Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2816 (ALL)

Munni Devi v. State of U. P.

2019-12-19

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. This proceeding, under Article 227 of the Constitution of India, has been filed by Munni Devi and three others, with a prayer for setting aside order, dated 23.11.2019, passed by the Additional Sessions Judge, Court No.15, Bareilly, in Criminal Revision No. 140 of 2019/C.N.R. No. UPBRO 1-004303-2019 (Munni Devi & others vs. State of U.P. and another) as well as order, dated 26.2.2019, passed by Additional Chief Judicial Magistrate, Court No.6, Bareilly, in Complaint Case No. 3207 of 2018 (Chheda Lal Vs. Munni Devi & others), under Sections 420, 467, 468, 471 and 506 of Indian Penal Code, Police Station-Fatehganj Paschimi, District Bareilly. 2. Learned counsel for applicants argued that a case crime number was got registered upon a report of Chheda Lal, after lapse of 22 years, as Case Crime No. 482 of 2012, under Sections 420, 467, 468, 471 and 506 of Indian Penal Code, Police Station-Fatehganj Paschimi, District-Bareilly, wherein, investigation resulted in submission of final report. Thenafter, a protest petition was filed, wherein, Magistrate took cognizance, examined complainant and his two witnesses, under Sections 200 and 202 of Cr.P.C. Thereafter, complaint was dismissed, under Section 203 of Cr.P.C. 3. Against this order of the Magistrate, a criminal revision was filed, wherein, revisional court set aside order, dated 9.11.2017 of the Magistrate, thereby, allowed criminal revision and remanded back matter for fresh adjudication over protest petition. 4. In compliance whereof, Magistrate passed impugned order of summoning, wherein, applicants, Munni Devi, Ram Murti, Shiv Mangal, Indresh and Naqi Raza Khan, have been summoned for offences, punishable, under Section 420, 467, 468, 471 and 506 of IPC. Both of these courts have failed to appreciate facts and law placed before them and have committed misuse of process of law. Hence, invoking jurisdiction of this Court of general superintendence over subordinate courts, as conferred upon it by Article 227 of the Constitution of India, this Application has been filed, with above prayer. 5. On the other hand, learned counsel, appearing on behalf of Opposite party no.2, argued that sale of Arazi No. 489 was made by way of a registered deed, in favour of Munni Devi, but, under connivance with Area Lekhpal, Naki Raza Khan, mutation was got made, with respect of Arazi No.472, which was adjacent to road and possession was taken over it. On protest being made, accused-persons, abused and extended threat of dire consequences. On protest being made, accused-persons, abused and extended threat of dire consequences. Hence, an application was moved and a civil suit was also filed, wherein, there is an order in favour of Opposite parties and learned Additional Sessions Judge has rightly appreciated facts and law, thereby, allowed criminal revision, remanded back the matter for consideration by the Magistrate, whereupon, impugned summoning order has been passed. Hence, this Application is liable to be dismissed. 6. Learned AGA, representing State of Uttar Pradesh, has also vehemently opposed this Application. 7. Heard learned counsel for both sides and gone through materials on record. 8. From very perusal of the first information report, complaint, filed by way of protest petition and statements of complainant, recorded, under Sections 200 of Cr.P.C., as well as, under Section 202 of Cr.P.C. of witnesses, it is apparent that the allegations levelled by the complainant was that he had sold land of Gata No. 489 of Village- Tithariya Khetal, by way of a registered deed, dated 22.10.1990, in favour of Munni Devi and it was mutated in the revenue record on 23.1.1996. Arazi No. 489 is away from highway, whereas, Arazi No. 472 is adjacent to highway and complainant was residing at Haldwani. Hence, taking advantage of it, Munni Devi, under connivance of area Lekhpal, Naqi Raza Khan, got mutated her name for Arazi No.472, instead of, Arazi No.489 and, thereby, she got possession over it. Thereafter, construction was raised over it. Hence, it was done by committing fraud and manufacturing forged and fictitious documents, under connivance of area Lekhpal. Firstly, learned Magistrate dismissed complaint, then after, on the same evidence, in compliance of order of revisional court, passed impugned summoning order, whereas, no document regarding mutation for Arazi No.472 was placed before both of the courts, rather, mutation for Arazi No. 489 was there. A judgment of civil court, rendered in, Original Suit No. 18 of 2012, Chheda Lal vs. Munni Devi, decided on 5.1.2019, has been filed before this Court, wherein, it is apparent that name of Chheda Lal is there in Khatauni for Arazi No. 472, meaning thereby, basic allegation of mutation for Arazi No. 472 is not substantiated by above factual position. Moreso, civil suit, before civil court, regarding registration, as well as before revenue court, regarding mutation, is admittedly, pending and this has been entered, by Investigating Officer, in submission of final report. Moreso, civil suit, before civil court, regarding registration, as well as before revenue court, regarding mutation, is admittedly, pending and this has been entered, by Investigating Officer, in submission of final report. Meaning thereby, mutation was there for Arazi No.489, which was admittedly transferred to Munni Devi and no mutation is there regarding Arazi No. 472. 9. Now so far as taking of possession and raising construction over Arazi No.472 for which there was no right is concerned, it is an offence of illegal encroachment and land grabbing, but, no summoning is for it and unless this fact is being adjudicated upon by the civil court in above civil proceeding or by revenue court, in revenue proceeding, which is competent to dispossess an encroacher from the revenue plot, in question, summoning for such an offence cannot be ordered. 10. So far as summoning of Area Lekhpal is concerned, his summoning may not be there. If Area Lekhpal, in performance of his official duty, has got some act done, under conspiracy, then, that is an act or offence, committed by a public servant, in performance of his official duty and for taking cognizance, for such offence, sanction of the competent authority, under Section 197 of Cr.P.C., is to be taken, but, no such recital is there as to whether any sanction of competent authority was taken for taking cognizance against Area Lekhpal, Naqi Raza Khan or not. 11. Hence, under all above facts and circumstances, it is apparent that both of the courts below failed to appreciate facts and law and passed impugned orders, without there being any basis and as such both the impugned orders are being set aside and matter is being remanded back to the court of Magistrate, where, he will hear complainant and will pass summoning order, if any, afresh, after taking into consideration the materials placed before him and after making an enquiry, and also taking into consideration of relevant Khataunis, for the year concerned, for specifying as to whether mutation was there or not and if it was there and it is found to be, under any conspiracy, then sanction, under Section 197 of Cr.P.C., is there or not against Area Lekhpal, Naqi Raza Khan and the procedure, as per law, is to be adopted. 12. In view of observations made above, this Application stands disposed of accordingly.