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2022 DIGILAW 497 (TS)

K. Anand v. State of Telangana

2022-08-01

K.LAKSHMAN

body2022
ORDER : 1. The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, to quash the order dated 04.03.2022 passed in Crl. M.P. No. 475 of 2019 in Special S.C. No. 57 of 2016 by the Special Judge for trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge at Adilabad. 2. The petitioner herein is the de facto complainant in Crime No. 104 of 2014 of Adilabad Rural Police Station, while respondent Nos.3 to 5 are accused Nos.1 to 3 therein. The offences alleged against accused Nos.1 to 3 are under Sections 447 and 506 read with 120B of IPC and Sections 3 (1) (iv) and 3 (1) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 5 of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. 3. Heard Mrs. B. Rachna Reddy, learned counsel for the petitioner, Ms. P. Radhika, learned counsel for respondent Nos.3 to 6 and learned Public Prosecutor appearing on behalf of respondent Nos.1 and 2. Despite service of notice, none appears for respondent No. 7. 4. Pursuant to the complaint lodged by the petitioner herein, the aforesaid crime was registered against respondent Nos.3 to 5 herein and the Sub-Divisional Police Officer, Adilabad, conducted investigation and laid the charge sheet against them for the aforesaid offences. The same was taken on file vide Special S.C. No. 57 of 2016 for trial. 5. During trial when PWs.1 to 5 were examined, the petitioner herein has filed a petition vide Crl. M.P. No. 475 of 2019 under Section 319 of the Cr.P.C. to implead respondent Nos.6 and 7 herein as accused Nos.4 and 5 in the aforesaid Special S.C. on the following grounds: (i) Respondent No. 6 herein, Vakulabharanam Vedavyas, is the son of Mr. Vakulabharanam Adinath, accused No. 1, while respondent No. 7 herein, Mr. Kaleem is the then Panchayat Secretary, Kachkanti. (ii) Both the aforesaid persons had actively helped, aided and abetted accused Nos.1 to 3 and made themselves part of the criminal activities in the same offence. (iii) The crime was registered on 13.06.2014 and the charge sheet was laid on 26.07.2016. During the interregnum period, several activities had taken place. Kaleem is the then Panchayat Secretary, Kachkanti. (ii) Both the aforesaid persons had actively helped, aided and abetted accused Nos.1 to 3 and made themselves part of the criminal activities in the same offence. (iii) The crime was registered on 13.06.2014 and the charge sheet was laid on 26.07.2016. During the interregnum period, several activities had taken place. The petitioner herein had approached this Court against the illegal construction initiated by accused Nos.1 and 2 vide W.P. No. 34520 of 2014, wherein interim order was granted on 27.11.2014 directing them not to make any construction in the land of the petitioner. (iv) Accused Nos.1 to 3 hatched a conspiracy to grab the land of the petitioner herein. As the registrations pertaining to Survey No. 68 had been stopped for six (06) months or more in the office of the Sub-Registrar, Adilabad, on official reasons, by misrepresentation, fabrication and forgery, accused Nos.1 to 3 took the thumb impression of Thota Linganna S/o T. Ashanna and created an illegal ‘agreement of sale’ in favour of accused No. 3, Syed Ahmed. Thereafter, on the strength of the said fabricated document, they filed a suit vide O.S. No. 64 of 2014 on the file of the Junior Civil Judge, Adilabad against the said Mr. Thota Linganna and the petitioner herein. Accused Nos.1 to 3 in collusion with respondent Nos.6 and 7 with an intention to grab the land of the petitioner wrongly mentioned the boundaries in the forged agreement as well as in the plaint in the aforesaid suit. (v) When the registrations in Survey No. 68 have started again, accused Nos.1 and 2 introduced respondent No. 6 herein and got executed a sale deed bearing document No. 1956 of 2015, dated 01.04.2015 by Thota Linganna and accused No. 2 jointly for an extent of Ac.0-67 cents of land belonging to the petitioner herein in Survey No. 68/86, whereas, the land of the petitioner herein is in Survey No. 68/Tha and 68/Da. (vi) Respondent No. 6 herein is a student and he had no source of income, but in the sale deed, it was shown that he had purchased all the seven house sites which are owned by the petitioner from T. Linganna, for sale consideration of Rs.45,64,560/-. (vi) Respondent No. 6 herein is a student and he had no source of income, but in the sale deed, it was shown that he had purchased all the seven house sites which are owned by the petitioner from T. Linganna, for sale consideration of Rs.45,64,560/-. In view of the same, it is clear that the said sale transaction is nothing but a sham, forged and fabricated one for the purpose of grabbing the land of the petitioner with the help of the said T. Linganna, who has no right, title or interest over the said house sites. (vii) Accused Nos.1 to 3 in collusion with respondent Nos.6 and 7 by misrepresentation and fraud, got obtained permission for construction of compound wall and shutters in the so-called Survey No. 68/86 in the absence of conversion proceedings. Respondent No. 7 being the Panchayat Secretary knowing fully well about the fraud and forgery played by respondent Nos.3 to 6, granted permission for construction of RC commercial shops of ground floor and compound wall in Survey No. 68/86 vide proceedings No. 18/GPK/2014, dated 05.08.2014 and allowed them to make constructions over the land of the petitioner herein. (viii) In view of the above, it is clear that respondent Nos.5 and 6 also committed the aforesaid offences. Despite bringing the same with documentary evidence to the notice of the Investigating Officer so as to file supplementary charge sheet under Section 173 (8) of the Cr.P.C. the Investigating Officer advised him to adduce evidence before the trial Court. Therefore, he has moved this Court by way of filing W.P. No. 46977 of 2018 against the inaction of the police and the said writ petition is pending. 6. On receipt of notices, the proposed accused persons filed counter contending that the petitioner herein seems to have purchased plot Nos.9, 10, 11, 27, 28, 29 and 30 in Survey No. 68/Tha and 68/Da of Khanapur Village in the year 2008 and subsequently he lost his possession over the said plots and requested for police support to get back his possession. There is civil dispute between the petitioner and respondent No. 3 and one Mujju. (i) It is further contended that in the complaint as well as the charge sheet, there is no reference with regard to the names of proposed accused. There is civil dispute between the petitioner and respondent No. 3 and one Mujju. (i) It is further contended that in the complaint as well as the charge sheet, there is no reference with regard to the names of proposed accused. The total extent of Survey No. 68 is Acs.553.20 guntas and the said survey number has not been sub-divided and incorporated in the Village Map. It is difficult to measure and demarcate the land in Survey N.68/86 by the Surveyor or the disputed land. Unless and until the enjoyment of Survey No. 68 is not conducted, it cannot be concluded that whether the disputed land is either part of land in Survey No. 68/86 or part of Sy. No. 68/Tha and Da. (ii) It is also contended that the statement of the petitioner was recorded by the Assistant Superintendent of Police, wherein there is no accusation against the proposed persons. Even the petitioner herein was examined as PW.1 before the trial Court, wherein also he has not deposed anything against the proposed accused. Only when he was again examined on 10.10.2019, he has deposed that accused Nos.1 to 3 taking advantage of pahanis in the name of Thota Linganna have created a registered sale deed in the name of son of accused No. 1 and accused No. 3 as if the lands sold by Thota Linganna in their favour. He further deposed that the son of accused No. 1 and accused No. 3 made constructions of one house and function hall in his land without permission of Gram Panchayat basing on sham registered sale deed. The said statement of the petitioner is an omission in the statement recorded under Section 161 of the Cr.P.C. In view of the same, it does not impute any criminal act or does not attract any of the ingredients of Section 3 of the Act, 1989 and finally sought to dismiss the petition. 7. In view of the rival contentions, the trial Court vide order dated 04.03.2022 dismissed the petition by relying on the decision in Periasami vs. S. Nallasamy, AIR 2019 SC 1426 . Challenging the same, the petitioner filed the present criminal petition along with petition to grant leave. 8. Mrs. 7. In view of the rival contentions, the trial Court vide order dated 04.03.2022 dismissed the petition by relying on the decision in Periasami vs. S. Nallasamy, AIR 2019 SC 1426 . Challenging the same, the petitioner filed the present criminal petition along with petition to grant leave. 8. Mrs. B. Rachna Reddy, learned counsel for the petitioner, would submit that the petitioner herein has been working as Branch Manager in Life Insurance Corporation of India having put up 28 years unblemished service. During his initial appointment, he had purchased seven (07) aforesaid house sites admeasuring 266 square yards each in Survey No. 68/Tha and 68/Da of Khanapur Village under registered sale deeds dated 01.12.2003 from Mr. Israr Raza and Abdul Aleem and since then he has been in peaceful possession and enjoyment of the said land. He belongs to Scheduled Caste Community. (i) She would further submit that respondent Nos.3 and 4 herein without any right, title or interest, grabbed the petitioner’s land. Then, he has approached the police, who in turn, registered the subject crime. The names of proposed accused are not mentioned in both the FIR and charge sheet though they have committed the aforesaid offence. Thus, the proposed accused are also liable to be prosecuted along with accused Nos.1 to 3. (ii) She would also submit that the trial Court without considering all the aforesaid aspects, dismissed the petition on assumptions and presumptions. The trial Court erred in noticing the oblique motive and malicious intention of the proposed accused persons in commission of aforesaid offences along with accused Nos.1 to 3. (iii) With the aforesaid submissions, she sought to set aside the impugned order by allowing the petition filed by the petitioner herein. 9. Ms. P. Radhika, learned counsel for respondent Nos.3 to 6 would submit that the trial Court was right in dismissing the petition filed under Section 319 of the Cr.P.C. Unless and until the entire witnesses are examined, Court cannot come to a conclusion as to the involvement of any person other than the accused in commission of the offences. In the case on hand, only PWs.1 to 5 have been examined and still some more witnesses have to be examined. In the case on hand, only PWs.1 to 5 have been examined and still some more witnesses have to be examined. The trial Court having considered all the aspects came to the conclusion that there is no evidence available to connect the proposed accused persons for the offences alleged and, therefore, dismissed the petition. It is a reasoned order and does not warrant any interference by this Court. 10. Learned Public Prosecutor would also submit that there is no error in the order under challenge. He would further submit that the order under challenge is a reasoned order and does not require any interference by this Court and finally he sought to dismiss the present petition. 11. Perusal of the contents of the charge sheet would reveal that the petitioner herein had purchased house sites bearing Plot Nos.9, 10, 11, 27, 28, 29 and 30 in Survey N.68/Tha and 68/Da of Khanapur Village under registered sale deeds bearing document Nos.3090 of 2003, 3093 of 2003, 3094 of 2003 and 3092 of 2003, dated 02.12.2003 from Mr. Syed Israr Raza and Mohd. Abdul Aleem and since then he has been in peaceful possession of the same. The record would also reveal that originally the said land belonged to Rodda Rajalingu S/o Narsimhulu and Rodda Linganna S/o Janganna, who had sold an extent of Ac.3.01 guntas out of total extent of Acs.14.13 guntas to the Vendors of the petitioner herein on 23.06.1984 under registered sale deed bearing document No. 750 of 1984. After purchase, the Vendors of the petitioner has made a lay out and sold to various persons including the petitioner herein. The said Syed Israr Raza has sold plot Nos.10 and 11 to Mohd. Abdul Aleem vide registered sale deed bearing document Nos.869 and 868 of 1987, both dated 29.04.1987 and also delivered possession of the said plots. Later, said Mohd. Abdul Aleem sold the said plot Nos.10 and 11 to the petitioner herein in the manner stated above. On the same day, Syed Israr Raza, owner of Plot Nos.9 and 27 to 30 had sold to the petitioner herein vide registered sale deed bearing document Nos.3090 and 3092 of 2003. (i) For the last six (06) months as on the date of filing the charge sheet, accused Nos.1 and 2 had been approached the petitioner to sell the said plots to them, for which he refused. (i) For the last six (06) months as on the date of filing the charge sheet, accused Nos.1 and 2 had been approached the petitioner to sell the said plots to them, for which he refused. Then, accused Nos.1 to 3 have hatched a plan to grab the said plots illegally. It would further reveal that accused Nos.1 to 3 being the realtors found that there was Ac.2.00 of land in Survey No. 68/86 of Khanapur Village standing in the name of Thota Lingamma (LW.7) as pattadar in revenue records i.e. pahanis and they approached him, offered him to give Rs.1.00 lakh and served liquor and also requested him to sell the said 2 acres of land. Then, LW.7 informed them that he had already sold the said land in Survey No. 68/86 of Khanapur village to others long back and he did not have any land in his possession. Despite the same, accused Nos.1 to 3 had obtained the thumb impression of LW.7 on several documents while he was in intoxicated condition. Subsequently, accused Nos.1 to 3 have misused those papers and prepared an agreement of sale dated 03.04.2013 as if the said LW.7 sold the land to an extent of Ac.0.26 guntas in Survey No. 68/86 of Khanapur Village to Mr. M.A. Ghani and also prepared a lay out by obtaining permission from the Gram Panchayath, Katchkanti. They have misused the said fabricated documents and illegally encroached and occupied the aforesaid plots belonging to the petitioner herein. Further, the land in Survey No. 68/86 is situated far away from the plots of the petitioner. Accused Nos.1 to 3 knowingly that the petitioner herein belongs to the scheduled caste community and is socially and economically weak in facing them as they are financially well-off and has muscle power being realtors. 12. In view of the above, the entire contents of the charge sheet would disclose that there is no reference with regard to the names of the proposed accused persons. Further, it is the case of the petitioner that he had collected all the documents and material and submitted the same to the police with a request to conduct further investigation and submit a supplementary charge sheet under Section 173 (8) of the Cr.P.C. against the proposed accused persons, but the Investigation Officer vide letter C. No. 324/SDPO-A/2019, dated 26.03.2019 advised him to adduce evidence before the trial Court. Then, the petitioner filed a writ petition vide W.P. No. 46977 of 2018 to declare the inaction of the police in not conducting further investigation against the role of the accused persons in commission of the aforesaid offences and the said writ petition is pending. Despite pendency of the said writ petition, the petitioner herein has chosen to file a petition vide Crl. Pet. No. 475 of 2019 under Section 319 of the Cr.P.C. to implead the proposed accused persons. In this background, there cannot be two independent parallel proceedings, one before this Court and another before the trial Court and on that sole ground, the petition is liable to be dismissed. Moreover, when the petitioner was examined as PW.1, he has not even referred to the names of the proposed accused persons in his chief examination as observed by the trial Court in the impugned order. 13. The aspects as to whether respondent No. 6 encroached into the land of the petitioner and is making constructions thereon and that the subject land is located either in Survey No. 68/86 or in Survey Nos.68/Tha and Da of Khanapur Village and that Survey No. 68/86 is located far away from the subject land etc. are all have to be decided by a competent Civil Court, but not by the Court below in a petition filed under Section 319 of Cr.P.C. and this Court in a petition under Section 482 of the Cr.P.C. 14. With regard to the illegal constructions, the petitioner has already invoked the jurisdiction of this Court under Article - 226 of the Constitution of India by filing W.P. No. 34520 of 2014 and the same is pending. As regards the alleged fake and fabricated agreement of sale created by accused Nos.1 to 3 etc. accused Nos.1 to 3 have already filed a suit vide O.S. No. 64 of 2014 before the Junior Civil Judge, Adilabad against the petitioner and one Mr. Thota Linganna. The petitioner herein is at liberty to take all the pleas including the pleas taken in the present petition in the aforesaid suit and he can disprove the claims of accused Nos.1 to 3 by producing relevant evidence. 15. In view of the above discussion, the trial Court having considered all the aspects and relying on the decision in Periyasami (Supra), dismissed the petition filed by the petitioner herein. 16. 15. In view of the above discussion, the trial Court having considered all the aspects and relying on the decision in Periyasami (Supra), dismissed the petition filed by the petitioner herein. 16. In Periyasami (Supra), the Apex Court relying on the decision in Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92 held that to summon additional accused, there should be strong or cogent evidence to make them stand the trial for the offences alleged therein. In Hardeep Singh (Supra), the Apex Court held as under: “105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 17. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 17. In view of the above decision, now coming to the case on hand, as discussed supra, there is no mention of the names of proposed accused persons either in the complaint lodged by the petitioner herein or in the charge sheet filed by the Investigating Officer after conducting investigation. So far, PWs. 1 to 5 were only examined before the trial Court and trial was not yet concluded. Without conclusion of the trial, trial Court cannot come to a conclusion about the role of proposed accused persons in commission of aforesaid offences. As per Section 319 of the Cr.P.C. additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge, but which is less than the satisfaction required at the time of conclusion of trial of the accused. The trial Court having dealt with all the aspects passed the order under challenge. There is no error in it and it is a reasoned order and it does not warrant interference by this Court. The petitioner herein failed to make out any ground to set aside the order under challenge. Thus, the present petition fails and the same is liable to be dismissed. 18. The present Criminal Petition is, accordingly, dismissed confirming order dated 04.03.2022 passed in Crl. M.P. No. 475 of 2019 in Special S.C. No. 57 of 2016 by the Special Judge for trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge at Adilabad. 19. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.