Allahabad High Court
Rajan Kumar And 3 Others vs State Of U.P. And Another on 15 December, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 87 Case :- APPLICATION U/S 482 No. - 12984 of 2020 Applicant :- Rajan Kumar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adya Prasad Tewari,Sheo Shankar Tripathi Counsel for Opposite Party :- G.A.,Sudhanshu Pandey Hon'ble Raj Beer Singh,J.
1. The present application under Section 482 Cr.P.C. has been filed for quashing of proceedings of Case No. 5973 of 2020 (State Vs. Rajan Kumar) under Sections 420, 467, 468, 471 I.P.C. Police Station Shahpur, District Gorakhpur pending before the Court of Additional Chief Judicial Magistrate, IIIrd, District Gorakhpur and also to quash the charge sheet dated 18.01.2020 and summoning order dated 26.06.2020 passed in the aforesaid case.
2. Heard learned counsel for the applicants, learned A.G.A. for State and learned counsel for the opposite party no.2 and perused the material on record.
3. It has been argued by learned counsel for the applicants that F.I.R. of above stated case was lodged making false and baseless allegations and that charge sheet has been submitted without any proper investigation and evidence, thus no prima facie case is disclosed against the applicants. Learned counsel has submitted that one Arjun Dev and his wife Bela Rani were recorded Bhumidhar of plot no. 971M area 918 aire and they have executed registered power of attorney in favour of the applicant no.1 on 04.06.2014 and on the basis of said power of attorney, applicant no.1 had executed sale deeds in favour of applicant no.2 and his family members on 16.07.2014, 01.08.2014, 06.08.2014 and 23.07.2014, pursuant to which, name of applicant no.2 and others were mutated in the revenue record. During the mutation proceedings, one Smt. Beena Srivastava has filed objections before the Naib Tehsildar, but the same were rejected and mutation was made vide order dated 28.02.2015. Smt. Beena Srivastava also filed an Original Suit No. 971 of 2014 for cancellation of the power of attorney dated 04.06.2014 and sale deeds executed by the applicant no.1 and that suit was dismissed under Order 7 Rule 11 of the Code of Civil Procedure vide order dated 18.09.2015. The order dated 18.09.2015 was challenged in First Appeal No.531 of 2015 before this Court and that appeal was partly allowed vide order dated 26.11.2015 with direction to trial Court to return the plaint of plaintiff for presentation before the appropriate Court. Being aggrieved by the order dated 26.11.2015, said Smt. Beena Srivastava approached Hon'ble Apex Court by way of filing S.L.P. (C) 2848 of 2016, which was dismissed vide order dated 08.09.2016. It has been submitted that said Chandra Prakash Srivastava and Smt. Beena Srivastava have also filed a Contempt Application No. 706 of 2016 and that too was dismissed vide order dated 10.02.2016. Learned counsel has further submitted that when Beena Srivastava could not get any relief from trial Court to the Hon'ble Apex Court, she again filed Writ-C No.12275 of 2016, which was also dismissed vide order dated 28.03.2016. The son of said Beena Srivastava, namely Dr Virat Swroop Saxena filed another contempt application, which was dismissed vide order 29.07.2016. In pursuance of the aforesaid order dated 28.03.2016 passed in Writ C No. 22275/2016, the applicant no.2 instituted an Original Suit No. 608 of 2016 in the Court of Civil Judge Senior Division, Gorakhpur for permanent injunction in respect of plot no. 971-M area 1.38 acres and vide order dated 12.04.2016 temporary injunction was granted in favour of the applicant no.2. Learned counsel submitted that having failed in getting any relief from the Courts, said Beena Srivastava brought Ratnesh Mishra, Smt. Afroz Athar and Abdul Gani in to picture to harass the applicant no.2 and they started interfering in the peaceful possession and occupation of the applicant no.2 over the plot no. 971M area 2210 sq feet and thus the applicant no.2 instituted suit No. 5386/2017 on 31.08.2017 for permanent injunction against the opposite party no.2 and Smt. Afroz Athar and Abdul Ghani restraining them from interfering in the use, occupation and possession of the applicant no.2 over the suit land and that an first information report was lodged against against O.P. No. 2 on 13.09.2017 under section 147/404/506 IPC. It was further submitted that power of attorney holder of Bela Rani namely, Rajan Kumar has executed a sale deed dated 22.06.2017 in favour of applicant no.2 after receiving the sale consideration in respect of plot no.971-M area 2610 square feet. However, as there was some error in sale deed 22.06.2018, thus, a supplementary deed was executed 16.09.2017. It was stated that on the basis of sale deed dated 22.06.2017 the name of applicant No. 2 was mutated vide order 30.07.2017 over plot 971M to the extent of area 2610 sq feet and a separate khata was created. After that the applicant no.2 has applied for approval of map for construction of commercial and residential building and map was sanctioned by the Gorakhpur Development Authority, Gorakhpur on 27.10.2017. It was further stated that on 04.10.2017 a restoration application was filed by the opposite party no.2 for recalling order dated 31.07.2017, which was also rejected by concerned Tehsildar vide order dated 20.03.2018 but that order was challenged by the opposite party no.2 in revision before the Board of Revenue U.P. at Lucknow and without considering the facts of matter and objections of applicants, Board of Revenue, U.P. passed an order of injunction dated 05.04.2018 to maintain status quo. The order dated 05.04.2018 was challenged by the applicant no.2 by means of filing a writ petition being Civil Misc. Writ Petition NO. 3461 of 2018 before this Court, which was allowed vide order dated 16.04.2018 remitting the matter back to the Board of Revenue to pass afresh order but the Board of Revenue again passed an interim order in revision on 22.05.2018, which was again challenged by the applicant no.2 before this Court and vide order dated 25.06.2018 the matter was again remitted to the Board of Revenue and later on said revision was dismissed on 05.09.2018. Learned counsel for applicants further submitted that the first information report of impugned case was lodged by the opposite party no.2 only to built up pressure upon the applicant no.1 to withdraw the aforesaid suit filed by him and to disown the F.I.R. lodged by the applicant no.2. The F.I.R. of the impugned case was challenged by the applicants before this Court in which, the applicants were granted stay by this court against arrest till the submission of police report under Section 173 (2) Cr.P.C. It was further submitted that opposite party no.2 has made false allegations in the FIR and there was no registered sale deed in his favour and there was no entry in favor the opposite party no.2 in the revenue record over the plot no. 971M. It has been further argued that the F.I.R. of impugned case was lodged at the behest of one Charu Nigam, the Circle Officer. After registration of this case, the Ist Investigation Officer has made thorough investigation and it was found by the Investigation Officer that matter is of civil nature and final report was prepared on 14.07.2017. It was further submitted that opposite party no.2 filed a civil suit in the Court of Civil Judge (Senior Division), Gorakhpur being O.S. No.480 of 2018 with regard to the land in dispute but no interim order has been granted in his favour. The opposite party no.2 is neither a recorded owner of the land in dispute nor he has any concern with disputed land. It was submitted that after through investigation of the case, initially final report was submitted but on the direction of the Circle Officer, the matter was again investigated and without there being any cogent evidence, impugned charge sheet has been submitted against the applicants. It was next submitted that the impugned prosecution has been launched with malafide intention and that the matter is of civil nature, which has been dragged into criminal prosecution of the applicants. It was thus submitted that no prima facie case is disclosed against the applicants and thus the charge sheet as well as entire proceedings are liable to be quashed by this Court.
4. Learned counsel for the opposite party no.2 as well as learned A.G.A. have opposed the application and argued that allegations made in the F.I.R. and evidence collected during investigation makes out a prima facie case against the applicants. It was argued by learned counsel for the opposite party No. 2 that opposite party no.2 has purchased the disputed house comprising a shop from Smt. Afroz Athar and Virendra Kumar vide sale deed dated 21.08.2017. It was further submitted that the said premises has house no. 239/B and was acquired by Smt Afroz Athar vide order passed in civil suit no. 2623 of 1990. The name of Smt. Afroz Athar was recorded in the municipality record in respect of said house and shop and house tax also also being by her but as she was in need of money, she sold the said premises to the opposite party no.2. Referring to civil suit filed by the opposite party no. 2, it was submitted that the alleged power of attorney claimed by applicant no. 1 and sale deeds executed are by applicant no. 1 are forged and void. It was stated that said Arjun Dev and Bela Rani have sold part of their property including the disputed property to one Neelaram Sharma and Ramdev Rai vide sale deed dated 02.03.1982 and after partition, said Neela Rai sold his share to one Surender Lal and that said Ramdev Rai sold 5200/ sq feet land of his share, which comprises disputed property, to Virender Avrol vide sale deed dated 13.04.1983. Said Virender Avrol sold some part of his property to one Satish Chandra Srivastava and in remaining part, which comprises of disputed property, was given to Smt Afroz Athar, who has constructed a house and four shops and premises were allotted house no. 239 in municipality record and she was using the said premises and was paying house tax and water tax and that she has also got an electricity connection. However, due to some dispute, Smt Afroz Athar has filed a case no. 2623/1990 against said Virender Avrol, which was decided vide order that 25.08.1992 on the basis of compromise and since then Smt Afroz Athar was in continuous possession over the same and by sale deed dated 21.08.2017 she has sold the disputed property to the opposite party no. 2. It was submitted that as Arjun Dev and Bela Rani have already sold the disputed property way back in 1982, the alleged power of attorney is null and void. It was further argued that applicant no.1 on the basis of the said forged power of attorney executed sale deeds, whereas as Bela Rani has no right to sell the house of Smt. Afroz Athar and that the applicants were trying to take over the possession of that property forcibly. It was also stated that after death of Arjun Dev, the power of attorney executed by him stand ineffective. It was also argued that civil Court has not rendered any finding regarding validity the alleged sale deeds and power of attorney and thus civil as well as criminal proceedings may go on. It was submitted that a prima facie case for cheating and forgery and trespass is made out against the applicants and therefore, the relief sought by the applicants is liable to be rejected.
5. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Hon'ble Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. After noticing various earlier pronouncements, the Court enumerated certain categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:
"102. 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 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 FIR 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 FIR 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."
6. It is well settled that inherent jurisdiction under section 482Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
7. In case of Janata Dal v. H. S. Chowdhary & Ors. (1992) 4 SCC 305, the Court observed:
"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."
8. In case of Roy V.D. v. State of Kerala (2000) 8 SCC 590, it was observed as under:-
"18. It is well settled that the power under Section 482Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section 482Cr.P.C.to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."
9. In R.P. Kapur v. State of Punjab AIR 1960 SC 866 the Court laid down the following principles:
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;
(iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
10. In State of Karnataka v. L. Muniswamy (1977) 2 SCC 699, the Court has held as under: (SCC p. 703, para 7) '' In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
11. Recently in case of Rajeev Kourav vs. Bhaisahab & Ors. (Criminal Appeal No. 232 of 2020), decided on 11.02.2020, Hon'ble Apex Court held:
''It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.''...
12. Thus, it may be seen that though the High Court has inherent power and its scope is very wide, but it has to be exercised in exceptional cases. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands. It is also well settled that the criminal proceedings cannot be quashed merely on the ground that civil suit is pending in respect of the subject matter. Merely because proceedings pending between the parties have civil element also, the High Court cannot exercise the power under Section 482 Cr.P.C. to quash the prosecution, if the offence is, prima facie, made out against the accused in the FIR or the complaint or the charge sheet, as the case may be.
13. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. Further, merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt".
14. Dealing with similar circumstances, in M.S. Sheriff v. State of Madras [AIR 1954 SC 397 : 1954 Cri LJ 1019], it was held by Hon'ble Apex Court that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. It is also well established that while exercising the powers under Section 482 Cr.P.C., this Court cannot look at the materials furnished by the defence nor it can go into the disputed questions of fact.
The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
15. The above stated case laws make it clear that the inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
16. Coming to the facts of the present case, it may be seen that opposite party no.2 has lodged the first information report of the impugned case alleging inter-alia that owner of the disputed property i.e. House No. 229/B was one Smt. Afroz Athar and Virendra Kumar, who have obtained this property through Judgement dated 28.05.1992 passed in Civil Suit No. 2623 of 1990 and the name Smt. Afroz Athar was recorded in municipality record and she was having electricity connection in her name and she has also let out a tin shed installed in the said premises. It was further alleged in the first information report that the opposite party no.2 has purchased the said property from Smt. Afroz Athar and Virendra Kumar Avrol but applicant no.1 Rajan Kumar has executed sale deed of the disputed property on the basis of forged power of attorney of one Smt. Bela Rani to the applicant no.2, whereas said Bela Rani has no right to sell the disputed property. It was also alleged in the F.I.R. that applicants were trying to take possession of the disputed property forcibly and even they have made an attempt to trespass into the disputed property and they have inscribed their name over the disputed property. On the other hand, the case of the applicants is that the owner of the said property were one Arjun Dev and Smt. Bela Rani, who have executed a power of attorney in favour of applicant no.1 and on that basis applicant no.1 has executed sale deeds in favour of applicant no.2 and his family members and their names were also mutated in revenue record. Further the case of the applicant is that one Smt. Beena Srivastava has filed objections against mutation which was rejected and she has also filed Original Suit No. 971 of 2014 but that suit was also dismissed and the matter has traveled up to to the Hon'ble Apex Court and as stated above, no relief was granted in favour of Smt. Beena Srivastava. It is also the case of applicants that applicant no.2 instituted a civil suit being Original Suit No. 608 of 2016 in respect of plot 971-M area 1.38 acres and temporary injunction was also granted in favour of the applicant no.2. Thereafter on 22.06.2017 sale deed in respect of 2610 sq. feet was executed. But later on, said Beena Srivastava brought the opposite party no.2 into picture and they started interfering in the possession of the opposite party no.2 over the disputed property due to which, the applicant no.2 instituted another suit against the opposite party no.2 and others.
17. It is also apparent from above stated facts that so far there is no finding of civil court regarding the validity of the alleged power of attorney executed in favour of applicant no.1 by Smt. Bela Rani and subsequent sale deeds executed by the applicant no.1. Though the matter has traveled up to Hon'ble Apex Court but those proceedings were related to mutation and revenue entries and in fact no findings were rendered on validity of alleged power of attorney or sale deeds executed by applicant no.1, regarding which the claim of the opposite party no.2 is that those deeds are forged and that Smt. Bela Rani has no right to execute power of attorney. It is also pertinent to mention here that in the Original Suit No. 971 of 2014 and Original Suit No. 608 of 2016 and in the writ petition file by the applicants, the opposite party no.2 was not party in those proceedings. The applicant no.2 has filed another civil Suit No. 492 of 2017 against the opposite party no.2 but there is nothing to show that so far any injunction order has been passed against the opposite party no. 2. The opposite party no.2 also filed civil suit being original Suit No. 480 of 2018 before Civil Judge (Senior Division) and thus, it is quite clear that with regard to claim of both the parties regarding forgery and cheating and forgery on the part of each other, the civil suits are pending before the civil Court and the matter is yet to be adjudicated.
18. After considering entire facts it emerges that so far there is no finding of the civil Court regarding validity of power of attorney allegedly executed by Smt Bela Rani in favor of applicant No. 1 and the consequent sale deeds executed by applicant No. 1 in favor of applicant No. 2 or his family members or about the documents/ sale deeds, on which the opposite party no. 2 is basing his claim. Both the parties have filed civil suits against each other and matter is pending before the civil courts. Even the earlier civil suit OS No 971 of 2014 filed by alleged Smt Beena Srivastava was not decided on merits, rather it was dismissed on the ground that suit was not cognizable by civil court. Referring to the chain of transactions / deeds from the year 1982, as stated above, the case of opposite party no. 2 is that alleged power of attorney and the sale deed executed by applicant no. 1 in respect of disputed property are forged and void. Against this claim there there is no finding of civil court so far. Further there are allegations against the applicants that they have made an attempt to trespass over the disputed property. No doubt after dismissal of suit no.971/2014 the matter has traveled up to Hon'ble Apex Court but that litigation pertains about revenue entries in respect of property and that validity of alleged power of attorney and sale deeds executed by applicant no. 1 was not examined. It is well-settled that the mutation of a property in the revenue record does not create or extinguish title nor does it have any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. In this connection reference may be made to the case of Sawarni (Smt.) Vs. Inder Kaur (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137 and Narasamma & Ors. Vs. State of Karnataka & Ors. (2009) 5 SCC 591. Further, the opposite party no. 2 was not a party in said litigation of suit no. 971/2014 and consequent litigation between applicants and above stated Smt. Beena Srivastava, which reached up to Hon'ble Apex Court. It would also be relevant to see that as per averments of applicants, on the basis of alleged Power of Attorney, the applicant No. 1 has executed sale deeds dated 16.07.2014, 01.08.2014, 06.08.2014 and 23.07.2014 in favour of applicant no.2 and his family members and it appears that litigation of suit no. 971 / 2014 filed by said Beena Srivastava and civil suit No. 608 of 2016 filed by applicant no. 2 pertains about to those properties. The suit no. 608 of 2016 was filed by applicant no. 2 regarding land area of 1.38 acres of plot no. 971M, whereas dispute in the instant proceedings is only about area of 2610 sq feet from said plot. It is the case of applicants that on the basis of alleged Power of Attorney, applicant no. 1 has executed a sale deed 22.06.2017 in favour of applicant No. 2 and due to some error in sale deed dated 22.06.2017, a supplementary deed was also executed on 16.09.2017. On the other hand the case of opposite party no. 2 is that he has purchased the disputed property area 2600 sq feet from Smt Afroz Athar and Virender Avrol vide sale deed dated 21.08.2017. Thus, it clear that previous litigation between applicants and said Smt Beena Srivasatava would not affect rights of opposite party no.2.
19. It is also relevant to point out that it was submitted from side of applicants that the Writ-C No. 12275 of 2016 filed by said Beena Srivastava was dismissed vide order dated 28.03.2016, however, perusal of said order dated 28.03.2016 passed by the Division Bench of this Court in Writ-C No. 12275 of 2016, shows that the earlier the Chief Secretary of State of U.P. has issued a direction on the application of private respondents of that petition that in the event the SDM had conducted an enquiry, necessary steps be taken for handing over the possession of disputed property to the private respondents (applicants herein), however, on intervention of the court, the Chief Secretary has withdrew its direction. But after that the SDM recorded that private respondents of that petition be allowed to develop the disputed property and also directed that police force be also made available in order to enable them to develop the disputed property. The Division Bench of this Court has set aside the direction of the SDM and the Writ petition was accordingly disposed of. Thus, the contention that said Writ-C No 12275 / 2016 was dismissed is not correct. The said order of writ petition also raises question on the claim of the applicants that they are in peaceful possession over the disputed property. It was observed by the Hon'ble Division Bench in said order that the purpose and intent of orders of SDM was to secure possession of private respondents of that case (applicants herein) over disputed property. All these facts show that civic administration upto highest level was trying that possession of disputed property is given to applicant no.2.
20. Considering the entire facts it appears that several intrinsic questions of fact and law are involved in the matter, which require adjudication by the trial court in accordance with law. Even the questions of law may be raised before the trial court. In view of specific attending facts and circumstances of the case, mere pendency of civil proceedings cannot be a ground to quash the impugned proceedings. Considering the matter in its entirety it can not be said that no prima facie is made out. Similarly it can also not be held that the continuance of impugned criminal proceedings against the applicants would amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. Considering submissions of learned counsel for the parties, all attending facts of the matter and also considering the above discussed position of law, this court is of the considered view that matter requires adjudication by trial court and that no case for quashing of the impugned proceedings, charge sheet or the summoning order dated 26.06.2020 is made out.
21. In view of aforesaid, the instant application under Section 482 Cr.P.C. is hereby dismissed. The trial court shall decide the case in accordance with law and without being influenced by any observation made by this court.
22. Interim order, if any, stands vacated.
Order Date :- 15.12.2020 S.Ali