Allahabad High Court quashes summon order passed by Additional Chief Judicial Magistrate

The Allahabad High Court while quashing the summoning orders passed by the Additional Chief Judicial Magistrate, Rampur said that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused.

A Single Bench of Justice Shiv Shanker Prasad passed this order while hearing an application under section 482 filed by Nasir Khan.

The application under Section 482 Cr.P.C has been filed on behalf of the applicant to quash the charge-sheet dated 10.04.2022, cognizance/ summoning order dated 14.04.2022 as well as entire proceedings of Case, arising out of Case under Sections 420, 467, 468, 471, 504, 506, 447 I.P.C, Police Station Kotwali, District Rampur, pending in the court of Additional Chief Judicial Magistrate, Rampur.

The criminal case was borne out from a first information report lodged by Nihal-uddin Khan i.e opposite party no 2 on 4th July, 2021 at 23:57 hours against as many as 23 accused persons including the applicants.

In the said FIR, it has been alleged that mother of the informant namely Raees Jahan Begum was having 14 Bigha land situated at Mohalla Culcutta, Police Station Kotwali, District Rampur, which was obtained by her through registered sale deed dated 25.06.1966. She died on 01.11.2015 and after her death her sons namely Alauddin, Haseemuddin and Nihaluddin (informant) have become the owners of the said land.

It is alleged that taking advantage of the helplessness of the informant, the applicant after committing criminal conspiracy with the help of others obtained forged and fabricated power of attorney by one Sabir Khan but the applicants and their mother had not sold the said land.

Sabir Khan died on 17.09.2004 and after his death the Power of Attorney became invalid. But the applicant has executed sale deeds on 25.07.2018, 28.02.2011, 13.05.2013, 26.07.2016, 17.01.2017, 28.03.2013, 17.02.2016 and the same are illegal and the persons concerned are trying to get possessions for which an application was given to the District Magistrate and an F.I.R as Case under Sections 323, 504, 506, 307 I.P.C was lodged against the applicant. The applicant has threatened the informant hence the F.I.R has been lodged.

Counsel for the applicant submitted that the alleged incident occurred on 18.05.2021, whereas the first information report has been lodged after two months of the incident i.e 04.07.2021 and there is no plausible explanation about the delay in lodging of the FIR.

After lodging of the aforesaid FIR, the investigation proceeded and the Investigating Officer has recorded the statement of the informant under Section 161 Cr.P.C in which he has reiterated the same version as unfolded in the FIR.

The Investigating Officer also recorded the statements of formal witnesses, namely, Constable Sushil Kumar, S.I Raees Ahmad, S.I Vishwabandhu, S.I Dharmendra Singh, Dr Vivekanand (Executive Officer), Premendra Singh (Lekhpal) and Kaushal Dixit (Sub Registrar) under Section 161 Cr.P.C and they have not supported the allegations made in the FIR.

After conclusion of the statutory investigation under Chapter XII Cr.P.C, the Investigating Officer on 10.04.2022 submitted the charge-sheet against the applicant under Section 420, 467, 468, 471, 504, 506, 447 I.P.C and upon submission of the same, on 14.04.2022 learned A.C.J.M-I has taken cognizance.

Earlier with regard to the same allegation, opposite party no 2 has moved an application under Section 156(3) Cr.P.C and the same has been registered as Misc Case, which was rejected by the court below vide order dated 14th August, 2019 on the ground that since opposite party no 2 has not produced any document from which can be ascertained as to whose name has been recorded in the records of Nagar Palika over the land in dispute.

On the basis of the aforesaid finding, the court below has opined that the application under Section 156 (3) has only been made to exert pressure upon the applicant. The court below has not found any merit in the said application filed by opposite party no 2 and ultimately rejected the same.

After dismissal of the aforesaid application filed by opposite party no 2 under Section 156 (3), an FIR being Case under Section 323, 504, 506, 307 I.P.C was lodged by opposite party no 2 against the applicant wherein nearly same allegations have been made against him due to land in question. In the said case, after investigation, a final report has been submitted against the applicant and no protest petition was filed till date.

After failing twice in initiating false and frivolous criminal cases against the applicant, opposite party no 2 lodged the FIR and thereafter he has also filed a complaint being Complaint Case under Section 417, 452, 323, 504 I.P.C on false and frivolous allegations.

The proceedings of the aforesaid complaint case were challenged by the applicant before the Court by means of connected application being Application U/s 482, wherein the Court vide order dated 20.10.2022 has stayed the further proceedings against the applicant.

Submission of the counsel for the Applicant:

(i) There is a delay of nearly two months in lodging an FIR for the alleged incident but no plausible explanation has been given.

(ii) This is a case of no injury nor any medical examination report qua any injured or the part of the case diary has been brought on record.

(iii) On being unsuccessful twice in initiating criminal proceedings against the applicant, Opposite party no.2 has lodged the FIR only in order to exert pressure upon him on false and frivolous allegations, when as a matter of fact for the dispute of same land, he has already filed a civil suit in the year 2019 against the applicants and others.

(iv) The alleged incident dated 18th May, 2021 as has been mentioned in the FIR has never occurred and all the allegations mentioned therein are wholly false and concocted.

(v) The criminal case initiated by opposite party no 2 against the applicant is nothing but a bundle of lies and the same has been lodged only for exploiting the applicant by indulging his name in a fake, false and frivolous case. The entire prosecution story as unfolded in the first information report is absolutely a self-made story projected by opposite party no 2.

Per contra, A.G.A and the counsel for opposite party no 2 have submitted that from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC.

He also submitted that it is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings.

The Court is of the view that the correctness or otherwise of any deed like will-deed, power of attorney, sale-deed etc, which is registered by a public/ government authority can be more appropriately adjudicated by a Civil Judge on the basis of oral as well as documentary evidence to be led by the parties and unless or until the same is not decided that the same is false and fabricated deed, the criminality cannot come into picture for making such deed. Such a stage in the case has yet to come.

In view of the deeper scrutiny of laws laid by the Apex Court referred to herein--above and its discussion and the facts and circumstances of the case, the Court is of the opinion that none of the offences for which the applicant is summoned in both the cases, is made out from the FIR and the complaint and material on record.

The Court further found that it is nothing but abuse of process of law on the part of the complainant/opposite party no 2 to implicate the applicant in such criminal cases. As already settled by the Apex Court that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment, the Court while exercising its inherent power under Section 482 Cr.P.C allows both the applications.

"Consequently, summoning orders impugned in both the applications as well as entire proceedings of the Case No 517 of 2022 (State Vs Nasir Khan), arising out of Case Crime No 130 of 2021, under Sections 420, 467, 468, 471, 504, 506, 447 I.P.C, Police Station Kotwali, District Rampur, pending in the court of Additional Chief Judicial Magistrate, Rampur as also entire proceedings of Complaint Case No 2537 of 2022 (Nihaluddin Vs Nasir Khan & Others), under Sections 417, 452, 323 and 504 I.P.C, Police Station- Kotwali, District Rampur, pending in the court of Additional Chief Judicial Magistrate, Rampur are quashed", the Court ordered.