Shubh Karan Pandey vs State Of U.P. & Another
2021 Latest Caselaw 3162 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 12.01.2021
 
Delivered on 05.03.2021
 
Court No. - 26                       AFR
 

 
Case :- U/S 482/378/407 No. - 6561 of 2019
 

 
Applicant :- Shubh Karan Pandey
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Diwakar Pratap Pandey
 
Counsel for Opposite Party :- Govt. Advocate,Rakesh Kumar Singh
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Diwakar Pratap Pandey, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and Sri Rakesh Kumar Singh, learned counsel appearing on behalf of opposite party no. 2.

2. By means of present application u/s 482 Cr.P.C. the applicant has assailed the order dated 16.11.2018, passed by the Additional Chief Judicial Magistrate, Ambedkar Nagar in Crime No. 218 of 2013, under Sections 419, 420, 467, 468 I.P.C., Police Station - Bhiti, District - Ambedkar Nagar as well as order dated 03.09.2019, passed by the Sessions Judge, Ambedkar Nagar in Criminal Revision No. 95 of 2019 - Subhkaran Vs. State of U.P. and Another.

3. Brief facts of the case are that the applicant purchased 1/2 share of Gata No. 805, area 0.686 hectares, situated at Village - Chandapur, Tehsil - Bhiti, District - Ambedkar Nagar from one Ram Piyare S/o Ramkaran, resident of the applicant's village on 2nd July, 2003. Subsequent to the purchase of the said land, the applicant moved an application for mutation. On his application for mutation, the Revenue Authorities mutated the entire area of Gata No. 805 in favour of the applicant. In the meanwhile, earstwhile owner of the property - Ram Piyare, expired, leaving his son Vipin Kumar, who moved an application for rectification of the mistake and his application was allowed and the revenue authorities duly corrected the mistake committed earlier. Subsequently, it has also been stated that Vipin Kumar executed a sale deed of the remaining 1/2 area of Gata No. 805 in the name of applicant's sons namely Chintamani Pandey and Sheshmani Pandey. In the present case opposite party no. 2 is the complainant who lodged the first information report against the applicant on 09.09.2013, stating that the applicant had committed fraud in collusion with the revenue authorities and thereby the entire area of Gata No. 805 was mutated in favour of applicant. The complainant has stated that correct facts were deliberately concealed from the revenue authorities and therefore, first information report dated 09/10.09.2013, under Sections 419, 420, 467, 468 I.P.C., Police Station - Bhiti, District - Ambedkar Nagar was lodged. The Police investigated the matter wherein statements of the revenue authorities were also recorded alongwith the statement of the applicant as well as Sri Vipin Kumar - complainant (son of original owner of the land). The Police after investigation was of the opinion that no case is made out and submitted final report before the Court of Magistrate on 15th September, 2013. On 03.12.2014, an application was moved by Vipin Kumar before the Magistrate requesting to accept the report submitted by the Police while opposite party no. 2 moved a protest application on 22.06.2016.

4. By means of order dated 16.01.2018, the Additional Chief Judicial Magistrate, Ambedkar Nagar rejected the final report and took cognizance of the case under Section 190(1)b of Cr.P.C. and treating the application of opposite party no. 2 as complainant case issued summons to the applicant.

5. Aggrieved by the order dated 16.01.2018, the applicant filed revision before the Sessions Judge, Ambedkar Nagar, who also upheld the order passed by the Additional Chief Judicial Magistrate and dismissed the revision preferred by the applicant by means of order dated 03.09.2019, which has been impugned in the present application.

6. Learned counsel for the applicant has placed great reliance on the fact that there is no dispute among the seller, purchaser and the revenue authorities. He submits that it is not the case that there was any fraud factual or otherwise or manipulation in the records by either of the parties. He further submits that the applicant has purchased 1/2 share of Gata No. 805 and when the applicant moved an application for mutation, due to some mistake, the revenue authorities mutated the entire area of Gata No. 805 in favour of the applicant and on coming to know about the said mistake, it was duly corrected.

7. It is next submitted by learned counsel for the applicant that subsequently in the light of the fact that about Rs.2,00,000/- were given to the owner of the land, the remaining portion of Gata No. 805 was also mutated in favour of the sons of the applicant. It is also submitted that the opposite party no. 2 has no interest or any locus in the matter and criminal proceedings are being proceeded only at his behest and insistence of the complainant. It is further submitted that opposite party no. 2 is not a victim or aggrieved person so as to pursue the criminal case against the applicant.

8. Learned counsel for the applicant has laid great emphasis of the fact that the entire matter was investigated by the Police wherein statements of the concerned persons were recorded and after examination of the statements and especially the statement of the owner of the property, who specifically stated that he had no grievance nor he supported the version of the complainant that there is any forgery. The revenue authorities also appeared during the investigation and their statements were also recorded under Section 161 Cr.P.C., where also any sort of manipulation or forgery in the records was denied. Counsel for the applicant lastly submits that in absence of any material to support the contention of opposite party no. 2, present criminal proceedings have been initiated.

9. Perusal of impugned orders passed by the Civil Judge (Senior Division)/Additional Chief Judicial Magistrate as well as the revisional Court dated 03.09.2019 passed by the Sessions Judge, it is worth considering that both the Courts below have merely relied upon the facts stated in the protest petition whereas, it is alleged that the applicant is guilty of forging and manipulating the records in collusion with the Revenue Authorities. In both the orders there is not an iota of mention as to whether some wrong fact was pleaded in the application for mutation moved pursuant to the sale deed or any fact was deliberately, intentionally or wrongfully stated so as to mislead the Revenue Authorities to mutate the entire land in favour of the applicant or what was the nature of the forgery or the details of the fraud done by the applicant, while moving the application for mutation. In absence of aforesaid considerations or any averment in this regard, it is clearly borne out that both the Court below have not applied their mind to verify the allegations made by opposite party no. 2, who is the author of the present controversy, before proceeding to accept his application.

10. The gravamen of the contention of learned counsel for the applicant is that the criminal proceedings are to be prosecuted by the State and a stranger to the dispute who is not a victim nor aggrieved person does not have any locus to participate in the criminal proceedings as per provisions of the Code. Learned counsel for the applicant has made serious allegations against opposite party no. 2 to the effect that he wants to grab the remaining area of Gata No. 805 and only for this purpose he has lodged the first information report in question.

11. Learned counsel appearing on behalf of opposite party no. 2, to whom notices were issued appeared before this Court and vehemently contested the matter. He could not even attempt to answer as to what is his interest in the present proceedings or particularly how he would be benefited in case the applicant is prosecuted and what is his interest in the said dispute.

12. Just because the complainant lodged the first information report and consequently when the Police had filed final report, he appeared before the Court of Additional Chief Judicial Magistrate, and filed protest petition, and subsequently when notices were issued by this Court he submitted that it was his duty to appear and contest the matter.

13. Heard learned counsel for the parties and perused the record.

14. Looking into the facts as submitted above, the main question which arise is to ascertain the locus of opposite party no. 2 to interfere in the present proceedings.

15. Learned counsel for the applicant has vehemently submitted that it is well settled that a third party who is neither a victim nor has any interest, has no locus standi in the criminal proceedings.

16. Much reliance was placed on Section 24 Cr.P.C. Section 24 of the Code of Criminal Procedure, 1973 C.rP.C. which lays down that a Public Prosecutor shall be appointed for conducting prosecution, appeal or other proceeding on behalf of the Government, as the case may be. Section 301 Cr.P.C. states that the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. It further states that if in any such case any private person instructs a pleader to prosecute any person in any court, the pleader so instructed shall act under the directions of the Public Prosecutor or the Assistant Public Prosecutor and may with the permission of the court, submit written arguments after the evidence is closed in the case. Section 302 Cr.P.C. empowers the Magistrate inquiring into or trying a case to permit the prosecution to be conducted by any person other than a police officer below the rank of inspector. It further states that no person other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. Any person conducting the prosecution may do so personally or through his pleader.

17. Reliance has also been placed on Section 301 Cr.P.C. Section 301 came to be interpreted in a number of cases. In Thakur Ram v. State of Bihar, AIR 1966 SC 911 the Supreme Court ruled that in a case which has proceeded on a police report, a private party has no locus standi. It further ruled that, barring a few exceptions, in criminal matters, the aggrieved party is the State, which is the custodian of the social interests of the community at large, and so it is necessary for the State to take all steps necessary for bringing the person who has acted against the social interests of the community, to book.

18. In Kuldip Singh v. State of Haryana, 1979 SCC Online (P&H) 212 the Punjab and Haryana High Court held that, the Court has no role to play as regards a person engaging her own pleader, since the pleader's role is confined to briefing the Public Prosecutor. The Court further held that it only has a say in the matter, if the pleader so engaged by the party, wishes to make a written submission.

19. In Praveen Malhotra v. State, 1990 SCC Online (Del) 51 a third party sought to intervene in the matter and present oral arguments against a petition for bail filed by the accused. The petitioners relied on the judgment of the Supreme Court in Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297 where the Supreme Court had ruled that under Article 136, it can entertain appeals against judgments of acquittal by the High Court at the instance of private parties also, as Article 136 does not inhibit anyone from invoking the Court's jurisdiction. The Court, in the present case, distinguished this case and said that the ruling made by the Supreme Court in the context of Article 136 cannot be relied upon in the context of a third party seeking to intervene in a bail application filed by the accused under Section 439 Cr.P.C., exercising powers under Section 482.

20. In the case of P.V. Narashimharao v. State, 1997 SCC Online (Del) 485 the petitioner sought to intervene in an appeal filed by the accused against the order of the trial court. The Delhi High Court ruled that there was no provision in Cr.P.C. analogous to Order 1 Rule 10 of the Civil Procedure Code. It further stated that a reading of the section shows that a private party has no role in a proceeding instituted by the State. Hence, the application of the petitioner to intervene was rejected. In All India Democratic Women's Assn. v. State, 1997 SCC Online (Mad) 1040 wherein the High Court of Madras stated that Section 301(2) Cr.P.C. gives a third party only a right to assist the prosecution. The prosecution of the criminal proceedings, the Court held, is primary responsibility of the State, and if third parties are allowed to intervene, then there will be a number of associations to represent one party or the other in criminal proceedings, and this would give rise to confusion and chaos.

21. Considering the aforesaid decisions it is clear that the opposite party no. 2, is a stranger to the entire proceedings, has actively participated in the same in furtherance of his object to see that the petitioner is duly prosecuted in pursuance of the first information report lodged by him. He has not disclosed anywhere in the proceedings below, or before this court, as to what is his interest in the matter. Devoid of any interest in the disputed property, the opposite party no. 2, is neither an aggrieved person not has any sort of interest in the said dispute, and is therefore, clearly a stranger who is persuing the case for his personal objects which are not clear and therefore he does not have any locus standi to participate in the proceedings for prosecution of the petitioner. It has further been alleged that opposite party no. 2 himself is trying to usurp the property, and therefore he is pursuing the prosecution against the petitioner.

22. This Court has also gone into the merits of the matter, including the applications moved by opposite party no. 2, as well as the first information report. The opposite party no. 2 has not placed any material before the Court by means of his protest petition, which may indicate the culpability of the petitioner or the revenue authorities. The buyer and seller also unanimously agree that there was neither any illegality in the transaction, nor, in the mutation proceedings, but the entire prosecution is being sponsored and promoted by opposite party no. 2, without there being any material to support the contention raised by him. It has not been disclosed by him as to in what manner the petitioner has committed forgery or played fraud, but surprisingly, was able to convince the Courts below to proceed against the petitioner, without there being any material to support his contention.

23. The statement of Baijnath Prasad, Naib Thesildar has also been filed, according to whom on an application for mutation preferred by the petitioner, and by means of order dated 13.5.2013, he had mutated Gata No.805, area 0.686 hectares in favour of petitioner, after obtaining reports form the concerned Lekhpal and Kangoo. Subsequently, on 07.06.2013, an application for correction was moved by the petitioner, on which the Naib Thesildar cancelled his earlier order dated 13.05.2013, but on 18.06.2013, Vipin, the seller himself appeared before the authority and confirmed the sale and therefore he restored his earlier order dated 13.05.2013. He has stated that there was no fraud or forgery, and the entire exercise has been done in accordance with law.

24. This Court in exercise of powers vested under Section 482 of the Cr.P.C. would readily step in, to prevent any abuse of the process of law. In the present case the facts as stated above clearly make out a case for interference by this Court. The opposite party no. 2, who is an absolute stranger to the proceedings, firstly lodged a first information report against the petitioner and subsequently when no materials was found during investigation moved a protest petition seeking continuance of the prosecution of the petitioner and even contested the matter before the revisional Court as well as this Court.

25. It is thus clear that if middlesome interloper or officious intervener were permitted without any interest or concern, then, it will be not only the waste of time of the Court but also increase the pendency of vexatious litigations causing annoyance, frustration and worry among the genuine litigants. The Hon'ble Apex Court in Janta Dal Vs. H.S. Chowdhary and Others, AIR 1993 SC 892, observed in this regard as under :

"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievances, deserves rejection at the threshold."

26. If such litigants who act with oblique motive are permitted to approach the Courts, then the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system. (BALCO Employees Union Vs. Union of India and Others, AIR 2002 SC 350, at para 84).

27. The petitioner, who had purchased the land for due consideration from the seller, and that subsequently got the mutation done in his favour, and the mistake if any, was duly rectified by the revenue authorities. I do not find any criminal act having been committed during the entire process. The only person who could have been aggrieved was the seller, who's statement was recorded before the Police authorities during investigation, and he also clearly stated that he had no grievance against the purchaser. Even the statement of the revenue authorities were recorded by the Police who did not find commission of any offence and therefore a final report was filed before the Magistrate. The application moved by opposite party no. 2, also does not reveal any commission of offence by the petitioner and no material has been placed so as to indicate that the petitioner has committed any forgery or has played fraud.

28. In such circumstances permitting any proceedings to continue against the petitioner would be nothing but an abuse of the process of law, and accordingly the impugned orders dated 16.11.2018, passed by the Additional Chief Judicial Magistrate, Ambedkar Nagar in Case Crime No. 218 of 2013, under Sections 419, 420, 467, 468 I.P.C., Police Station - Bhiti, District - Ambedkar Nagar as well as order dated 03.09.2019, passed by the Sessions Judge, Ambedkar Nagar in Criminal Revision No. 95 of 2019 - Subhkaran Vs. State of U.P. and Another, are hereby quashed, and no proceedings deserve to be continued on the basis of the final report filed by the Police in Case Crime No. 218 of 2013, under Sections 419, 420, 467, 468 I.P.C., Police Station - Bhiti, District - Ambedkar Nagar.

29. The application is accordingly allowed.

Order Date :- 05.03.2021

A. Verma

(Alok Mathur, J.)