Braj Lal vs State Of U.P.
2021 Latest Caselaw 6287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved on 24.3.2021
 
Delivered on 16.6.2021
 
Court No. - 77 
 

 
Case :- APPLICATION U/S 482 No. - 6049 of 2020
 

 
Applicant :- Braj Lal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- In Person,Basdeo Nishad
 
Counsel for Opposite Party :- G.A.,Moeez Uddin
 

 
Hon'ble Pankaj Bhatia,J. 

1. Heard Sri Basdeo Nishad, counsel for the applicant, Sri Moeez Uddin, counsel for the Opposite Party No. 2 and perused the record.

2. The present application has been filed being aggrieved against the order dated 12.7.2019 passed by the Special Judge, SC/ST Act, Allahabad on the protest petition filed by the applicant before the concerned Court.

3. The brief facts giving rise to the present application are as follows:

4. The applicant claims to be the sole owner of the land bearing Arazi No. 261 area 0.334 hectare situate at village Narai, Police Station Phoolpur and claims that his name is recorded in the Khatauni and Khasara.

5. It is claimed that one Bajrang Bahadur Patel, having criminal antecedents and being a convicted criminal, illegally started interfering in the possession of the applicant for which a civil suit was filed being Suit No. 2568 of 2011 in which interim injunction was passed in favour of the applicant on 21.11.2011. The accused Bajrang Bahadur Patel and seven others, in violation of the interim order, harvested the crop over the property in question complaining about which, an application was filed on 29.6.2015 under Section 156 (3) CrPC for registration of the FIR for the recovery of theft property. The said application was rejected and the case was registered as a complaint case by means of an order dated 22.8.2015, which was challenged before this Court by filing an application under Section 482 CrPC No. 13529 of 2016.

6. This Court in exercise of its powers called a report from the SSP, Allahabad and proceeded to pass the following order on 6.5.2016:

"Heard learned counsel for the applicant and the learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 22.08.2015 passed by the learned Judicial Magistrate-III, Allahabad in Complaint Case No. 1358 of 2015, under Sections 147, 382, 504, 506 I.P.C. and Section 3(2)(v) ST/SC (PA) Act, Police Station Phoolpur, District Allahabad.

The applicant is a bhoomidhar with transferable rights, in possession over Plot No. 261, ad measuring 0.334 hectare situated at Village Narai, Police Station Phoolpur, District Allahabad. The name of the applicant is duly recorded in the Khasra and Khatauni. One Bajrang Bahadur having criminal history and being convicted for life under Section 302/34 I.P.C. upon being released on bail by this Court committed several cognizable offences including that of land grabbing.

It is alleged that Bajrang Bahadur and others started interfering with the plot of the applicant for extraneous consideration, the applicant, therefore, was constrained to institute a suit being Suit No. 2568 of 2011 (Braj Lal Versus Bajrang Bahadur and others), in which, learned Additional Civil Judge (Junior Division), Allahabad granted temporary injunction on 21.11.2011 in favour of the applicant.

It is alleged in the complaint that Bajrang Bahadur and seven others on 12.04.2014 at 6.00 P.M. forcefully harvested the wheat crops standing on the plot on the strength of country-made pistol and bombs. The applicant informed the police but no First Information Report was lodged, thereafter, the applicant moved an application under Section 156(3) Cr.P.C. seeking a direction from the learned Magistrate to direct the police officer to register a First Information Report against the accused persons. The police officer submitted a report that no such incident had occurred and the complaint is false.

Learned Magistrate treated the application as a complaint case. Aggrieved, the applicant is before this Court. On 02.05.2016, learned A.G.A. was directed to seek instruction from the Senior Superintendent of Police, Allahabad. Upon instruction, the concerned Thana has informed that there is dispute, inter se, parties; Bajrang Bahadur is having criminal antecedent and has been convicted in a criminal case, further, Bajrang Bahadur has no concern with the plot in question as neither his name is recorded in the revenue record nor is the owner of the plot in dispute.

It is not being disputed by learned counsel for the applicant that the applicant is owner and in possession of the said plot and belongs to marginals section of the society.

In these circumstances, the order dated 22.08.2015 passed by the learned Magistrate is set aside, in view of the judgment rendered by the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164, learned Magistrate is directed to pass a fresh order.

Subject to the above, the application is allowed."

7. In terms of the order passed by this Court, a request was made for registration of the FIR and consequently, a First Information Report was registered as Case Crime No. 181 of 2016, under Sections 147, 382, 352, 506 IPC read with Sections 3 (2)V of the SC/ST Act. The said FIR is on record as Annexure No. 10. Subsequently, after investigation, a report was filed under Section 173 (2) of the CrPC (final report). Aggrieved against the said final report, the applicant filed a protest petition submitting that the investigation was conducted in a arbitrary and clumsy manner. The said petition was filed on 17.12.2016 and another supplementary protest petition was filed on 29.4.2017. On the said protest petition, the impugned order came to be passed accepting the protest petition and treating the same as a complaint and further a date was fixed for recording of the evidence under Section 200 CrPC. The said order is under challenge.

8. Counsel for the applicant argues that the procedure adopted by the learned Magistrate is bad in law inasmuch as, at the first instance, this Court in its order dated 6.5.2016 (recorded above) has specifically directed for registration of the FIR in terms of the judgment of Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164. Thus, in this background, it was not open for the Magistrate to treat the said case as a complaint case as has been done by the Magistrate. He further argues that in view of the statements so collected, a clear cognizable case is made out and the Court below ought to have directed for further investigation or ought to have taken cognizance and issued process. In support of his submission, he placed reliance on the judgment of the Supreme Court in the case of Bhagwant Singh Vs. Commissioner of Police, 1985 Law Suit (SC) 148 as well as the judgment of the Supreme Court in the case of Mahendra Pal Sharma Vs. State of UP, 2003 Cr.L.J. 698. Counsel for the applicant also places reliance on the judgment of this Court in the case of Anand Swaroop Vs. State of UP, 2006 0 Supreme (All) 709

9. On the other hand, counsel for the Opposite Party No. 2 argues that there was no error in the procedure recorded as it was one of the recourse available to Magistrate in exercise of powers under Section 190 of the CrPC and thus, no error can be found in the said order warranting interference of this Court in exercise of powers under Section 482 CrPC. He places reliance in the case of Sukhwasi Vs. State of Uttar Pradesh, 2008 CrLJ 472.

10. I have perused the order impugned in the present application being order dated 12.7.2019. The course adopted by the Special Judge was well within the scope of power to be exercised by virtue of Section 190 of the CrPC wherein three courses are open before the Court concerned. The course adopted by the Special Judge being in terms of the mandate of Section 190 CrPC cannot be faulted with.

11. The application lacks merits and is dismissed.

Order Date :- 16.6.2021

vinay