Shiv Singh vs State Of U.P. & Others
2013 Latest Caselaw 6079 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 51
 

 
Case :- APPLICATION U/S 482 No. - 3729 of 2002
 

 
Applicant :- Shiv Singh
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Sushil Shukla
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1.  Heard Sri Sushil Shukla, learned counsel for the applicant and learned AGA for the State.

2.  As per police report dated 11.7.2002, notice has been served to opposite party no. 2 but none appear on behalf of the opposite party no. 2 to contest the matter. Hence notice appears to be deemed sufficient.

3.  This application under Section 482 Cr.P.C. has been filed for quashing the  proceeding of Criminal Case No. 72 of 2001, under Sections 416, 420, 467, 468 I.P.C., P.S. Kakvan, District Kanpur Nagar, pending in the Court of A.C.J.M.-III, district Kanpur Dehat.

4.  The prosecution case in brief is that a first information report was lodged against the applicant by opposite party no. 2 which was registered as Case Crime No. 151 of 2000, under Sections 416, 420, 467, 468 I.P.C., on 8.10.2000 with respect to an incident dated 1.2.1988 by Mahesh Chandra Tehsildar Billhaur, that the applicant has forged the revenue records and grab the land of Gaon Sabha which was allotted to Smt. Nanhi Devi wife of Shiv Singh, who had died and had no legal heirs. The matter was investigated by the police and a charge sheet has been submitted against the applicant for the aforesaid offence. The learned Magistrate took cognizance of the offence and has summoned the applicant vide order dated 18.6.2001.

5.  It has been contended by the learned counsel for the applicant that the applicant is a teacher in a Government Primary School at Rardra, District Kanpur Nagar since 1964 and a respectable citizen, who commands high respect in society. He submitted that the wife of the applicant is known as "Nannhi @ Sarojani Devi". She prior to her marriage to the applicant, belonged to the village Chursa Gadanpur,Tahsil Billhaur, District Kanpur Nagar and she was popularly known as "Nannhi Devi". She has studied in Primary School of her village upto class IIIrd wherein she was enrolled in the name of "Nanhi Devi." Even after her marriage with the applicant she was always known with the said name in her name nuptial village i.e. the village of the applicant. The applicant had also disclosed her name as "Nanhi @ Sarojani Devi" in the nominee column of his Provident Fund in the government record. Certain documentary proof has already been annexed as annexure-1 to the affidavit stating about the fact.

6.  It was further asserted that the wife of the applicant undertook L.T.P. and Tubectomy operation on 12.10.1987 at A.H.M hospital in Kanpur Nagar and she became entitled for consideration of allotment of agricultural land on lease from Gaon Sabha of village Nadhina Khurd in the year, 1988. The Land Management Committee (hereinafter referred to as L.M.C.) of Gaon Sabha of village Nadhiya Khurd considered for allotment of vacant land of the Gaon Sabha to various prospective claimants, the wife of the applicant i.e. "Nannhi Devi" also became an allotee and the L.M.C. ultimately on 1.2.1988 finalized the allotment of plot no. 1689 area 0.130 hectare and plot no. 1784 / 1882 area 0.164 hectare (hereinafter referred to as leased plots) in her favour and after due approval of the lease from the revenue authorities, her name was mutated in the revenue records i.e. Katauni of the leased plots in place of the name of Gaon Sabha on 2.4.1988. A photo copy of the operation certificate given to the wife of the applicant has also been annexed as annexure-2 to the affidavit. Thereafter, the name of the wife of the applicant was mutated in the Khatauni in the year, 1988 and she obtained a copy of Khatauni which was issued to her on 16.10.1990 showing her name as the lessee of the leased plots. In that copy of the Khatauni the name of the wife of the applicant was mentioned as "Nannhi" wife of Shiv Singh. A photo copy of the Khatauni dated 16.10.1990 in respect of the leased plot has also been annexed as annexure-3 to the affidavit. He submits that some of the opponents of the applicant and his wife belonging to the same village in order to malice the image of the applicant in collusion with revenue authorities of the village mischievously change the status of the wife of the applicant in the Khatauni of the leased plot and another khatauni dated 22.3.1991 which was indicated that the wife of the applicant was shown as "Nanhi" widow of "Shiv Singh" which was nothing but mischievous act. Photo copy of the Khatauni dated 22.3.1991 has been annexed as annexure-4 to the affidavit. When the applicant came to know about such mischievous act that wrong entries made in respect of the name of his wife in the Khatauni dated 22.3.1991, he apprehended some foul play and as such the applicant obtained a questionnaire of the revenue record in respect to the allotment made by the L.M.C of the leased plot in favour of his wife wherein the allotment in the name of his wife was affirmed by the office of tehsildar Billhour on 25.3.1991. The wife of the applicant came to know about the mischievous act on the part of the revenue officials in the Khatauni dated 22.3.1991, she filed an application before the S.D.M. Billhaur on 30.3.1991 apprising him about the said illegal act of his opponents in collusion with revenue authorities. On the said application of the wife of the applicant an enquiry was held and it was found that her correct name was "Nanhi" wife of "Shiv Singh" which was accordingly corrected and mentioned in the Khatauni on 4.1.1994. The copy of the order dated 4.1.1994 has been annexed as annexure-7 to the affidavit.

7.  Later on the applicant came to know that his co-villager, namely, Chandra Pal Singh and Sukh Dev Singh, who were his opponents and who belong to the same village, were trying to dispossess and evict the wife of the applicant from the ownership of the leases plots and for that they were playing different tactics. The opponents of the applicant did not yield any results regarding disfigurement of the name of the applicant's wife in the revenue record by the mischievous act. They again with the help of lekhpal of the area somehow got the leased plots in their favour for horticultural purposes, although leased plots were already leased in favour of the wife of the applicant "Nanhi Devi" for agricultural purpose. The wife of the applicant again complained to the A.D.M. (Finance and Revenue) Kanpur Nagar on 30.3.1991, thereafter, on 24.7.1991, the S.D.M. Billhaur had ordered the S.H.O, P.S. Kakvan for ensuring the peace and maintaining the possession of the "Nannhi Devi" over the leased plots. A copy of the application dated 30.3.1991 as well as order dated 24.7.1991 has already been annexed as annexure- 8 of the affidavit.

8.  When the opponents of the applicant and his wife were unsuccessful for their various designs, who wanted to dispossess the applicant from the leased plots as is evident from the two attempts though in order to further deprive the applicant and his wife from the leased plots again they succeeded in persuading some of the members of the L.M.C. to bring suit in respect of the leased plots under Section 186 of U.P.Z.A. & L.R. Act by declaring that the lessee "Nannhi Devi" had died in the year, 1994 and she was survived by no legal heir and thus the leased plots shall revert back to the Gaon Sabha. The said suit was instituted by L.M.C. of the Gaon Sabha on 19.7.1995 and was registered as Case No. 757, under Section 186 of U.P.Z.A. & L.R. Act which was decreed ex parte on 7.5.1996 by tehsildar, Billhaur but later on when the applicant came to know about the ex parte order, his wife became a party to the said suit and the ex parte order was stayed by the order of S.D,M on 7.6.1996 but ultimately on 11.12.1998, the S.D.M. decreed the suit in favour of the Gaon Sabha and ordered that the name of the "Nannhi Devi" widow of Shiv Singh be deleted in the revenue record and the land be vested in Gaon Sabha. The order dated 11.12.1998 was also upheld by S.D.M. on 23.4.1999 on which date he had rejected the revenue application preferred by the wife of the applicant.

9.  Aggrieved by the order dated 11.12.1998 passed by S.D.M, Billhaur in respect to the leased plots, the wife of the applicant challenged the same and preferred Appeal no. 110 of 1999 before the Additional Commissioner (Administration), Kanpur Mandal which was allowed vide order dated 13.3.2000 in favour of the wife of the applicant. It was observed in the appellate order that the order passed by the Additional Commissioner on 13.3.2000 clearly indicates in no uncertain terms that the wife of the applicant was declared to be alive and all claims of her being dead emanating from the different persons of the village were held to be found baseless.

10.  It was then submitted by the learned counsel for the applicant that when the aforesaid three attempts to deprive the wife of the applicant from her leased plots also failed, one "Sharman Singh" of the same village once again for the fourth attempt instituted a suit no. 29 of 2000 under Section 198(4) U.P.Z.A&L.R. Act against the wife of the applicant in the court of Distrit Magistrate, Kanpur Nagar seeking cancellation of the lease of the plots granted in her favour. In the said suit once again plaintiff "Sharman Singh" alleged that "Nanhi Devi" had died issue-less and as such the lease granted in her favour be cancelled. On the aforesaid suit after its institution, the District Magistrate called for a report from the Tehsildar Billhaur on 21.6.2000 and Tehsildar submitted his report on 24.8.2000 before the District Magistrate wherein he specifically mentioned that since the revenue record of L.M.C. was not traceable hence it was not possible to said as to whom the lease of the disputed plots was made by the L.M.C. in the year 1988. A copy of report of the said tehsildar dated 24.7.2000 has been annexed as annexure-11 to the affidavit.

11.  The plaintiff "Sharman Singh" of the suit apprehending when he came to know about the report of the tehsildar dated 24.7.2000 submitted before the District Magistrate loosing his case, he somehow manage the Nayab Tehsildar of the area, who for the second time submitted his supplementary report dated 11.9.2000 before the D.M. in connection with the aforesaid suit and in this supplementary report, he contradicted his earlier report dated 24.7.2000 and after accepting the genuine photo copy of the some minute of the L.M.C. of the year, 1988 from "Sharman Singh" concluded in his supplementary report that the wife of the applicant was not the lessee of the leased plots and further he without any inquiry stated that the applicant had committed some forgery in respect of the revenue record in order to gain benefit. The said Nayab Tehsildar also prayed to the D.M. Kanpur Nagar that an F.I.R. under the relevant provision of I.P.C. be registered against the applicant and lease be cancelled. A photo copy of the supplementary report datd 11.9.2000 submitted by Nayab Tehsildar has been annexed as annexure- 12 of the affidavit. Thereafter, on the aforesaid supplementary report dated 11.9.2000 filed by Nayab Tehsildar in suit No. 29 of 2000 the District Magistrate, Kanpur also without in an arbitrary manner without giving opportunity of hearing to the wife of the applicant directed for cancel of the lease in her favour and also directed for lodging of the F.I.R. against the applicant.

12.  It was further argued by the learned counsel for the applicant that the order of District Magistrate dated 13.9.2000 also does not connect as to what kind of forgery was done by the applicant. He submitted that the order dated 13.9.2000 of the District Magistrate, Kanpur Nagar fake, illegal and arbitrary. A copy of the same has been annexed as annexure-13 of the affidavit.

13.  Feeling aggrieved by the order dated 13.9.2000 passed by the D.M. cancelling the lease of the plots standing in the name of the wife of the applicant, she preferred a revision before the Additional Commissioner (Administration), Kanpur Zone challenging the said order in which the Revisional Court stayed the operation and execution of the order dated 13.9.2000, passed by District Magistrate, Kanpur Nagar vide order dated 9.10.2000. A copy of th same has been annexed as annexure-14 of the affidavit. He submitted that though the execution of the District Magistrate's order dated 13.9.2000 was stayed by the Revisional Court by order dated 9.10.2000, the impugned F.I.R. was lodged by opposite party no. 2 on 8.10.2000, which was registered as Case Crime No. 151 of 2000, under Sections 416, 420, 467, 468 I.P.C., police station Kakvan, District Kanpur Nagar. The applicant challenged the said F.I.R. before this Court by means Writ Petition No. 6456 of 2000 in which the arrest of the applicant was stayed.

14.  Learned counsel for the applicant submitted that at the one time civil proceeding in which involved the similar allegation against the wife of the applicant had culminated in her favour on 13.3.2000 vide order of the Commission's court passed in Case No 757 under Section 186 of U.P.Z.A. & L.R. Act which order became final since no appeal or revision was further preferred by the L.M.C. of the Gaon Sabha, Newada Khurd then the present criminal proceeding of the same controversy against the applicant is nothing but persecution instead of any bona fide prosecution and as such he further pointed out that from the entire material collected during the course of investigation and the charge sheet no offence whatsoever is made out against the applicant. Hence, he prayed for quashing of the criminal proceeding against him

15.  Learned AGA has vehemently opposed the prayer for quashing and has submitted that the impugned order and charge sheet discloses the cognizance offence against the applicant, hence the petition be dismissed by the Court.

16.  Considered the submissions advanced by the learned counsel for the parties.

17.  From perusal of the materials on record, it is apparent that civil proceedings were initiated against the wife of the applicant by various persons of the village to dispossess and vacate her from the Gaon Sabha land which of the leased plots she was allotted by the Land Management Committee of the concerned village in the year 1988. The wife of the applicant undertook L.T.P & Tubectomy operation on 12.10.1987 at A.H.M. Hospital in Kanpur Nagar. The name of the wife of the applicant has already been mutated in the relevant revenue records. The applicant had being trying her to dispossess and vacate the wife of the applicant from the said plot for their ulterior motives. Moreover, the order passed by 13.3.2000 by the Commissioner in Case No. 757, under Section 186 of U.P.Z.A. & L.R. Act wherein the claim of the wife of the applicant was adjudicated to be genuine one and she also found to be alive and the same lady who was granted lease of the plots by the L.M.C. in the year 1988 and the said order had become final as no appeal order revision was filed by L.M.C. of Gaon Sabha against the said order of the Commissioner hence the present proceeding appears to be abuse of process of court as the controversy in question has already been settled in the year 2000. The averments made in the present petition also does not rule out possibility mala fide proceedings against the applicant which have been initiated by his opponents time and again. The claim of applicant and his wife was found to be genuine by the competent revenue authorities earlier, hence the criminal prosecution of the applicant is wholly unwarranted and liable to be quashed.

18.  The present proceeding appears to be the malicious one which has been initiated by opposite party no. 2 against the applicant and the present case also falls in one of the category of the judgement of Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 where it has been held that if the proceedings have been initiated for a malicious prosecution it can be quashed by the High Court in exercise of it's inherent power u/s 482 Cr.P.C.

19. Considering the facts and circumstances of the case and nature of allegation made in the present case, the proceeding appears to be a malicious one and gross abuse of the process of Court. Hence, the proceedings of the aforesaid case against the applicant is hereby quashed.

20.  The petition stands allowed.

Order Date :- 26.9.2013

Manoj