Allowed

Shah Abdul Haq and Ors. v. State of U.P. Thru. Prin. Secy. Deptt. of Home and Ors.

Allahabad HC21 Jul 2023/998/2019

Case brief

AI extract

What is this about?

In a criminal revision, the Allahabad High Court allowed the petition and quashed criminal proceedings against the petitioners. The court held the trial court erred in refusing discharge after the Supreme Court had quashed similar proceedings against co-accused in an identical case regarding forged documents and disputed land.

What did the court decide?

The impugned order dated 07.05.2019, the charge-sheet dated 31.10.2005, and all criminal proceedings initiated against the revisionists arising out of Case Crime No. 332 of 2005 are quashed and set as

Shah Abdul Haq and Ors. Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:47943

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AFR

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Reserved On: 04.07.2023 Delivered On: 21.07.2023

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 998 of 2019 R evisionist :- Shah Abdul Haq And Ors. Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home And Ors. Counsel for Revisionist :- Akhter Abbas,Inam Uddin Ahmad,Sheeran Mohiuddin Alavi,Shubham Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Renu Agarwal,J.

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The present criminal revision under Section 397/401 Cr.P.C has been preferred against the order dated 07.05.2019 passed by the Special Additional Chief Judicial Magistrate (CBI) (AP), Lucknow in criminal Case No. 2229 of 2006 State Vs. Kawar Mahmood Lari and others rejecting the application of the revisionist under Section 239 Cr.P.C for their discharge from the above mentioned criminal case.

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It is submitted by the learned counsel for the revisionist that the said Additional Chief Judicial Magistrate has utterly failed to apply its judicial mind in the matter and passed the impugned order in a very cursory manner. Apprising the fact, learned counsel for the revisionist submitted that the aforesaid FIR was lodged to the effect that the ascendants of late Mumtaz Ahmad Lari the father of first informant was carrying out plotting of plot No. 224 and 225 area 28206 sq. ft situated in village Iradatganj Sitapur Road Lucknow and transferred the same to different persons by different sale deeds including the revisionist who are shown as accused along with vendor thereof in the FIR. The first informant Musheer Ahmad Lari along with four other descendants of late Mumtaz Ahmad Lari filed civil suit for declaration against the vendors as well as the vendees in the court of Civil Judge (Senior

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Division), Malihabad, Lucknow which was contested by defendants. Preliminary issue was raised by the present revisionist under Order VII Rule 11 Civil Procedure Code (for short C.P.C.). The suit of the plaintiff was dismissed under Order VII Rule 11 C.P.C. Being aggrieved with the order of learnd Civil Judge (Senior Division) the informant preferred First Appeal bearing No. 55 of 2008 (Musheer Ahmad Lari and others Vs. Khawar Mahmood Lari and other)before this Court which is still pending consideration. Complainant lodged FIR against revisionist concurrent to civil proceedings.

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After conducting investigation, charge-sheet has been filed against some of the accused in the Case Crime No. 2229 of 2006 under Sections 420, 467, 468 and 471 IPC. The court took cognizance and summoned the accused persons. The above noted charge-sheet dated 20.09.2006 was filed against eight persons including the revisionist and other co-accused including Mohd. Khalid Khan s/o Nawab Ali Khan and Mohd. Tariq Khan s/o Salim Khan.

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The revisionist filed an application under Section 482 Cr.P.C before the Lucknow Bench of High Court of Judicature at Allahabad which came to be registered as Misc. Case No. 523 of 2007. Co-accused Mohd. Khalid and Mohd. Tariq also preferred application under Section 482 Cr.P.C which were registered as Criminal Misc. Case No. 462 of 2007 and 390 of 2007 respectively. The petitions filed by Mohd. Khalid and Mohd. Tariq under Section 482 Cr.P.C were dismissed by common order dated 25.07.2007. However the application preferred by the present revisionist remained pending in Court and the proceeding of the aforesaid case was stayed.

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Aggrieved with the order of the High Court dated 25.07.2007, Mohd. Khalid and Mohd. Tariq preferred in Special Leave to Appeal before the Hon’ble Supreme Court being Criminal Appeal No. 2652 of 2009 (Mohd. Khalid Vs. State of U.P) and Criminal Appeal No. 2543 of 2009 (Mohd. Tariq Khan Vs. State of U.P.).

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Supreme Court after duly considering the factum of the pendency of civil suit for declaration of title in the disputed land and the first appeal arising out therefrom is pending in the High Court conluded that in view of the aforesaid facts no case has been made out against the appellant for initiating criminal proceedings. Consequently both the appeals were allowed vide order dated 06.08.2015 and the order passed by the High Court was set aside.

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So far as the present appellants are concerned, charge-sheet is filed against them in Case Crime No. 332 of 2005 dated 31.10.2005 at Police Station Wazeerganj District Lucknow.

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It is further submitted that the case of present revisionist is identical to the case of the co-accused Mohd. Khalid and Mohd Tariq. The order of Supreme Court dated 06.08.2015 was brought to the notice of the High Court on 11.03.2019, when the High Court finally decided the application under Section 482 Cr.P.C No. 523 of 2007 vide order dated 11.03.2019 granting the applicants liberty to apply for their discharge in the light of the aforesaid order of Supreme Court.

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The revisionist moved an application for discharge before the court concerned, however, the learned trial court paid no heed on the fact that identically situated Mohd. Khalid and Mohd. Tariq have been granted relief by

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Hon’ble Apex Court and rejected the application of revisionist moved for discharge under the direction of Hon’ble High Court dated 11.03.2019. Hence, it is prayed that the revisionist may be discharged from the criminal proceedings based on charge-sheet No. 183 (b) of 2006 arising out of FIR No. 332 of 2005.

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Learned A.G.A has vehemently opposed the revision on the ground that while deciding the discharge application only the evidence procured by the Investigating Officer can be considered and the defence of the accused persons cannot be taken into account, hence the order passed by the learned trial court on the application moved by the revisionist to discharge them has rightly been rejected, however, learned A.G.A could not controvert the factual proposition disclosed by the revisionist.

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I have heard learned counsel for the revisionist, learned A.G.A for the State and perused the materials on record.

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The allegations according to the contents of FIR that accused Khawar Mahmood, Mohd. Sajid, Khalid Mehmood, Mansoor Nadeem, Tarik Mehmood, Mohd. Khalid Khan, Smt. Nusrat Begum, Dr. Mirza Aslam Beg, Jamal Akthar, Asgar Ali, Mohd. Moin Khan, Mohd. Tarik Khan, shah Abdul Rehman, Shah Ataur Rehman, Shah Abdul Haq, Maqsood prepared forged document of the property of informant and other successor of his father. In the FIR informant did not disclose as to which of the papers was prepared forged. Charge-sheet has been filed against eight persons including the present revisionists which was challenged by way of application under Section 482 Cr.P.C. the aforesaid application under Section 482 Cr.P.C was finally disposed of by this court on 11.03.2019 granting liberty to apply for their

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discharge. The revisionist moved an application for discharge in compliance of the order of this Court. In the meantime Mohd.Khalid and Mohd. Tariq whose applications under Section 482 Cr.P.C were dismissed vide order dated 25.07.2007 preferred separate Special Leave to Petition in the Supreme Court against the common order dated 25.07.2007. The aforesaid SLPs were allowed by the Supreme Court holding thus:

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“Looking to the aforesaid fact we are of the view that at this stage no case has been made out against the present appellants for initiating any criminal proceedings, therefore, we are set aside the impugned order so far as the present appellants are concerned and quash the process issued against them and also the charge sheet filed against the present appellants in pursuance of the first information report dated 332 of 2005”

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It transpires from the record that common allegations are made against

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the present revisionist in the FIR and charge-sheet has been filed against all the revisionist as well as co-accused Mohd. Khalid and Mohd. Tariq on the identical grounds. The allegation is made against the present revisionist as well as co-accused Mohd. Khalid and Mohd. Tariq that they disposed of the plot, belonging to the informant, which he inherited from his father along with other heirs. The plot was leased out and the lessee cannot sold out the leased property, hence the sale deed executed in favour of the accused is based on forged document. At the cost of repetition it is mentioned that the FIR does not disclose which of the documents is forged by revisionists. It also transpires from the records that a few sale deeds have been executed and the present revisionist are bona fide purchasers of disputed land. It is worth mentioning that the informant filed a civil case for declaration against vendors and vendees and Civil Judge (Senior Division), Malihabad, Lucknow decided the preliminary objection under Order VII Rule 11 raised by the revisionist and dismissed the suit filed by informant for declaration. Against the order of

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learned Civil Judge (Senior Division) the informant preferred First Appeal bearing No. 55 of 2008 is still pending in this Court. The suit is civil in nature, revisionist are purchasers whether the sale deed is executed in contravention of law, executed fraudulently or any fabricated documents is used for execution of sale deed is to be decided only in the civil court. Basis of case i.e, forged document is neither mentioned in the FIR nor filed during investigating.

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Learned Trial Court did not consider the fact that civil suit of informant has already been dismissed under Order VII Rule 11 C.PC and the chargesheet and other criminal proceedings arising out of Crime No. 332 of 2005 has been quashed by Supreme Court in connection with Mohd. Khalid and Mohd. Tariq while allowing their SLPs vide order dated 06.08.2015. The case of the present revisionist is identical to those of Mohd. Khalid and Mohd. Tariq. Learned trial court did not pay any heed to the fact that the criminal proceedings and charge-sheet has been quashed by Supreme Court against the identically situated co-accused and decided the application for discharge in a cursory manner.

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It is true that Supreme Court quashed the proceedings with regard to the co-accused Mohd. Khalid and Mohd. Tariq only but the case of present revisionist is not distinguishable from that of Mohd. Khalid and Mohd. Tariq.

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Learned trial court while deciding the application for discharge did not distinguish the case of the present revisionist from that of Mohd. Khalid and Mohd. Tariq. Hence, the impugned order dated 07.05.2019 is not sustainable in the eyes of law and is liable to be set aside and is hereby set aside.

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The revision is allowed.

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The impugned order dated 07.05.2019 as well as charge sheet dated 31.10.2005 and all the criminal proceedings initiated against the present revisionist arising out of Case Crime No. 332 of 2005 are quashed and set aside.

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(Renu Agarwal,J.)

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Order Date :- 21.07.2023 Nadeem

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Digitally signed by :- NADEEM AHMAD High Court of Judicature at Allahabad, Lucknow Bench

Shah Abdul Haq and Ors. v. State of U.P. Thru. Prin. Secy. Deptt. of Home and Ors.

Case brief

What is this about?

What did the court decide?

Shah Abdul Haq and Ors. v. State of U.P. Thru. Prin. Secy. Deptt. of Home and Ors.

Case brief

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What did the court decide?

What the court decided

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