HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 23 Case :- APPLICATION U/S 482 No. - 10431 of 2015 Applicant :- Bihari Lal And 4 Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Janardan Singh,Gokaran Singh Counsel for Opposite Party :- Govt. Advocate,Sanjay Ram Tripathi Hon'ble Pramod Kumar Srivastava,J.
1. This application u/s 482 Cr.P.C. has been preferred for quashing the proceedings of criminal case no. 570/2015, State Vs. Bihari Lal & Others, u/s 419, 420 I.P.C., case crime no. 927/2014, p.s. Kotwali, district Mau, pending in the court of Chief Judicial Magistrate, Mau.
2. Heard learned counsel for the applicant, AGA for O.P. No. 1, counsel for OP No. 2 and perused the records.
3. The informant Bechan (present O.P. No.-2) had moved application u/s 156(3) Cr.P.C. with averment that he is the co-owner and co-bhumidhar of plot no. 449, situated in village Jahagirabad, and is in possession of his portion of agricultural land. Accused Bihari Lal and Harinarain (applicant nos. 1 & 2 of present application) are also co-owner and co-bhumidhar of only 0.0120 air portion of said plot no. 449. Both these persons Bihari Lal and Harinarain had executed first sale-deed dated 5.7.2014 of said plot no. 449 area 0.0120 air in favour of Umashanker and Ramashanker (applicant nos. 3 & 4 of present application). Then Bihari Lal and Harinarain had again executed another sale-deed dated 16.7.2014 of same plot no. 449 regarding area of 0.0120 air in favour of Umashanker and Ramashanker. Thus Bihari Lal and Harinarain being owner of only 12 air portion of said land had executed sale deed of 24 air of said land by aforesaid two sale-deeds in favour of Umashanker and Ramashanker and have made wrongful gain. Since they sold land more than their share, which belongs to informant Bechan, therefore said accused have caused wrongful loss to informant. Dhupchand (applicant no.-5) was marginal witness in the two sale deeds, who was in conspiracy with the other co-accuseds and helped them, therefore, accused persons should be punished for their criminal acts.
4. On the basis of application u/s 156(3) Cr.P.C. of informant Bechan the case crime no. 927/2014, u/ss 419, 420 I.P.C. was registered. After lodging of F.I.R. And after the investigation, police had submitted charge-sheet against five accuseds named in F.I.R., on the basis of which criminal case no. 570/2015 was registered and trial proceeded against them. Said charge-sheet as well as proceedings of criminal case no. 570/2014 have been challenged in present application u/s 482 Cr.P.C. with prayer for quashing them.
5. Learned counsel for the applicants contended that present matter relates to purely civil dispute. Applicant Nos. 1 and 2 are co-owner and co-bhumidhar of said plot no. 449 with the informant Bechan (O.P. No.-2). The sale deed executed by them has not been challenged in any civil court. Only civil court has right to quash the sale deed. Counsel for the applicants also contended that unless ownership of different portions and share of applicants and O.P. no.-2 is not determined by competent revenue court, the dispute between them cannot be decided. It is also contended that unless it is declared by competent court that the two sale-deeds executed by applicants are in access of their share the criminal prosecution cannot succeed. He also contended that in garb of criminal proceedings the informant (O.P. No.-2) intends to get his title declared over disputed agricultural land. Since the criminal court cannot determine right, title and share of parties in proceeding before it, therefore in any case the prosecution in this case cannot succeed. Therefore the proceedings of said case is abuse of process of court and should be quashed.
6. Learned counsel for the O.P. No. 2 and learned A.G.A. contended that applicants nos. 1 and 2 had absolutely no right or claim over the plot of land which they have illegally transferred in favour of applicants no. 3 and 4 by sale deeds, of which applicant no.-5 Dhupchand is marginal witness. He contended that applicants have illegally executed the sale deeds without any authority and by misrepresentation, and thus had made wrongful loss to O.P. No.-2 for sake of wrongful gain in their favour. Thus, they are guilty of the offences mentioned in the charge-sheet. So they must be prosecuted and this application u/s 482 Cr.P.C. should be dismissed.
7. I have gone through arguments of the parties aand perused the available record.
8. From the above description of facts, it is clear that dispute between the parties relates to the ownership of the agricultural land of plot no. 449 situated in village Jahagirabad. Admittedly, the applicant no. 1 and 2 were the co-owners and co-bhumidhar of said plot no. 449 who had executed sale-deed of the portion of their ownership of said land to applicant nos. 3 and 4. It is also admitted, as evident from perusal of available revenue records, that formal partition of the shares of plot no. 449 has not been done so far by the revenue court. The dispute between the parties is as to whether the sale-deed executed by applicant nos. 1 and 2 in favour of applicants no. 3 and 4 is for excess of their share of disputed land or not. It is also admitted fact that the two sale-deeds in question executed by applicant nos. 1 and 2 in favour of applicant no. 3 and 4 have not been set aside by any civil or revenue court. Legally criminal court has no jurisdiction to determine the ownership of agricultural land nor it has jurisdiction to set aside any sale deed. Legally the ownership of agricultural property can only be decided by the revenue court, and the jurisdiction of the other courts is barred in this regard by the provisions of section 331 of U.P.Z.A. & L.R. Act. For accepting the averments mentioned in F.I.R. filed by O.P. No.-2 (complainant), and for holding the applicants guilty, the criminal court has to hold that the complainant (O.P. No.-2) is also owner and bhumidhar of those portion of land which were sold by applicant nos. 1 and 2 in favour of applicant nos. 3 and 4 by aforesaid sale deeds. The criminal court cannot do so.
9. In this case the disputed plot no. 449 has not been partitioned and extent of its co-ownership and co-bhumidharship has not been determined by revenue court. Therefore, it cannot be declared by criminal court that the sale-deeds executed by applicant nos. 1 and 2 are in excess of their share. Unless, sale deeds in question are cancelled or quashed by competent court, it would be unfair and contrary to the interest of justice to contunue the criminal proceeding and direct the applicants to go through the long procedure of trial. It is noteworthy that the duty and liability of immarginal witness of any deeds is limited to the extent of verifying and certifying that said deed is being executed by right persons and its excutants are not forged one. In present case, it is not disputed that applicant nos. 1 and 2 had executed two sale deeds in favour of applicant nos. 3 and 4. They were properly identified by applicant no.-5, who is marginal witness of said deeds. There appears no commission of any overt act by applicant no.-5 Dhoopchand in this matter who had identified the right persons before the Sub-Registrar at the time of registration of the deed. Mere identifying the correct persons before competent authority cannot be treated as offence.
10. For the reasons discussed above, it is explicitly clear that the dispute between the parties in present matter is that of purely civil nature which can be decided only by competent revenue court having jurisdiction to determine and decide the ownership of agricultural land in question. Therefore, the continuation of cirminal proceeding in this case would tantamount to abuse of process of law. Since the possibility of conviction of applicants is bleak and continuation of criminal case would put the applicants-accused to great inconvenience and prejudice, therefore utmost injustice would be caused to them by not quashing the criminal proceedings in question pending before the court below.
11. Therefore, by exercising the inherent jurisdiction of this Court and for preventing the abuse of process of court, this application u/s 482 Cr.P.C. is allowed and the proceedings of criminal case no. 570/2015, State Vs. Bihari Lal & Others, u/s 420 I.P.C., case crime no. 927/2014, p.s. Kotwali, district Mau, pending in the court of Chief Judicial Magistrate, Mau, are hereby quashed.
12. Let a copy of this order be sent to trial court concerned immediately for ensuring compliance.
Order Date :- 9.10.2015 SR