Telangana High Court
M. Ramesh Goud And 2 Others vs State Of Telangana And Another on 6 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2195 OF 2021
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') to quash the proceedings in C.C.No.2909 of 2021 pending on the file of the XVII Additional Chief Metropolitan Magistrate, Nampally City Criminal Courts, Hyderabad. The petitioners are A.1 to A.3 in the said case. The offences alleged against the petitioners herein are under Sections 447 and 427 read with 34 of IPC.
2. Heard Sri Vedula Srinivas, learned senior counsel, representing Ms. Vedula Chitralekha, for the petitioners, Sri Khaja Vizarath Ali, learned Assistant Public Prosecutor for the 1st respondent - State and Sri Abu Akram, learned standing counsel, appearing for the 2nd respondent. Perused the record.
3. As per the charge sheet, the allegations leveled against the petitioners herein are that Masjid-E-Ek Khana known as Masjid-E-Bilal, situated at OU colony, Shaikpet, Hyderabad, admeasuring 2,266 sq.yards, is registered and notified as Waqf, published in A.P. Gazette 2 No.26-C, dated 01.07.1982 (for short, 'subject land'). The Inspector Auditor Waqfs, C.No. V and VII, Hyderabad has submitted an inspection report wherein it is stated that some miscreants have illegally trespassed into the subject land and removed the caution board of Waqf Board and leveled the land with machinery and dug up the bore well with an intention to encroach into the subject land. The above illegal work has been carried out on the instructions of A.1. A.2 and A.3, sons of A.1, had earlier sold out the subject land. They are habitually carrying out illegal constructions and selling the government lands. Thus, they have committed the aforesaid offences.
4. Perusal of the record would reveal that on the complaint lodged by the 2nd respondent, the Police, Golconda Police Station, have registered a case in Cr.No.201 of 2019 against the petitioners herein for the aforesaid offences. During the course of investigation, the Investigating Officer, has recorded statements of Chief Executive Officer of 2nd respondent as L.W.1, Inspector Auditor, Waqf Board as L.W.2. He has also examined two panch witnesses as L.Ws.3 and 4. Thus, the Investigating Officer has not examined any independent witnesses.
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5. Referring to sale deeds and various other proceedings, Sri Vedula Srinivas, learned Senior Counsel representing Ms. Vedula Chitralekha, learned counsel for the petitioners would submit that the petitioners herein are absolute owners of Plot Nos. 325, 326/1 and 326 in Sy.Nos.320/1/A, 320/1/AA, 320/2, 324, 326/1 and 326/2, situated in Osmania University Colony, Shaikpet Village, Hyderabad which is acquired by the Government vide G.O.Ms.No.232, dated 18.03.1981 to an extent of 75 acres for the purpose of allotment of plots to the Members of Osmania University Employees Co-operative Housing Society (for short, 'the Society'). Thereafter, the said Society had divided the said property into residential plots, developed the same and allotted to its Members by following the due procedure.
6. Perusal of the record would reveal that one H.Krishna, Member of the said Society was allotted with Plot No.325 vide registered sale deed bearing document No.117/92, dated 04.11.1989. One Shaik Javeed purchased the said property from the said H.Krishna, who in turn, sold the said property to the 2nd petitioner herein vide sale deed bearing document No.4693 of 2018, dated 07.07.2018. Likewise Plot No.326/1 was allotted to P.B.Venkatachary, vide registered sale deed bearing document No.4341/1993, dated 20.09.1989. After the death of the said 4 P.B.Venkatachary, his wife and his son had relinquished the said plot in favour of the daughters of the said P.B.Venkatachary, by way of executing document No.3907/2011 dated 23.12.2011. They have sold the same under registered sale deed bearing document No.4791 of 2018, dated 12.07.2018 to the 2nd petitioner herein. Likewise, Plot No.326 was allotted to M.A.Khadir under registered sale deed bearing document No.3016/91, dated 23.06.1990. Said M.A.Khadir sold the same to the 3rd petitioner under a registered sale deed bearing document No.275/2019, dated 11.01.2019.
7. While so, when the 2nd respondent tried to interfere with the possession and enjoyment of the vendors of the 2nd and 3rd petitioners in respect of plot Nos.325 and 326, they have filed W.P.No.26025 of 2010, and W.P.No.26088 of 2010 and this Court disposed of the said writ petitions vide orders dated 30.11.2018 holding that the 2nd respondent without conducting enquiry under Section 54 of the Waqf Act, cannot interfere with the peaceful possession and enjoyment of the petitioners in respect of their plots. However, the Wakf Board is given liberty to initiate appropriate action in accordance with law. It is also relevant to note that the petitioner Nos.2 and 3 have obtained permission from GHMC for construction of houses. According to them, they have 5 completed construction and they are in possession of the property. Vide letter dated 04.05.2019, the 2nd respondent has requested the GHMC to cancel the said construction permission. The petitioner Nos.2 and 3 filed a Writ Petition vide W.P.No.10627 of 2019 questioning the said letter dated 04.05.2019 and this Court vide order dated 29.05.2019 disposed of the said writ petition directing the GHMC to follow the due procedure under Section 450 of the GHMC Act. It was also observed that the Waqf Board to work out its remedies available in law. Thereafter, the GHMC has issued a notice under Section 450 of GHMC Act to the petitioners and the same was also questioned by the petitioner Nos.2 and 3 in W.P.No.15163 of 2019 and this Court vide order dated 24.07.2019 in I.A.No.1 of 2019 has granted interim suspicion of the said notice. The 2nd respondent has issued notice dated 23.09.2019 under Section 54 (1) of the Waqf Act, requiring the petitioner Nos.2 and 3 to appear before the CEO of the 2nd respondent along with explanation and documentary evidence on 10.10.2019. The petitioner Nos.2 and 3 have submitted their explanation. Without considering the same, the 2nd respondent has passed an order dated 19.10.2019, stating that the said explanation is found not satisfactory and not convincing. It is further held that the 2nd petitioner has admitted to have purchased Wakf 6 property through sale deeds, which is prohibited under Section 51 of the Act and in view of the directions of the High Court in W.P.No.26025 of 2010 and explanation of the petitioner Nos.2 and 3, the same is not convincing and referred the matter to Wakf Tribunal for eviction of the encroachers. The petitioner Nos.2 and 3 herein have questioned the said order dated 19.10.2019 of the 2nd respondent by way of filing of W.P.No.28578 of 2019 and this Court vide order dated 24.12.2019 in I.A.No.1 of 2019 suspended the said proceedings. The said writ petition is pending and said orders are in force. During pendency of the said proceedings and subsistence of the interim orders, the 2nd respondent has lodged the complaint dated 04.05.2019 against the petitioners herein with the above stated allegations. The Police, Golconda Police Station, registered the said case and without examining any eye witnesses or relevant witness, the Investigating Officer has laid charge sheet against the petitioners herein.
8. The above said facts would reveal that the matter is referred to the Waqf Tribunal by the 2nd respondent under Section 54(3) of the Waqf Act, 1995 vide order dated 19.10.2019. The said orders were under challenge in W.P.No.28578 of 2019 and this Court has granted interim suspension of the said orders dated 19.10.2019. The said writ 7 petition is pending and said interim order is subsisting. It is also relevant to note that the vendor of the 3rd petitioner has filed a contempt vide C.C.No.191 of 2011 alleging violation of the orders dated 22.10.2010 passed in W.P.M.P.No.33320 of 2010 in W.P.No.26088 of 2010.
9. Learned Standing Counsel appearing for the 2nd respondent, on instructions, would submit that neither the 2nd respondent nor its subordinates have erected the said Board. They have no objection if the Board is removed by the vendor of the 3rd petitioner. Recording the said submission, the said contempt was closed granting liberty to the vendor of the 3rd petitioner to remove the Board if the same is in existence over the land to the extent of 178.98 sq.yards.
10. The above stated facts would reveal that there are disputes between the parties with regard to the subject property and the above writ petitions filed by them are pending and the interim orders are in subsistence. During the pendency of the said writ petitions and subsistence of the said interim orders, the 2nd respondent cannot claim that it is his property and the petitioners herein have trespassed into the same.
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11. As stated above, the Investigating Officer has recorded the statement of C.E.O, of the 2nd respondent, as L.W.1 and Inspector Auditor of the 2nd respondent as L.W.2. He has not examined any independent witnesses. He has not considered the above said proceedings in the charge sheet. Prima facie, the contents of the charge sheet lack the ingredients of the offences alleged against the petitioners herein. The present case squarely falls in the parameters laid down by the Apex Court in State of Haryana vs. Bhajan Lal1, for exercise of power of this Court under Section 482 Cr.P.C. and the same are extracted herein:-
"(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.1
1992 Supp (1) SCC 335 9 (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 prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide 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."
12. In view of the above guidelines and the facts of the case, continuation of the proceedings in C.C.No.2909 of 2021 is nothing but abuse of process of law and the same are liable to quashed.
13. In the result, the Criminal Petition is allowed. The proceedings in C.C.No.2909 of 2021 pending on the file of the XVII Additional Chief Metropolitan Magistrate, Nampally City Criminal Courts, Hyderabad, against the petitioners herein/A.1 to A.3 are 10 quashed. However, liberty is granted to the 2nd respondent to take action in accordance with law subject to result of the above said writ petitions.
Consequently, the miscellaneous petitions, if any pending, shall stand closed.
_________________ K. LAKSHMAN, J Date:06th .June, 2022 vvr