 13(i)(d) read with Section 13(2) of Prevention of Corruption Act 1988 as mentioned in memorandum of grounds of petition wherein complicated question of facts are involved? 2. Final Order. Findings on Point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and petitioner has nothing to do with commission of alleged criminal offence and on this ground petition filed under Section 482 of Code of Criminal Procedure 1973 be allowed is rejected being devoid of any force for reasons hereinafter mentioned. The fact whether petitioner is innocent or not cannot be decided at this stage of case. Same fact will be decided when case shall be disposed of on merits after giving due opportunities to prosecution and accused to lead evidence in support of their case. In present case complicated disputed questions of facts are alleged by investigating agency and refuted by accused. It is held that it is not expedient in the ends of justice to decide the complicated disputed questions of facts in petition filed under Section 482 of Code of Criminal Procedure 1973. 6. In present case complicated disputed questions of facts are alleged by investigating agency and refuted by accused. It is held that it is not expedient in the ends of justice to decide the complicated disputed questions of facts in petition filed under Section 482 of Code of Criminal Procedure 1973. 6. Submission of learned Advocate appearing on behalf of petitioner that initially the construction plan was approved for three stories building and thereafter Commissioner MC Shimla approved revised construction plan and construction was raised strictly as per approved construction plan and on this ground petition filed under Section 482 Cr.P.C. be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Allegations against the petitioner are that petitioner is general attorney of Himinder Lal who is owner of land. Allegations against the petitioner are that petitioner executed agreement for collaboration dated 13.3.2000 with Himinder Lal who is owner of land for construction purpose. Allegations against the petitioner are that area falls in core area. Further allegations against the petitioner are that petitioner has raised construction upto six stories despite the fact that five stories construction was approved by competent authority and allegations against the petitioner are that petitioner in criminal conspiracy with other co-accused namely A.N. Sharma then Commissioner MC Shimla and Mahinder Pal the then Commissioner MC Shimla also raised illegal construction under the basement contrary to approved site plan. Allegations against the petitioner are that petitioner had committed criminal offence under Section 420 IPC and also committed criminal offence under 120-B IPC in collusion with co-accused Himinder Lal who is owner of immovable property and in collusion with co-accused A.N. Sharma then Commissioner MC Shimla and in collusion with co-accused Mahinder Pal Sood then Commissioner MC Shimla. Court also perused agreement for collaboration dated 13.3.2000 executed between co-accused Himinder Lal co-owner and petitioner placed on record. There is positive condition No. 12 in agreement that petitioner would be entitled to 75% area of the built up area. Share of petitioner in constructed building is mentioned as 75% and share of co-accused Himinder Lal is mentioned as 25% in the constructed building as per agreement placed on record. Prima facie direct nexus of petitioner is proved in the construction of building for personal gain. 7. Share of petitioner in constructed building is mentioned as 75% and share of co-accused Himinder Lal is mentioned as 25% in the constructed building as per agreement placed on record. Prima facie direct nexus of petitioner is proved in the construction of building for personal gain. 7. Allegations against the petitioner are that petitioner has committed cheating and committed criminal conspiracy in collusion with the then Commissioner MC Shimla and raised six stories building and also raised unauthorized construction under basement despite the fact that order of demolition of sixth stories was passed by competent authority of law. For criminal offence under Section 420 IPC dishonest intention should be proved. It is well settled law that dishonest intention in Court of law could be proved by way of adducing oral and documentary evidence during trial of case. 8. Criminal offence under Section 420 IPC is a cognizable offence. It is proved on record that FIR was filed before investigating agency relating to cognizable offence. It is well settled law that recording of FIR and investigation in cognizable offence is mandatory. See AIR 2014 SC 187 title Lalita Kumari vs. Government of U.P. It is well settled law that under Section 482 of Code of Criminal Procedure 1973 High Court has to look into uncontroverted allegations in complaint only and it is well settled law that Court should not decide complicated disputed questions of facts in proceedings under Section 482 Cr.P.C. See AIR 2014 SC 2567 Rishipal Singh vs. State of U.P. It is well settled law that Court should not convert itself to trial Court in proceedings under Section 482 Cr.P.C. It is well settled law that disputed question of facts in judicial proceedings should be decided by Court after giving due opportunities to both the parties to prove their case. 9. Submission of learned Advocate appearing on behalf of petitioner that petitioner is not a public servant and Prevention of Corruption Act is not attracted to the petitioner and on this ground petition filed under Section 482 Cr.P.C. be allowed is decided accordingly. Court is of the opinion that petitioner is at liberty to agitate at the time of framing of charge before learned trial Court that Prevention of Corruption Act 1988 is not applicable to petitioner and learned trial Court will decide the issue at the time of framing charge. 10. Court is of the opinion that petitioner is at liberty to agitate at the time of framing of charge before learned trial Court that Prevention of Corruption Act 1988 is not applicable to petitioner and learned trial Court will decide the issue at the time of framing charge. 10. Submission of learned Advocate appearing on behalf of petitioner that compounding fee was also deposited by petitioner and on this ground petition filed under Section 482 Cr.P.C. be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Allegations against the petitioner are that co-accused have allowed compounding of six stories of construction in core area contrary to law despite fact that demolition orders were passed by competent authority of law relating to sixth storey in conspiracy with co-accused A.N. Sharma IPS (Retd) officer the then Commissioner MC Shimla and Mahinder Pal Sood HAS the then Commissioner MC Shimla. In present case complicated questions of facts are involved which are asserted by investigating agency/prosecution and denied by accused persons. It is held that it is not expedient in the ends of justice to dispose of complicated disputed questions of facts involved in present case in petition filed under Section 482 Cr.P.C. 11. It was held in case reported in AIR 2014 SC 3352 title Mosiruddin Munshi vs. Md. Siraj and another that – (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and in particular a first information report unless the allegations contained therein even if given face value and taken to be correct in their entirety disclosed no cognizable offence. (2) It was held that Court save and except in very exceptional circumstances would not look to any document relied upon by the defence. (3) It was held that power should be exercised very sparingly. If the allegations made in FIR disclose commission of an offence the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mensrea or actus reus. (4) It was held that if allegation discloses a civil dispute the same by itself would not be a ground to hold that the criminal proceedings should not be allowed to continue. As per Article 141 of Constitution of India law declared by Supreme Court is binding in all Courts. (4) It was held that if allegation discloses a civil dispute the same by itself would not be a ground to hold that the criminal proceedings should not be allowed to continue. As per Article 141 of Constitution of India law declared by Supreme Court is binding in all Courts. See (2009)4 SCC 443 title Mahesh Chaudhary vs. State of Rajasthan. See (2009)1 SCC 516 title R. Kalyani vs. Janak C. Mehta and others. In view of the fact that disputed and contrversial facts are involved in present case Court is of the opinion that it is not expedient in the ends of justice to quash FIR No. 6 of 2013 dated 7.6.2013 at this stage of case. Point No.1 is answered in negative. Point No. 2 (Final Order) 12. In view of findings on point No. 1 petition filed under Section 482 Cr.P.C. is dismissed. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of present petition filed under Section 482 of Code of Criminal Procedure 1973. Petition is disposed of. All pending miscellaneous applications if any also stands disposed of.