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2023 DIGILAW 1232 (ALL)

Avtar Singh v. State of U. P.

2023-05-03

SHEKHAR KUMAR YADAV

body2023
JUDGMENT : CRIMINAL MISC RECALL APPLICATION NO. 2 OF 2023 1. This is an application moved by State Counsel for recall of the order dated 24.4.2023 so far as it relates to appearance of Senior Superintendent of Police, Rampur before this Court on the next date along with personal affidavit explaining as to why the counter affidavit has not been filed till date. 2. It is contended by learned AGA that on the date when the said order was passed the file of the State was not traceable, whereas, the counter affidavit in the matter was ready and therefore the same could not be brought on record of the case. It is further submitted that the counter affidavit has now been filed in the matter, hence, learned AGA sought for exemption of appearance of SSP, concerned. 3. Perused the affidavit filed in support of the aforesaid application. Counter and rejoinder affidavits have been exchanged in the matter. 4. The application is allowed. The personal appearance of SSP, Rampur is exempted. Shekhar Kumar Yadav, J. 5. Heard Ms Gunjan Jadwani, learned counsel for the applicants, learned AGA for the State and perused the record. 6. This application under Section 482 Cr.P.C. is filed by the applicants for quashing of the entire proceedings of Case No. 1053 of 2020, arising out of Case Crime No. 1053 of 2020, under Sections 2 and 3 of the Prevention of Damage to Public Property Act, 1984, P.S. Bilaspur, District Rampur including the charge sheet and the summoning order. 7. In short, allegation against the applicants are that they were ploughing the agricultural land, which was declared surplus in ceiling proceedings. Applicants are said to have cultivated the crops standing on Khasra No. 123. For which an FIR vide Case Crime No. 0497 of 2019, under Section 2 and 3 of the Prevention of Damage to Public Property Act, 1984 has been filed, in which after investigation charge sheet has been filed, whereupon the applicants have been summoned. 8. Record discloses that the the land in dispute was recorded in the name of the predecessors of the applicants since 1338 (F) and since then they are in the cultivator possession of the land. 8. Record discloses that the the land in dispute was recorded in the name of the predecessors of the applicants since 1338 (F) and since then they are in the cultivator possession of the land. Thereafter when it is revealed that the said land has been recorded as ceiling land and on the pretext of the said land, respondents started interfering with the possession of the applicants, as such they preferred writ petition before this Court being Writ C No. 35056 of 2010 (Kulvinder Singh and others Vs State of UP and others), wherein the order declaring the land of the applicants as ceiling land has been challenged and this court vide order dated 9.9.2010 directed the parties to maintain status quo till the disposal of the interim relief application filed along with suit, if filed, under Section 229 of the UPZA & LR Act or till the disposal of the application under Section 11(2) of the UP Imposition of Ceiling on Land Holdings Act. Against the said order, respondents approached the Apex Court by filing SLP CC No. 10765 of 2012, which has also been dismissed vide judgement and order dated 23.09.2013 and while dismissing the SLP, the Apex Court directed that the possession of the applicants and other co-teunre holders could not be interferred with till the dispute with regard to their ownership is not decided by the competent authority. Thereafter, on 5.11.2019, the Prescribed Authority, without considering the objection of the applicants and others and without taking note of the orders passed by this court treated the land of the applicants as surplus land in ceiling and even without giving any opportunity to remove the crop, proceeded to auction the crops. Against the said order appeal under Section 13(2) of the UP Imposition of Ceiling on Land Holdings Act, 1960 is filed and the order of the prescribed authority has been stayed and the appellate court also directed that no interference in sowing and harvesting the crop by the appellants will be made by the respondents vide its order dated 23.12.2019. Hence, the cultivator possession of the applicants also stands protected vide order dated 23.12.2019 passed by the appellate court. 9. It is contended by learned counsel for the applicants that with regard to the land being surplus, proceedings before this Court and before the revenue court are already pending. Hence, the cultivator possession of the applicants also stands protected vide order dated 23.12.2019 passed by the appellate court. 9. It is contended by learned counsel for the applicants that with regard to the land being surplus, proceedings before this Court and before the revenue court are already pending. It is further submitted that the present FIR has been lodged only to dispossess the applicants, who are in possession over the land in dispute. 10. The main thrust of the applicants is that the criminal proceedings in question is liable to be quashed on the ground that essentially there is a dispute between the parties which is of civil nature and which is sought to be given a criminal colour, only with a view to grab the land of the applicants. In support of his arguments, he relied upon the case of Mohd. Ibrahim and others Vs Sate of Bihar and another, 2009 (67) ACC 679; Indian Oil Corporation Limited Vs NEPC India Limited, 2006 Law Suit (SC) 488, Indra Mohan Goswami and another Vs State of Uttaranchal, 2007(12) SCC 1 . 11. On the contrary, learned AGA does not dispute the fact that a civil proceedings are pending between the parties before the competent courts. 12. Before analyzing the facts emanating from the record of the case, it would be apt to notice the legal position as regards the scope of powers of the High Court under Section 482 Cr.P.C. to interfere with the proceedings of the aforesaid criminal case. 13. The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice. 14. The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC in an elaborate manner. These powers are generally exercised to secure the ends of justice. 14. The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted as follows:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the 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 allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 15. The Hon'ble Supreme Court has taken note of the fact that sometimes there is a tendency to convert civil dispute in a criminal proceeding by giving it a criminal colour. In the case of Indra Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in 2007(12) SCC 1 the Hon'ble Supreme Court has recorded in paragraph 23 and 24 as under :- "23. This court in a number of cases has laid down the scope and ambit of courts powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. This court in a number of cases has laid down the scope and ambit of courts powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." 16. In a recent judgement, decided on 30.01.2023 in the case namely Usha Chakraborty & Anr. Versus State of West Bengal & Anr. in SLP (Crl.) 5866 of 2022, Hon'ble Supreme Court observed that criminal proceedings can be quashed in exercise of powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) when it is found that the attempt was to give a “cloak of criminal offence” to a dispute which is essentially of civil nature. 17. Thus, it is clear that this Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. In the instant case, perusal of record manifestly discloses that an attempt has been made to cloak a civil dispute with a criminal nature despite. Record discloses that the parties are already contesting the civil litigation with regard to property in dispute regarding their ownership. The dispute involves in the present case certainly determination of issues which are of civil nature, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. 18. Considering the facts and circumstances of the case, it is a dispute essentially of civil in nature. The dispute involves in the present case certainly determination of issues which are of civil nature, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. 18. Considering the facts and circumstances of the case, it is a dispute essentially of civil in nature. Therefore, it can be said to be a case of abuse of legal process and is required to be quashed to secure the ends of justice. 19. For the aforesaid reasons, the instant petition is allowed and the proceeding of Criminal Case No. 1053 of 2020, arising out of Case Crime No. 1053 of 2020, under Sections 2 and 3 of the Prevention of Damage to Public Property Act, 1984, P.S. Bilaspur, District Rampur against the applicants is hereby quashed. 20. Application is thus, disposed of, accordingly.