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2017 DIGILAW 314 (ALL)

Sri Manish Verma v. State of U. P.

2017-01-23

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Kiran Kumar Arora, for the applicants and Sri Anil Kumar Singh, for opposite party-2. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order of Additional Chief Judicial Magistrate, Court No.1, Mathura dated 20.05.2015, rejecting Final Report submitted by Investigating Officer in Case Crime No. 667 of 2008, under Section 420 , 467, 468, 471 IPC, PS Vrindavan, Mathura and taking cognizance under Section 190 (1) (b) Cr.P.C. on the protest petition filed by Priya Saran Das (opposite party-2), as well as consequential proceeding of Case No. 99 of 2014 (Priaya Saran Das Vs. Prem Bihari Saran and others) pending before him. 3. On the complaint of Priya Saran Das (opposite party-2), FIR of Case Crime No. 667 of 2008, under Section 420 , 467, 468, 471 IPC, PS Vrindavan, Mathura, was registered on 17.07.2008 at 10.50 hours. It has been stated in FIR that Priya Saran Das disciple of Prem Das Ji, was at that time Sewait, Mohatmim and Mutwalli of Sri Radha Bihari and Saligram Ji Maharaj, situated at Gandhi Marg, Vrindavan, PS Vrindavan, Mathura. He was also acting as sewait of the place of his uncle guru Sri Lakshmi Narain Das Ji disciple of Sant Saran Ji Maharaj. Plot 407 (area 850 Sq. Yard) situate at Kaimar Van, Vrindavan, Mathura belonged to Sri Radha Bihari and Saligram Ji Maharaj. Sri Lakshmi Narain Das Ji, as a shewait, executed a lease deed dated 04.04.1978 of aforesaid plot 407, on a premium of Rs. 5000/- and rent of Rs. 1/- per year in favour of Nimbark Saran Ji Maharaj disciple of Kunj Bihari Saran Ji Maharaj, resident of Radha Niwas, Vrindavan and handed over possession of it to Nimbark Saran Ji Maharaj. In this lease deed name of Prem Bihari Saran was also included being guru-bhai of Nimbark Saran Ji Maharaj, while Prem Bihari Saran had neither paid any amount towards premium of the lease nor entered into possession of the aforesaid plot and he had never paid rent of the land in dispute. In this lease deed name of Prem Bihari Saran was also included being guru-bhai of Nimbark Saran Ji Maharaj, while Prem Bihari Saran had neither paid any amount towards premium of the lease nor entered into possession of the aforesaid plot and he had never paid rent of the land in dispute. After death of Nimbark Saran Ji, Chatur Sampraday Virakt Vaishnav Parishad, Vrindavan appointed Nawal Kishor Das as mahant of aforesaid leased land and other property of Nimbark Saran Ji, in 1981 and handed over possession to him over his gaddi and all the properties of Nimbark Saran Ji, who is still in possession of it and paying rent of leased property to Thakur Ji. Prem Bihari Saran several times sold and got back the leased property in a forged manner. Lastly, Prem Bihari Saran disciple of Kunj Bihari Saran, malafide, in collusion with, by committing forgery and showing the aforesaid property of Thakur Ji as his property, sold to another person Chhagan Bihari Saran disciple of Shri Ji Maharaj, resident of Shri Ji Bagicha, Parikrama Marg, Vrindavan, Manish Verma, Sandeep Verma, Vivek Verma, Ankur Verma sons of Om Prakash Verma, Sonu Verma wife of Manish Verma and Anita Verma wife of Ashish Verma, residents of 20/1, Diabil Nagar, Krishna Nagar, PS Kotwali, Mathura on 16.03.2006, for which he had no legal right. Neither Prem Bihari Saran nor aforesaid persons were in possession of the aforesaid leased property. In this land, house and hermitage of Nawal Kishor Das is situated, which was constructed by him, after getting lay-out plan sanctioned from Mathura-Vrindavan Development Authority and he had paid rent to Thakur Ji. Prem Bihari Saran has neither ever paid rent to Thakur Ji nor was ever in possession of it. 4. The police, after investigation submitted Final Report on 24.01.2009. The Magistrate, however, did not accept Final Report and by order dated 07.09.2009 directed for further investigation. The police, after further investigation again submitted Final Report on 22.12.2009. The Magistrate, again did not accept Final Report and by order dated 28.04.2010 directed for further investigation. The police, after investigation again submitted Final Report on 10.10.2012. Opposite party-2 filed a protest petition. Additional Chief Judicial Magistrate, Court No.1, Mathura by order dated 20.05.2015, rejected Final Report and took cognizance under Section 190 (1) (b) Cr.P.C. on the protest petition filed by Priya Saran Das (opposite party-2). The police, after investigation again submitted Final Report on 10.10.2012. Opposite party-2 filed a protest petition. Additional Chief Judicial Magistrate, Court No.1, Mathura by order dated 20.05.2015, rejected Final Report and took cognizance under Section 190 (1) (b) Cr.P.C. on the protest petition filed by Priya Saran Das (opposite party-2). Hence this application has been filed. 5. Back ground facts, giving rise to this FIR, are as follows: - (a) Plot 407 (area 886 Sq. Yard) situate at Kaimar Van, Vrindavan, Mathura belonged to Sri Radha Bihari and Saligram Ji Maharaj, Gandhi Marg, Vrindavan (in short referred as Thakur Ji). Lakshmi Narain Das Ji as a shewait of Thakur Ji executed a lease deed dated 04.04.1978 of the aforesaid plot 407, on a premium of Rs. 5000/- and rent of Rs. 1/- per year in favour of Nimbark Saran Ji and Prem Bihari Saran Ji disciple of Kunj Bihari Saran Ji Maharaj, resident of Radha Niwas, Vrindavan and handed over possession to them. Nimbark Saran died on 13.02.1981. (b) Nawal Kishor Das claiming himself as disciple of Nimbark Saran Ji filed Probate Petition No. 57 of 1981, on the basis of a will dated 23.01.1981, allegedly executed by Nimbark Saran Ji in his favour, in respect of the aforesaid property. On the matter being contested by Kunj Bihari Saran Ji Maharaj and Prem Bihari Saran, this case was registered as O.S. No. 4 of 1982. Additional District Judge, Mathura by his judgement dated 07.11.1986 decreed the suit and issued probate of the will dated 23.01.1981. Kunj Bihari Saran Ji Maharaj and Prem Bihari Saran filed First Appeal No. 7 of 1987 from aforesaid decree. Division Bench of this Court by judgement dated 27.07.1989 allowed the appeal and dismissed the suit, holding that due execution of alleged will dated 23.01.1981 by Nimbark Saran Ji was not proved. Nawal Kishor Das filed SLP No. 10830 of 1989 against aforesaid judgement, which was dismissed by Supreme Court by judgement dated 04.12.1989. (c) Kunj Bihari Saran Ji Maharaj also filed a suit (registered as Succession Suit No. 161 of 1981) under Indian Succession Act, 1925, for declaring him as only heir of Nimbark Saran Ji. This suit was contested by Nawal Kishor Das. Civil Judge, Mathura by judgement dated 18.09.1991, decreed the suit. Nawal Kishor Das filed Misc. (c) Kunj Bihari Saran Ji Maharaj also filed a suit (registered as Succession Suit No. 161 of 1981) under Indian Succession Act, 1925, for declaring him as only heir of Nimbark Saran Ji. This suit was contested by Nawal Kishor Das. Civil Judge, Mathura by judgement dated 18.09.1991, decreed the suit. Nawal Kishor Das filed Misc. Civil Appeal No. 130 of 1991, from aforesaid decree, which was dismissed by Special Judge, Mathura by judgement dated 15.10.2004. Nawal Kishor Das filed Civil Misc. Writ Petition No. 47523 of 2004, which is pending before this Court. It may be mentioned that in the meantime, Kunj Bihari Saran Ji Maharaj has died and was inherited by Prem Bihari Saran Ji, his disciple. (d) During pendency of these litigation Nawal Kishor Das executed a sale deed dated 19.01.2000 of a part of disputed land, in favour of Kausal Kishor Gautam. Nawal Kishor Das and Kausal Kishor Gautam filed a suit (registered as O.S. No. 337 of 1997 against Chhagan Bihari Ji, Jagdish Agrawal and Jagdish Singh Chauhan for declaring them as owner in possession of the disputed land. This suit was decreed by judgement dated 11.02.2000 by Second Additional Civil Judge, (SD), Mathura. Chhagan Bihari Ji and others filed an application under Order IX Rule 13 C.P.C. for setting aside decree dated 11.02.2000. Nawal Kishor Das filed Civil Misc. Writ Petition No. 45986 of 2010, challenging maintainability of the application under Order IX Rule 13 C.P.C., this Court by order dated 05.08.2010 stayed further proceeding of the application under Order IX Rule 13 C.P.C., before court below. (e) Nawal Kishor Das filed another suit (registered as O.S. No. 625 of 2003) for declaring him as owner of the property in dispute and restraining Chhagan Bihari and Prem Bihari Saran from interfering in their possession and alienating the property in dispute. During pendency of suit, sale deeds dated 16.03.2006 were executed by Chhagan Bihari and Prem Bihari Saran in favour of Manish Verma, Sandeep Verma, Vivek Verma, Ankur Verma sons of Om Prakash Verma, Sonu Verma wife of Manish Verma and Anita Verma wife of Ashish Verma. Then they were also arrayed as the defendants in this suit and relief for declaring these sale deeds dated 16.03.2006 as void was also added. Additional Civil Judge (SD), Court No.1, Mathura by judgement dated 10.08.2011, dismissed this suit. Then they were also arrayed as the defendants in this suit and relief for declaring these sale deeds dated 16.03.2006 as void was also added. Additional Civil Judge (SD), Court No.1, Mathura by judgement dated 10.08.2011, dismissed this suit. Nawal Kishor Das filed First Appeal No. 347 of 2011 from aforesaid decree, which is pending. (f) Nawal Kishor Das lodged an FIR (registered as Case Crime No. 63 of 2006) under Section 420 , 467, 468, 471 IPC, PS Sadar Bazar, Mathura, through an application under Section 156 (3) Cr.P.C., against the applicants and other co-accused, when sale deeds dated 16.03.2006 were executed. In this case, the police after investigation submitted Charge Sheet, on which cognizance was taken. The applicants filed an application for their discharge, which was rejected by the Court below by order dated 15.12.2007. The applicants filed Criminal Revision No. 149 of 2008, against aforesaid order. Initially this Court by order dated 29.01.2008 granted interim order. However later on, Criminal Revision No. 149 of 2008 was dismissed by order dated 07.10.2016. (g) Nawal Kishor Das filed a complaint (registered as Complaint Case No. 471 of 2014, Mahant Nawal Kishor Das Vs. State of U.P., under Section 420 , 467, 468, 471, 120-B IPC, against the applicants and other persons for taking loan, mortgaging disputed property. The Magistrate by order dated 20.05.2015 took cognizance in this case and summoned the accused. The applicants filed a petition (registered as Application U/S 482 No. 33023 of 2015), in which this Court by order dated 23.11.2015 stayed further proceeding before the Court below. 6. The counsel for the applicants submitted that subject matter of dispute in various civil and criminal proceeding is Plot 407 (area 886 Sq. Yard) situate at Kaimar Van, Vrindavan, Mathura. This land belonged to Sri Radha Bihari and Saligram Ji Maharaj, Gandhi Marg, Vrindavan (in short referred as Thakur Ji). Lakshmi Narain Das Ji as a shewait of Thakur Ji executed a registered lease deed dated 04.04.1978 in favour of Nimbark Saran and Prem Bihari Saran disciples of Late Kunj Bihari Saran Ji Maharaj. Prem Bihari Saran is joint lessee of the disputed land. Half share of Nimbark Saran Ji was inherited by his guru on his death on 13.02.1981 and after death of Kunj Bihari Saran Ji Maharaj, Prem Bihari Saran Ji has become lessee/owner of entire disputed land. Prem Bihari Saran is joint lessee of the disputed land. Half share of Nimbark Saran Ji was inherited by his guru on his death on 13.02.1981 and after death of Kunj Bihari Saran Ji Maharaj, Prem Bihari Saran Ji has become lessee/owner of entire disputed land. Nawal Kishor Das is infact disciple of one Sri Sanwal Das. In order to grab, the disputed land, he firstly fabricated a will dated 23.01.1981, which was finally held as fabricated document by judgement of Division Bench of this Court dated 27.07.1989 in F.A. No. 7 of 1987. This judgement has been upheld by Supreme Court. Succession Petition No. 161 of 1981 filed by Late Kunj Bihari Saran Ji Maharaj was decreed on 18.09.1991. Nawal Kishor Das filed Misc. Civil Appeal No. 130 of 1991, from aforesaid decree, which was dismissed by Special Judge, Mathura by judgement dated 15.10.2004. Nawal Kishor Das filed Civil Misc. Writ Petition No. 47523 of 2004, which is pending before this Court. In spite of the fact that Nawal Kishor Das has lost from civil court two times, he again initiated another proceedings i.e. O.S. No. 337 of 1997 and O.S. No. 625 of 2003. These proceedings are not maintainable and abuse of process of the Court. In order to harass Prem Bihari Saran Ji and his transferees, he also lodged FIR (registered as Case Crime No. 63 of 2006) under Section 420 , 467, 468, 471 IPC, and Complaint Case No. 471 of 2014, Mahant Nawal Kishor Das Vs. State of U.P., under Section 420 , 467, 468, 471, 120-B IPC which are pending. In respect of same subject matter of dispute and same cause of action i.e. sale deeds sated 16.03.2006, present FIR (Case Crime No. 667 of 2008) has been lodged by Priya Saran Das. Police after investigation submitted Final report. Magistrate, however, on the protest petition of opposite party no. 2 took cognizance under Section 190 (1) (b) Cr.P.C. FIR of Case Crime No. 667 of 2008 shows that Priya Saran Das is espousing cause of Nawal Kishor Das. This FIR has been malafide filed to overreach the interim order of this Court dated 29.01.2008 passed in Criminal Revision No. 149 of 2008, which has now been dismissed on 07.10.2016. He relied upon judgement of Supreme Court in Mohd. Ibrahim Vs. This FIR has been malafide filed to overreach the interim order of this Court dated 29.01.2008 passed in Criminal Revision No. 149 of 2008, which has now been dismissed on 07.10.2016. He relied upon judgement of Supreme Court in Mohd. Ibrahim Vs. State of Bihar, (2009) 8 SCC 751 , and submitted that it is essentially a civil dispute between the parties and ingredient of Section 420 , 467, 468, 471 IPC is not made out. Entire proceeding is liable to be quashed. 7. In reply to the aforesaid arguments, the counsel of the opposite party-2 submitted that plot 407 (area 886 Sq. Yard) situate at Kaimar Van, Vrindavan, Mathura belonged to Sri Radha Bihari and Saligram Ji Maharaj, Gandhi Marg, Vrindavan. Lakshmi Narain Das Ji as a shewait of Thakur Ji executed a lease deed dated 04.04.1978 of the aforesaid plot 407, on a premium of Rs. 5000/- and rent of Rs. 1/- per year in favour of Nimbark Saran Ji. In this lease deed name of Prem Bihari Saran Ji was included being guru-bhai of Nimbark Saran Ji. Nimbark Saran Ji was paying rent to Thakur Ji. He got constructed building over disputed land after obtaining permission of Mathura-Vrindavan Development Authority. Nimbark Saran Ji died on 13.02.1981. After death of Nimbark Saran Ji, Chatur Sampraday Virakt Vaishnav Parishad, Vrindavan appointed Nawal Kishor Das as mahant of aforesaid leased land and other property of Nimbark Saran Ji, in 1981 and handed over possession to him over his gaddi and all the properties of Nimbark Saran Ji, who is still in possession of it and paying rent of leased property to Thakur Ji. Prem Bihari Saran several times sold and get it returned the leased property in forged manner. Lastly, Prem Bihari Saran disciple of Kunj Bihari Saran, malafide in collusion with, by committing forgery, sold it to Chhagan Bihari Saran and Manish Verma and other. At present Priya Saran Das is shewait of Thakur Ji. A lessee has no transferable right as held by Supreme Court in Bhatia Co-operative Housing Society Vs. D.C. Patel, AIR 1953 SC 16 . Only on the ground, that civil ligation between Prem Bihari Saran and Nawal Kishor Das are pending, criminal proceeding or criminal case is not liable to be stayed as held by Supreme Court in Kamala Devi Agrawal Vs. State of W.B, AIR 2001 SC 3846 and State Vs. D.C. Patel, AIR 1953 SC 16 . Only on the ground, that civil ligation between Prem Bihari Saran and Nawal Kishor Das are pending, criminal proceeding or criminal case is not liable to be stayed as held by Supreme Court in Kamala Devi Agrawal Vs. State of W.B, AIR 2001 SC 3846 and State Vs. R Vasanthi Stanley & another, AIR 2015 SC 3691 . On similar grounds, Criminal Revision No. 149 of 2008 was filed which has been dismissed by this Court by judgement dated 07.10.2016, in which also it has been held that due to pendency of civil litigation on same cause of action, criminal proceeding cannot be stayed. The petition has no merit and is liable to be dismissed. 8. I have considered the arguments of the counsel for the parties and examined the record. FIR of Case Crime No. 63 of 2006 has been lodged for execution of sale deed dated 16.03.2006, under Section 420 , 467, 468, 471 IPC by Nawal Kishor Das, who is claiming to be heir of the lessee Nimbark Saran Ji. In this case police after investigation has submitted charge sheet and the case is pending before the Court. After dismissal of Criminal Revision No. 149 of 2008, on 07.10.2006, now it would proceed. Subsequent to lodging of FIR of Case Crime No. 63 of 2006, FIR of Case Crime No. 667 of 2008, under Section 420 , 467, 468, 471 IPC was lodged by Priya Saran Das, claiming to be lessor, for execution of sale deeds dated 16.03.2006. Under criminal law, FIR of cognizable offences can be lodged by any person, even by uninterested person. Offence under Section 420 , 468 and 471 IPC are cognizable offence. So far as offence Section 467 IPC is concerned, it is non-cognizable but interested person has already lodged FIR on which cognizance has been taken. 9. Supreme Court in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 , held that the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. 10. This view has been consistently followed by Supreme Court. In Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC 8 : (2016) 1 SCC (Cri) 679, it has been held that it is well-settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of the offence or the same occurrence or incident giving rise to one or more offences for which charge-sheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-section (8) of Section 173 CrPC. 11. The lease dated 04.04.1978 is perpetual lease and Prem Bihari Saran is a joint lessee. Admittedly constructions have been raised on the lease hold land. Section 108 (j) of Transfer of Property Act, 1882 provides that the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease. Thus, execution of sale deed by lessee itself is not a criminal offence. The lessor (although it is disputed that Priya Saran Das is shewait of Thakur Ji, the lessor) is not entitled to initiate criminal proceeding for it. 12. Thus, execution of sale deed by lessee itself is not a criminal offence. The lessor (although it is disputed that Priya Saran Das is shewait of Thakur Ji, the lessor) is not entitled to initiate criminal proceeding for it. 12. The other points raised by the parties are not required to be dealt with by this Court as second FIR on same cause of action and for same offence is not maintainable. Order dated 20.05.2015 taking cognizance on protest petition in second FIR is illegal. In order to prevent harassment of the applicants in a proceeding which is not maintainable under the law and to secure ends of justice it is liable to be quashed at its initial stage. 13. In the result, this application succeeds and is allowed. The order of Additional Chief Judicial Magistrate, Court No.1, Mathura dated 20.05.2015, rejecting Final Report submitted by Investigating Officer in Case Crime No. 667 of 2008, under Section 420 , 467, 468, 471 IPC, PS Vrindavan, Mathura and taking cognizance under Section 190 (1) (b) Cr.P.C. on the protest petition filed by Priya Saran Das (opposite party-2), as well as consequential proceeding of Case No. 99 of 2014 Priya Saran Das Vs. Prem Bihari Saran and others, pending before him are hereby quashed.