Allahabad High Court
Ramkripal And Another vs State Of U.P. And Another on 1 July, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:106334 Court No. - 77 Case :- APPLICATION U/S 482 No. - 3581 of 2022 Applicant :- Ramkripal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hans Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Hans Pratap Singh, learned counsel for the applicants and Sri Jitendra Singh, learned brief holder for the State and perused the material on records.
3. This application under Section 482 Cr.P.C. has been filed by the applicants- Ramkripal and Halkain, with the prayer to allow this application and quash the entire proceeding as well as charge-sheet dated 26.07.2021 & cognizance order dated 13.01.2022 in Case No. 106 of 2022 (State Vs. Ramkripal & others) arising out of Case Crime No. 29 of 2021, under Sections 419, 420, 447, 406, 506 I.P.C., Police Station Jalalpur, District Hamirpur, pending in the court of Judicial Magistrate, Rath, District Hamirpur, with a further prayer that proceeding of the aforesaid case be stayed during the pendency of the present application.
4. The facts in the present case are that a first information report was lodged on 16.02.2021 by Deepak Nigam the opposite party no.2 against Ramkripal, Shiv Sahai, Bhaiya Lal, Rajendra Tiwari, Badri Prasad and Parmeshwari Dayal with the allegations that he has three ancestral houses in abadi of which he is the owner through succession. Since he is living in Lucknow due to his profession, the accused persons taking advantage of it by committing conspiracy broke the lock of his three houses situated in village Newlibansa and with terror took possession of the same. When he came to know about the incident then on 29.01.2021 Shiv Sahai and other accused together tried to commit criminal act and by showing a forged unregistered agreement to sell on a Rs. 5/- stamp paper threatened to murder him and threw him out of the house. The accused Shiv Sahai and Ram Kripal have forged the unregistered agreement to sell and have tried to occupy his house. He is being threatened by them if he again comes to his house. In one of the rooms in the house building material for constructions of a bathroom is stored. A report be lodged and action be taken.
5. During investigation the informant implicated Halkain the applicant no.2 who is the brother of the applicant no.1 as an accused also.
6. The matter was investigated and a charge-sheet dated 26.07.2021 was filed against Ram Kripal and Halkai Pal for offences under Sections 419, 420, 447, 406, 506 I.P.C. In so far as the other accused namely Shiv Sahai, Bhaiya Lal, Rajendra Tiwari, Badri Prasad and Parmeshwari Dayal are concerned, they were arrayed in column 12 of the charge-sheet of the accused persons not charge-sheeted. The court of the Chief Judicial Magistrate, Rath, District Hamirpur vide order dated 13.01.2022 took cognizance upon the said charge-sheet and summoned the accused persons. The present petition has thus been filed with the aforesaid prayer.
7. Notice was issued to the opposite party no.2 vide order dated 16.02.2022 passed by another Bench of this Court. Vide office report dated 13.07.2022 it is reported that notice has been served on the opposite party no.2 through his son. A report to the said effect has been sent by the Chief Judicial Magistrate, Lucknow which has been placed on record. A perusal of the said report dated 23.03.2022 shows that notice has been served on the opposite party no.2 through his heir / son Varun Nigam. Despite service of notice, no one appears on behalf of the opposite party no.2.
8. Learned counsel for State submits that he does not intend to file any counter affidavit on behalf of the State / opposite party no.1.
9. No counter affidavit / response has been filed by the informant / opposite party no.2.
10. The Court proceeds to hear the matter on merits.
11. Learned counsel for the applicants argued that the dispute between the parties is purely civil in nature. While placing Annexure-7 to the affidavit it is submitted that the applicants filed a suit against the opposite party no.2 / first informant before the Civil Judge (Senior Division), Hamirpur with regards to properties mentioned in the first information report for permanent injunction. It is submitted that the said plaint dated 01.02.2021 is annexure-7 and the same was filed on 02.02.2021. It is submitted that the matter was fixed for orders on application 6(C) by the civil court concerned. It is submitted that subsequent to the filing of the said suit on 02.02.2021, the present first information report has been lodged on 16.02.2021 by the opposite party no.2 with malafide intentions just in order to give the present case a different colour. It is submitted that the property as detailed in the plaint of the suit is the same which is the subject matter of the present first information report. It is submitted that the present case is a case of civil nature which has been given the colour of a criminal case. While placing Annexure-2 to the affidavit it is submitted that the accused persons named in the first information report challenged the same before this Court in Criminal Misc. Writ Petition No. 2430 of 2021 (Ramkripal and 4 others Vs. State of U.P. and 2 others) in which a Division Bench of this Court vide order datd 26.03.2021 stayed the arrest of the petitioners therein till filing of police report under Section 173 (2) Cr.P.C. The said order has been placed before the Court which reads as under:-
"It is stated that only to counter the civil suit preferred by the petitioners, the F.I.R. has been lodged in reference to transaction referred in the civil suit itself. The F.I.R. has been lodged even against the dead person Shiv Sahay, thus, the interference be caused. It is more so when the matter is of civil nature.
In view of the above, let notice be issued to respondent No.3 making it returnable within three weeks.
Notice be sent through registered post.
Steps be taken within seven days.
Let this petition be listed on 26.04.2021.
Till the next date of listing or till the submission of police report under Section 173(2) Cr.P.C. the petitioners shall not be arrested pursuant to the F.I.R. dated 16.02.2021 registered as Case Crime No. 0029 of 2021 under Sections 419, 420, 447, 406, 506 I.P.C., Police Station Jalalpur, District Hamirpur provided petitioners cooperate with the investigation."
12. It is submitted that the applicant no.2 was not named in the first information report and his implication has surfaced in the matter in the statement of the informant recorded during investigation. The applicants have no criminal history as stated in para 20 of the affidavit. It is submitted that the proceedings be thus quashed.
13. Per contra, learned counsel for the State opposed the prayer for quashing but could not dispute the fact that the properties detailed in the civil suit are the same which are the subject matter of the first information report of the present matter. Further the fact that the said suit for permanent injunction was filed on 02.02.2021 and the present first information report lodged on 16.02.2021 is also not in dispute.
14. After hearing the learned counsel for the parties and perusing the records, it is evident that the present first information report was lodged against the applicant no.1 and 05 other persons. The applicant no.2- Halkain was made an accused in the statement of the first informant recorded during investigation, he was not named in the first information report. The investigation concluded in which except for the applicants the other accused persons have been exonerated. The dispute relates to an unregistered agreement to sell and alleged forcible possession of three houses of the opposite party no.2 / first informant. The first information report has been lodged on 16.02.2021. Prior to lodging of the said first information report on 02.02.2021 a suit for permanent injunction was filed by the applicants against the opposite party no.2 / first informant with regards to same properties which are detailed in the first information report. The dispute thus is such which is having a civil dispute also pending between the parties before the competent civil court. The transactions in the first information report give the flavour of a civil dispute.
15. It is trite law that the transactions disclosing the civil dispute should not be permitted to be converted into criminal cases. Reference of the judgements of the Apex Court in the case of M/s. Thermax Ltd. & Ors. vs. K.M. Johny & Ors: 2011 (11) SCALE 128, Naresh Kumar & another vs. State of Karnataka & another:2024 INSC 196, Paramjeet Batra vs. State of Uttrakhand:(2013) 11 SCC 673 and in the case of Kamlesh Singh vs. State of U.P. and 3 Others:2024 AHC 105288 of this Court are relevant for the present case.
16. In view of the same, the present dispute is primarily a civil dispute which has been given the colour of a criminal case.
17. The present application under Section 482 Cr.P.C. is allowed.
18. The proceedings of the present case against the applicants as well as the summoning order/charge sheet are hereby quashed.
Order Date :- 1.7.2024 AS Rathore (Samit Gopal,J.)