Court No. - 81
Case :- APPLICATION U/S 482 No. - 10351 of 2021 Applicant :- Anil Kumar Dwivedi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nand Lal Pandey,Suyash Pandey Counsel for Opposite Party :- G.A.,Ashish Kumar Singh
Hon'ble Shamim Ahmed,J.
Heard Sri Nand Lal Pandey, learned counsel assisted by Sri Suyash Pandey, learned counsel for the applicant, Sri Imran Ullah, learned counsel assisted by Sri Ashish Kumar Singh, learned counsel for opposite party no.2 as well as learned AGA for the State and perused the record.
The instant application has been filed by the applicant with a prayer to quash the entire proceedings of Case No.360 of 2020 (State vs. Anil Kumar Dwivedi), pending in the court of Additional Chief Judicial Magistrate-2, Allahabad, arising out of Case Crime No.0520 of 2020, under Sections 147, 420, 467, 468, 471, 387, 447, 504, 506 IPC, P.S. George Town, District Prayagraj and further to quash the charge sheet numbered as 29/2021 dated 25.1.2021 submitted in the aforesaid case and the impugned order of cognizance dated 2.2.2021 passed by the Additional Chief Judicial Magistrate-2, Allahabad.
The case of the prosecution as per the FIR version is as follows:-
"नकल तहरीर हिहन्दी वाहिदनी टाईप शुदा- सेवा मे, श्रीमान् प्रभारी हिनरीक्षक जाज;टाउन, जनपद प्रयागराज । महोदय, सहिवनय हिनवेदन है हिक मैने मूल मालिलक डा० पंत से एक प्लाट खरीदा था, जिजसका पता प्लाट नं०. 8/41 सी०वाई० चिं5तामणि7 रोड थाना जाज;टाउन (प्रीतित नर्सिंसग होम के बगल में) जनपद प्रयागराज है । उक्त प्लाट डा० पंत के मकान के पीछे बगल से 15 फीट प्राइवेट रोड पर अन्दर जाकर है । मेरी जमीन के बगल में अहिनल उफ; गुलाब हिEवेदी पुत्र श्री आहिदत्य नाराय7 (मो०न०-9956730943) ने एक प्लाट 30*72 वग; फीट क्षेत्रफल का री-सेल में खरीदा । इसके बाद इन्होने मेरी जमीन का कु छ हिहस्सा हेरा फे री कर फजQ तरीके से धोखाधड़ी करके अपने नाम दस्तावेज तैयार करा लिलया तथा पतिTम तरफ 6*30 फीट पर हिनमा;7 कर अवैध कब्जा कर लिलया । इसके अतितरिरक्त मेरी जमीन मे ही करीब 10 फीट 5ौड़ी सड़क का हिनमा;7 भी अपने मकान के हिकनारे - हिकनारे कर लिलया तथा मेरी जमीन मे उत्तर की तरफ 3.5 फीट मे बाजा; , लिखड़की एवं दरवाजा खोल लिलया । जब हम लोगों ने मना हिकया तो अहिनल उफ; गुलाब हिEवेदी व उनके साथ असलहो से लैस 4-5 सहयोहिगयों ने हमसे कहा हिक अपना प्लाट हमे दे दो नही तो ऐसी जगह मार कर फे क देगें हिक पता नही 5लेगा तथा गाली देते हुए कहा हिक 15 लाख रूपये पहुं5ा दो, नही तो पूरे परिरवार को खत्म कर देंगें । जब कभी भी मै या मेरा बेटा संजय वहां जाता है तो ये लोग गैंग बनाकर उपरोक्त धमकी देते है तथा अवैध असलहों से डराते है । मैने इस सम्बन्ध में प्रयागराज हिवकास प्रातिधकर7 (PDA पूव; ADA) मे भी एक णिशकायत की थी, जिजसमे ध्वस्तीकर7 का आदेश पारिरत हुआ । मैने थाना जाज;टाउन मे पहले भी एक णिशकायत की थी जिजसकी जां5 आख्या RTI से प्राप्त की थी, जो संलग्न कर रही हूं । अहिनल उफ; गुलाब हिEवेदी हर समय असलहाधारी गैंग के कई लोगों का वहाँ रखता है तथा अपना सम्बन्ध टाप – 10 अपराधी गैंगस्टर हिवजय हिमश्रा हिवधायक से बताता है । अहिनल हिEवेदी एवं उनके सहयोहिगयों के Eारा जो फजQ तरीके से दस्तावेज तैयार करके धोखाधड़ी से मेरी जमीन पर कब्जा हिकया गया है तथा रगदारी मागी गयी है, उसके लिलये हिवतिधक कायवाही;
हिकया जाना आवश्यक है । अतः महोदय से अनुरोध है हिक अहिनल उफ; गुलाब हिEवेदी व उनके सहयोहिगयों के हिवरुध्द उति5त धाराओ मे अणिभयोग पंजीकृ त कर मेरी जमीन से कब्जा हटाया जाए । श्रीमान् जी की महान कृ पा होगी । प्रार्थिथनी ह० अपठनीय (शांतित रानी अग्रवाल) हिन० 129/184 दरभंगा कालोनी प्रयागराज । हिदनांक 24.09.2020 मो०नं० 9169702100 नोट – मैं का०मु० 1864 णिशवसरन प्रमाणि7त करता हूं हिक मुझ का०मु० Eारा तहरीर के आधार पर कायमी व ति5क हिकता कराया गया"
Learned counsel for the applicant submits that there is a freehold plot No.11/1, George Town, Pargana and Tehsil Sadar, District Allahabad (now Prayagraj) whose owner was Ramesh Chandra Pant son of Sri C.D. Pant. After the death of Ramesh Chandra Pant, his legal heir became the owner of the same. The legal heir of Ramesh Chandra Pant has executed number of agreement to sale and they have also sold the property to different persons in which there was a way which has been shown in the freehold deed. He further submits that in the aforesaid plot no.11/1 the applicant has also purchased property admeasuring total area 201.60 sq. meter from the seller namely Deepak Khatri son of late Pandit Narain Khatri by means of registered sale deed dated 1.2.2014 who has purchased the property from Ramesh Chandra Pant by means of registered sale deed dated 14.2.2001. He further submits that after purchasing the aforesaid plot i.e. Bungalow No. 8/41, C.V. Chintamani Road, George Town, District Prayagraj, the applicant constructed house thereon after the map sanctioned from Prayagraj Development Authority.
Learned counsel for the applicant further submits that the entire prosecution story as alleged against the applicant is false and fabricated. No such incident has ever happened. He further submits that the applicant is the owner and is in possession over plot measuring area of 201.60 sq. meter in Bungalow No. 8/41, C.V. Chintamani Road, George Town, District Prayagraj. The applicant is in possession over the said property from the date of his sale deed i.e. 1.2.2014. He further submits that as per the allegation in the FIR dated 30.9.2020 that the applicant has encroached the land of the opposite party no.2 and threatened her for dire consequences is false and was made with ulterior motive and malafide intention. No such thing has happened as alleged by the prosecution.
Per contra, Sri Imran Ullah, learned counsel for opposite party no.2 has filed counter affidavit and submitted that the opposite party no.2 has entered into an agreement to sale with the original landlord of the said property on 20.10.2008 in respect of an area measuring about 487.5 sq. yard of the said Bungalow and had paid the amount to the landlord. Thereafter, the possession was handed over to the opposite party no. 2. Thereafter, on 24.8.2015 the sale deed of the said property was executed in favour of opposite party no.2. It was further argued by the learned counsel for opposite party no.2 that the applicant is trying to encroach the property of the opposite party no.2 by opening window, door and Barja in the land of opposite party no.2, which is illegal and against the norms. He further submits that the applicant has moved an application for sanction of the map before the Prayagraj Development Authority which was sanctioned and in that map there is no whisper of door, window, Barja and 10 ft. Rasta in the adjoining land of the plot of the applicant and also on the land of opposite party no.2. Thereafter, a complaint was made before the Prayagraj Development Authority in respect of the encroachment made by the applicant and for making construction against the sanctioned map. In this regard, a notice under Section 27 of the U.P. Urban Planning and Development Act, 1973 was issued against the applicant for demolition of the said unauthorized construction which was made in the portion of opposite party no.2. The applicant thereafter filed a reply and approached the authority concerned for compounding. The matter is still pending consideration before the authority concerned for final adjudication.
Sri Imran Ullah learned counsel for the opposite party no.2 further submits that the applicant with malafide intention and ulterior motive and with the intention to grab the property of opposite party no.2, when he did not succeed in his ill motive, filed civil suit bearing Civil Suit No.691 of 2015 impleading the original landlord of the said property and the opposite party no.2 as defendants in the said suit, in which no injunction was granted to the applicant. There is no order of the court below appended with the application filed by the applicant before this Court granting any injunction order.
Learned counsel for the opposite party no.2 further submits that whether the applicant has an authority to threaten the opposite party no.2 for dire consequences and encroach her land. This Court has no jurisdiction to entertain the present application under Section 482 CrPC and to verify the disputed questions of fact as the Hon’ble Supreme Court in a catena of judgments has held that where prima facie offence is made out as per the prosecution case, the Court cannot interfere in the disputed questions of fact for quashing the charge sheet, cognizance order and the proceedings of the case.
Learned AGA has supported the contention raised by the learned counsel for the opposite party no.2. He submits that from the allegations made in the FIR, charge sheet and cognizance order prima facie offence is made out against the applicant. The Investigating Officer after due verification and enquiry has submitted the charge sheet against the applicant and the learned Magistrate has also taken cognizance in accordance with law. The innocence of the applicant cannot be adjudged at the pre trial stage. Therefore, the applicant does not deserve any indulgence and the present application filed by the applicant is liable to be dismissed.
After considering the arguments as advanced by the learned counsel for the parties and after perusal of the record, this Court finds that the entire argument raised by the learned counsel for the applicant relates to disputed questions of fact and the Court cannot interfere in the same. From the allegations made in the FIR, charge sheet and cognizance order prima facie offence is made out against the applicant.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs.
State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq & Anr.;, (Para-10) 2005 SCC (Cri.) 283 and (iv) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is whether uncontroverted allegation as made prima facie establishes the offence and whether chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of impugned cognizance order, charge sheet and the entire proceedings of the aforesaid case is refused. There is no merit in this application filed by the applicant under Section 482 Cr.P.C.
This Court cannot go into the disputed questions of fact once the prima facie offence is made out and in the present case, as per the allegation, prima facie offence is made out against the applicant. Therefore, no case is made out by the applicant for interference by this Court exercising power under Section 482 CrPC for the relief claimed.
Accordingly, this application filed under Section 482 Cr.P.C. by the applicant is dismissed.
Order Date :- 6.10.2021 SP