Salauddin And 8 Others vs State Of U.P. And Anr.
2023 Latest Caselaw 36323 ALL

Allahabad High Court

Salauddin And 8 Others vs State Of U.P. And Anr. on 22 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:243078
 
Reserved On: 07.08.2023
 
Delivered On: 22.12.2023
 
In Chamber
 

 
Case :- CRIMINAL REVISION No. - 4648 of 2015
 

 
Revisionist :- Salauddin And 8 Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Shiv Bahadur Singh
 
Counsel for Opposite Party :- G.A.,Dharmaveer Singh
 

 
Hon'ble Ram Manohar Narayan Mishra,J.
 

1. Instant Criminal appeal has been preferred by the accused appellants with a prayer to set aside the judgment and order dated 30.9.2015, passed by learned Chief Judicial Magistrate, Mau in Misc. Case No.171 of 2014, Bhagyawani Devi vs. Salauddin and others, arising out of Case Crime No.769 of 2012, under Sections 143, 447, 419, 420, 352, 504, 506 IPC. By the impugned order, learned CJM, Mau has summoned the revisionists to face trial for charge under Sections 143, 447, 352, 504, 506 IPC, after rejecting final report submitted by the Investigating Officer in Case Crime No.769 of 2012, Police Station Kotwali, District Mau.

2. Heard learned counsel for the revisionists, learned counsel for the respondent No.2, learned AGA for the State and perused the material placed on record.

3. The facts leading to file present revision are that the informant Smt. Bhagyamani Devi, presently respondent No.2 lodged FIR at police station concerned on 11.8.2012, at 10:00 hours, on the basis of order passed by learned Judicial Magistrate, District Mau on application under Section 156(3) Cr.P.C. moved by the informant on 14.6.2012, before the court concerned. The informant has stated in her application under Section 156(3) Cr.P.C., which formed basis of lodging of FIR, that the informant is co-sharer in Bhumidhari of plot Nos.388 and 396, situated at Village- Mauza Sarahu, Police Station Kotwali, District- Mau. The accused persons namely Salauddin and others are influential and affluent people. They assemble in the night of 15.4.2012 at around 10:00 PM, armed with weapons and tried to take possession of the land of the informant by keeping there building material. The husband and localites gathered on shouting of the informant, who witnessed the incident. The accused persons abused and threatened the informant and her husband and chased them with a view to assault them with intention to kill. The informant and her husband saved themselves anyhow by entering into their house. Accused Salauddin has sold his share in said plot to Afzal and others. However, he has again sold share of the informant to Iftikhar, Irfan and others claiming the same of his ownership and was trying to keep the vendees in possession of said plot. The informant informed the police in the same night but no action was taken thereon. The police investigated the case, recorded statement of witnesses Paras Maurya- husband of the informant, Chhedi Maurya, Awadhesh Maurya, Ram Kishun Maurya, Lal Chandra Maurya and final report in favour of the accused persons with finding that the investigation is concluded with final report as no sufficient evidence could be found to prosecute the accused persons for said charges under Sections 143, 447, 419, 420, 352, 504, 506 IPC.

4. Feeling aggrieved by the final report, the informant appeared before the learned CJM and filed protest petition, in which she supported her FIR version and stated that initially the Investigating Officer filed chargesheet in the case on 27.8.2012 against named accused persons. However, the accused Salauddin and Julfekar are influential people, having sufficient political cloud, got further investigation in the case, by obtaining order from S.P., Mau. The further investigation was carried out by S.I., Krishna Murari Mishra, the then S.O. Daxin Tola, Mau, who did not conduct fair investigation. He recorded statement of the witnesses in arbitrary manner and with a view to extend benefit to accused persons, filed final report in their favour by receiving notary affidavits of accused persons.

5. Learned CJM considered the submissions of learned counsel for the informant and the material collected during investigation and he observed that in extract of Khatauni filed on record, the name of the informant/complainant appears therein as co-sharer on plot No.388 and 396. On facts of the case, it is found that the investigation is carried out in erroneous manner. Therefore, there is sufficient reason to reject the final report and take cognizance of the offence against accused persons. With above finding, learned CJM concerned rejected the final report and summoned the accused persons to face trial under Sections 143, 447, 352, 504, 506 IPC.

6. Feeling aggrieved by the impugned order, the accused persons preferred present criminal revision.

7. Learned counsel for the revisionists submitted that the respondent No.2 lodged an FIR dated 11.8.2012 against revisionist with allegation of illegal grabbing of her land. The Investigating Officer recorded statement of Paras Maurya, husband of the complainant on 21.9.2011, wherein, he has stated that he purchased land measuring 40 kadi from plot No.396 and 112 kadi from plot No.388, situated at Village Mauza Sarahu, Police Station Kotwali, District Mau from Ishwar Chand, son of Ramanand Maurya. The Investigating Officer also recorded statement of Paras Maurya on 27.11.2012, wherein he admitted that Civil Suit No.446 of 2011, Bhagyamani Devi vs. Salauddin, is pending in the Court of Civil Judge (JD), Mau, in which an order of status quo is passed. Thereafter, statement of Chhedi Maurya was recorded on 10.7.2013. The statements of Awadhesh Maurya and Ram Kishan Maurya were recorded on 21.8.2013 and 14.12.2013, respectively. The Investigating Officer brought on record relevant documentary evidence i.e. extract of Khatauni in regard to disputed plots. He submitted final report on the basis of investigation with finding that no sufficient material could be collected against accused persons in support of said charges. In Original Suit No.446 of 2011, Bhagyamani Devi vs. Salauddin, The court of Civil Judge (JD), Mau, vide order dated 16.5.2015 dismissed the application 6-C-2 for temporary injunction, with finding that the plaintiff's has admitted this fact disputed plot Nos.388(M), area 0.247 hectares and 396, area 0.075 hectare are unpartitioned, in which every co-sharer is supposed to be in possession of every inch of the land. On the basis of pleadings of the parties, it appears that the plaintiff is not in possession of the land and construction of defendant is, prima facie, found therein.

8. He lastly submitted that the learned Magistrate while passing impugned order has not followed with proper procedure laid down in judicial precedent for dealing with final report and protest petition. Accused revisionist are in possession of disputed property. There is dispute in regard to partitioned land, which is essentially in civil nature and for that reason, the police rightly submitted final report. Once on the strength of documents, Court came to the conclusion that both the parties are co-sharer then believing the possession of subsequent vendee over undivided share is illegal and same is based on presumption because both the parties are claiming their possession over disputed portion. The present FIR was lodged at the instance of respondent No.2 to give cloak of criminal offence of a matter, which was essentially of civil nature. The impugned order is liable to be set aside.

9. Per contra, learned counsel for the respondent No.2 and learned AGA submitted that there is no illegality, irregularity or perversity in the impugned order passed by the learned court below. Learned Magistrate has not taken cognizance of the offence of cheating under Sections 419 and 420 IPC while rejecting the final report submitted by the police but cognizance of the offence for creating unlawful assembly, assault, use of criminal force, insult, intended to breach of peace and criminal intimidation, has been taken by the Magistrate in impugned order, which is made out on the basis of material on record.

10. This court in Pakhandu Vs. State of U.P. reported in 2001 SCC Online All 967, after considering the judgement of Hon'ble Apex Court in Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117, H. S. Bains vs. State, AIR 1980 SC 1883, India Carat Pvt. Ltd. v. State of Karnataka, AIR 1989 SC 885 (890), observed in Paragraphs Nos.14 and 15, as under:-

14. In the case of Tularam v. Kishore Singh MANU/SC/0163/1977 : AIR 1977 SC 2401, it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.

15. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-

(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or.

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

11. In aforesaid judgment, Division Bench of this court concluded that where cognizance has been taken under Section 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to Sub-section (2) of Section 202, Cr.P.C. shall have no application. In the light of aforesaid judgement of Division Bench of this Court, it can be concluded that on receiving final report the following four courses are open to a Magistrate and he may adopt any one of them as the facts and circumstances of the case may require :- (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

12. In present case, all the four courses were open before the learned Magistrate after filing of final report by the Investigating Officer in favour of the accused persons and consequent filing of protest petition by the complainant/informant. From the dicta of Pakhandu vs State of UP (supra), the concerned Magistrate has option to order further investigation, if he satisfied that the investigation was made in a perfunctory manner, as in this case, wherein learned Magistrate has observed that from perusal of facts and circumstances of the case, it is revealed that the investigation has been carried out in erroneous manner. Therefore, in such situation a course was open to the Magistrate to order further investigation in the case but this fact is significant that initially a chargesheet was filed in the case against accused persons but further investigation was directed on behest of accused persons and final report was submitted in their favour after investigation. Therefore, the learned Magistrate has rightly taken cognizance of said offences after his, prima facie, satisfaction regarding the commission of offence by accused persons and issued process against them to face trial for said offences. I find no illegality or factual error where Magistrate has instead of ordering further investigation as suggested by learned counsel for the revisionist has proceeded in the case treating as State case and took cognizance of the offence on the basis of material collected during investigation. This is settled law that while dealing with final report and protest petition, the Magistrate is not bound by conclusion of Investigating Officer and he may take his independent opinion on the basis of material collected during investigation to adopt the course of action befitting to the facts and circumstances of the case. In the light of binding judicial precedent, the revision is devoid of merit and is liable to be dismissed.

12. Accordingly, present criminal revision stands dismissed and the impugned order passed by learned Chief Judicial Magistrate is affirmed.

Order Date :- 22.12.2023

Kamarjahan