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2024 DIGILAW 55 (UTT)

Hardev Singh v. State of Uttarakhand

2024-01-11

RAKESH THAPLIYAL

body2024
JUDGMENT : By means of this writ petition, the petitioner is praying for the following reliefs:- “I. To issue a writ, order or direction in the nature of “certiorari” quashing the undated order issued by the respondent no. 3 to the respondent no. 4 (Annexure No. 1), by which the petitioner has been restrained from making any transaction in his two accounts bearing no. 12111131003879 and 1211215009636, which are being run by the petitioner in the bank of the respondent no. 4. II. To issue a writ, order or direction in the nature of mandamus directing the respondents to defreeze the accounts of the petitioner bearing no. 12111131003879 and 1211215009636, which are in existence in the bank of respondent no. 4. III. To issue a writ, order or direction in the nature of “mandamus” commanding the respondents not to cause any interfere in the peaceful operation of the accounts of the petitioner bearing no. 12111131003879 and 1211215009636, which are in existence in the bank of respondent no. 4. IV. Any other relief which this Hon’ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner.” 2. It is contended by the learned counsel for the petitioner that by the impugned order/communication (undated), issued by respondent no. 2 pursuant to which petitioner’s Punjab National Bank Accounts bearing nos. 12111131003879 and 1211215009636, maintained at Branch Ramnagar, District Nainital have been freezed without following due process of law. It is further contended by the learned counsel for the petitioner that the petitioner, who is aged about 61 years and is a poor man, has thus been deprived to withdraw his own money from the accounts which he requires to run his business. 3. Brief facts of the case are that one Pradeep Kumar Sircar was the recorded tenure holder of a piece of land bearing Khata No. 56, Khasra No. 175 min measuring about 0.822 Hectare, situated at Village Peerumdara, Tehsil Ramnagar, District Nainital. A piece of land measuring 0.14 Hectare of Khasra No. 175 min was sold out by him to one Mr. Jai Prakash Dandariyal through registered Sale Deed dated 21.04.2017, which was converted by him into plots, by leaving out the passage. Mr. A piece of land measuring 0.14 Hectare of Khasra No. 175 min was sold out by him to one Mr. Jai Prakash Dandariyal through registered Sale Deed dated 21.04.2017, which was converted by him into plots, by leaving out the passage. Mr. Dandariyal, after purchasing the land from Pradeep Sircar, started selling 0.104 Hectare land by making plots therein and the land was sold by him, without delivery of possession, to further purchasers, including one Smt. Kamla Devi. Mr. Dandariyal had executed sixteen sale-deeds in the name of different persons, including Smt. Kamla Devi, which was in excess of the land sold to him. Since Mr. Dandariyal committed fraud, Mr. Pradeep Kumar Sircar lodged an FIR being FIR No. 0510 of 2021 against Mr. Jai Prakash Dandariyal on 10.02.2021, Thereafter the matter was investigated and Mr. Jai Prakash Dandariyal was arrested and thereafter, a charge sheet was filed. In order to make pressure upon Mr. Pradeep Kumar Sircar, Smt. Kamla Devi lodged an FIR against the petitioner through her son-in-law. It is the contention of the learned counsel for the petitioner that the petitioner and his brother-Kulvinder Singh had purchased a piece of land measuring about 0.415 hectare of Khasra No. 175 min. in Khata Khatauni No.56 through registered sale deed dated 18.04.2019 from Pradeep Kumar Sircar, which was later on corrected in the Khatauni as 0.255 Hectare. It is the contention of the petitioner that an FIR was lodged by son in law of one Smt. Kamla Devi, wherein by making a false story, the petitioner has been shown as the partner, along with one Pradeep Kumar Siarcar, who was the partner of one Mr. Jai Prakash Dandariyal. Mr. Dandariyal had purchased land measuring 0.104 Hectare from Pradeep Kumar Sircar and after deducting the area of passage, he was entitled to sell out only 0.069 Hectare land, but he executed sixteen sale-deeds in favour of several persons in excess to the land which was purchased by him. Thus, it was a fraud played by Mr.Jai Prakash Dandariyal. Learned Senior Counsel for the petitioner further submits that there was no relationship between the petitioner and Smt. Kamla Devi and there was no role of the petitioner in selling property to Smt. Kamla Devi but if by showing wrong measurements, property has been purchased by Smt. Kamla Devi from Mr. Jai Prakash Dandariyal, no role can be assigned to the petitioner. Jai Prakash Dandariyal, no role can be assigned to the petitioner. Learned Senior Counsel for the petitioner further submits that the police in connivance with Smt.Kamla Devi and his son in law, due to political pressure, did not investigate the matter fairly and filed the charge-sheet against the petitioner in FIR No. 0438 of 2022, which was lodged by Mr. Chandra Prakash Singh Rawat-the son in law of Smt.Kamla Devi, despite the fact that Mr. Dandariyal had executed the sale-deeds by showing the meets and bounds of the property of Pradeep Kumar Sircar. It is further submitted that after filing of the charge-sheet, learned Magistrate took cognizance on the charge-sheet without proper application of mind. It is further submitted that Mr. Pradeep Kumar Sircar and the petitioner challenged the charge-sheet along with the order of cognizance passed by the Additional Chief Judicial Magistrate in Criminal Case No. 780 of 2023 by way of C482 Application NO. 1301 of 2023, wherein an interim order was passed by this Court on 05.07.2023 and thereafter, respondent No.2 lodged FIR bearing No. 0261 of 2023 pertaining to the offences punishable under Sections 2 and 3 of U.P. Gangsters and Antisocial Activities (Prevention) Act 1986. The said FIR was challenged by the petitioner and Mr. Pradeep Kumar Sircar in WPCRL No. 924 of 2023, in which an interim order was granted by the Court in favour of the petitioner and Mr. Pradeep Kumar Sircar. It is further submitted by the learned counsel for the petitioner that once the police has filed a charge-sheet against Mr. Jai Prakash Dhaundiyal in FIR No. 510 of 2021 lodged by Mr. Pradeep Kumar Sircar and had come to the conclusion that it was Mr. Dandriyal, who had committed fraud by selling the land in excess to the land which was purchased by him, there was no occasion for the police to file charge-sheet against the petitioner and Mr. Pradeep Kumar Sircar. He further submits that since there was no role of the petitioner, no FIR could have been lodged against him under the provisions of U.P. Gangster and Antisocial Activities (Prevention) Act 1986 and it is an abuse of process of law. It is further submitted that the petitioner and Mr. Pradeep Kumar Sircar filed WPCRL No. 924 of 2023 before this Hon’ble Court, in which an interim order was passed by this Court on 07.07.2023. It is further submitted that the petitioner and Mr. Pradeep Kumar Sircar filed WPCRL No. 924 of 2023 before this Hon’ble Court, in which an interim order was passed by this Court on 07.07.2023. He further submits that when the police could not get success in arresting the petitioner and Mr. Pradeep Kumar Sircar, the police, in connivance with Smt. Kamla Devi and her son-in-law, issued an order to respondent No. 4 for restraining the petitioner to run his two Accounts bearing Nos. 12111131003879 and 1211215009636. The Bank Authorities informed the petitioner on 14.12.2023 that respondent No. 3 (Investigating Officer) has seized the Accounts of the petitioner. Being aggrieved with the seizure of the saving bank accounts of the petitioner, the petitioner has preferred the instant petition. 4. Similar controversy was decided by this Court on 28th December, 2023 in Writ Petition (M/S) No. 3322 of 2023 Shankar Singh Manral vs. State and others, where this Court allowed the writ petition and directed the respondent-Bank to de-freeze the saving bank accounts of the petitioner within 24 hours from the date of receipt of certified copy of this order. It was further observed that this order will not preclude the Investigating Officer from having recourse to the powers available to him under any other provision of Code of Criminal Procedure. 5. The present writ petition is also allowed in terms of the order passed by this Court on 28th December, 2023 in Writ Petition (M/S) No. 3322 of 2023 Shankar Singh Manral vs. State and others. 6. It has been informed to this Court by the counsel for the Bank Mr. Ashish Joshi that in so many cases, the concerned Investigating Officer straightway issued notice under Section 91 of Cr.P.C. and in such circumstances, the Bank Authority had no option except to freeze the Accounts of the persons concerned and it is for the Investigating Officer to follow the procedure as prescribed under Section 102 of the Code of Criminal Procedure or to get an order from the District Magistrate under Section 14 of the Gangsters Act. Therefore, the Principal Secretary (Home) is directed to issue necessary instructions to all the Investigating Officers to follow the procedure as provided under Section 102 of the Code of Criminal Procedure or if the person concerned is wanted under the Gangsters Act the Investigating Officer should obtain the order from the District Magistrate under Section 14 of the Gangsters Act and only thereafter the Investigating Officer may invoke Section 91 of Cr.P.C.