Md. Wasi Khan @ Wasi Khan vs The State Of Jharkhand
2023 Latest Caselaw 3661 Jhar

                                                1


         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr. M. P. No. 79 of 2020
         1.Md. Wasi Khan @ Wasi Khan
         2.Khursheed Ahmad
         3.Kamal Nayak
         4.Manoj Nayak                         .... .. ... Petitioner(s)
                           With
                     Cr. M. P. No. 3462 of 2018
         Ashok Singh @ Ashok Kumar Singh       .... .. ... Petitioner(s)
                              With
                      Cr. M. P. No. 1613 of 2018
         Pankaj Kejriwal @ Pankaj Kumar Agarwal.... .. ... Petitioner(s)

                                     Versus
         1.The State of Jharkhand.
         2.Sukra Karmali                                .. ... ...Opp. Party(s)
                        ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

         For the Petitioner(s) :          Mr. Mokhtar Khan, Advocate
                                    Mr. Faisal Khan, Advocate
                                          Mr. A. K. Das, Advocate
                                          Mr. Sunil Kr. Agarwal, Advocate
         For the State              :     Mr. Rajendra Ram Ravidas, APP
                                          Mrs. Vandana Bharti, APP
                                          Mr. Sanat Kr. Jha, APP
                        ......

09/ 03.10.2023. Heard, learned counsel for the parties.

1. The aforesaid all the three Cr. M. Ps. have been filed against the summoning order whereunder cognizance of the offence has been taken under Sections 420, 323 and 506 IPC in Complaint case No.1748/2013, as such, they are being heard together and will be disposed of by the common order.

2. The petitioners are the purchasers of the land and the complainant is heir and descendant of the vendor.

3. The case of the complainant in brief is that he is a member of Scheduled Tribe by Caste- Lohra and his grand-father, namely, Aghnu Karmali was one of the recorded tenants of the Khatiyan under Khata No.6 and 3 of Village- Booty and Dumardaga. It is alleged that the accused persons (petitioners) forced the aunt of the complainant to sell the land appertaining to Khata No.3, Plot No.251 to the petitioners in violation of the provisions of Section 46 of the C.N.T. Act

4. The statement of the complainant and witnesses was recorded during enquiry and the learned court below found prima facie case to be made out under Sections 420, 323, 506 of the Indian Penal Code and processes were directed to be issued. Aggrieved by the order, the aforesaid three Criminal Misc. Petitions have been filed.

Cr. M. P. No.79 of 2020.

5. It is submitted by learned counsel for the petitioners that petitioner no.1 (Md. Wasi Khan @ Wasi Khan) was the power of attorney holder duly executed by one Dayanand Mishra and his wife, Shail Mishra who were the rightful owners of land pertaining to Khata No.3 and Plot No.295 and on the basis of such power of attorney, he had executed the sale deed in favour of one Ashok Kumar Singh on 15.03.2008 and, therefore, he has been dragged into present case.

6. The Complainant does is not the member of Scheduled Tribe as he is by caste, Lohar and not Lohara as has been held in W.P.(C) No.2512 of 2018 earlier SAR Appeal No.07 R 15 of 2009-10 was rejected which attained its finality after dismissal by this Court in LPA No.368 of 2020 . Therefore restriction under Section 46 of the Chotanagpur Tenancy Act, 1908 (in short C.N.T. Act) will not apply.

7. It is further submitted that even if it is assumed that petitioner(s) had no valid title to transfer, still the only person who can be said to be aggrieved by the said transfer is purchaser and not the person who claims to be the owner/co- owner of the said property.

Cr. M. P. No.1613 of 2018

8. It is submitted by learned counsel for the petitioner (in Cr. M. P. No.1613 of 2018) that the complainant initiated a proceeding under Section 71A of the C.N.T. Act being S.A.R. No.166 of 1989-90 for restoration of the land against petitioner (Pankaj Kejriwal) and the S.A.R. Officer ordered for restoration of the land in favour of the complainant (Sukra Lohra) and against the said order, SAR Appeal No.07 R 15 of 2009-10 was preferred by the petitioner (Pankaj Kejriwal) in which the restoration order was set aside by the Additional Collector vide order dated 22.02.2016. The revision being S.A.R. Case No.20 of 2010 against the said order was preferred which was rejected by the revisional authority.

9. The order was assailed before the Writ Court which was rejected and it attained finality vide order dated 7th August, 2023 passed in LPA No.368 of 2020.

10. Against these backgrounds and facts, it is submitted that there is a definite finding of the learned court below as well as by this Court that the complainant was not a member of Scheduled Tribe and the restoration application was rejected.

11. It is submitted that on the basis of statement of the complainant made on SA during enquiry, no offence against the petitioner will be made out as there is no allegation against him. The allegation of forcibly getting the sale deed executed is of the year 1989, but no complaint was filed immediately after the

incidence and the vendor never complained about the said sale before any authority for more than about 34 years. The present case has been filed after a long time i.e. after about 34 years of the alleged incidence when the complainant and his aunt were alleged to have been forced to execute the sale deed. The vendor (Fulan Devi) has not come-forward to make any such allegation and she has not been examined during enquiry.

12. Reliance is placed on the judgment reported in 2019 SCC OnLine SC 208 at Paras 30 & 31 and 2021 SCC OnLine SC 942 at Paras 18 to 20, 26 and 31. It is submitted that the land was sold by said Fulan Devi who had no right, title and interest over the suit property as will be apparent from the judgment and decree passed in favour of the complainant and against the Fulan Devi in Title Suit No.108 of 1992 / 06 of 1999.

13. It is also submitted that not only the sale was executed by stranger having no title, but the petitioners took the possession of the land of the complainant which was decreed in his favour by court of competent jurisdiction. Cr. M. P. No.3462 of 2018.

14. It is submitted by learned counsel for the petitioner (Ashok Singh) that no sale- deed was ever executed in his favour by the said Fulan Devi and has been dragged into this case.

Submission of the State as well as O.P. NO.2.

15. Learned APP for the State assisted by learned counsel for the complainant/ Opp. Party No.2 has defended the summoning order. It is submitted that the complainant, by caste is Lohra as per the complaint petition and by mistake his caste has been entered into the record of rights as Lohar.

16. Having considered the rival submissions it is apparent that Complainant claims to be grand-son of the recorded tenant, Aghnu Karmali and the sale deed was executed by the aunt of the complainant, namely, Fulan Devi @ Rusni Devi who executed the sale-deed in favour of Dayanand Mishra and his wife in the year 1989-90, but till date the vendor never came forward to lodge that no force or fraud was used in execution of the sale-deed. The complainant filed restoration case under Section 71A of the CNT Act which was ordered in his favour, but was set aside by the Addl. Collector vide order dated 22.02.2016. The revision and the Writ against the order of Addl. Collector was answered in negative and attained finality.

After having failed to get the restoration of the land, the complainant filed the present case on the ground that the sale deed had been executed in violation of provisions under Section 46 of the CNT Act. It is not disputed that

the caste of the complainant has been entered as Lohar which is not a member of scheduled Tribe or Scheduled Caste and there is presumption of correctness of record of rights under Section 84 of the CNT Act in favour of the record of rights. Even if it is assumed that the petitioner(s) had no right to execute the sale-deed still the offence will not be made out as the complainant is not the purchaser in view of the ratio laid down by the Hon'ble Supreme Court in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 :

20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

Under the aforesaid facts and circumstance and the reasons discussed above entire criminal proceeding including the order taking cognizance dated 23.01.2018 passed by learned Judicial Magistrate, Ranchi is set aside so far the petitioners above-named are concerned.

The aforesaid three Cr.M.Ps. are allowed.

(Gautam Kumar Choudhary, J.) Sandeep/

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