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2018 DIGILAW 1044 (ALL)

IKBAL v. STATE OF U. P.

2018-04-27

J.J.MUNIR

body2018
JUDGMENT Hon’ble J.J. Munir, J.—Heard Sri Abhishek Gupta, learned counsel for the applicants at length, Sri Kamal Singh Yadav alongwith Sri Avanish Shukla learned AGA appearing on behalf of the State and perused the record. 2. The submission of learned counsel for the applicant is that the First Information Report has been lodged by the informant-Deependra Singh with an allegation that he was repairing his shop when Irfan and Yunus natives of Kasba, Rabupura submitted an objection to the SDM, Jewar, District Gautam Budha Nagar that the first informant was making illegal constructions over land of a Kabristan. The matter was investigated by the SDM, Jewar and found that the objection/application was unfounded. Thereafter, the first informant resumed his construction. On the date of occurrence at about 02:30 p.m.. Ikbal, Iliyas, Yunus, Irfan, Aslam, Salim, Atra, Jamil, Mursalim and 35-40 other persons reached the construction site and without provocation resorted to stone pelting and opened fire. They demolished the wall and damaged the Scorpio Car of the informant bearing No. U.P. 16 AX 8631 and a motorcycle bearing the registration No. U.P. 13C 0608. They also opened fire with an intent to kill the first informant, however, he managed to escape. Yunus, Irfan and applicants Aslam (applicant No. 3), Atra (applicant No. 6), Ikbal and Salim all were carrying country made pistols. They looted the nearby shops in consequence of which there was a big commotion in the locality with the shop keepers fleeing, leading to an atmosphere of terror. It is said that a number of persons like Kallu, Tinku, Rahul and Neeraj are eye-witnesses of the occurrence. It is argued by Sri Abhishek Gupta, learned counsel for the applicants that there are no independent witness of the occurrence and the applicants have not committed any offence. The impugned charge-sheet and cognizance order is bad in the eye of law, illegal and contrary to the evidence on record where allegations are vague and superfluous and ones made to lend colour to the case. It has been submitted that contrariwise the incident alleged never happened. The F.I.R. is based on an entirely frivolous account of facts that is no more than a story. It is submitted that one Netrapal who is the Chairman of Nagar Panchayat, village Rabupura, District Gautam Budh Nagar in connivance with other land mafiosi illegally occupied Khasra Plot No. 1680 ad measuring 1.4400 sq. The F.I.R. is based on an entirely frivolous account of facts that is no more than a story. It is submitted that one Netrapal who is the Chairman of Nagar Panchayat, village Rabupura, District Gautam Budh Nagar in connivance with other land mafiosi illegally occupied Khasra Plot No. 1680 ad measuring 1.4400 sq. meters and attempted to construct shops there on 3.12.2015. It is urged that the said land belongs to the Muslim Cemetery (Kabristan) recorded as such in the revenue record and is used by the persons professing the Muslim faith to bury their dead. It has submitted that the applicants are persons who profess the Muslim faith and, therefore, their rights as part of that community were affected by this action in consequence of which they objected to it. It is said on the strength of averments in paragraph 14 of the affidavit that the day following the illegal construction by Netrapal, co-accused Irfan and Yunus on behalf of all the applicants and the local Muslim community submitted a Complaint/Application dated 4.12.2015 to the SDM, Jewar, District Gautam Budh Nagar requesting him to stop construction over land belonging to the Muslim cemetery (Kabristan) and the SDM, Jewar was pleased to pass an order to the following effect: “S.O., Rabupura Kindly enquire and stop illegal construction over land of Kabristan immediately and taking action against the guilty in accordance with law ensure maintenance of peace and order. Signed Sd illegible 04.12.2015 S.D.M” (Translated into english from hindi vernacular) 3. The applicants have also annexed a copy of the Khatauni of the land over which the alleged constructions were being raised in order to show that it was recorded in the name of the Muslim cemetery. It has further been pointed out that co-accused Irfan and Yunus on behalf of all the applicants and the local Muslim community filed a suit for permanent injunction on 9.12.2015 that came to be registered as Original Suit No. 192 of 2015 (Mohd. Yunus and others v. Netrapal Singh) which is pending in the Civil Court, Gautam Budha Nagar. A copy of the plaint giving rise to the suit is annexed as Annexure 9 to the affidavit. 4. Yunus and others v. Netrapal Singh) which is pending in the Civil Court, Gautam Budha Nagar. A copy of the plaint giving rise to the suit is annexed as Annexure 9 to the affidavit. 4. It is submitted by the learned counsel for the applicant that Chairman of the Nagar Panchayat, Netrapal Singh, harbouring grudge, enmity and ill will against the applicant and other co-accused on account of their act in preventing him from constructing over land of the Muslim cemetery in order to abuse the process of Court got four FIRs lodged against the applicant and other co-accused including the present FIR, that has culminated in the impugned charge-sheet. It has been averred that the present FIR is one lodged by the informant under the influence of the Chairman of the Nagar Panchayat, Rabupura as said in paragraph 17 of the affidavit. It has been argued that the case in the First Information Report that around 41 persons indulged in rioting including the applicant at the construction site of the first informant armed with deadly weapons while his wife and children were present in the house is incredible to its face inasmuch as not even a single injury was sustained by any one; his car and the motorcycle alone being damaged and the property of his neighbor stand safe. It has also been said that there is no recovery of any weapon from the applicant’s possession. It has further been alleged that there is no motive to the applicant to commit the said offence in the informant’s house as there is no ill will or enmity between two. The FIR has been lodged with the mala fide intention to harass the applicants over the issue of the cemetery. It has been urged with a repeated emphasis on the strength of paragraph 22 of the affidavit that there is no injury sustained by any person and that there is no medico-legal report of such injury on record. 5. The motion to admit this application to hearing has been strongly opposed by Sri Kamal Singh Yadav and Sri Awanish Shukla appearing on behalf of the State. 6. It has been submitted that the applicants have indulged in acts of rioting, pillage and damage to property of the first informant taking refuge behind deliberately projected case of construction over land of a Muslim cemetery. 6. It has been submitted that the applicants have indulged in acts of rioting, pillage and damage to property of the first informant taking refuge behind deliberately projected case of construction over land of a Muslim cemetery. To the contrary, constructions are being raised over a private land. It is argued that even if the constructions are being raised over the Muslim cemetery, the remedy to the applicants under the law is to seek an order of injunction from the Civil Court which they have already approached. If there is further apprehension of breach of peace, they could have approached police or the Executive Magistrate to take action under Section 145 Cr.P.C. The applicants had no right to take the law into their hands and indulgence in rioting, committing loot, pillage and damage to the applicant’s property and the nearby shop keepers. 7. The Court has given an anxious consideration to the matter, sequence of events on record, the limitation of the jurisdiction under Section 482 Cr.P.C. and proceedings taken elsewhere by the parties. So far as the evidence regard rioting, pillage, loot, use of deadly weapons, opening fire etc. are concerned there is ample material in the case diary collected by the police in the form of eye-witness account recorded by the I.O. commencing with the statement of the First Information Report under Section 161 Cr.P.C. dated 29.12.2015, a copy of which annexed as Annexure 2 to this affidavit. There is further eye-witness account of Tinku dated 30.12.2015 annexed as Annexure 3 besides that of Kallu annexed as Annexure 4. The charge-sheet of its own bears sufficient material to act against the applicant. 8. The submission that Netrapal Singh, Chairman of the local Nagar Panchayat, village Rabupura, Gautam Budha Nagar was attempting to construct over land of a Muslim Cemetery as asserted in paragraph 14 of the affidavit is telltale of the truth of the informant’s version. Prima facie, it shows that in fact, the applicants were moved into taking some hasty action actuated by emotion and passion believing or deliberately feigning that the land in dispute belong to a Muslim Cemetery over which constructions were being raised by the first informant or by Netrapal. Prima facie, it shows that in fact, the applicants were moved into taking some hasty action actuated by emotion and passion believing or deliberately feigning that the land in dispute belong to a Muslim Cemetery over which constructions were being raised by the first informant or by Netrapal. The applicants have not admitted and they cannot logically say that they stopped constructions by indulging in rioting and pillage but going by the allegations in paragraph 14, the inference is not difficult to reach that they could have done so. 9. It may be observed that the applicants say that they went to the SDM, Jewar, Gautam Budh Nagar to pass an order to stop constructions immediately which has been extracted hereinbefore from the contents of paragraph 14 of the affidavit. It must be observed here that the SDM, Jewer who is an Executive Magistrate is not a Court of civil jurisdiction nor is he a Judge empowered to pass an order of injunction. The order sought from the SDM, Jewer which the SDM granted is apparently an ultra vires order which is not traceable to any statutory power otherwise vested in the Executive Magistrate to pass that kind of an order. The SDM, if empowered, could take action to stop constructions by drawing proceedings under Section 145 Cr.P.C. by issuing a preliminary order under Section 145 (1) Cr.P.C. alongwith an order of attachment as an emergency measure under Section 146(1) Cr.P.C. but he did not have powers of a sweeping kind, administrative in flavour, to injunct ongoing constructions without invoking an appropriate statutory jurisdiction under Section 145 Cr.P.C. or some other provisions of law conferring that kind of power. The SDM could also have acted, may be drawing upon his powers under Section 144 Cr.P.C. by passing an order duly complying with the provisions of law as held by the Hon’ble Supreme Court in Gulam Abbas v. State of U.P., (1982) 1 SCC 71 . But the SDM did not invoke or purport to act in exercise of that power as would appear from a perusal of his order that is referable to no statutory authority. It appears that the SDM, Jewar has passed the aforesaid patently ultra vires order looking to the explosive and riotous circumstances created by the applicants, which in no circumstance he was authorized to do. It appears that the SDM, Jewar has passed the aforesaid patently ultra vires order looking to the explosive and riotous circumstances created by the applicants, which in no circumstance he was authorized to do. The SDM, Jewar is by no means a Judge exercising a general jurisdiction to injunct the parties within his jurisdiction to do or forbear from doing an act. That power alone vests in the Judges exercising civil jurisdiction or some superior jurisdiction. These observations have been made in the context of not only the legality of the SDM’s order but to point out the prima facie truth in the allegation of the first informant that impelled Executive Magistrate to panic and pass an order of injunction without jurisdiction. 10. The fact that a Civil suit has been filed but there is no mention that an ad interim or interim injunction absolute has been granted would show that the applicants do not have any kind of a right over the land which they profess to be land of a Muslim cemetery; at least so far it has not been accepted by any Court even on a tentative basis. In the aforesaid background it is not difficult at least prima facie to conclude that the applicants all of whom profess the same faith and are from a particular community took the law into their hands and either in a genuine belief that the land belongs to cemetery or deliberately using that as a camouflage indulged in rioting, pillage assault and all that has led to an FIR and now the impugned prosecution in the form of a charge-sheet. This Court therefore, is of considered opinion that no case is made to interfere with the impugned proceedings. This application fails and is dismissed in limine.