Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2689 (ALL)

Irfan v. State of U. P.

2019-12-03

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. Heard learned counsel for the applicant and learned A.G.A. representing the State. Perused the records. 2. This application under Section 482 Cr.P.C. has been filed by applicant Irfan against State of U.P. and Ishahak @ Ishak with prayer to quash the summoning order dated 21.08.2017 as well as entire proceedings of Complaint Case No. 177/9/2017, Ishahak @ Ishak Vs. Gayyoor and others, under Sections 420 I.P.C., P.S. Titavi, district Muzaffarnagar, pending in court of Additional Chief Judicial Magistrate, Court No.1, Bijnore. Though it is orally argued that it is Muzaffarnagar and due to typographical error mentioned as Bijnore. 3. Learned counsel for the applicant argued that first complaint was filed by the wife of opposite party no.2 Ishahak @ Ishak which was dismissed in default. Again this second complaint bearing No. 177/9/2017 was filed by opposite party no.2 wherein no ingredient against applicant Irfan is made out for offence punishable under Section 420 I.P.C. because he was a simply witness for a deed executed by Gayyoor for his own land in favour of Rahil. He was not aware of any previous agreement to sell executed in the name of wife of opposite party no.2. Hence, he has been summoned for above offence under misuse of process of Court and for the end of justice, this application is with above prayer has been filed. Learned counsel for the applicant further argued that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. Learned counsel has pointed out towards certain documents and statements in support of his contention. 4. Learned A.G.A. has vehemently opposed the application by contending that all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. 5. Considered the rival submissions made by the parties. 6. From the very perusal of application moved under Section 156 (3) Cr.P.C. which was treated as complaint by the Magistrate, it is apparent that name of all four accused is there with the accusation of joint mens ria and commission of fraud with a view of land grabbing and obtaining money for it, an agreement to sell was executed for Rs. 5 lakhs in favour of wife of opposite party no.2/complainant by Gayyoor wherein Irfan was witness. 5 lakhs in favour of wife of opposite party no.2/complainant by Gayyoor wherein Irfan was witness. Subsequently, the same land was transferred by Gayyoor in favour of Rahil wherein witnesses are same in this deed of alienation. It was written with Gayyoor who was not the real owner of land in question nor in possession of sale rather it was same transaction of sale made by Rahil in his favour and the same land was re-conveyed to Rahul by Gayyoor whereas Gayyoor in execution of registered agreement to sell had himself owner with full authority to make to transfer above land and under above ownership this agreement to sell was executed. Hence, he was under fraud knowing this fact that he was not real owner but he executed agreement to sell by way of accepting consideration of Rs. 5 lakhs then after this deed of alienation was executed in favour of Rahil mentioning the real ownership and possession of Rahil over this land. This itself shows the conspiracy and fraud committed by all those accused named in complaint. This fact was reiterated by the complainant in its statement recorded under Section 200 Cr.P.C. and the witnesses examined under Section 202 Cr.P.C. Hence, prima facie there was sufficient evidence for summoning the accused/applicant for offence punishable under Section 420 I.P.C. The impugned summoning order is neither misuse of process of law nor frustration of end of justice. 7. This Court in exercise of inherent power of under Section 482 Cr.P.C. does not expect to make meticulous analysis of factual evidence because the same is to be seen by the trial Court. 8. The submissions made by learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. Veracity of the statements are material evidence of fact and is not to be ascertained in this proceeding u/s 482 Cr.P.C. of this Court because the same is within the jurisdiction of Trial Court and is a point of fact to be seen in the trial. Veracity of the statements are material evidence of fact and is not to be ascertained in this proceeding u/s 482 Cr.P.C. of this Court because the same is within the jurisdiction of Trial Court and is a point of fact to be seen in the trial. In view of law propounded by Hon'ble Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588 : (2010) 6 SCALE 767 : 2010 Cr. LJ 3844, Hamida v. Rashid, (2008) 1 SCC 474 , Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 , Dhanlakshmi v. R.Prasana Kumar, (1990) Cr.L.J. 320 (DB) : AIR 1990 SC 494 , State of Bihar V. Murad Ali Khan, (1989) Cr LJ 1005 : AIR 1989 SC 1 , there is no ground for interference under Section 482 Cr.P.C. 9. The prayer for quashing summoning order as well as proceeding of the aforesaid criminal case is refused. 10. However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within four weeks from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 11. For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. 12. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. 13. With the aforesaid directions, this application is finally disposed of.