Rajasthan High Court - Jodhpur
Moin Ul Haque & Anr vs State & Anr on 18 July, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3160 / 2016
1. Moin Ul Haque S/o Late Syed Inamul Haque Age-48 years
R/o Defence Colony, Kamla Nehru Nagar, Jodhpur
2. Ata Ul Haque S/o Late Syed Inamul Haque Age-50 years, R/o
Defence Colony, Kamla Nehru Nagar, Jodhur.
----Petitioners
Versus
1. The State of Rajasthan through P.P.
2. Akila W/o Anwar Ali R/o Bijlighar Ke Pichhe, Pratap Nagar,
Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Farzand Ali.
For Respondent(s) : Mr.O.P.Rathi, P.P. with Mr.Bhim Singh, I.O.
Mr.H.R.Soni.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order 18/07/2017 Heard learned counsel for the petitioner, learned Public Prosecutor assisted by Investigating Officer, learned counsel for the complainant and perused the material available on record.
By way of the instant misc. petition, the petitioners seek quashing of the F.I.R. No.440/2016 registered at the Police Station Pratapnagar, District Jodhpur for the offences under Sections 420, 406, 386 and 34 I.P.C.
Shri Farzand Ali learned counsel for the petitioner vehemently urges that ex-facie, even if the allegations of the prosecution are accepted to be true on the face value, apparently, the petitioners cannot be made liable for the offences under (2 of 4) [CRLMP-3160/2016] Sections 420, 406, 386 and 34 I.P.C. He contends that the story set up in the F.I.R. is a figment of imagination and the same has been stage managed just in order to somehow or other entangle the petitioners in frivolous criminal cases and keep them behind bars because another case of extortion was registered against the petitioners at Abu Road in which some Police officials were involved. He urges that the complainant Akila has alleged in the F.I.R. that she owned house No.C99 at Pratap Nagar and that her tenant Rafiq cheated her and managed to keep the original documents mortgaged with one Guptaji and in turn, she was given a pittance of Rs.50,000/-. Her husband expired in the year 2009 and during her iddat period, the petitioners allegedly conspired with Rafiq, fraudulently procured the documents of the property from the said Guptaji, trespassed into the house and set up their office therein. When she tried to enter the house, the petitioners prevented her from doing so and Rafiq told her that he had sold the documents of her house to the petitioners Moin and Ata Ul. Thereafter, Rafiq made her sell her ornaments, goats etc. for getting the documents released but cheated her again. Shri Farzand Ali urges that ex-facie, even if these allegations are accepted as being gospel truth, apparently, the petitioners never came into touch with the complainant so as to make them liable for the above offences. He contends that the allegations of the prosecution are primarily against Rafiq, against whom the Investigating Officer is not proceeding.
Upon a pertinent query being put by the Court, the Investigating Officer Shri Bhim Singh candidly conceded that Rafiq (3 of 4) [CRLMP-3160/2016] has been examined as a witness during investigation and is no longer being prosecuted. The Investigating Officer further states that while conducting investigation, it was found that at some point of time, the petitioners herein had affixed a board on the disputed premises and had also set up their office in the name of 'Voice of Haq' therein but it was not in existence when the site inspection was carried out. A conjecture has been made by the Investigating Officer that the petitioners herein trespassed and took forcible possession of the first floor of the complainant's house. However, while preparing the site plan, the staircase for approaching the first floor of the disputed premises was found locked. It thus clearly appears that the Investigating Officer has made a mere conjecture regarding the petitioners having trespassed into the disputed premises. Neither the complainant nor any of the witnesses examined during investigation stated/clarified the date, time, month or year in which the accused took possession of the disputed premises. It being an admitted fact that the accused petitioners herein never offered any fraudulent inducement to the complainant and as, she never entrusted anything to them, apparently, prosecution of the petitioners for the offences under Sections 420 and 406 I.P.C. is nothing short of gross abuse of process of law. As per the complainant, the accused fraudulently took possession of the disputed house without her knowledge. She was allegedly prevented from re-entering into the premises. She has not come out with the case that the petitioners put her in fear of injury and thereby induced her to deliver any property to them. These (4 of 4) [CRLMP-3160/2016] admitted facts ex-facie do not spell out the necessary ingredients of the offence under Section 386 I.P.C. as well. The admitted allegations could make out an offence of criminal trespass at best against the petitioners. Even if the allegation of the complainant is accepted as a gospel truth, apparently, the accused took possession of her house sometime in the year 2009 while she was observing iddat after her husband had expired. The accused could thus at the most be prosecuted for the offence under Section 448 or 451 I.P.C. which entail a maximum punishment of two years. The F.I.R. has been registered in the year 2016 and thus, apparently, the prosecution initiated at such a belated stage for these offences, would be hopelessly barred by limitation.
In this background, this Court is persuaded to exercise its inherent powers under Section 482 Cr.P.C. to quash the impugned F.I.R. 440/2016 and all investigation carried out thereunder as the same amounts to a gross abuse of process of law.
Accordingly, the instant misc. petition is allowed. The impugned F.I.R. No.440/2016, registered at the P.S. Pratapnagar, District Jodhpur and all proceedings carried out thereunder are hereby quashed.
(SANDEEP MEHTA)J. /tarun goyal/