Allahabad High Court
Smt. Rukhsana Parveen Lari & Others vs State Of U.P.& Another on 11 May, 2018
Equivalent citations: AIRONLINE 2018 ALL 1006
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED/AFR Court No. - 63 Case :- APPLICATION U/S 482 No. - 6519 of 2009 Applicant :- Smt. Rukhsana Parveen Lari & Others Opposite Party :- State Of U.P.& Another Counsel for Applicant :- Dr. Arun Srivastava Counsel for Opposite Party :- Govt. Advocate,Ayank Misra,Mohd. Shoeb Khan,Santosh Kumar Srivastava Hon'ble Amar Singh Chauhan,J.
Dr. Arun Srivastava, learned counsel for the applicants, learned A.G.A. for the State and Shri Ayank Misra, learned counsel for the opposite party no. 2 are present.
Heard and perused the material on record.
The applicants, through this application moved under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the charge-sheet dated 29.11.2008 in Case Crime No. 2287 of 2008, under Sections 419, 420, 467, 468, 471, 166, 219 I.P.C., P.S. Cantt, District Gorakhpur, pending in the court of C.J.M., Gorakhpur and further prayed to stay the proceeding in the aforesaid case.
The brief facts which are requisite to be stated for the adjudication of the application are that the first information report was lodged by opposite party no. 2 that applicant no. 1 is the widow of Akmal Lari, applicant nos. 2 to 4 are the son of Akmal Lari and applicant no. 5 is the practising lawyer at District Gorakhpur who with the help of Collectorate namely Roopal Srivastava, made forged signature on the alleged compromise deed in the interest of rest of applicants and get mutated their name in the revenue record of the property in a forged manner. The said compromise was filed in the proceeding under Section 33/39 L.R. Act before the court of S.D.M., Sadar, Gorakhpur. On the basis of the compromise, the name of the complainant Aqram Lari was set aside and the applicants were got entered in the revenue record. The Investigating Officer after concluding the investigation, submitted the charge-sheet and consequently cognizance was taken by the Magistrate.
Feeling aggrieved, the applicants came up before this court in this application.
It is submitted by learned counsel for the applicants that the there is a land situated at Village Nautan, Tappa Khutaha, Pargana Haveli, Tehsil Sadar, District Gorakhpur of an area of 3.13 decimal numbering as 11 Mi. (1 Acre), 11 Mi. (1.5 Acre), 11-Mi. (63 Decimal) Khata No. 39, 37 and 38 respectively, which was purchased jointly by the husband of the applicant no.1 and the father of the opposite party no. 2 in the year of 1986 through a registered sale deed. There is another land which is situated at Village Lichchhipur, Tappa, Pargana, Haveli, Tehsil-Sadar, District Gorakhpur of an area of 25 Decimal was also purchased jointly by the husband of the applicant no. 1 and father of the opposite party no. 2 through a registered sale deed. In due course of time, the same lands were distributed between both the aforesaid persons through a family settlement executed on 28.3.1988. In pursuance of the family settlement dated 28.3.1988, the share of the applicants were endorsed in the Revenue records under Section 34 of L.R. Act on 16.10.1999. As the name of the applicants could not be mutated due to clerical mistake, an application was filed for correction. It is further submitted that opposite party no. 2 has concocted the present case to harass the applicants and also to grab the entire ancestral property. Ultimately, the settlement deed is genuine and the dispute between the parties are purely of civil nature and civil suit no. 496 of 2008, Aqram Lari Vs. Rukhsana Parveen and others is pending in which the said settlement deed for compromise is under challenge.
Per contra, learned A.G.A. for the State and learned counsel for the opposite party no. 2 contend that averments regarding the family settlement dated 28.3.1988 in between Mohd. Afzal Lari and Mohd. Akmal Lari is totally false and baseless. Mohd. Akmal Lari, who is the husband of applicant no.1 and father of applicant nos. 2 to 4, prepared a forged family settlement dated 28.3.1988 by making forged signatures of Mohd. Afzal Lari and Smt. Farhat Jahan for the purpose of getting his name and the names of the applicants no. 1 to 4 mutated in the revenue records upon the share of the complainant and his family members upon the land in question. This fact is very much clear from the statement of Smt. Farhan who has been alleged to be the witness of the alleged family settlement dated 28.3.1988. It is further submitted that during the investigation, Investigating Officer has collected the evidence regarding the forgery committed by the applicants and Mohd. Akmal Lari in preparing the forged family settlement dated 28.3.1988 by means of putting forged signature of Mohd. Afzal Lari and Smt. Farhat Jahan upon it in Parcha no. 3 of the case diary dated 3.10.2008 and the copy of the forged family settlement deed has been made part of the case diary. It is mentioned in the alleged family settlement that the property situated at Mauza Nautan is given to Mohd. Akmal Lari whereas the share of Mohd. Akmal Lari is given to sons of the Afzal Lari of the property situtated at Mauza Lachhipur which shows that the alleged family settlement is said to have been executed on 28.3.1988 whereas the proceedings of 229-B (suit for declaration) vide Case No. 758/88 (Mohd. Ashraf and others versus Firoz Ahmad) in respect of the property situated at Mauza Lachhipur was filed on 7.12.1988. On 28.3.1988, the suit for declaration was not even in existence and the property was not in the name of Mohd. Afzal and his sons or Mohd. Akmal and her daughters therefore there was no question of executing a family settlement in respect of the property situated at Mauza Lachhipur. The alleged Khatauni shows that the name of the opposite party no.2 and his family members was struck of from the revenue records and the name of the applicant nos. 1 to 4 was mutated upon the share of the opposite party no. 2 and his family members by the order dated 16.10.1999 passed by the Naib Tehsildar, Pipraich, Gorakhpur initiated upon the application filed by Mohd. Akmal Lari and the applicant no. 1 to 4 on the basis of the alleged family settlement dated 28.3.1988. During the investigation, Investigating Officer has collected the evidence that in fact no case bearing no. 852, Mohd. Akmal Lari and others versus Mohd. Afzal Lari and others, was ever registered before the court of N.T., Pipraich Gorakhpur and therefore there was no question of passing of any order including order dated 16.10.1999 for mutation of the names of applicants in revenue record. The opposite party no. 2 applied for the copy of the 'Goshwara' of Case No. 852 of the order dated 16.10.1999, Mohd. Akmal Lari Versus Mohd. Afzal Lari upon which there is an office report of munsarim that there was no such 'Goshwara' of Case No. 852 ever registered. During investigation, the copy of the certified copy of the application bearing office report dated 16.5.2008 has been collected as evidence by the Investigating Officer and is part of the case diary. It is also submitted that it is a settled law that civil proceedings are not bar upon crimnal proceedings if a person has committed cheating or forgery, he cannot take shelter of civil proceeding and escape from criminal liability.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612, and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or 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 uncontraverted 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, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".
In the case in hand, it is not being denied by the opposite party no. 2 that applicants are not family members and also jointly not purchased the property in question but the name of the applicants could not entered into the revenue record under Section 34 L.R. Act. Thereafter, in the proceeding under Section 33/39 L.R. Act before the concerned S.D.M., the family settlement for compromise was considered and name of the applicants got mutated. The matter is also being pending before the civil court through original suit no. 496/2008. Moreover, the order by which the name of the applicants got mutated was also under challenge before the appellate authority. The question whether the family settlement bear the fake signature has to be decided during the trial and dragging the matter before the criminal court is nothing but an abuse of process of law. However, allegation by the complainant even if accepted to be true, would only rise to the civil dispute but do not constitute any offence punishable under the court or any other law.
The Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751, has held that this Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.
In view of what has been submitted and discussed above, the application has substance and is liable to be allowed.
The application is allowed and charge-sheet dated 29.11.2008 in Case Crime No. 2287 of 2008, under Sections 419, 420, 467, 468, 471, 166, 219 I.P.C., P.S. Cantt, District Gorakhpur is hereby quashed.
Order Date :- 11.5.2018 Prakhar