Dismissed

Umar Ansari and Another v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC13 Apr 2023/2142/2023

Case brief

AI extract

What is this about?

The High Court rejected an application to quash criminal proceedings under Section 482 CrPC. The court held that the charge-sheet made out a prima facie case for prosecution involving forgery and conspiracy, notwithstanding the setting aside of an antecedent revenue order on procedural grounds.

What did the court decide?

Prayer for quashing of charge-sheet, FIR, cognizance, and summons rejected. Trial to proceed on merits.

Umar Ansari and Another Vs State of U.P. Thru. Prin… — Quashing and FIR | Allahabad HC (2023)

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Court No. - 16

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Case :- APPLICATION U/S 482 No. - 2142 of 2023

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Applicant :- Umar Ansari And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Pranjal Krishna Counsel for Opposite Party :- G.A.

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Hon’ble Subhash Vidyarthi J.

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Heard Sri Sudeep Seth Senior Advocate, assisted by Sri Pranjal Krishna Advocate, the learned Counsel for the applicant, Sri Vimal Srivastava, the learned Government Advocate, and Sri Jayant Singh Tomar, the learned A.G.A.-1 for the State and perused the Records.

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By means of the instant application filed under Section 482, Cr.P.C. the applicants Umar Ansari and Abbas Ansari, both sons of Mukhtar Ansari, have prayed for quashing of the charge-sheet dated 20.09.2021 arising out of F.I.R. registered as Case Crime No. 236 of 2020, under Sections 120-B, 420, 467, 468, 471, I.P.C. and Section 3 of the Prevention of Damage to Public Property Act, 1984, Police Station Hazratganj, Lucknow, submitted in Criminal Case No. 72816 of 2021 in the Court of learned Special Addl. Chief Judicial Magistrate-III (MP/MLA Case), Lucknow, the cognizance order and summoning order dated 22.09.2021 and the entire proceedings of the case, so far as it relates to the applicants.

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The aforesaid proceedings arises out of a First Information Report lodged by the Lekhpal In-Charge of Jiamau, Tehsil Sadar, Lucknow, against three named accused persons- (i) Abbas Ansari, (ii) Umar Ansari, and (iii) Mukhtar Ansari, stating that in the Khatauni relating to the year 1359 Fasli year, land bearing Gata No. 93 having an area of 5-Bigha 3-Biswa 10-Biswansi was recorded in the name of Mohd. Wasim Ansari S/o Naseem Saheb as its Matahatdar. After Mohd. Waseem went to Pakistan, the aforesaid property was recorded as ‘Evacuee Property’ and it is so mentioned in the Evacuee Property

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Register No. 10 at Serial No. RHZ-1/1. Subsequently, the name of one Krishna Kumar was entered as the person in possession of the aforesaid land without proper authority and this entry was made without any order passed by a competent authority. The entry of Matahatdar was made on the basis of forged documents. The F.I.R. further states that from a perusal of the records it transpired that the original Khataunis relating to the years 1371 Fasli to 1374 Fasli have been made to disappear so that the aforesaid entry recorded on the basis of forged documents could not come to light. Knowing fully well that the Evacuee Property vests in the Government, the accused persons got a building plan sanctioned on the basis of forged documents by taking advantage of their influence and they took the property into their possession and use, thereby misappropriating the Evacuee Property that vests in the Government. The F.I.R. further states that after an inquiry by the competent authority, the aforesaid property was again registered as ‘Evacuee Property’ on 14.08.2020.

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An investigation was carried out in furtherance of the aforesaid F.I.R. and the Police has submitted a charge-sheet, in furtherance whereof the Court has taken cognizance of the case and the applicants have been summoned to face the trial.

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It has been stated in the application under Section 482 Cr.P.C. that the applicant No. 1 Umar Ansari was born in the year 1992, whereas the applicant No. 2 was born in the year 1998. However, the documents annexed in support of the aforesaid averment indicate that the applicant No. 1 was born in the year 1998, whereas the applicant no. 2 was born in the year 1992.

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It has further been stated that Mohd. Waseem, who had been recorded as the person in possession of the property in the revenue records, migrated to Pakistan in the year 1955 and thereafter the property was registered as Evacuee Property. Sri Krishna Kumar Kalra had purchased Plot No. 93 in an auction under Section 20 of the Displaced Persons Compensation and Rehabilitation Act and the remaining portion of Plot No. 93 was purchased by some other persons. On 02.03.1997 Sri Kalra had sold 8 Biswa 16 Biswa 4 Kachhwansi land to one Shakeela Begum, who in turn sold it to Dr. Syed Shahid

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Hussain on 01.11.2000. Dr. Syed Shahid Hussain sold the land to Subhanullah Ansari on 09.03.2004. Sri Subhanullah Ansari had orally gifted the aforesaid property to his wife Smt. Rabia Begum and he died on 29.12.2006. On 18.01.2018 Smt. Rabia Begum had applied to the Lucknow Development Authority (L.D.A.) for sanction of a building-plan for constructing a building on the land in question, and the map was sanctioned by the LDA on 07.02.2018. Smt. Rabia Begum had executed a Will in favour of the applicants on 28.06.2017 and she died on 29.12.2018.

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On 07.07.2020 the L.D.A. issued a notice under Section 27 (1) of the U. P. Urban Planning and Development Act to Smt. Rabia Begum and on 17.07.2020 her daughter-in-law Smt. Farhat Ansari informed the L.D.A. about the demise of Smt. Rabia Begum. On 20.07.2020 the L.D.A. substituted Smt. Farhat Ansari in place of Rabia Begum and on 16.07.2020 an order was passed rejecting the building sanction plan.

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On 14.08.2020 the S.D.M Lucknow passed an order in Case No. 07636 of 2020 in respect of the lands of various Khatas bearing Gata Nos. 93M registered in the revenue records as Evacuee Property. The applicants are concerned with two of the nine properties mentioned in the aforesaid order - one being the land bearing Khasra Plot No. 93 M measuring 0.713 Hectare, which was recorded in the name of Krishna Kumar and the other being 93 M, measuring 0.125 Hectare recorded in the name of Hilal Ahmad S/o Wasir Ahmad.

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The Learned counsel for the applicant has submitted that the aforesaid order passed by the S.D.M. forms the basis of initiation of criminal proceedings against the petitioners and the aforesaid order was assailed by Smt. Ann Marie Kalra by filing Writ Petition No. 20098 (M/S) of 1998, which has been allowed by means of an order dated 09.11.2020 passed by this Court on the ground that Sri Krishna Kumar Kalra had died and the proceedings were drawn against a dead person. The Court further observed that it has not adjudicated the case of either of the parties on merits and the order was passed solely on the ground that the proceedings were drawn against a dead person.

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The applicants had challenged the F.I.R. by filing Writ Petition No. 16143 (M/B) of 2020, in which this Court had passed an order on 21.10.2020 providing that the applicants shall not be arrested till the next date of listing. While passing the aforesaid order this Court had recorded that “As to whether right, interest and title in the land in question has devolved upon the petitioners lawfully or not, is not the issue here. Even if it is assumed that no right, interest or title legally devolved upon the petitioners, they can be deprived of such right being claimed by them and can also be evicted from the land in question by taking recourse to an appropriate proceedings which may be permissible under law, however, such alleged illegal devolution of right in itself will not prima facie constitute any offence, against the petitioners in the facts and circumstances as disclosed in this case.”

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Subsequently, the investigation proceeded and a charge-sheet has been submitted against the applicants, which has been assailed by them by filing the instant application under Section 482, Cr.P.C.

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The State has filed a counter affidavit stating that the charge-sheet specifically mentions that the F.I.R. was lodged on the basis of an application submitted by Lekhpal Jiyamau. After examining the complainant, the witnesses and various documents obtained from the establishment/offices and on the basis of other evidence collected, it has been found that 386 square meters land forming part of Gata No.93, has been obtained by the accused persons by creating forged documents and threatening and illegally forcing Ashfaq Ali, Usman, Ahsan, sons of Waris Ali and Kismatun-Nisha W/o Islam Ali, whereas seller Ashfaq Ali and others had no document conferring upon them a transferable title in respect of the land in question. It has further been stated that Smt. Rabia Begum used to sign in Urdu or put her thumb impression and she did not sign in Hindi, whereas the documents submitted in Lucknow Vikas Pradhikaran bears signatures of Smt. Rabia Beghum made in hindi, which indicates that the accused persons have forged the signatures of their grandmother Rabia Beghum. The charge-sheet further states that along with their application for sanction of building-plan the accused persons have submitted a forged permission/no-objection certificate No. 3296,

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dated 27.11.2017, purportedly issued by the office of the Executive Engineer, Sharda Canal, Lucknow, which has been established to be forged during the investigation.

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On the basis of the aforesaid facts, it has been stated in the chargesheet that the accused persons have prepared forged documents under a conspiracy for gaining undue benefit by threatening people and they have caused loss of the valuable Evacuee Property to the Government and charge of commission of offence under Sections 120-B, 420, 467, 468, 471 I.P.C. and Section 3 of Prevention of Damage to Public Property Act, 1984, is established.

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A copy of no-objection certificate mentioned in the charge-sheet has been annexed with the counter-affidavit, which has purportedly been issued by the office of the Executive Engineer and it states that the Revenue department has granted permission for raising construction after leaving 9 meter on both the sides. Another letter dated 18.09.2021 issued by the Executive Engineer, Lucknow Division-2, Sharda Canal, Lucknow, has also been annexed with the counter affidavit, wherein it has been stated that the aforesaid letter dated 27.11.2017 has not been issued by that office and it has not been signed by any officer/employee working in the said office. The letter No.3296 is not mentioned in the dispatch-register of the office in the month of November, 2017. Samples of signatures of the employees working in the office and a copy of relevant extract of dispatchregister were also sent by the Executive Officer along with the said letter.

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Sri Sudeep Seth has assailed the charge-sheet and the proceedings, mainly on three counts. His first submission is that the order dated 14.08.2020 passed by the SDM, which forms the basis for initiation of the proceedings, has been set aside by this Court and no proceedings could be initiated on the basis of the aforesaid order, including the instant criminal proceeding initiated by an FIR lodged in furtherance of the aforesaid order of the SDM. His second submission is that the SDM’s order dated 14.08.2020 mentions the names of as many as 9 persons, whose names are recorded in respect of various portions of Plot No. 93M and criminal proceedings have been drawn against the

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applicants only, and not against any other person and it indicates that the proceedings have been initiated only with a design to harass the applicants for ulterior motives.

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The third submission of Sri. Seth is that the applicants were not even born when the property was recorded in the name of some persons after wrongfully striking out the same as Evacuee Property even before the applicants were born and there is no allegation that the applicants themselves have committed the forgery. Therefore, the applicants cannot be held guilty for a wrong committed by some person at any point of time, when the applicants had not even been born. In support of this contention, Sri Sudeep Seth has relied upon the decisions of Hon’ble the Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. and ors. (2006) 6 SCC 736, wherein the Hon’ble Supreme Court held that for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. The charge of forgery cannot be imposed on a person, who is not the maker of the document.

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The learned Government Advocate has vehemently opposed the application for quashing of the proceedings and he has submitted that while entertaining an application under Section 482 Code of Criminal Procedure this court can merely see as to whether or not the allegation levelled against the applicant in the charge-sheet make out a prima facie case for trial of the applicant for the alleged charges. He has relied upon the judgments in the cases of Arun Bhandari v. State of U.P. & ors. , (2013) 2 SCC 801; C.B.I. v. Arvind Khanna , (2019) 10 SCC 686; Priti Saraf & anr. v. State of NCT of Delhi & anr. , AIR 2021 SC 1531; and C.B.I. v. Aryan Singh & ors.,

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In C.B.I. v. Arvind Khanna (supra) the Hon’ble Supreme Court has held that defence of the accused is to be tested after appreciating the evidence during trial. In C.B.I. v. Aryan Singh (supra) the Hon’ble Supreme Court set aside an order passed by the Punjab and Haryana High Court allowing an application under Section 482, Cr.P.C. and the Hon’ble Supreme Court held that it appears that the High Court

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has dealt with the proceeding before it, as if the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principal of law, at the stage of discharge and/or quashing of the criminal proceedings while exercising the powers under Section 482, Cr.P.C. the Court is not required to conduct a mini trial. The relevant extract of the aforesaid judgement is quoted hereinbelow: -

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“4.1. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers Under Section 482 Code of Criminal Procedure, the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the Accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the Accused, at this stage. At the stage of discharge and/or while exercising the powers Under Section 482 Code of Criminal Procedure, the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the Accused for which the Accused is required to be tried or not”.

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19. In Indian Oil Corporation v. NEPC India Ltd. and ors. (Supra) relied upon by Sri. Sudeep Seth, the Hon’ble Supreme Court has held that “ A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. The power to quash shall not, however, be used to stifle or

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scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

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The applicants have been charged with commission of offences under Sections 120-B, 420, 467, 468, 471, I.P.C. and it is not that the applicants are being charged for the commission of offence of Forgery only and they have been charged for entering into a conspiracy for commission of the offences. Whether or not the charges would result in conviction of the applicants or not, would not be a question to be addressed by this Court while entertaining an application under Section 482, Cr.P.C., as has been held by the Hon’ble Supreme Court in the above referred cases, the Court has only to scrutinize as to whether from the allegations contained in the charge-sheet on the basis of material collected during investigation a case for trial of the accused for the charges alleged is made out or not.

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The applicants claim to have derived title in respect of the property in question through their grandmother. The charge-sheet alleges that during investigation it has been found that the application submitted to the L.D.A. for getting a building-plan sanctioned, bears the signatures of the applicants’ grandmother in Hindi, whereas at no other place she used to sign in Hindi. She either signed in Urdu or put her thumbimpression and the investigating officer has concluded that the aforesaid document was a forged document. The applicants are the beneficiaries of the alleged forgery and they have been charged for committing the offence of criminal conspiracy as well.

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So far as the submission of Sri Seth that the order passed by the S.D.M. has been set aside and, therefore, the consequent proceedings cannot be allowed to go on, is concerned, suffice it to say that firstly, the aforesaid contention is not supported by any material placed on record at this stage, rather it appears that the F.I.R. has been lodged by a Lekhpal on the basis of knowledge acquired from a perusal of the revenue records. Secondly, the order of the SDM has been set aside only so far as the same relate to Sri Krishna Kumar Kalra, as the proceedings were drawn against a dead person. However, the order has not been set aside in its entirety. If during investigation commission of cognizance offence has come to light, the proceedings

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cannot be quashed for the sole reason that the order passed by the Revenue Court has been set aside, and that too not on merits.

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