Bhawani Pher Vs State of U.P Thru. Prin. Secy.Home Deptt. and Anr.

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Neutral Citation No. - 2025:AHC-LKO:5809

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Court No. - 28

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Case :- APPLICATION U/S 482 No. - 6525 of 2017

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Applicant :- Bhawani Pher

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Opposite Party :- State Of U.P Thru. Prin. Secy.Home Deptt. And Anr. Counsel for Applicant :- Ram Prakash Singh Counsel for Opposite Party :- G.A.,Saima Khan

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Hon'ble Brij Raj Singh,J.

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Heard Sri Ram Prakash Singh, learned counsel for the applicant; Ms. Saima Khan, learned for the respondent No. 2 and the learned A.G.A. for the State.

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The applicant has filed this application under Section 482, Cr.P.C. with the prayer to quash the entire proceedings of Criminal Case No. 3722 of 2017 (State Vs. Bhawani Pher), arising out of case crime no. 255 of 2016, under sections 419, 420, 467, 468, 471 IPC, P.S. Tarabganj, District Gonda, pending in the court of ACJM-I, Gonda.

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Brief facts of the case are that the opp. party No. 2 has lodged an F.I.R. against the applicant on 21.07.2016. The F.I.R. is lodged in pursuance of the order passed under Section 156(3), Cr.P.C. As per the F.I.R., the applicant had got registered sale-deed in his favour by way of impersonation on 28.12.1987. The F.I.R. is lodged on 21.07.2016, i.e., after 29 years from the date of said cause of action. It has been further submitted that Budhna, who was the wife of late Ghirrau, had executed sale-deed in favour of the applicant on 28.12.1987 and the name of the applicant was also mutated on the basis of saledeed on 23.03.1988.

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It has been stated by learned counsel for the applicant that opp. party No. 2 is Brahmin by caste and he got his name inserted in the Pariwar Register of Budhna. Being aggrieved, Budhna filed an appeal under Rule 6-A of the Panchayat Raj Act before the S.D.O. Tarabganj, Gonda, This appeal was decided on 31.03.1995 and the name of opp. party No. 2 was expunged from the Pariwar Register by the order of the Appellate Court and the said order has become final.

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It has been further submitted by counsel for the applicant that Budhna died on 13.07.1989, but the opp. party No. 2 by playing fraud got forged death-certificate in which the date of death of Budhna is written as 25.11.1987.

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It has been further submitted by learned counsel for the applicant that the opp. party No. 2 filed a suit for cancellation of sale-deed before the Civil Court on 12.02.1990 in Regular Suit No. 72 of 1990 and the said suit was dismissed in default on 25.03.1992. Thereafter again he filed restoration application and the same was also dismissed in default on 30.01.2002. The opp. party No. 2 again filed restoration application, which is pending for disposal.

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It is further submitted that during pendency of the aforesaid proceedings, consolidation proceedings started in the village and the proceeding of the revenue court had been abated. Opp. party No. 2 filed application to record his name, but he could not get success before the Consolidation Court also and the name of the applicant is still recorded in the revenue record in pursuance of the order of the competent court, whereby name of the applicant was mutated.

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Learned counsel for the petitioner has submitted that once suit for cancellation of sale-deed was filed by the opp. party No. 2, there is no reason to launch criminal proceeding against the applicant after long lapse of 29 years.

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It Is further submitted that the applicant tried to be recorded in the Pariwar Register of Budhna, but by the appellate order his name is expunged, therefore, presumption goes against him that he belongs to the family of Budhna. He has further submitted that Budhna is Teli by caste, whereas the opp. party No. 2 is Brahmin by caste.

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Learned counsel for the applicant has placed reliance on the judgment of Hon’ble Apex Court in the case of Syed Yaseer Ibrahim v. State of U.P. & anr. [Criminal Appeal No. 295 of 2022 (arising out of SLP (Crl) No. 7955 of 2021)] . Relevant paras 8 & 9 of the said judgment are quoted hereunder:

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“ 8. Both the FIR and the charge-sheet, which has been submitted after investigation, would leave no manner of doubt

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that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit. Mr Sanjay Singh submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens, but, from reading the charge-sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent.

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9. Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section 420. In this backdrop, the continuation of the prosecution against the appellant would amount to an abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong doing.”

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On the other hand, Ms Saima Khan, learned counsel for the respondent No. 2, has made her submission that once chargesheet has been filed after collecting evidence, this court can not quash the chargesheet. Afterall the trial court would see the evidence and after conclusion of trial the facts can be verified for which trial and testing is required. She has further submitted that fraud has been committed by the applicant and he got registered sale-deed in his favour by way of impersonation on 28.12.1987, while Budhna had already died on 25.11.1987, therefore, all these evidences should be adduced on record. The application is liable to be dismissed.

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Learned A.G.A. has also opposed the case. He has also

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submitted that chargesheet has been filed and once the evidence has been collected, definitely the trial has to go on and after adducing evidence on record the facts can be ascertained.

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After going through the record I find that the suit for cancellation of the sale-deed was filed by the opp. party no. 2, however, he was not pursuing the said suit, rather he launched the present criminal proceeding after 29 years of the said cause of action by lodging F.I.R. in the year 2016; once the suit for cancellation of sale-deed was pending, there was no occasion to lodge F.I.R. against the applicant; the case of the applicant is also covered by the judgment of Hon’ble the Supreme Court in the case of Syed Yaseer Ibrahim (supra); the name of the opp. party No. 2 is expunged from the Pariwar Register of late Budhna; and as per submission of learned counsel for the applicant he is Brahmin By caste, therefore, he could not be included in the Pariwar Register of Budhna, who is Teli by caste.

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Looking into the entire facts and circumstances, I find that it is a fit case where criminal proceedings deserves to be quashed. The application is accordingly allowed .

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Proceedings of Criminal Case No. 3722 of 2017 (State Vs. Bhawani Pher), arising out of case crime no. 255 of 2016, under sections 419, 420, 467, 468, 471 IPC, P.S. Tarabganj, District Gonda, pending in the court of ACJM-I, Gonda, are hereby quashed .

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( Brij Raj Singh, J. )

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Order Date :- 28.1.2025 A.Nigam

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Digitally signed by :- ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Bhawani Pher v. State of U.P Thru. Prin. Secy.Home Deptt. and Anr.

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Bhawani Pher v. State of U.P Thru. Prin. Secy.Home Deptt. and Anr.

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