Ashok Kumar Gupta @ Ashok Kumar vs The State Of Bihar And Ors
2022 Latest Caselaw 4170 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.703 of 2017
          Arising Out of PS. Case No.-29 Year-2016 Thana- AGAMKUAN District- Patna
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Ashok Kumar Gupta @ Ashok Kumar, Son of Surendra Sao, Resident of Munna Chalk, P.S.- Patrakar Nagar, Kankarbag, P.O.- Lohiya, Kankarbag, District- Patna.

... ... Petitioner Versus

1. The State Of Bihar.

2. The Chief Secretary, Bihar Patna.

3. The District Magistrate , Patna, District Patna.

4. The Senior Superintendent of Police Patna, District- Patna.

5. The Superintendent of Police Patna (East), District- Patna.

6. The Land Reforms Deputy Collector, Patna City Patna.

7. The Sub- Divisional Officer Patna City, District - Patna.

8. The Dy, S.P. Patna, City District- Patna.

9. The Officer in Charge, Agam Kuan Police Station, District- Patna.

10. The Managing Director, Bihar State Housing Board, Patna.

11. The Executive Engineer, Bihar State Housing Board, Division-2 Patna.

12. The Assistant Engineer, Bihar State Housing Board, Division-2 Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Dhirendra Kumar, Advocate.

     For the Respondent/s   :        Mr.Ajay Kumar Sharma, AC to AG
     For the Board          :        Mr. Anshuman Singh, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 02-08-2022

I.A. No. 01 to 2020

This interlocutory application has been preferred seeking

amendment of the relief in the writ petition.

2. Learned counsel for the petitioner submits that during the

pendency of the writ application, a chargesheet has been filed by the

investigating agency and the learned SDJM, Patna City has taken Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

cognizance of the offences under Sections 447, 468, 467, 471 and 420

of the Indian Penal Code read with Section 3 of the Damage of Public

Property Act. It is submitted that these developments have taken place

during pendency of the writ application, therefore, the petitioner has

prayed for setting aside of the order taking cognizance passed by the

learned SDJM, Patna City.

3. Copies of the interlocutory application were served on

learned counsel for the State as well as learned counsel for the Bihar

State Housing Board (hereinafter referred to as 'the Board') on

03.02.2020. There is no opposition to the interlocutory application.

4. Hence, the Interlocutory Application No. 01 of 2020 is

allowed.

5. Let the prayer made in the interlocutory application be

treated as part and parcel of the writ application.

6. Heard learned counsel for the petitioner, learned counsel

for the State and learned counsel for the Board.

7. The petitioner has moved this Court for the following

reliefs:

"(i) For restraining the officers of Bihar State Housing Board from interfering in the ongoing construction made by petitioner upon his purchased land appertaining to Thana no. 10 Tauzi no. 468, Khata no. 79, Survey Plot no. 329 (Part) area 1300 square fit (2.98493 decimal)).

(ii) For quashing of FIR of Agamkuan P.S. case no.- 29/16 dated 20.01.16 under Section 467, Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

468, 471, 447, 420, of I.P.C. & 3 damage of public property Act, registered on the request of Assistant Engineer Bihar State Housing Board Division -2 Patna, based on wrong and incorrect facts.

(iii) For a declaration that unless the respondents authority Bihar State Housing Board came to a definite finding, after getting the lands demarcated, they have neither right nor title to restrain the petitioner from making construction over the land purchased from rightful owner, and outside the acquisition of land by the Bihar State housing Board.

(iv) And for other relief/relief's to which the petitioner may be found entitled."

8. Learned counsel for the petitioner submits that the

petitioner purchased a piece of land in the name of his wife Smt. Sarita

Gupta for construction of a dwelling house at Mauza Bahadurpur, P.S.

Sultanganj at present Agamkuan appertaining to Thana No. 10 Tauzi

No. 468, Khata No. 79, Survey Plot No. 329 (Part) area 1300 Sq. ft.

through a registered sale deed dated 05.11.2014.

9. It is submitted that the petitioner applied for mutation of

the said land before the Circle Officer, Patna. An inspection report was

called for and the Circle Inspector submitted a report based on which

the order of mutation has been passed by the Circle Officer as contained

in Annexure 'P/1' to the writ application.

Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

10. It is further submitted that the petitioner applied for loan

from a bank after passing of the map and completion of other

formalities bank granted loan to the petitioner and thereafter only the

petitioner started construction of his house over the said purchased land.

11. While he was carrying on the construction, the

employees of the Board came there and created hindrances in

construction of the house. The petitioner is said to have made an

application (Annexure 'P/2') before the Executive Engineer of the

Board stating the fact that the land belongs to the petitioner and it is free

from accusation. It is the case of the petitioner that even the Managing

Director of the Board has admitted this position. Despite this, it is

submitted that the Executive Engineer, Patna Division No. 2 of the

Board vide Letter No. 2102 dated 22.12.2015 directed the petitioner to

stay the construction work and also directed to produce the certified

copy of the registered deed for verification from Land Accusation

Department, Collectorate, Patna. The copy of the Letter No. 2102 has

been annexed as Annexure 'P/3' to the present application. The

petitioner has duly complied with the direction of the Executive

Engineer, Patna Division No. 2 by submitting a copy of the registered

sale deed (Annexure 'P/4').

12. It is submitted that the respondent Assistant Engineer of

the Board without examining the facts as to whether the land of the

petitioner is free from accusation or not lodged an FIR alleging wrong

facts vide Agamkuan P.S. Case No. 29 of 2016 against the petitioner. Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

The petitioner has been granted anticipatory bail by the learned

Sessions Judge, Patna vide order dated 29.01.2016.

13. Learned counsel for the petitioner has at this stage drawn

the attention of this Court towards the counter affidavit filed on behalf

of the respondent nos. 4, 5, 8 and 9 which has been served on

03.07.2017. The Additional Superintendent of Police, Patna City has

sworn the affidavit. In paragraph '7' of his counter affidavit, he stated

that the SDPO, Patna City has reviewed the case and opined that it

would be appropriate to take decision after measurement of the land in

question. If after measurement the land in question will be found as the

land of the Board then the case will be found to be true against the

petitioner of this writ petition but if the land will be found to land of the

petitioner then the case will be winded up as a mistake of facts. The I.O.

of the case was directed to obtain the measurement report of land in

question from an Amin and get the land measured through the Amin.

14. The counter affidavit further states that the I.O. of the

case has filed several request letter to the Deputy Collector Land

Reforms, Patna City (hereinafter referred to as 'the DCLR') for

deputation of Amin for measurement of land in question but the Amin

has not submitted the measurement report. It is finally stated in

paragraph '9' of the counter affidavit that the investigation of the case is

pending for want of measurement report of Amin related to the land in

question.

Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

15. After filing of the aforesaid counter affidavit of

respondent nos. 4, 5, 8 and 9, a counter affidavit has been filed on

behalf of the respondent nos. 3, 6 and 7. This affidavit has been sworn

by the Deputy Collector Land Reforms, Patna City. The DCLR, Patna

City has stated in paragraph '10' of his counter affidavit that he directed

the Circle Amin for measurement of the said land after consulting the

office of the Bahadurpur Housing Colony of the Board as also to the

Agamkuan Police Station. The Circle Officer has sent a report of the

land in question along with the report of the Revenue Karamchari which

are enclosed as Annexures 'D' and 'E' to the counter affidavit. In

paragraph '12', it is stated that as per the said report, the land in

question is recorded as Bakast land in the survey record and its nature is

within 'Kita Dhanhar' under Mauza Bahadurpur Thana No. 10, Khata

No. 79 Plot no. 329, area 2.92 decimal as per the Register II Jamabandi

No. 2046 has been created in the name of Sarita Devi wife of Ashok

Kumar Gupta by Mutation Case No. 1072/4 of 2014-2015. The present

jamabandi comes from earlier jamabandi No. 1533/1. According to him,

the matter involves question of title and possession between the

petitioner and the respondent Board which may be decided by a

competent civil court.

16. Learned counsel for the petitioner submits that on a bare

perusal of the First Information Report as contained in Annexure '5', it

would appear that the Assistant Engineer of the Board lodged the FIR in

a hurry and he in fact made wrong and false statement in his written Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

complaint addressed to the Officer Incharge of Agamkuan Police

Station.

17. Learned counsel further submits that on the one hand, the

Additional Superintendent of Police while filing the counter affidavit in

this Court submitted that the investigation of the case is pending for the

result of the measurement which has been requested but at the same

time, without paying heed to the final measurement report it has been

duly stated in the counter affidavit of the DCLR, a chargesheet was

filed and the learned SDJM, Patna City took cognizance of the offences

and proceeded to summon the petitioner in a routine and mechanical

manner.

18. Learned counsel submits that a bare perusal of the

counter affidavit of the DCLR would show that at best it may be a case

of purely civil dispute and at no stretch of imagination one can say that

a criminal proceeding would lie in the given facts of the case.

19. Learned counsel further points out that when this case

was taken up for consideration as back as on 10.01.2020, this Court

granted time to the Board to file counter affidavit as on the said date

even though the name of learned counsel for the Board was appearing

in the cause list, learned counsel had not put his appearance. It is

pointed out that copy of the writ application was duly served upon

learned counsel for the Board on 18.04.2017.

Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

20. Again, when I.A. No. 1 of 2020 was filed a copy was

served on 03.02.2020 but during all this period for about two and half

years the Board did not file any affidavit in opposition.

21. Learned counsel submits that in such circumstance, the

petitioner has made himself entitle for the reliefs prayed in the writ

application. It is submitted that further continuation of the proceeding in

the learned court below would only be an abuse of the process of the

Court and sheer harassment to the petitioner and hence, the FIR and the

order taking cognizance are required to be quashed.

22. Mr. Ajay Kumar Sharma, learned AC to learned AG has

opposed this application but the opposition is only for the name sake.

Learned AC to learned AG submits that after investigation the

chargsheet has been filed but is unable to say as to how on the face of

the affidavit of the Additional SP which this Court has taken note of

hereinabove the chargesheet could be filed ignoring the result of the

measurement.

23. Mr. Anshuman Singh, learned counsel for the Board has

though appeared to oppose this application but he has in fact no

instruction as to how the writ application may be opposed. Learned

counsel has submitted that in this case chargesheet has been filed but it

is not known whether the chargesheet has been filed without looking

into the report of the Amin or after taking into consideration the said

report.

Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

24. Having heard learned counsel for the petitioner, learned

counsel for the State and learned counsel for the Board, this Court finds

that in fact what are stated in the writ application as a matter of fact in

respect of the land as per Revenue records are not at all in dispute. The

counter affidavit of the DCLR states in so many words that the Amin

deputed by him has measured the land in question and submitted a report

as contained in Annexure 'D' and 'E' to the counter affidavit. The Circle

Officer Patna, Sadar has vide his Letter No. 5041 dated 18.08.2017

addressed to the SDPO, Patna City clearly stated that an inspection of the

land in question has been conducted through the Revenue Karamchari and

as per his report the land bearing plot no. 329 in khata no. 79 under Thana

no. 10 is recorded in the mutation as Kita dhanhar and the same is

recorded in Register II in the name of the wife of the petitioner. The

Mutation has been done in her name vide Mutation Case No. 1072/04 of

2014-2015 and this has been done with reference to Old Jamabandi No.

1533/1. The Circle Officer, Patna Sadar has also stated that on this piece

of land Sarita Gupta was constructing her house.

25. His letter (Annexure 'D') is supported by the report of the

Revenue Karamchari (Annexure 'E'). These are undisputed documents.

The stand of the DCLR in his counter affidavit vindicates the stand of the

petitioner. On the contrary, the Board has despite lapse of over two and

half years failed to submit its reply in opposition. Even today, no

significant material has been brought to the notice of this Court to take a

contrary view.

Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

26. This Court is, therefore, of the considered opinion that

the First Information Report (Annexure '3') to the writ application has

been lodged in haste and it has been used as a tool of harassment for the

petitioner even otherwise in the nature of dispute the Board was

creating, there was no reason to lodge a first information report setting a

criminal law on process. This Court is reminded of the judgment of the

Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan

Lal reported in AIR 1992 SC 604, paragraphs '107' and '108' of which

are quoted hereunder for a ready reference:

"107. Mr. Parasaran, according to whom the allegations in the present case do not make out an offence, drew our attention to a recent judgment of this Court in State of U.P. v. V.R.K. Srivastava (1989) 4 SCC 59 : (AIR 1989 SC 2222) to which one of us (S. Ratnavel Pandian, J.) was a party. In that case, it has been ruled that if the allegations made in the FIR, taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. The principle laid down in this case does not depart from the proposition of law consistently propounded in a line of decisions of this Court and on the other hand it reiterates the principle that the court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the FIR, do not constitute an offence and that it depends upon the facts and circumstances of each particular case.

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

27. In the nature of the uncontroverted materials present on

the record, the order taking cognizance passed by the learned SDJM, Patna High Court CR. WJC No.703 of 2017 dt.02-08-2022

Patna City has no basis to stand. The order seems to have been passed in

routine and mechanical manner and the same is liable to be set aside. As a

result of such discussion, the first information report being Agamkuan P.S.

Case No. 29 of 2016 and the subsequent order including order taking

cognizance passed in the said case are hereby set aside.

28. The Letter No. 2102 dated 22.12.2015 as contained in

Annexure 'P/3' in the present case of the Board interfering with the

ongoing construction work of the petitioner is quashed. Unless it is so

ordered by a competent court of law in duly constituted proceeding, no

interference shall be made by the Board.

29. This application is allowed to the extent indicated

hereinabove.

30. Since this Court has noticed that the Board has after

lodging of the FIR in haste miserably failed to substantiate the allegation

and did not submit any reply to this Court in the present writ application

and the petitioner had to file the writ application to come out of the FIR

and he contested the matter for all these years, this Court deems it just and

proper to direct the Board to pay a cost of litigation which is assessed at

Rs.15,000/- payable to the petitioner within a period of one month from

today.

(Rajeev Ranjan Prasad, J) avin/-

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