Disposed

Ekhlakh Aahmad and another v. State of U.P. and another

Allahabad HC3 May 2018A482/12698/2018

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the High Court held that the case involved disputed questions of fact regarding land encroachment and could not be quashed at this stage. The charge sheet was not quashed, but the application was disposed of by allowing the applicants 30 days to seek discharge from the trial court with an interim stay on coercive action.

What did the court decide?

Applicants granted 30 days to move for discharge; coercive action stayed during this period conditional on appearance.

Ekhlakh Aahmad and another Vs State of U.P. and another — Property and Title | Allahabad HC (2018)

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Court No. - 44

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Case :- APPLICATION U/S 482 No. - 12698 of 2018

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Applicant :- Ekhlakh Aahmad And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akhilesh Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Chandra Dhari Singh,J.

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Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

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The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 20.11.2014 in which cognizance was taken by J.M. IIIrd, Allahabad on 31.01.2018 in Case Crime No.272 of 2014, under Section 3/5 Public Property Damages Act, 1984, Police Station Ghoorpur, District Allahabad.

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Learned counsel for the applicants submits that the F.I.R. has been lodged by one Bhola Prasad Lakhpal of concerned village on 11.10.2014, which is registered at Case Crime No.272 of 2014, under Section 3/5 Public Property Damages Act, 1984, Police Station Ghoorpur, District Allahabad against the applicants. As per the prosecution story is that Arazi No.428 area 1.496 hectare is mentioned pond in revenue record situated at village Palpur Arail, Tehsil Karchna, District Allahabad which is public utility land and belongs to Section 132 of Z.A. Act and on the Arazi No.438 area 0.011 hectare the illegal encroachment made by applicant no.1 and made a house which was demolished by concerned police on 29, July, 2012, he further submitted that on the aforesaid Arazi No.438 area 0.011 hectare again illegal encroached by applicants and their cattle were bond by them and they also trying to make a house upon Public Utility Land and registered the aforesaid impugned F.I.R. has been lodged by opposite party no.2 against the applicants. In pursuant to the impugned F.I.R. only the statement of complainant has been recorded by I.O. under Section 161 Cr.P.C. on 13.10.2014. The statement of Gram Pradhan was also recorded by I.O. under Section 161 Cr.P.C. on 20.11.2014, in which he has supported the version of the F.I.R. The cognizance has been taken by the court below on 31.01.2018.

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Learned counsel for the applicants further submitted that a proceeding of Section 122-B was initiated by concerned Gram Sabha against the father of the applicant no.1 in which order has been passed in favour of applicant no.1's father on 28.02.1987.

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In that order was recorded that no encroachment was made by the father of the applicant no.1 in Araji No.417 which belongs to Pathway and with regard to the Arazi No.438 (Old No.351/2) was encroached by someone as per patta granted by concerned authority. As per report dated 10.02.2015 made by Tehsildar Karchhna, Allahabad, it is clear that no encroachment was made by applicants but some of the houses were standing there which were made long before the 15 years. It is further submitted that the house of the applicant are standing in Arazi No.391 whcih is situated in front of Arazi No.417 and Arazi No.417 is belongs to Pathway and in the other side of Arazi No.417, Arazi No.438 (pond) is situated which was never encroached by the applicant.

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Learned counsel for the applicant submitted that only for the purpose of harassment of the applicants, the frivolous and concocted F.I.R. was was lodged by the opposite party no.2 on the behest of some influenced person. It is clear that applicants have never encroached any public utility land as alleged by the opposite party no.2.

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Learned A.G.A. appearing on behalf of State vehemently opposed the contentions made by the learned counsel for the applicants. He submitted that this is pure question of fact that whether the applicants have encroached the land or land or not, therefore, this Court may not invoke its inherent jurisdiction under Section 482 Cr.P.C. The said application has not merit and deserves to be dismissed.

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In State of Bihar vs. JAC Saldanha, 1980 1 SCC 544 , the Hon'ble Supreme Court held as under:

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"The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. The High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete, we say no more. "

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From the perusal of the material available on record and looking into the facts of the case, at this stage, it cannot be said that there is any illegality in the order dated 31.01.2018 passed by the court below while taking the cognizance on the charge sheet submitted against the applicant. This is pure question of facts. Therefore, I do not find any justification to quash the charge sheet or the proceeding or the order dated 31.01.2018 passed by the court below.

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Lastly, learned counsel for the applicants submitted that the

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applicants will appear before the court below and moved an appropriate application for discharging the applicants and he sought some time for appearance of the applicants before the court below.

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On the aforesaid prayer made by learned counsel for the applicants, it is provided that if the applicants move an application for discharge before the court below within 30 days from today, then the said application of the applicants be considered and decide as per law. For a period of 30 days from today or till the disposal of the application for discharge, whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of .

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Order Date :- 3.5.2018 Jitendra

Ekhlakh Aahmad and another v. State of U.P. and another

Case brief

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Ekhlakh Aahmad and another v. State of U.P. and another

Case brief

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