Sadanand vs State Of U.P. Through Secretary, ...
2023 Latest Caselaw 6755 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
************
 

 

 
Reserved on: 24.02.2023
 
Delivered on: 02.03.2023
 

 
Court No. - 4
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1509 of 2023
 
Petitioner :- Sadanand
 
Respondent :- State Of U.P. Through Secretary, Home Department, Civil Secretariat Lucknow And 2 Others
 
Counsel for Petitioner :- Angrej Nath Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Narendra Kumar Johari,J.

Heard Shri Angrej Nath Shukla, learend counsel for the petitioner and learned A.G.A. for the State.

By means of this writ petition the petitioner has challenged the F.I.R. bearing Case Crime No. 0112 of 2023 lodged at Police Station- Kotwali Nagar, District- Gonda against him and several others under Sections 419, 420, 467, 468, 471 IPC.

The contention of petitioner's counsel was that the petitioner has a valid Patta in his name which was granted in the year 1944 and his name is entered in the records of several faslis. Moreover, a Suit for permanent injunction was filed by the petitioner against the Nagar Palika Parishad, Gonda in respect of these very Gatas i.e. Gatas No. 133 and 135 which is still pending, therefore, the dispute being pending before the Civil Court and for the reasons aforesaid no offence is made out as is alleged, as such, the F.I.R. is liable to be quashed and the petitioner is entitled to interim stay of his arrest. Learned counsel for the petitioner submitted that the land in question was not Nazul land but was non Z.A. Land.

The learned A.G.A. on the other hand contended that no such Patta, as is being claimed by the petitioner, is entered in the Nazul records. The land is Nazul land and therefore, the same could not have been sold off by the petitioner. The investigation is going on and the documents being relied upon by the petitioner it appears some interpolation has made therein or they are fabricated. The petitioner was not in possession, yet, he sold off the said Nazul land without authority. As regards the Civil Suit filed by the petitioner, it is for permanent injunction and the temporary injunction claimed by the petitioner was rejected by the trial Court with the observations that there is no evidence to show that he was in possession and that the Khatuanis and other records filed by him, were very old. The said rejection order was upheld in Appeal on 18.07.2016 wherein he was given liberty to apply for getting freehold deed of the Nazul Land executed before the defendants, therefore, no benefit can be claimed by the petitioner on account of pendency of the Civil Suit. In any case, the allegation herein is of criminal offences alleged under the provisions mentioned in the F.I.R., as, the Patta itself is forged and there is no entry of it in the Nazul Register. As already stated, the other records being relied upon there appear to be interpolations and manipulations therein which are being investigated, therefore, this is not a fit case for interference under Article 226 of the Constitution of India, especially as, a similar writ petition challenging the same F.I.R. filed by the purchaser of the land bearing Criminal Misc. Writ Petition No. 1287 of 2023 has already been dismissed on 17.02.2023 after the original records were produced before the Court. He also submitted that the petitioner has a remedy under Section 438 Cr.P.C. to seek anticipatory bail, if otherwise permissible in law. He also emphatically submitted that considering the age mentioned by the petitioner in his Voter ID Card which is 52 as on 01.01.1995, he was only one year old when the alleged Patta of 1944 was issued, which itself shows that Patta, as claimed, could not be issued in his name.

Having heard learned counsel for the parties and after perusing the records, the Court finds that on 23.02.2023 we had passed the following order:-

"Shri Angrej Nath Shukla, learned counsel for the petitioner, Shri S.N. Tilhari, learned A.G.A.-I for the State and Shri S.C. Kashish, learned counsel appearing for Nagar Palika Parishad, Gonda.

Similar petition arising out of the same F.I.R. by the purchaser of the land which is said to be Nazul land has been dismissed by this Court on 17.02.2023. However, the petitioner's counsel refers to pendency of the civil proceedings in respect of the same land against the Nagar Palika, wherein he has sought injunction against it and he also wants to bring on record certain Khataunis which are referred in the order of Miscellaneous Appeal No.29 of 2015, arising out of the temporary injunction matter, which was rejected by the trial court and which was disposed of on 18.07.2016, against which a petition under Article 227 of the Constitution of India bearing No.21720 of 2016 was filed, which has been dismissed for want of prosecution on 29.09.2016. If there are any other Khataunis, the same be brought on record.

Put up this case tomorrow, i.e. on 24.02.2023."

The supplementary affidavit does not contain any Khatauni other than those already on record of the trial Court in the Civil Suit bearing No. 557 of 2013 filed by the petitioner and others against Nagar Palika Parishad. The trial Court while rejecting the temporary injunction prayer of the petitioner on 07.03.2015 has observed that the Khataunis and other records are very old and pertain to the period up to 1393 (1987) fasli only and has also said that there is no evidence to show that plaintiffs are in possession. The said rejection order has been upheld in Appeal bearing Misc. Civil Appeal No. 29 of 2015 decided on 18.07.2016. Against this order a Petition under Article 227 of the Constitution of India is said to have been filed before this Court bearing Writ Petition No. 21720(M/S) of 2016; Sadanand Vs. Additional District Judge and Ors. (Now Matters Under Article 227 No. 21720 of 2026), however, the same was dismissed in default on 29.09.2022 and on the date the judgment was reserved in this case, it was informed that some application has been filed a day earlier or was proposed to be filed.

A similar writ petition bearing Criminal Misc. Writ Petition No. 1287 of 2023 challenging the same F.I.R. having been filed by the purchaser, the petitioner therein being one of the vendors, has been dismissed on 17.02.2023 in the following terms:-

"On 16.02.2023, the following order was passed :-

"Heard Shri J.N. Mathur, learned Senior Counsel assisted by Shri Sarvesh Kumar Tiwari, learned counsel for the petitioner and learned A.G.A. for the State.

Shri J.N. Mathur, learned Senior Counsel appearing for the petitioner submits that he is a bonafide purchaser and there are documents showing the name of the original lessee of the Nazool land, however, the Investigating Officer who is present in person says that he has found interpolation therein. Learned counsel for the petitioner also says that if at all it is a civil dispute, no criminality is involved on the part of the petitioner who is bonafide purchaser. He also submits that in the F.I.R. it is mentioned that the name of the vendors is not even mentioned in the Khataunies, whereas, relevant revenue records including the Khatauni for 1370 fasli (year 1963) are on record which contain the name of the vendor. The lease itself was executed in their favour long back in the year 1940, but, now before this Court today it is being said that though the names are mentioned in the records but there is some interpolation. This change in the stand itself goes to show that the F.I.R. has been lodged without due and proper inquiry into the records and a bonafide purchaser has been harassed in this manner.

Learned A.G.A. offers to produce the original records pertaining to the documents annexed as Annexure No. 4 and 5 to show that there are interpolations. He is permitted to do so.

List/put up on tomorrow i.e. 17.02.2023 as fresh.

Till tomorrow i.e. 17.02.2023 the petitioner shall not be arrested in Case Crime No. 0112 of 2023, under Sections 419, 420, 467, 468, 471 IPC, Police Station - Kotwali Nagar, District - Gonda."

Today Shri Jay Nath Yadav, Chief Revenue Officer, Gonda, Shri Sanjay Kumar Mishra, Executive Officer, Nagar Palika Parishad, Gonda, Shri Guru Saran Pandey, Nazul Amin, Nagar Palika Parishad, Gonda and Shri Nageshwar Nath Patel, Investigating Officer are present before the Court.

Shri Satish Chandra Kashish, learned counsel for the Nagar Palika Parishad, Gonda has placed before the Court, the Nazul Register, which, according to him has been prepared since 1900 and the entries pertaining to the year 1944 do not mention about any such Patta, a copy of which has been annexed as Annexure 4 to the writ petition. Thereafter, Chief Revenue Officer, Gonda has placed before the Court the Khatauni pertaining to 1356 Fasli, wherein at serial no. 69, name of one Durga Prasad, son of Ram Das is mentioned whereas in the copy of Khatauni annexed by the petitioner as part of Annexure 5 (at page 132), name of Sitaram who is the original lessee here from whose successor-in-interest, petitioner claims to have purchased the Nazul land is mentioned.

Without saying much and without prejudice to the rights of the parties in the pending investigation, at least at this stage, on a comparison of the documents, we find that there is much to be desired.

Considering the allegation in the F.I.R., even though the petitioner is a purchaser, it is to be ascertained during investigation as to who committed the crime and at what time it was committed, whether the documents, if at all, were prepared subsequently and the petitioner had a role to play in the same, this would be seen during investigation, all these factual issues will not be gone into by this Court under Article 226 of the Constitution of India after seeing the aforesaid.

Once again we make it clear that any observation made herein will not be treated as adverse to the rights of any of the parties in the pending investigation or even thereafter, if the occasion so arises. As far as stay of arrest is concerned, the petitioner has a remedy under Section 438 Cr.P.C., which he can avail.

In view of the above, the writ petition is dismissed.

At this stage Shri J.N. Mathur, learned Senior Advocate says that there is a delay of four years in lodging the F.I.R. In matters of fraud, forgery and fabrication of documents delay is inconsequential."

In this case also the original records were produced by the Nagar Palika and the Revenue Authorities and their case was that there have been interpolations and manipulations in the revenue records. The documents annexed are fabricated. There is no Patta of the Nazul land and none is recorded in Nazul Register 45. The records annexed with the supplementary affidavit are the same which were considered by this Court in the earlier writ petition and in respect of which the stand of the opposite parties has been clearly recorded. According to the opposite parties, these are not genuine documents. The petitioner was not in possession, yet, forcible possession was sought to be taken by the purchaser after execution of the sale deed of the Nazul land.

As regards the dispute being essentially a civil dispute as was claimed by the petitioner's counsel, if the assertions of the opposite parties in the F.I.R. and as stated before us, are found to be correct, then, it would not be merely a case of civil dispute, but, one of interpolation, fabrication and manipulation of records, but, all these would of course be subject matter of investigation wherein the petitioner can participate and place his version before the Investigating Officer and it is the Investigating Officer who would have to form an opinion based on the evidence collected as to whether any criminal offence was made out against the petitioner or not. But, as of now, it can not be said that no cognizable offence is made out and the F.I.R. should be quashed at the threshold. Mere pendency of the Civil Suit filed by the petitioner also does not enure to his benefit in view of the discussion made hereinabove. Moreover, the Court finds from the order dated 18.07.2016 passed in Appeal against the rejection of temporary injunction, a recital that the land was Nazul land and in fact the petitioner was granted liberty to move application for getting the land freehold as per policy of the Government. The petition against the said order under Article 227 of the Constitution of India remains dismissed for want of prosecution, as of now. In Para 17 of the plaint relating to the Suit filed by the petitioner he has himself claimed that the opposite parties only having the authority to maintain the Nazul area and Nazul land should execute a freehold deed in favour of the plaintiffs. It is based on this that in Misc. Appeal he was given liberty to apply for freehold. In the said paragraph it is also mentioned that opposite parties had declined to execute a freehold deed in respect of the land in question in favour of the plaintiff on 16.02.2013. But before this Court it is being said that the land in question is not Nazul Land.

The decision rendered by Hon'ble the Supreme Court in the case of Inder Mohan Goswami and Anr. Vs. State of Uttaranchal and Ors. reported in 2008 (1) GLH 603 relied upon by the petitioner, does not help the petitioner in the facts and circumstances of this case as discussed hereinabove.

In these circumstances, leaving it open for the Investigating Officer to look into all relevant aspects of the matter and without prejudice to the rights of the petitioner herein to place his version before him and also to seek such other remedies such as in the form of 438 Cr.P.C., we dismiss this writ petition, as, this is not a fit case for interference under Article 226 of the Constitution of India, especially as, the petitioner has a remedy under Section 438 Cr.P.C. to apply for anticipatory bail.

(Narendra Kumar Johari,J.)           (Rajan Roy,J.)
 
Order Date :-02.03.2023				
 
R.K.P.