The Court dismissed a criminal quashing petition challenging an FIR regarding alleged fraud and alienation of public property. The Court held that the allegations disclose a cognizable offence and merits must be examined during investigation.
Writ petition seeking quashing of the FIR is dismissed.
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Court No. - 44
Case :- CRIMINAL MISC. WRIT PETITION No. - 2442 of 2021
Petitioner :- Hemendra Agrawal @ Chunmun
Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Himanshu Pandey Counsel for Respondent :- G.A.
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the petitioner and perused the record.
By means of the present petition, the petitioner is seeking quashing of the first information report dated 12.02.2021 registered as Case Crime No.19 of 2021, under Sections 420, 467, 468 & 471 I.P.C. & Section 3 of Prevention of Public Properties Damages Act 1984, P.S.- Chhatta, District- Agra.
It is submitted by the learned counsel for the petitioner that the Gazette Notification dated 16.11.1949 has been quashed by this Court in a proceeding brought by the concerned person. The averments in the first information report with regard to the stay or prohibition in execution of the sale deed concerning the properties in dispute, therefore, cannot be sustained, so as to implicate the petitioner herein on any allegations of fraud in alienation of the said property.
Based on the averment in paragraph- '29' of the writ petition, it is, then, submitted that the petitioner herein namely, Hemendra Agrawal @ Chunmun had never executed any sale deed regarding any of the properties of John's Mills, Agra. He is not even a witness to any of such sale deeds.
It is, however, admitted therein that in one of the deeds, the petitioner herein had joined as the vendors merely as a confirming party specifically stating therein that since on the basis of earlier license, he was in possession and, therefore, he was withdrawing all his claims to the particular piece of land and had conceded in the document of alienation that he would vacate the premises. The said document bearing the statement of the petitioner herein cannot be said to be the sale deed.
In the said scenario, the petitioner cannot be associated with any of the transactions relating to the property in dispute.
Considering the above submissions, we may note that the first information report categorically records that the District Magistrate, Agra had constituted eight members committee vide order dated 29.07.2020 for making enquiry into the properties belonging to John's Mills. The enquiry report records that by Gazette Notification dated 16.11.1949, the State Government prohibited any person from alienating or dealing with the said property. The authorized controller had also mandated to seek permission of the State Government through the Collector before alienation of the property in question.
It has not been brought before us that the order passed by the District Magistrate dated 29.07.2020 to make enquiries of illegal transactions has been quashed/ varied, modified or altered by any competent court of law or authority.
The assertion in paragraph- '29' of the writ petition shows that at once stage of the transaction, the petitioner herein was associated in some respect. The allegations in the first information report against the petitioner herein is that he had played an important role in alienation of the property in dispute.
In the said scenario, we cannot accept the submission of the learned counsel for the petitioner that the petitioner herein has been falsely implicated or the averments in the first information report regarding the prohibition in dealing with the property in question are wrong.
From a careful reading of the first information report, it cannot be said that it does not disclose commission of the cognizable offence. Even otherwise, the merits and demerits of the allegations cannot be seen here.
The contention of the learned counsel for the petitioner that there was no obstacle in execution of the sale deeds of the property in dispute as the prohibition was not operating on the date of the sale deeds cannot be made subject matter of examination in the present writ petition, inasmuch as, the correctness of the allegations therein has to be examined during the course of investigation.
For the aforesaid, we do not find any merit in the writ petition. The writ petition is, accordingly, dismissed.
It is, however, clarified that the observations made herein are only to assess the contention of the petitioner herein and that the same shall not come in the way of the petitioner in any manner during the course of investigation. The Investigating Officer would be under obligation to conclude the investigation
independently without being influenced by any of the observations made hereinabove.
Order Date :- 23.9.2021 Radhika
2 issues framed by the court
Whether the First Information Report discloses commission of a cognizable offence warranting rejection under Article 226 of the Constitution.
Whether an alleged prohibition on alienating public property constitutes a valid defense to quash criminal proceedings.
2 provisions across 2 enactments
Hemendra Agrawal @ Chunmun
State Of U.P.
Sunita Agarwal
Sadhna Rani Thakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
