Madhya Pradesh High Court
Amin vs The State Of Madhya Pradesh on 18 October, 2019
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.25490/2018
(Amin and others Vs. The State of M.P.)
Shri Aviral Vikas Khare, learned counsel for the applicant.
Shri Pranay Joshi, leanred Public Prosecutor for the
respondent/State.
ORDER
(18/10/2019 The applicants have preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (in short "CR.P.C.) seeking quashment of FIR bearing crime 184/2018 registered at Police Station- Bhikangaon, District Khargone for the offence punishable under Section 420 of I.P.C. and all other consequential proceedings.
2. Brief facts of the case are that on the basis of complaint made by one Subhash Jaiswal, Tehsildar Bhikangaon directed Station House Officer, Police Station- Bhikangaon for registering the FIR against the applicants alleging that they have transferred possession of Government land bearing survey No. 219, 227/1 and 227/2 in place of their own land situated at survey No. 226 to few persons. Accordingly, police registered the FIR at crime No.184/2018 dated 15.05.2018 for offence of cheating under Section 420 of I.P.C.
3. Learned counsel for the applicant has submitted that applicants are the lawful owners of the land bearing survey No.226/1/1 situated at Bhikanagaon. In the year 1997 the applicants vide registered sale deed duly transferred the measured parcels of said land to more than 40 persons. Separate maps of all the parcels of land was prepared by concerned Patwari and same annexed with the sale deed while registration. After execution of the sale deed, mutation proceedings was initiated. After due enquiry, necessary mutation was also done by the Tehsildar in favour of the purchasers. Since then, i.e. more than 20 years, purchasers are in settled possession of their 2 respective lands. Subsequently, the purchasers were applied for diversion of their land for residential purpose. Under the supervision of SDO, committee consisting of Revenue Inspector, Tehsildar and Patwaries prepared the report after spot inspection of the land. On the basis of said report and following the prescribed procedure, diversion order was passed by the SDO. The purchasers even got their names mutated in Municipal Council record. Thereafter, the purchasers took approval of Municipal council for raising construction of residential houses on their lands. After getting the layout map approved, purchasers finally completed the construction of their houses on the respective lands and since then they are residing there. It is further submitted that in the year 2014 a frivolous proceeding under Section 248 of M.P. Land Revenue Code was instituted against the applicants and purchasers of the land on the allegation that they have encroached adjacent government land bearing survey Nos.219 and 227. The Tehsildar finding them encroachers passed the adverse order dated 10.07.2014. The aforesaid order of the Tehsildar was challenged in the appeal before the Sub Divisional Officer. The S.D.O. finally on 05.08.2015 set aside the order of the Tehsildar. Thereafter, again under the political influence only in order to prejudice the settled rights of purchasers, frivolous proceeding under Section 248 of M.P. Land Revenue Code on the same facts was instituted and even ex-parte orders were passed against the purchasers. Then purchasers approached before this court under its writ jurisdiction, whereby they were granted interim relief on 09.01.2017. On 15.05.2018 the writ petition was disposed of with the direction to prefer appeal before the SDO. Then the purchasers of the land preferred an appeal against the order of Tehsildar before the Court of SDO, Bhikangaon, which is pending.
4. Learned counsel for the applicants also submitted that 3 criminal case was registered against the complainant's wife Smt. Mamta Jaiswal at the instance of applicant No.7- Jakir and as a counter blast of that Subhash Jaiswal made a false complaint against the applicants. It is further submitted that assuming the allegation in the FIR to be true no offence could be established against the applicants. The present case is purely civil in nature and there is already civil proceeding pending before the SDO. Thus, in want of criminal ingredients, the present FIR is liable to be quashed.
5. On the other hand, learned Public Prosecutor for the respondent/State contended that there are sufficient material available on record to establish that the applicants have transferred the possession of government land to the purchasers and they have raised construction over the land, therefore, prima facie offence under Section 420 of I.P.C. is clearly made out against the applicants. Hence, he prays for rejection of the petition.
6. I have heard learned counsel for the parties and perused the case diary as well as documents filed alongwith the petition.
7. It is well settled that exercise of powers under Section 482 of the Cr.P.C is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary go give effect to any order under the Code or to prevent the abuse of process of any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.
8. In the case of State of Haryana and Ors.v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 , has elaborately considered the 4 scope and ambit of section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of Cr.P.C. Para 102 thus reads;
" 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 suffiiently 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 prudentperson can ever reach a just conclusion thatthere is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Codeor the concerned Act (under which a criminal proceeding is instituted) to the institution and 5 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 malafide 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."
9. In the context of law laid down by the Hon'ble Apex Court, it is apparent that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.
10. In the present case FIR was registered against the applicant for the offence under 420 of I.P.C. Section 420 of I.P.C. defines the offence of cheating. The allegation against the applicants are that they have transferred the government land bearing survey No. 219 and 227 in place of their own land situated at survey No. 226 to few persons. It is admitted fact that the applicants are the owners of the land bearing 226/1/1, Bhiknagaon and they are transferred the aforesaid land to more than 40 persons by registered sale deeds between 1997 to 2003, however, it is alleged that they have given possession of government land situated at survey No.219, 227/1 and 227/2 in place of land situated at survey No.226 and subsequently the purchasers raised the construction over the government land and by doing this the applicants are committed the offence of cheating.
11. From perusal of the documents filed by the applicants, it reveals that after purchasing the land from the applicants, the purchasers applied for diversion of land for residential purpose and 6 on the basis of report given by Patwaries, diversion order was passed by SDO. Thereafter purchasers got their name mutated in municipal council and took approval of municipal council for raising construction of residential houses on their lands, which was purchased from the applicants and they have been permitted to raise construction on the land situated at survey No. 226/1/1. They are not permitted to construct their house in the land situated at survey No. 219, 227/1 and 227/2. In the year 2014, a complaint was made before the Tehsildar Bhikanagaon under Section 248 of M.P. Land Revenue Code alleging that the applicants and purchasers have encroached the government land situated at survey No. 219 and 227 and Tehsildar, Bhikanagaon vide order dated 10.07.2014 found that the purchasers encroached the government land and raised their construction, therefore, they were directed to remove their construction. This order was challenged before the Sub Divisional Officer, Bhikanagaon, who vide order dated 05.08.2015 set aside the order of Tehsildar holding that no proper show cause notices of disclosing the persons and details of encroached the survey numbers were issued to encroachers and a separate order in respect of each of the encroacher were required to be passed.
12. Later on one Subhash Jaiswal made a complaint to the Tehsildar Bhikanagaon alleging that applicants have transferred possession of government land in place of their own land to the purchasers and they have raised construction over the land. On the basis of this complaint, notice under Section 248 of M.P. Land Revenue Code was issued to the applicants and others and after giving opportunity of hearing to the aggrieved parties, the Tehsildar found that the purchasers of the land survey No. 226/1/1 encroached the government land situated at survey No. 219, 227/1 and 227/2 and raised the construction over the government land, 7 therefore, they were directed the remove the encroachment and also to pay the fine of Rs. 5,000/-. Being aggrieved with the aforesaid order of the Tehsildar, the purchasers approached before this Court by filing writ petition, which was disposed of vide order dated 15.05.2018 granting liberty to the aggrieved persons to avail the remedy of appeal before the SDO under Section 44 of M.P. Land Revenue Code and in compliance of the aforesaid order, the purchasers have preferred an appeal against the order of their eviction passed under Section 248 of M.P. Land Revenue Code and same is pending before the SDO for adjudication. Meanwhile the Tehsildar sent a complaint to the Station House Officer, Bhikanagaon alleging that applicants have transferred possession of government land in place of their own land situated at survey No. 226. The documents also reflects that while passing the order under Section 248 of M.P.Land Revenue Code, the Tehsildar constituted a committee of Revenue Inspector and Patwaries and called the report. They prepared the demarcation report after spot inspection of the land and according to the report, the purchasers had encroached the land bearing survey No. 219, 227/1 and 227/2 and raised construction over the above land. Then Tehsildar passed the order for removal of encroachment and lodged FIR against the applicants. During the investigation, police recorded the statement of the purchasers of the land, who categorically stated that the applicants sold them the land bearing survey No. 226/1/1 by registered sale deed and they handed over the possession of the land and according to which they have constructed their house. Subsequently, they came to know that the applicants had given possession of government land and by this they have committed cheating with them.
13. The aforesaid order passed by the Tehsildar is now subject 8 matter of challenge before the SDO by filing the appeal under Section 44 of M.P. Land Revenue Code and which is still pending. Therefore, at present the order of the Tehsildar is in existence and this order clearly disclosed that although the applicants sold the land bearing survey No.226/1/1 however, they have handed over the possession of government land bearing survey No. 219, 227/1 and 227/2 to the purchasers, therefore, prima facie case under Section 420 of I.P.C. is clearly made out against the applicants. The grounds raised by the applicants for quashment of FIR are in nature of defence, hence, applicants are having opportunity to raise all these objections before the trial court at appropriate stage. At this stage, the interference under Section 482 of Cr.P.C. is not warranted.
14. Accordingly, this petition is dismissed with direction to the trial Court to given consideration to the material brought on record by the applicant without being influenced by the observations made in this order.
15. Consequently, this application is disposed of, however, if the applicants are succeeded in the appeal filed against the order of Tehsildar then they are at liberty to move fresh application before this Court under Section 482 of Cr.P.C. for quahsment of the proceedings of the trial court.
Let a copy of this order be sent to the trial Court for information and compliance.
(S. K. Awasthi) Judge praveen Digitally signed by PRAVEEN KUMAR NAYAK Date: 2019.10.18 11:43:24 -12'00'