Allowed

Kismatullah and 3 Others v. State of U.P. and Another

Allahabad HC16 Aug 2019A482/31798/2016

Case brief

AI extract

What is this about?

High Court allowed Section 482 Cr.P.C. application to quash criminal proceedings for theft and criminal breach of trust where underlying litigation regarding property ownership was pending, summons were illegal, and the offence did not attract statutory ingredients.

What did the court decide?

Application under Section 482 Cr.P.C. allowed; entire criminal proceedings under Sections 379 and 411 IPC quashed.

Kismatullah and 3 Others Vs State of U.P. and Another — Property and Title | Allahabad HC (2019)

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Reserved On:-24.07.2019 Delivered On:-16.08.2019

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Case :- APPLICATION U/S 482 No. - 31798 of 2016 Applicant :- Kismatullah And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mohd. Irfan,Mainuddin Ahamad Counsel for Opposite Party :- G.A.,Rafiuddin Ansari,S.M.Khalid

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Hon'ble Om Prakash-VII,J.

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1. Heard Shri Mainuddin Ahamad, learned counsel for the applicants and Shri S.M. Khalid, learned counsel for the opposite party no. 2 as well as learned AGA for the State.

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2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the charge-sheet dated 15.05.2016 as well as entire proceedings of Case No. 2181 of 2016 (State Vs. Kismatullah & others), arising out of Case Crime No. 527 of 2016, under Sections 379, 411 IPC, Police Station Mohammadabad Gohana, District Mau, pending in the court of Judicial Magistrate, Mau. Further prayer has been made to stay the aforesaid case.

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3. It is submitted by learned counsel for the applicants that summoning order passed in the matter is illegal. Offence under Sections 379, 411 IPC are not attracted against them. Hashmatullah, the father of the applicant no. 1 was real owner of the disputed property. Consolidation Officer and Settlement Officer Consolidation have also passed orders in favour of applicants' side. Although Deputy Directory of Consolidation in criminal revision set aside the order passed by the Settlement Officer Consolidation and Consolidation Officer but the same was challenged by the applicants' side before this court through Writ-B No. 58161 of 2015 and until further order of the court, the effect and operation of the impugned order dated 28.07.2014 passed by Deputy Director of Consolidation concerned was stayed. Applicants were also in actual possession. Investigating Officer did not consider the document in right perspective and submitted charge-sheet on insufficient document. Referring to the documents annexed with the application, it is further submitted that it is a purely civil nature dispute and civil litigation is pending

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between the parties. No final order has been passed in favour of opposite party no. 2. Hence offence under Sections 379, 411 IPC are not attracted in the present matter. FIR was lodged on the basis of false facts in counter-blast only to put pressure and harass the applicants. Supurdinama of Arhar crop is also false.

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4. On the other hand, learned AGA as well as learned counsel for the opposite party no. 2 argued that Deputy Director of Consolidation allowed the revision setting aside the order passed by the Settlement Officer Consolidation and Consolidation Officer. Name of the opposite party no. 2 was recorded in the revenue record. She was in physical possession over the disputed property. She had shown the Arhar crop. Applicants harvested the said crop illegally. Arhar crop was also recovered by the Investigating Officer from the possession of the applicants. Since opposite party no. 2 was in physical possession over the disputed property, Offence under Sections 379, 411 IPC both are clearly attracted in the present matter. A prima facie case is made out. There is no illegality, infirmity or perversity.

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5. I have considered the rival submissions and have gone through the entire record carefully.

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6. In this matter, as is evident from the record, litigation was going-on between the parties regarding the disputed plot. Order passed by the Consolidation Officer was affirmed by the Settlement Officer of Consolidation in the appeal on 31.07.2002 in favour of the applicants' side. It further appears that revision was filed before the Deputy Director of Consolidation, which was allowed and orders passed by the Settlement Officer Consolidation as well as Consolidation Officer were set aside. It further appears that applicants' side approached before the High Court through aforesaid writ and the effect and operation of order dated 28.07.2014 passed by the Deputy Director of Consolidation concerned was stayed on 14.10.2015. Offence is said to have been committed on 25.03.2016. If the date of judgment of Deputy Director of Consolidation i.e. 28.07.2014 and date of the order passed in the aforesaid writ by this Court is taken into consideration, except to extract of Khatauni, nothing is on record to show the actual possession of the opposite party no. 2 over the disputed property on the

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day of incident. Thus, court is of the opinion that offence under Sections 379 & 411 IPC is not attracted in the present matter as the effect and operation of order dated 28.07.2014 had been stayed by this Court on 14.06.2015 itself whereas offence is said to have been committed on 25.03.2016. If such is the position, submission raised on behalf of applicants finds substance and summoning order passed in the matter in the opinion of Court is illegal. Nothing is on record to show the actual possession of the opposite party no. 2 over the disputed property, therefore, summoning order passed in the matter is not sustainable. None of the ingredients of the offence under Sections 379 & 411 IPC are attracted against the applicants. If for the sake of argument, Arhar crop was found in possession of the applicants to which the applicants are claiming themselves as owner, summoning order passed for the offence under Section 411 IPC is also not sustainable.

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7. Thus, on the basis of aforesaid discussions, application having some substance is liable to be allowed.

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8. Accordingly, the present application u/s 482 Cr.P.C. is allowed .

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9. Entire proceedings of Case No. 2181 of 2016 (State Vs. Kismatullah & others), arising out of Case Crime No. 527 of 2016, under Sections 379, 411 IPC, Police Station Mohammadabad Gohana, District Mau, pending in the court of Judicial Magistrate, Mau are hereby quashed.

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Order Date :- 16.08.2019 Sanjeet

Kismatullah and 3 Others v. State of U.P. and Another

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Kismatullah and 3 Others v. State of U.P. and Another

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