Allahabad High Court
Smt. Ummeda Fatima vs State Of U.P. And Another on 19 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2542
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD -1- A.F.R. Reserved on: 03.11.2020 Delivered on: 19.11.2020 Court No. - 84 Case :- APPLICATION U/S 482 No. - 34490 of 2015 Applicant :- Smt. Ummeda Fatima Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nazrul Islam Jafri,S.A.Ansari Counsel for Opposite Party :- G.A.,Azim Ahmad Kazmi,Khurshed Alam Hon'ble Ram Krishna Gautam,J.
1. This application under Section 482 Cr.P.C. has been filed, by Smt. Ummeda Fatima, against the State of U.P. and Smt. Wasima Begum, with the prayer for quashing the charge-sheet as well as entire proceeding of Criminal Case No. 603 of 2015, arising out of Case Crime No. 945 of 2014, under Sections 420, 467 and 468 of the Indian Penal Code, relating to Police Station-Dibai, District-Buland Shahar.
2. Learned counsel for the applicant, mentioned that allegations made against the applicant, at the best, makes out a case of civil liability as the applicant is alleged to have get her name mutated after the death of her husband, under Section 34 of the Land Revenue Act, which become a bone of contention between the applicant and opposite party no. 2, who claims to be second wife of the deceased. The applicant was married with Sagar Ali, R/o Kesar Kalan of Police Station-Dibai, District-Buland Shahar, under Muslim rites and customs on 28.10.2007. She was blessed by one female child namely Zoya, aged about 5 years, from their wedlock. She along with her daughter and husband was living in her matrimonial obligation happily but, was subjected to cruelty with regard to dowry, hence, a criminal case was -2- filed by her, against her husband and in-laws. Unfortunately, Sagar Ali, husband of the applicant, and his mother Smt. Ikhlasi Begum were murdered by unknown assailants on 22.06.2014 at Kesar Kalan, District-Buland Shahar. But, because of enmity and litigation, one Parvej @ Koki got lodged criminal case against the applicant and her family members on the basis of frivolous allegations, on 22.06.2014 at 2.45 p.m., as Case Crime Number 299 of 2014, under Sections-147, 148, 149, 302, 307, 115, and 120-B, I.P.C. read with Section 7 of the Criminal Law Amendment Act, at Police Station-Dibai, District-Buland Shahar.
3. After the death of Sagar Ali, the applicant filed an application, in the Court of Nayab Tehsildar- Dibai, District-Buland Shahar, under Section 34 of the Land Revenue Act, for getting her and her daughter's name mutated at the place of Sagar Ali, over his entire agricultural property. This application was allowed vide order dated 30.09.2014 and thereby, the name of the applicant and her daughter was got mutated in the revenue records.
4. The opposite party no. 2 Smt. Wasima Begum, claiming to be second wife of Sagar Ali, moved an application, before the Court of Nayab Tehsildar, Dibai, District-Buland Shahar, on 07.10.2014, challenging the above mutation order dated 30.09.2014, on the ground, that she is legally wedded wife of Sagar Ali, wherein, it was submitted that Shahana Begum had also filed an original Suit No. 810 of 2014 against Sagar Ali, in the Court of Tehsildar-Dibai, District- Buland Shahar, wherein, Smt. Ummeda Begum-the applicant, had also filed her objection, hence, the present applicant was fully aware of those facts even then, she got mutated her name with wrong contention.
5. The Court heard both sides and vide order dated 07.10.2014 the mutation order dated 30.09.2014 was set aside by the Tehsildar-Dibai. -3-
6. The applicant had also filed a Suit No. 554 of 2014, against Smt. Shahana wife of Shri Azmat Ali and Smt. Rehena wife of Shri Khaliq Ahmad, in the Court of Civil Judge, Senior Division, Buland Shahar for declaring the will dated 12.03.2010, being said to be executed by Sagar Ali in favour of Smt. Shahana and Rehana as null and void. The same is still pending. But, knowing all these facts, the opposite party no. 2 got lodged First Information Report on 30.07.2015, on frivolous grounds.
7. The applicant preferred a Criminal Misc. Writ Petition No. 10874 of 2015, Smt. Ummeda Fatima vs. State of U.P. and 2 others, before this Hon'ble Court, for quashing the impugned First Information Report as well as stay of her arrest.
8. This Hon'ble Court, vide order dated 05.05.2015, disposed of the above Criminal Writ Petition finally, with a direction for not arresting the petitioner in pursuant of First Information Report dated 07.11.2014, till credible evidence is there or till the submission of police report under Section 173 (2) Cr.P.C. The investigating officer, without making any fair investigation, but recording statements of Smt. Wasima Begum, Parvej @ Koki and Ashfaq, under Section 161 Cr.P.C., submitted a charge-sheet against the applicant in the Court of Additional Chief Judicial Magistrate, Buland Shahar, for offenses punishable under Sections 420, 467 and 468 of Indian Penal Code, whereupon, cognizance was taken vide order dated 11.09.2015, following issuance of summon against the applicant, in above criminal case. This was under abuse of process of law. The applicant, being wife of Sagar Ali, and Zoya Fatima, being daughter of Sagar Ali, were entitled to inherit the property of Sagar Ali after death of Sagar Ali and mere filing an application, in the Court of Tehsildar, Dibai, under Section 34 of the Land Revenue Act, will not amount to an offence of cheating or forgery. More so, matter is still subjudice before the Court of Tehsildar Dibai, -4- Buland Shahar, and final order is yet to be passed by the Tehsildar. Hence, this registration of case crime number was nothing but, a malafide action. Hence, this application, with above prayer.
9. Learned A.G.A. argued that the First Information Report of Case Crime Number 495 of 2014, under Sections-420, 467 and 468 I.P.C. was presented by the opposite party no. 2 at Police Station-Dibai, District-Buland Shahar, with the allegation of playing fraud to usurp the entire property of Sagar Ali, husband of the informant. Matter was under investigation, when a proceeding under Section 482 Cr.P.C. was filed for quashing the said First Information Report, but, a Division Bench of this Hon'ble Court, in above proceedings under Section 482 Cr.P.C., did not grant relief, prayed for, rather, held that prima-facie case has been made out for registration of case crime number. Statements of witnesses were got written under Section 161 Cr.P.C.; documentary evidence were also taken and investigation resulted in logical conclusion for filing of police report under Section 173 (2) Cr.P.C. as charge-sheet number 126 of 2015 dated 25.05.2015, for the offences punishable, as above. Judicial Magistrate, took cognizance over it on 11.09.2015. Nothing under misuse of process of law is there.
10. Learned counsel for the informant vehemently argued that Smt. Ummeda Fatima was first wife of Sagar Ali. But, she tortured Sagar Ali, with intention to grab his entire property. She and her family members pressurized Sagar Ali to part with his agricultural land. False and frivolous cases were filed by them, against Sagar Ali and his mother Ikhlasi Begum. Sagar Ali did not concede their illegal demand, rather, he made several complaints against Smt. Ummeda Begum, before the concerned police station and administrative authorities. Ultimately, Smt. Ummeda Begum left matrimonial house of Sagar Ali. Police and administrative authorities did not act upon the complaint made by Sagar Ali, resulting murder of Sagar Ali and his mother Smt. Ikhlasi Begum, by Smt. Ummeda Begum and her parents. It was a gruesome -5- murder, in broad day light, on 22.06.2014 in full public view. This offence of murder was witnessed by Parvej @ Koki S/o Ashfaq and many other persons, present on the spot. First Information Report of Case Crime Number 299 of 2014 under Sections-147, 148, 149, 307, 302, 115, 120-B I.P.C. read with Section 7 of the Criminal Law Amendment Act, was got registered at Police Station-Dibai, upon the report of Parvej @ Koki against Smt. Ummeda Fatima and others.
11. In the statement recorded under Section 161 Cr.P.C. Smt. Ummeda Fatima has admitted that since Sagar Ali had contracted second marriage, therefore, this murder was to happen and for this, she felt no remorse over his murder. Smt. Ummeda Fatima, remained in prison till her release on bail in Criminal Misc. Bail Application No. 30364 of 2014, Smt. Ummeeda Begum @ Ummeeda Fatima Vs. State Of U.P., vide order dated 16.09.2014 by this Hon'ble Court. But, during this confinement an application dated 14.08.2014 was moved by Smt. Ummeda Fatima, through his counsel in the Court of Nayab Tehsildar, Dibai, District-Buland Shahar for getting her name mutated over the agricultural land of Sagar Ali and his mother Smt. Ikhlasi Begum. Which was registered as Mutation Case No. 663 of 2014 Smt. Ummeda Fatima vs. Ikhlasi Begum, mutation case No. 664 of 2014 Smt. Ummeda vs. Sagar Ali, under Section 34 of the Land Revenue Act. Smt. Ummeda Fatima claimed herself and her daughter to be only survivor and successor of deceased Sagar Ali and his mother Ikhlasi Begum. Whereas, she was fully aware that being murderer of her husband and mother-in-law, she was debarred from being their successor. She deliberately and knowingly made false averment on oath, before the above Revenue Court, on 29.09.2014, in above mutation proceedings, that she, along with her daughter Zoya, are only legal heirs of Sagar Ali and his mother Ikhlasi Begum, and thereby, she got prepared the application and documents under fraud and by this fraud, she got mutated her and her daughter's name against the properties of deceased Sagar ali and his mother Ikhlasi -6- Begum.
12. Smt. Wasima Begam, being legally wedded wife of Sagar Ali, along with her daughter Sumera, borned on 01.9.2013 from wedlock of deceased Sagar Ali, were entitled to succeed the estate of her deceased husband Sagar Ali and her mother Ikhlasi Begum. She moved, an application, for cancellation of mutation order dated 30.09.2014, before the Revenue Court of Tehsildar-Dibai and thereupon, the mutation order was got cancelled and for this fraud, present Case Crime number was got registered; charge-sheet has been filed and this was on the basis of evidence collected during investigation and as such there is no abuse of process of law, hence this application be dismissed.
13. Admitted fact is that Smt. Ummeda Fatima was legally wedded wife of Sagar Ali. She was blessed with a daughter Zoya. There was matrimonial discard between Ummeda Fatima and Sagar Ali, for which, criminal cases were pending. Sagar Ali, was got married with Smt. Waseema Begum who was blessed with a daughter from their wedlock. Civil Suits regarding agricultural land of Sagar Ali and his mother Smt. Ikhlasi Begum, with regard to disputed "will", said to be executed by Sagar Ali, is pending before the competent Civil Court of Buland Shahar. Sagar Ali and his mother Smt. Ikhlasi Begum were murdered on 22.06.2014, for which Case Crime Number 299 of 2014 under Sections-147, 148, 149, 307, 302, 115, 120-B, I.P.C. read with section 7 of Criminal Law Amendment Act, was got registered at Police Station-Dibai, District-Buland Shahar by Parvej@ Koki, wherein, Smt. Ummeda Fatima, her father, her brother and one relative Shahnaz S/o Aabad were accused. This case crime number caused arrest of Smt. Ummeda Fatima, who was enlarged on bail in Criminal Misc. Bail Application No. 30364 of 2014, vide order dated 16.09.2014. A Mutation application, under Section 34 of the Land Revenue Act, for mutation at the name of Sagar Ali as mutation case no. 663 of 2014 -7- and at the name of Smt. Ikhlasi Begum, in Mutation Case No. 664 of 2014 was filed by Smt. Ummeda Fatima as Ummeda Fatima vs. Ikhlasi Begum and Ummeda Fatima vs. Sagar Ali. In both of these cases Smt. Ummeda Begum claimed herself to be successor along with her daughter Zoya for the property of late Sagar Ali and late Smt. Ikhlasi Begum. She has claimed herself and her daughter to be only survivor and successor with no other inheritor. Whereas, in many other previous litigations it was fully in the knowledge of Smt. Ummeda Fatima that Sagar Ali was married with Wasima Begum, who was blessed with one female child. Even knowing this fact mutation application was moved with incorrect affidavit and incorrect application of documents. In oral statements too, the same contention was made and on the basis of these forged and fabricated evidence, the impugned order of mutation was passed which was challenged by Smt. Wasima Begum and ultimately, mutation order was cancelled. Thereafter, mutation was entered, by adding name of Wasima Begum and her daughter too. Though, there is legal bar under the Land Revenue Act, subsequently, in U.P. Revenue Code Section 114 (c) provides that " A person who commits murder of a [Bhumidhar, asami or government lessee], or abates the commission of such murder, shall be disqualified from inheriting the interest of the deceased in any holding". But, it is a question to be seen by the competent Revenue Authority. Hence, this First Information Report was challenged before this Court and a request was made for quashing the First Information Report dated 07.11.2014 registered as Case Crime Number 495 of 2014, under Sections-420, 467, 468 I.P.C., Police Station-Dibai, District-Buland Shahar, and it was argued before this Court that question in the matter appeared to be a reference of property in question that had been left over by Sagar Ali and his mother Smt. Ikhlasi Begum, but, the Division Bench of this Court in Criminal Misc. Writ Petition No. 10874 of 2015 Smt. Ummeda Fatima vs. State of U.P. and 2 other had held that ;
"......We have the occasion to persue the arguments that has been so -8- advanced o behalf of the parties before us and FIR, prima facie discloses cognizable offence, as such request for quashing of the FIR is turned down"........
Meaning thereby, prima facie case was disclosed for cognizable offence and it was not a ground for quashing of the First Information Report. Investigation has resulted submission of charge-sheet over which cognizance has been taken. Offence of moving application, with false and fictitious contention, claiming herself to be sole survivor along with her minor daughter over the property of late Sagar Ali and his mother Smt. Ikhlasi Begum, and thereafter, fabricating oral and documentary evidence for it and getting name mutated, knowing the legal situation of debar of inheritance and conviction in that criminal case of murder, prima facie, makes out offences for which chargesheet has been filed.
14. This court in exercise of its inherent jurisdiction u/s 482 Cr.P.C. is not expected to meticulously analyses the facts and evidence as it is matter of trial to be seen during trial.
15. Saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. But Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588:
(2010) 6 SCALE 767: 2010 Cr. LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of -9- it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474, Hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 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." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".
16. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court -10- would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".
17. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. This court is not to make any comment on factual matrix because the same remains within the domain of trial court.
18. Accordingly, there remains nothing for any indulgence in this proceeding. The prayer for quashing the impugned order as well as proceeding of the aforesaid complaint case is refused and the application u/s 482 Cr.P.C. is hereby dismissed.
Order Date :- 19.11.2020 Deepak/