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2018 DIGILAW 400 (ALL)

Shiv Pratap Singh v. State of U. P.

2018-02-13

AMAR SINGH CHAUHAN

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JUDGMENT & ORDER : AMAR SINGH CHAUHAN, J. 1. Heard and perused the record. 2. The applicants Shiv Pratap Singh (now dead) and 14 others, through this application moved under Section 482, Cr.P.C. , have invoked the inherent jurisdiction of this Court with a prayer to quash the charge-sheet as well as entire criminal proceedings in Case No. 2082/2006 (State v. Shiv Pratap Singh and others), under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Dhata, District Fatehpur, pending in the court of Judicial Magistrate, Khaga, Fatehpur and to stay the further proceedings in the aforesaid case. 3. The brief facts which give rise to the adjudication of the application are that the first information report was lodged by the A.D.G.C. (Revenue), Khaga, Fatehpur who was authorized to lodge first information report by Sub-Divisional Magistrate, Khaga with the allegation that order of the Naib Tehsildar dated 4.7.2003 was obtained by committing fraud. Out of the 25 plots which was entered in the name of School Farm, 12 plots were sold by Manager of School Farm to Bachchu Ram Singh Ram Swaroop Singh Mahavidhyalay Ayurveda Shiksha Snatak Mahavidhyalay, Adhauli, District Fatehpur. On the basis of sale deed, entry was made which was cancelled by Sub-Divisional Magistrate, against which revision was filed before the Additional Commissioner (Judicial), Allahabad which was dismissed. The applicants filed the civil writ petition which was allowed and the case was remanded back to the revenue authority to decide afresh by giving opportunity. The Investigating Officer after concluding the investigation submitted the charge sheet under Sections 419, 420, 467, 468, 471, I. P. C. 4. Feeling aggreived, the applicants moved this application before this court. It is submitted by learned counsel for the applicants that the Land Management Committee of Village concerned has granted Patta in the name of Junior High School, Adhauli on 18. 9. 1969 by way of proposal of Land Management Committee which was approved by the S. D. M. The area of patta of land of the Gaon Sabha is measuring about 19 bighas. The Junior High School, Adhauli is upgrading as the Adhauli Inter College and within the same campus, Bachchu Ram Singh Ram Swaroop Singh Degree College, Adhauli is also running. Out of that 19 bighas, 13 bighas was transferred in the name of the said degree college. The Junior High School, Adhauli is upgrading as the Adhauli Inter College and within the same campus, Bachchu Ram Singh Ram Swaroop Singh Degree College, Adhauli is also running. Out of that 19 bighas, 13 bighas was transferred in the name of the said degree college. The said land was mutated in the name of the said degree college in the revenue record. The Sub-Divisional Magistrate, Khaga, Fatehpur, without considering the facts as well as verification of the report submitted by the Revenue Authorities, directed the opposite party No. 2 to register the first information report against the applicants. 5. It is further submitted by the learned counsel for the applicants that the dispute is mainly of civil nature as the civil mis-celleneous writ petition was allowed by the Hon'ble High Court and on the basis of the direction issued in Civil Misc. Writ Petition No. 1671 of 2006 (Bachchu Ram Singh and another v. Additional Commissioner (Judicial), Allahabad Division, Allahabad, Sub-Divisional Magistrate was directed to make entry of the said land in name of School Farm. It is also submitted that vide order dated 18. 3. 2017, on the basis of the resolution of the Land Management Committee dated 22. 1. 2017, the said land again mutated in the name of Bachchu Ram Singh Ram Swaroop Singh Mahavidhyalay Ayurveda Shiksha Snatak Mahavidhyalay, Adhauli, District Fatehpur. 6. Per contra, Shri. Dharmendra Pratap Singh, learned counsel for the opposite party No. 2 and learned Additional Government Advocate for the State contends that by hatching conspiracy of Land Management Committee, Lekhpal and other authorities, the applicants got mutated the land of the Gaon Sabha in the name of School Farm or school play ground and opposite party No. 2 was authorized by the S. D. M. to lodge F. I. R. in the proceedings initiated under Section 33/39 Land Revenue Act. 7. The scope and ambit of power under section 482, Cr.P.C., has been examined by Hon'ble Apex Court in Union of India v. Prakash P. Hinduja and another, (2003) AIR SC 2612, and observed as follows: "The grounds on which power under Section 482, Cr. 7. The scope and ambit of power under section 482, Cr.P.C., has been examined by Hon'ble Apex Court in Union of India v. Prakash P. Hinduja and another, (2003) AIR SC 2612, and observed as follows: "The grounds on which power under Section 482, Cr. P. C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the un-contraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection". 8. The Hon'ble Apex Court in the case of Mohammed Ibrahim and others v. State of Bihar and another, (2010) AIRSCW 405 has held that the matter involving property disputes and dispute of civil nature should not be given a cloak of criminal offence. The criminal court should ensure that proceeding before it are not used for settling scores or to pressurise parties to settle civil dispute. Mere showing that person acted fradulently, cannot be assumed that he had committed offence of cheating. 9. The Hon'ble Apex Court in the case of Pepsi Foods Limited and another v. Special Judicial Magistrate and others, (1998) AIR SC 128 and held as under: "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. Preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. " 10. In the case in hand, 19 bighas land was alloted to the School Farm vide resolution of the Land Management Committee and got mutated in the name of School Farm. The part of the land was transferred to the Bachchu Ram Singh Ram Swaroop Singh Mahav-idhyalay Ayurveda Shiksha Snatak Mahavi-dhyalay, Adhauli, District Fatehpur which was cancelled in the proceedings initiated under Section 33/39 Land Revenue Act and first information report was lodged regarding transfer of that land. The another Bench of this Court in Civil Misc. Writ Petition No. 1671 of 2006 (Bachchu Ram Singh and another v. Additional Commissioner (Judicial), Allahabad Division, Allahabad has set aside the order passed by the S. D. M. concerned and matter was remanded back to S. D. M. to decide afresh after providing an opportunity of hearing. The dispute involved is purely of civil nature and dragging the matter before the criminal court is clearly an abuse of process of court. 11. The Hon'ble Apex Court in the case of Dr. The dispute involved is purely of civil nature and dragging the matter before the criminal court is clearly an abuse of process of court. 11. The Hon'ble Apex Court in the case of Dr. Vimla v. Delhi Administration, (1963) AIR SC 1572 has explained the meaning of the expression "defraud" thus: "14..... the expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. " 12. In the instant case, merely alleging or showing that a person acted fradulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fradulent act is specified to be an offence under the Code or other law. 13. In view of the above discussion and submission, the application has substance, and therefore, it is allowed and the charge sheet in Case No. 2082/2006 (State v. Shiv Pratap Singh and others), under Sections 419, 420, 467, 468, 471, I. P. C. , Police Station Dhata, District Fatehpur, is hereby quashed.