Reserved on 18.08.2021
Delivered on 28.10.2021
Case :- APPLICATION U/S 482 No. - 7127 of 2015 Applicant :- Haider Ali Kazim @ Asad Kazim And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- J.H. Khan,Gulrez Khan Counsel for Opposite Party :- Govt. Advocate, Araf Khan, L.R. Khan
Hon'ble Om Prakash-VII,J.
This application under Section 482 CrPC has been filed with the prayer to quash the entire criminal proceeding including the order dated 28.01.2015 of Criminal Case No. 354 of 2015 arising out of Case Crime No. 02 of 2014, under Sections 504, 506, 447, 448, 419, 420, 465, 468, 471 IPC (State Vs. Haider Ali Kazim and others) pending in the court of Civil Judge (J.D.) / Judicial Magistrate, Kaushambi and further to stay the further proceeding of the aforesaid case.
Heard Shri W.H. Khan, learned Senior Advocate assisted by Shri J.H. Khan, learned counsel for the applicants, S/Shri L.R. Khan and Araf Khan, learned counsel for the opposite party no. 2 as well as the learned AGA for the State and perused the record.
Facts of the case, in nutshell, as disclosed in the affidavit, are that Hasan Kazim had three sons, namely, Shameem Kazim, Mohd. Iqbal Mahmood Kazim and Haider Ali Kazim @ Asad Kazim. He had distributed his agricultural bhoomidhari land amongst his aforesaid three sons by executing three sale deeds and their names were also mutated in the revenue records on the basis of sale deeds. Since at that time, applicant no. 1 was only of six years age, in the sale deed he was shown under the guardianship of his elder brother Shamim Kazim. At the time of Aqeeqa ceremony applicant no. 1 Haider Ali Kazim was given the name of Asad Kazim. Name of applicant no. 1 continued in educational records as Haider Ali Kazim but in the revenue records Asad Kazim was maintained but by mistake father's name was recorded as Syed Hasan Hasim in place of Syed Hasan Kazim. It has been further averred that applicant no. 1 mostly remained out of India in connection with job. Applicant no. 1 had given a registered general power of attorney dated 06.04.1978 to his elder brother Shamim Kazim to execute various documents including power to negotiate and execute and register sale deeds of the property also. On the basis of said power of attorney, Shamim Kazim executed sale deeds in favour of various persons with the consent and approval of applicant no. 1. The said power of attorney was executed by the applicant no. 1 by his name Haider Ali Kazim @ Asad Kazim. Applicant no. 1 is a journalist and NRI for the last 35 years. He is permanent resident (Green Card Holder) of United States. Opposite party no. 2 and his son turned dishonest and with the intention to grab the land of applicant no. 1 gave a notice under Section 80 C.P.C. read with Section 106 Panchayati Raj Act on 21.05.2012 showing applicant no. 1 as "Lapata" and no person in the name of Haider Ali Kazim son of Hasan Kazim and Asad Kazim was in the village either dead or alive and claimed that land was wrongly recorded in the name of Asad Kazim and the said land fallen in his share in the family partition. Thereafter, Mohd. Iqbal Mahmood Kazim filed a case no. 134/155 on 14.09.2012 on the basis of the aforesaid notice under Section 80 C.P.C. for declaring him bhoomidhar of the aforesaid land and expunging the name of Asad Kazim from revenue records. In the plaint instead of three sons of Syed Hasan Kazim he showed four sons namely Shamim Kazim, Mohd. Iqbal Mahmood Kazim, Haider Ali Kazim and Asad Kazim fully knowing that Haider Ali Kazim and Asad Kazim was the same person. Against the name of Asad Kazim he mentioned that he died issue-less at the age of eleven years. Mohd. Iqbal Mahmood Kazim also filed a suit under Section 229-B to grab the applicant's property. In the said suit he did not even implead the applicant no. 1 as defendant. When applicant no. 1 came to know about filing of the said suit, he moved an application for impleading him in the said suit as defendant and Court allowed the said application by the order dated 10.12.2012. Against the said order Mohd. Iqbal Mehmood Kazim filed a revision no. 40/2012-13 and got the proceeding of suit stayed ex-parte by the order dated 03.01.2013. It has also been averred that a sale deed dated 16.08.1977 was executed in applicant no. 1's name Asad Kazim by impersonating him and Mohd. Iqbal Mehmood Kazim identified the said person. The applicant no. 1 filed a criminal case on this fraudulent and criminal act registered as crime no. 25 of 2013 under Sections 419, 420, 467, 471, 504 IPC in which charge sheet has been submitted and case is pending. An application dated 20.01.2014 under Section 156(3) Cr.P.C. was moved by Ammar Kazim son of opposite party no. 2 in the Court of C.J.M. Kaushambi against the applicant no. 1 and his servant/mukhtaream Ashiq Ali. By the order dated 22.01.2014 C.J.M. concerned directed for registration of a case. Consequently, a case at case crime no. 39/2014 under Sections 147, 148, 323, 307, 392, 504 & 506 IPC was registered against the applicant and Ashiq Ali. Matter was investigated and the Investigating Officer found the case to be false and concocted and submitted final report on 28.02.2014. A protest petition was filed, which was partly allowed by the C.J.M. concerned vide order dated 17.05.2014. Against the said order, two criminal revisions namely 35 of 2014 filed by Ammar Kazim and another criminal revision no. 41 of 2014 filed by Ashiq Ali. Both revisions were decided separately by two separate orders of the same date i.e. 14.11.2014. Criminal revision filed by Ammar Kazim was partly allowed and case was remanded back to the court below for passing fresh order and criminal revision filed by Ashiq Ali was dismissed. On submission of final report third time protest petition was filed, thereafter, Court below rejecting the final report summoned the applicants vide the impugned order.
It was submitted by the learned Senior Counsel appearing for the applicants that no prima facie case is made out against the applicants. Dispute pending between the parties is purely of civil nature. Civil suit is also pending between the parties before the competent court and right and title of parties over the disputed property can best be decided by the Court concerned itself. It was also submitted that F.I.R. lodged in the matter is itself illegal. Concerned Additional District Magistrate had no authority to issue direction to lodge the F.I.R.. It was next contended that in this matter after investigation police submitted final report thrice. Summoning order passed in the matter on the basis of protest petition is illegal. Trial Court at the time of passing the impugned order has taken into consideration the extraneous material, which is not permissible in the eye of law. Thus, on this ground also summoning order is illegal and without application of judicial mind. To substantiate this argument, learned Senior Counsel appearing for the applicants also referred to entire documents annexed with the application and further submitted that full name of applicant no.1 is Haider Ali Kazim @ Asad Kazim and in the same capacity power of attorney was executed. No dispute arose during lifetime of power attorney holder. Efficacious remedy available to the parties is civil proceeding. Stay order has also been passed in the civil suit. Referring to contents of notice under Section 80 C.P.C. and the contents of suit filed in this matter it was further submitted that there are major contradictions on material points in the same. It was further submitted that criminal proceeding cannot continue on the strength of facts of the present matter. Concerned Magistrate while passing the impugned order has not taken into consideration the settled legal position of law and illegally construing the facts and evidence of the case and taking into consideration the extraneous material, which were not the part of case diary, passed the impugned order, which is illegal. In support of his submissions, learned Senior Counsel appearing for the applicants placed reliance on the following case laws :
1. Naman Singh @ Naman Pratap Singh and another vs. State of U.P. and others, 2019 (2) SCC 344.
2. Bateshwar Singh and etc. Vs. State of Bihar, 1992 Cri LJ 2122.
3. Kulveer Singh vs. Stateof U.P. and others, 2017 (1) ADJ 45.
4. Sardar Ali Khan vs. State of U.P. through Principal Secretary Home Department and another, AIR 2020(SC) 626.
5. Ahmad Ali Quraishi and another vs. State of U.P and another, AIR 2020 SC 788.
6. The Commissioner of Police and others vs. Devendra Anand and others, 2019 (7) Supreme today 593.
7. Ramesh Raja Gopal vs. Devi Polymers (P) Ltd., 2016 (3) Supreme today 22.
8. Pooja Ravinder Devidasani vs. State of Maharashtra and others, 2014 (16) SCC 1.
9. Shanti Kumar Panda vs. Shakuntala Devi, AIR 2004 SC 115.
On the other hand, learned counsel for the informant as well as the learned AGA submitted that though in this matter final report was submitted thrice yet F.I.R. was lodged on the basis of true facts. A prima facie case is made out against the applicants. In fact applicant no.1 was never known as Haider Ali Kazim @ Asad Kazim. There were four sons of Hasan Kazim, namely, Shameem Kazim, Mohd. Iqbal Mehmood Kazim, Haider Ali Kazim and Asad Kazim. Asad Kazim died issue-less. Thus, applicant no.1 executed power of attorney and started disposing off the properties belonging to Asad Kazim impersonating himself as Haider Ali Kazim @ Asad Kazim. Referring to documents annexed with the counter affidavit it was also submitted that Haider Ali Kazim got education in the name of Haider Ali Kazim itself. Power of attorney executed in the matter was only to cheat the complainant side and other shareholders to deprive them from the share of Asad Kazim. Referring to the impugned order it was also submitted that a prima facie case is made out against the applicants, as all the ingredients of the alleged offences are attracted in the matter. Complainant and independent witnesses have supported the prosecution case. Concerned Magistrate has rightly passed the impugned order dated 28.1.2015 rejecting the final report and accepting the facts mentioned in the protest petition. It was next contended that criminal prosecution cannot be quashed only on this ground that civil suit is pending between the parties, as civil suit and criminal prosecution both can continue simultaneously. Since there is clear evidence that forged power of attorney was executed and on that basis property belonging to Asad Kazim was disposed of, summoning order passed in the matter may not be interfered with and same is in accordance with law. In support of his submissions, learned counsel for informant placed reliance on the following case laws:
1. State of Orissa vs. Debendra Nath Padhi, (2005)1 SCC 568.
2. Application u/s 482/378/407 No. 1917 of 2008 and 2324 of 2011, Ravi Kumar Agarwal and others vs. State of U.P. through Principal Secretary Home and others and Mohit Singh and another vs. State of U.P. through Principal Secretary Home and another, decided on 30.4.2019.
3. Application u/s 482 No. 12984 of 2020, Rajan Kumar and 3 others vs. State of U.P. and another, decided on 15.12.2020.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws cited in the matter carefully.
In this matter, as is evident from the record, pedigree of both the parties is same. Civil disputes are pending between the parties. As per the averments made in the affidavit filed in support of this application, power of attorney was also executed by the applicant no.1. Some sort of temporary injunctions have also been passed in regard to civil disputes pending between the parties. In this case, firstly, an application was moved on behalf of complainant before the District Magistrate concerned who directed the Additional District Magistrate concerned to enquire the matter. Thereafter, matter was enquired into by the competent authority and consequently F.I.R. was lodged. It is also evident that in this matter final report was submitted thrice and lastly on the basis of protest petition filed against the final report, summoning order under challenge was passed on 28.1.2015.
On this point, settled legal position is that on submission of final report, if complainant moves protest petition, concerned Magistrate has following options : May reject the final report and direct the Investigating Officer to investigate the matter afresh; may accept the final report rejecting the protest petition; may pass summoning order rejecting the final report, if there is sufficient material in the case diary itself; may treat the protest petition as complaint rejecting the final report and proceed under Chapter XV CrPC.
In the present matter, if the submissions raised across the bar are minutely analyzed with the observations recorded in the impugned order, it is evident that concerned Magistrate has accepted the protest petition and passed the impugned order against the applicants. Though specific word regarding rejection of final report is not mentioned yet it is not material for disposal of the present matter, as it will be presumed that impugned order has been passed rejecting the final report.
Now the Court has to see as to whether while accepting the protest petition and passing the impugned order concerned Magistrate has taken into consideration the extraneous material or has passed the impugned order on the basis of material available in the case diary itself. It is pertinent to mention here that concerned Magistrate in the facts and circumstances of the case can pass the summoning order only on the basis of material available in the case diary itself. If any extraneous material has been taken into consideration while passing the summoning order rejecting the final report, same would not be sustainable in the eye of law, as consideration of extraneous material is not permissible under law. In the present matter, if the impugned order is minutely perused, it is evident that while passing the same the concerned Magistrate has taken into consideration the extraneous material, which is not permissible under law. Documents, which were not the part of case diary and had been filed alongwith the protest petition, have been taken into consideration at the time of passing the impugned order, which itself makes the impugned order illegal. Hence, in the opinion of the Court, for the reasons discussed here-in- above, impugned order is illegal and without application of judicial mind and is liable to be quashed / set aside and the matter is liable to be remanded back to the Court concerned to pass fresh order in accordance with law. Since in the opinion of Court impugned order is illegal and without application of judicial mind, other issues raised by the learned counsel for the parties need no discussion.
In view of above discussions, there is substance in the submissions made by the learned counsel for the applicants. The impugned order suffers from infirmity and illegality and is liable to be set aside and the application is liable to be allowed.
Accordingly, the application is allowed and the order dated 28.01.2015 passed in Criminal Case No. 354 of 2015 arising out of Case Crime No. 02 of 2014, under Sections 504, 506, 447, 448, 419, 420, 465, 468, 471 IPC (State Vs. Haider Ali Kazim and others) pending in the court of Civil Judge (J.D.) / Judicial Magistrate, Kaushambi is set aside and the matter is remanded back to the Court concerned to pass fresh order in accordance with law.
Order Date :- 28.10.2021 safi