Allahabad High Court
Harprasad Sharma And 4 Others vs State Of U.P. And 2 Others on 11 August, 2023
Bench: Vivek Kumar Birla, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2023:AHC:163252-DB Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 10992 of 2023 Petitioner :- Harprasad Sharma And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vibhu Rai,Dhananjai Rai Counsel for Respondent :- G.A.,Ranjeet Kumar Yadav Hon'ble Vivek Kumar Birla,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Vibhu Rai, learned counsel for the petitioners; Sri G.P. Singh, learned AGA for State-respondents; Sri Ranjeet Kumar Yadav, learned counsel for the respondent no.3 and perused the records.
2. This writ petition has been filed praying to quash the first information report dated 25.05.2023, registered in Case Crime No.297 of 2023, under Sections 420, 467, 468, 471, 447 & 506 IPC, Police Station Banna Devi, District Aligarh and not arrest the petitioners pursuant to the said FIR.
3. Main submission of learned counsel for the petitioners is that informant is not aggrieved party thus he has no right to lodged the FIR. There is a civil dispute between the parties. Informant herself filed a civil suit / original suit no.725 of 2022 in the Court of Civil Judge (SD), Aligarh in which injunction was granted to her but on the application of opposite party, the said interim order was modified. It is further submitted that some other litigation / cases filed by the parties in the Civil Court, have been got decided on the basis of compromise. It is next submitted that FIR lodged by the informant is inordinate delay without any proper explanation. No offence under the alleged sections against the petitioners is made out. It is next contended that there is a dispute of civil nature between the parties and it can be decided by the civil or revneue court informant has tried to give colour to civil dispute into criminal one just to exhort pressure upon the petitioners to get the matter compromised and this is a sheer abuse of criminal law. It is further contended that mere allegation of fraud has been levelled against the petitioners while civil dispute is pending. Sale deed is said to have been executed in 2007 but it has not been challenged or cancelled till the year 2022 -2023, FIR does not contain or material fact. Learned counsel for the petitioners has placed reliance upon the judgments of Hon'ble Supreme Court in the case of Randheer Singh versus The State of U.P. and Ors reported in (2021) 14 SCC 626 and Syed Yaseer Ibrahim versus State of Uttar Pradesh and Ors. reported in 2022 SCC Online SC 271.
4. Per contra, learned AGA as well as learned counsel for the informant opposed the petition by submitting that FIR is not encyclopedia and entire fact and detail is not required to be mentioned therein. Power of attorney on the basis of which sale deed has been executed, has already been cancelled in 1990 and concealing the fact that power of attorney has been cancelled, sale deed has been executed without any power and valid right, so far as the public notice of cancellation of power of attorney is concerned is a matter of investigation. Cancellation of power of attorney was registered document which itself a public notice and it is a principle of law that purchaser must be careful and he can get no right over the land in question. After the cancellation of power of attorney, any transfer based on that comes within the preview of fraud.
5. Main allegation as emerged in FIR is that one Chattrapal, on the basis of power of attorney, has executed a sale deed in favour of Munni Devi who later transferred the property measuring 200 sq. yds. in favour of the informant Indu Bhatt and the said power of attorney was cancelled on 23.05.1990 and after the cancellation of power of attorney through registered deed accused persons got the sale deed executed thus the alleged offence have been committed by the accused persons.
6. Evidentially, some dispute in respect of land has been pending before the revenue authority and suit was decided on the basis of compromise but that does not help the petitioners.
7. On the inquiry made by the Court to learned counsel for the petitioners, he does not dispute the cancellation of power of attorney in 1990, he simply says that the matter is of civil nature and some cases are pending in the civil court. Mere pendency in the civil or revenue court does not dilute the criminal offence.
8. In Randheer Singh versus The State of U.P. and Ors reported in (2021) 14 SCC 626, the Hon'ble Apex Court has observed as under :-
"22. The charge sheet is totally vague. There is not even a whisper in the charge-sheet of what transpired from the investigation against the Appellant herein.
23. Even though an FIR need not contain every detail, an offence has to be made out in the FIR itself. It is the case of the Private Respondents that Bela Rani has no title. Bela Rani executed a false Power of Attorney in favour of Rajan Kumar (since deceased). Alternatively, the Power of Attorney, in itself, was a forged document."
9. Likewise in Syed Yaseer Ibrahim versus State of Uttar Pradesh and Ors. reported in 2022 SCC Online SC 271, the Hon'ble Apex Court has observed as under:-
"8. Both the FIR and the charge-sheet, which has been submitted after investigation, would leave no manner of doubt that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged 4 to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit. Mr Sanjay Singh submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens , but, from reading the charge-sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent.
9 Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section 420. In this backdrop, the continuation of the prosecution against the appellant would amount to an abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong doing."
10. The judgement of the Apex Court in (2019) 15 SCC 357 (Rashmi Chopra Vs. State of U.P. and Another, (2017) 16 SCC 772 (Rahki Mishra Vs. State of Bihar and others) and in (2017) 2 SCC 779 (State of Telangana Vs. Habib Abdullah Jeelani and Others), wherein, it has been held that the court should exercise powers under article 226 of the Constitution of India very seldomly and only if no case is made out or if the court feels that the allegations is of false implication. Inherent powers for quashment cannot be extended in matters which prima-facie go to show that offence has been committed.
11. Facts of the present FIR is distinguishable. Judgements relied by learned counsel for the petitioners does not help to the petitioners in any manner.
12. Perusal of impugned FIR and allegations made therein, discloses prima-facie a cognizable offence is made out and investigation is required in the matter. So far as other arguments advanced by learned counsel for the petitioners is on factual aspects of matter of defence, which cannot be considered for quashing of the FIR. No case for invoking the jurisdiction under Article 226 of the Constitution of India. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report.
13. In view of the above discussion and legal proposition discussed herein before, we are not inclined to quash the FIR. Accordingly, the writ petition is devoid of merit and is hereby dismissed, leaving it open for the petitioner to apply before the competent court for anticipatory bail/bail as permissible under law and in accordance with law.
Order Date :- 11.8.2023 I.A.Siddiqui