Allahabad High Court
Kishan Lal vs State Of U.P. & 3 Others on 20 May, 2013
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 9552 of 2013
Petitioner :- Kishan Lal
Respondent :- State Of U.P. & 3 Others
Petitioner Counsel :- Rajiv Lochan Shukla,Shikhar Awasthi
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Heard Shri Shikhar Awasthi, learned counsel for petitioner and learned AGA for the State.
This writ petition has been filed with a prayer to quash the order dated 23.3.2013 passed by the A.C.M.M., Court No.8, Kanpur Nagar in Crl. Misc. Application No.63 of 2013 whereby the application under Section 156(3) Cr.P.C. filed by the petitioner was rejected.
Since the proposed accused have no right of hearing before they are summon to face trial, at this stage, there is no need to issue notice to respondent nos 2, 3 and 4.
Learned counsel for petitioner submitted that from the facts alleged in the application, prima facie, cognizable offence was disclosed and therefore, the Magistrate was bound to order registration of the FIR and investigation of the case. It was further submitted that the Magistrate, was not obliged to critically analyse the allegations made in the application and to give a finding thereon. This job was to be performed by the Investigating Officer.
It was alleged in the application under Section 156 (3) Cr.P.C. that before birth of petitioner Kishan Lal and his brother Munna Lal, opposite party no.1, the family property inherited from Smt. Janaki Devi, nani of petitioner was transferred by mother of the petitioner in the name of Suryabali @ Surajbali, the eldest brother of petitioner. At that time, the petitioner as well as respondent no. 1 was not even born. Subsequently, Surajbali died in the year 1960 but the property still continues in his name. An application for mutation of 1/4th share in favour of the petitioner is still pending.
Respondent No. 1 Munna Lal with an intention to defraud the petitioner impersonating himself as Surajbali @ Munna Lal sold 1/4th share of the entire property in favour of the respondent no. 2 Ramesh Chandra who happens to be a property dealer. Ramesh subsequently sold a part of the property in favour of Smt. Vijaylakshmi.
The learned Magistrate rejected the application on the ground that the court could not decide whether Munna Lal is not Surajbali and this point can only be decided by a Civil Court. It was also observed that the dispute is of a civil nature. Whether the petitioner has any share under property sold by respondent no.1 or not may be a question of dispute of civil nature but as far as impersonation is concerned, it is alleged that Surajbali died in the year 1960 and Munna Lal executed the sale deed by impersonating as Surajbali, if that is so, prima facie cognizable offence is disclosed.
At the time of deciding an application under Section 156(3) Cr.P.C. the Magistrate was not required to give a finding on various questions of fact involved in the matter, but was simply to consider whether any cognizable offence is disclosed or not. Whether Surajbali is alive or died in the year 1960 and whether Munna Lal executed sale deed by impersonating as Surajbali or whether real name of Munna Lal is Surajbali, these are the questions to be decided by the Investigating Officer during investigation and where there are serious allegations of fraud and impersonation, a criminal case cannot be shut out on the ground that the dispute appears to be of civil nature. Execution of sale deed by impersonation is a very serious matter.
In view of the above, I am of the opinion that the learned Magistrate did not consider the application under Section 156 (3) Cr.P.C. in proper perspective and rejected the same on irrelevant grounds and therefore, the matter has to be remanded for a fresh decision.
The writ petition is allowed. The impugned order dated 23.3.2013 is quashed and the learned Magistrate is directed to reconsider the matter after hearing the petitioner and to take a fresh decision in the light of observations made above.
Order Date :- 20.5.2013
Pk
