Ramesh Yadav vs State Of U.P. And Another
2023 Latest Caselaw 14783 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:103600
 

 
Reserved on 26.04.2023
 
Delivered on 11.05.2023
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 25683 of 2021
 

 
Applicant :- Ramesh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Jagdev Singh,Chandra Bhusan Kushwaha,Pramod Kumar Sahani,Sujeet Kumar
 
Counsel for Opposite Party :- G.A.,Sunil Kumar Singh
 

 
Hon'ble Shiv Shanker Prasad,J.

1. Heard the learned counsel for the applicant, learned counsel for opposite party no.2 and the learned A.G.A. for the State as well as perused the entire material available on record.

2. The present 482 Cr.P.C. application has been filed praying for quashing of the charge-sheet No. 199/2018 as well as entire proceedings of Case No. 2303095/2018, (State Vs. Shyam Narayan and others), arising out of Case Crime No. 309/2017, under Sections 419, 420, 467, 468, 471, 406, 506 and 504 I.P.C., Police Station Khorabar, District Gorakhpur, pending in the court of Additional Chief Judicial Magistrate-Ist, Gorakhpur.

3. Brief facts of the case are that on 13.04.2017 opposite party no.2 has lodged a first information report against the applicant, his brother and one Lekhpal alleging therein that the named accused persons have manipulated in the revenue records and accused Shyam Narayan has sold out the property situated at Gata No. 298, area 51 Dismil, 7 Kadi to the applicant. Earlier the said land was sold by Radhe Shyam to opposite party no.2 and by the order of S.D.M., Sadar dated 01.02.2016, his name was mutated in the revenue records.

4. It is the further case of the applicant that opposite party no.2 moved an application dated 04.03.2016 before the S.D.M. Sadar, Gorakhpur and vide order dated 13.04.2016 the present F.I.R. has been lodged against the accused persons.

5. On the basis of the F.I.R. Investigating Officer started the investigation and recorded the statements of Pramod Kumar Mall, Shyam Narayan Pandey, Vinod Kumar Mall, Smt. Mandvi Singh and Smt. Usha Singh under Section 161 Cr.P.C. and all the witnesses have supported the prosecution case.

Against the F.I.R. the applicant approached this Court by filing Criminal Misc. Writ Petition No. 7576 of 2017 (Ramesh Yadav Vs. State of U.P. and others) and this this Court vide order dated 08.05.2017 has stayed to arrest of the applicant.

6. On 23.04.2018 after investigation, on the basis of the statements of witnesses recorded under Section 161 Cr.P.C, the Investigating Officer submitted the charge sheet no. 199 of 2018. on which the concerned Magistrate vide impugned order dated 16.07.2018 has taken cognizance and summoned the accused persons.

7. Learned counsel for the applicant submits that in fact Shyam Narayan has never executed any power of attorney (Annexure No.7) in favour of his brother Radhe Shyam as is mentioned in the F.I.R. He further submits that on the basis of said power of attorney, Radhe Shyam executed an agreement to sale the said land to opposite party no.2 on 27.01.1988 for total 1.49 acres of land a copy of the agreement to sale dated 27.01.1988 has been enclosed as Annexure No. 8 to this application.

8. It is further submitted that on the basis of said power of attorney dated 17.04.1986, Radhe Shyam executed one sale deed dated 20.09.1989 in favour of Vinod Kumar Mall and Pramod Kumar Mall i.e. opposite party no.2 for the area measuring 45.5 dismil and the said power of attorney dated 17.04.1986 is the subject matter of Original Civil Suit No. 221 of 2018 (Shyam Narayan Vs. Radhe Shyam and 2 others).

9. It is also submitted that Shyam Narayan, who is the real owner of half share of property of Gata No. 298, area 1.49 Acre of village Lahsadi sold 52 dismil of land out of his share of 74.5 dismil to the applicant vide sale deed dated 09.08.2010 (Annexure No.10).

10. On the basis of sale deed dated 09.08.2010, the name of the applicant was mutated in the revenue records and he took actual and physical possession over the disputed property. Opposite party no.2 and his brother namely, Vinod Kumar Mall filed an application under Section 33/39 LR Act to struck off the name of the applicant and the applicant is a party, which is still pending before the Commissioner, Gorakhpur.

Applicant filed a Civil Suit No. 6153 of 2017 (Ramesh Yadav Vs. Pramod Kumar Mall) for permanent injunction to restrain the opposite parties from interfering peaceful possession over the disputed property. (Annexure No.11 & 12).

11. It is next submitted that Gata No. 298 area 1.49 dismil was joint undivided property and Radhe Shyam had sold out his half share i.e. 74.5 dismil to Vinod Kumar Mall, Pramod Kumar Mall, Smt. Mandvi and Smt. Usha vide sale deed dated 29.03.1988. Thereafter he has manipulated/ manufactured the power of attorney of Shyam Narayan and on the basis of the said false and fabricated power of attorney sold 45.5 dismil land of his brother Shyam Narayan to Vinod Kumar Mall and Pramod Kumar Mall. For the rest of the land i.e. 29 dismil, Radhe Shyam executed agreement to sale on 21.09.1989 with opposite party no.2. On being informed, Shyam Narayan filed Civil Suit No. 221 of 2018 against his brother Radhe Shyam, Opposite Party No.2 and his brother Vinod Kumar Mall to cancel the power of attorney dated 17.04.1986 and also to cancel the sale deed dated 20.09.1989.

12. It is lastly submitted that learned Sub Divisional Magistrate, Sadar vide order dated 13.04.2016 directed the Station House Officer, Khorabar to lodge F.I.R. and take legal action, which is without jurisdiction as the Sub Divisional Magistrate/ Executive Magistrate has no power to direct the police to register an FIR on the basis of a private complaint.

13. Submission is that the entire prosecution case is based upon the civil litigation and the dispute is purely civil in nature and opposite party no.2 has tried to pressurize the applicant and he is misusing the process of law. Further submission is that applicant is bonafide purchaser of the dispute property.

14. Per contra, learned A.G.A. for the State submits that all the contentions raised on behalf of the applicant raise disputed question of fact and the same cannot be adjudicated at this stage. There is no illegality or infirmity in the order passed by the Sub-Divisional Magistrate directing the Police authorities to register the FIR against the applicant and other named accused. Therefore, learned A.G.A. submits that the present application has no merit and is liable to be rejected.

15. I have considered the submissions made by the learned counsel for the applicant and the learned A.G.A. for the State and have gone through the records of the present application.

16. The contention of the learned counsel for the applicant that the dispute between the parties is civil in nature rather than criminal is liable to be rejected on the ground that the FIR has been registered on 13th April, 2017 when as a matter of fact the civil suit was filed by the applicant on 28th November, 2017 for permanent injunction restraining the opposite parties to interfere in the peaceful possession over the land in dispute.

17. However, this Court has find substance in the contention raised by the learned counsel for the applicant that under the Code of Criminal Procedure, the Sub-Divisional Magistrate of the Tehsil concerned has no power to direct the Police Authorities to register the FIR on any complaint made by private person. The Apex Court in the case of Naman Singh @ Naman Pratap Singh & Another vs. State of U.P. & Others reported in 2018 0 Supreme (SC) 1249 has clearly held that under the Code of Criminal Procedure the Sub-Divisional Magistrate has no role to play in any manner.

For ready reference, the relevant paragraph of the judgment of the Apex Court is being quoted herein-under:

"8. It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an F.I.R. on basis of a private complaint lodged before him. If a complaint is lodged before the Executive Magistrate regarding an issue over which he has administrative jurisdiction, and the Magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an F.I.R. himself in the matter. In such a case, entirely different considerations would arise. A reading of the F.I.R. reveals that the police has registered the F.I.R on directions of the Sub−Divisional Magistrate which was clearly impermissible in the law. The Sub−Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the F.I.R. in the manner done is contrary to the law and without jurisdiction."

18. From perusal of the entire judgment of the Apex Court in the case of Naman Singh @ Naman Pratap Singh (Supra) and the provisions of Code of Criminal Procedure, this court is of the firm opinion that the proper remedy available for the complainant/opposite party no.2 for lodging first information report before the Police was under to Section 154 Cr.P.C. or was to proceed under Section 154(3) Cr.P.C. if circumstances so warranted. The complainant/opposite party no.2 had an alternative to make an application before the concerned Magistrate under Section 156(3) of the Code in the event of the refusal of the police to act. Remedy was also available to the complainant/opposite party no.2 by filing a complaint under Section 200 of the Code before the jurisdictional Magistrate.

19. Considering the facts and circumstances of the case, as noted herein above, the submissions made by the counsel for the parties and also the judgment of the Apex Court in the case of Naman Singh @ Naman Pratap Singh (Supra), the court is of the considered opinion that the FIR lodged by opposite party no.2 dated 13.04.2017 pursuant to the order of the Sub-Divisional Magistrate concerned dated 13.04.2016 cannot be legally sustained is liable to be quashed.

20. Since the FIR itself has no legs to stand on the ground of legal proposition of law laid down by the Apex Court the entire criminal proceedings arose out of the FIR dated 13.04.2017 also go in vain.

21. Accordingly, entire proceedings of Case No. 2303095/2018, (State Vs. Shyam Narayan and others), arising out of Case Crime No. 309/2017, under Sections 419, 420, 467, 468, 471, 406, 506 and 504 I.P.C., Police Station Khorabar, District Gorakhpur, pending in the court of Additional Chief Judicial Magistrate-Ist, Gorakhpur are hereby quashed.

22. However, it is clarified that this Court has purposely refrained from going into the merits of the case so as not to prejudice either parties and also keeping in mind the nature of the jurisdiction under Section 482 of the Code. Any application by the complainant/opposite party no.2 hitherto under the Code will therefore have to be considered by the appropriate authority or forum in accordance with law.

23. The present application is allowed subject to the observations/directions made herein above. There shall be no order as to costs.

Order Date :- 11.5.2023

Abhishek Singh