Court No. - 66
Case :- APPLICATION U/S 482 No. - 2008 of 2017 Applicant :- Sageer And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajeshwar Singh,Anil Kumar Srivastava Counsel for Opposite Party :- G.A.,Akhilesh K. Dwivedi,Dheeraj Singh (Bohra)
Hon'ble Rajul Bhargava,J.
Heard Sri Anil Kumar Srivastava, Senior Advocate, assisted by SriRajeshwar Singh, learned counsel for the applicants, Sri Dheeraj Singh (Bohra), learned counsel for opposite party no.2 and the learned A.G.A. for the State and perused the record.
The present 482 Cr.P.C., application has been filed for quashing the proceedings of Criminal Case No.1880 of 2016 (State of U.P. Vs. Sageer and others) (Case Crime No.481 of 2016), under Sections 419, 420, 467, 468 I.P.C., Police Station Kasya, District Kushi Nagar, pending in the Court of Additional Chief Judicial Magistrate, Kushinagar as well as the charge sheet No.02 of 2016 dated 2.11.2016.
The brief facts which are absolutely necessary for deciding the present application are that opposite party no.2 moved an application under Section 156(3) Cr.P.C. for registration of F.I.R. against the applicants and their father, Ashiq Ali and same was registered by the order of the Magistrate. It is alleged in the F.I.R. that Ashiq Ali and the applicants belong to the same family and they belong to general category. Arazi No.312 measuring .05 decimal belong to informant and his brother and they are in possession. However, Ashiq Ali with an evil design that he belongs to backward caste, surreptitiously got it declared Gaon Sabha land under Sections 33/39 of the Uttar Pradesh Zamindari Abolition Act in collusion with the applicants. In the said proceedings a false affidavit was filed by Ashiq Ali that he belongs to backward caste whereas he is Sheikh belonging to upper caste.It is further alleged that Ashiq Ali despite knowing that affidavit filed before revenue court was false, yet in order to make wrongful gain filed the same before revenue authority in collusion with the applicants. The said F.I.R. was investigated and the charge-sheet was submitted against the applicants under Sections 419, 420, 467 and 468 I.P.C.
It has been contended by the learned counsel for the applicants that prima facie no offence, whatsoever, is made out against the applicants from bare reading of the F.I.R. and the material collected during investigation. Only bald, vague and absurd allegations have been made by the informant that they in collusion with their father Ashiq Ali had got the property in dispute declared as Gaon Sabha land. Learned counsel for the applicants further submitted that father of applicant no.1,namely, Ashiq Ali died before lodging of the F.I.R., yet he has been arrayed as an accused. Applicant no.2 is the grand son of late Ashiq Ali. Late Ashiq Ali had filed the case before S.D.M. concerned under Section 123(1) of U.P. Z.A. and L.R. Act for declaring the land in question as abadi land but on account of typographical error instead of general category, backward category has wrongly been transcribed in paragraph-1 of the affidavit. It is next contended that Ashiq Ali after realizing the said mistake has moved a correction/modification application under Order 6 Rule 17 of the Civil Procedure Code for modification of paragraph-1 of the affidavit. A true copy of the modification application dated 23.4.2012 has been filed as Annexure-7 to the affidavit in support of the application. The same has not been disputed by learned counsel for the opposite party no.2. Learned counsel for the applicants has further argued that no offence, whatsoever, is even made out against the applicants, even if it is presumed that he has filed a false affidavit before the revenue court, only Ashiq Ali could be made responsible for the same. Besides it, the modification application was moved within a month by Ashiq Ali which shows his bona fide.
It is next contended that opposite party no.2 has also filed an application under Section 340 Cr.P.C. for initiation of criminal proceeding against Ashiq Ali for filing affidavit with false assertion in order to cause wrongful loss to opposite party no.2 and his family members. On the said application, the S.D.M. concerned called for a report, however, no orders were passed under Section 340 Cr.P.C. Learned counsel for the applicants has raised legal point that very lodging of F.I.R. against the applicants and father of applicant no.1, Ashiq Ali is patently illegal inasmuch as the same would be barred by the provisions of Section 195 Cr.P.C. Lastly, it is contended that in any view of the matter, the dispute between Ashiq Ali and his family members and opposite party no.2 is essentially civil in nature and there is absolutely no evidence to make out an offence of cheating or forgery against the applicants and late Ashiq Ali. Thus the order taking cognizance and its continuance is clearly an abuse of process of law and the same is liable to be quashed.
Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 have submitted that application moved by late Ashiq Ali for declaring their immovable property as abadi land was made in collusion with the applicants as well. It is further argued that on the face of it, the affidavit filed by Ashiq Ali was false, constitute an offence under Section 193 of Indian Penal Code. However, there could be no dispute that allegations of filing of alleged false affidavit before concerned court was against Ashiq Ali and an application under Section 340 Cr.P.C. was also moved by opposite party no.2 but the same was not pursued by him. Learned counsel for the opposite party no.2 also could not point out any material collected during investigation which could, prima facie, establish commission of an offence of cheating or forgery by the applicants.
Considering the rival submissions and after carefully perusing the averments made in the F.I.R. and I find that essentially the dispute between the parties is civil in nature for which there have been litigation between them. In my opinion, only the court before whom false affidavit was filed by late Ashiq Ali who is now no more, could have filed a complaint or initiated a criminal proceeding against him under Section 340 Cr.P.C. and no court could take cognizance on the impugned charge-sheet in view of provisions of Section 195 Cr.P.C. Therefore, the impugned proceeding is clearly an abuse of process of law and the same is liable be quashed.
According, the application is allowed. The proceedings of aforesaid case are hereby quashed.
Order Date :- 31.7.2019 MN/-