Allowed

Syed Mustafa v. The State of Telangana Rep by its P.P

Telangana HC19 Apr 2021CRLP/285/2018

Case brief

AI extract

What is this about?

This criminal petition sought to quash prosecution under Sections 447 and 427 IPC. The High Court held that the proceedings were an abuse of process of law due to lack of independent witnesses, reliance on hearsay, contradictions in evidence, and the existence of a pending status quo order on the subject land. The petition was allowed.

What did the court decide?

Proceedings in C.C. No. 52 of 2017 pending before the Judicial First Class Magistrate, Chevella, Ranga Reddy District were quashed.

Syed Mustafa Vs The State of Telangana Rep by its P.P — Quashing and FIR | Telangana HC (2021)

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IN THE HIGH COURT FOR AT HYDTJREABIITE^{OF TELANGANA}

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MONDAY, THE NINETEENTH DAY OF APRIL rwo rHousAND AND rwEruribilr'.,.

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rH E HoNouR^".i5*,ti..)L'rcE K. LAKS HMAN

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Between:

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CRIMI N AL PETITION NO: 285 oF2018

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tS R lli,Yn'"|? ; il: l:l%t"y-"S,ff t'"? ?.r? ; A?:.r: rt u re, R/o H. N o e - 1 1 - 2 t 1 /1 3 0 s a d a a t ,..PETITIONERYACCUSED AND

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The State of Telanoa,na .Rep. by its public prosecutor, ln the High Court of Judicature at Hydeiaoao. r& ili" 5t!t" diiJ["n'grn" and the stare of A.p.

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......Respondent

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Sri IVohammad Anwar,.S/o. Late lrrlohammad Suleiman, aged about 67 years, occ. agricurture,R/o. H.No. 10-2-385/A, vi;ayi r\igai-cir"xv,irr.irii,ii'priri,""?. Hyderabad, T.S.

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Petition u nder Sectio n 482 of Cr.p .Crrr, ., ;::::::'::::::::: l:.:l in the Memorandum of Grounds of criminal petitio;, the High court may ue preaseo to quash the proceedings against the petitionery' in cc. No. 52 of 2017 on tne fite or the court of the Judicial First class Magistrate at cheveila, Rangareddy District.

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l.A. NO: 1 OF 2018

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Petition under Section 482 of Cr. P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to Stay of all further proceedings including the appearance of the Petitioner in CC No. 52 of 2017 on the file of the Court of the Judicial First Class Magistrate at Chevella, Ranga Reddy Distiict.

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This Petition coming on for hearing, upon perusing the N4emorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri ZULFAQUAR ALAM, Advocate for the Petitioner and of Sri K.Ravi l/ahender, Public Prosecutor on behalf of the Respondent No.1 and of the Respondent No.2 not appeared eitherⁱⁿ person or by Advocate.

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The Court made the following: ORDER

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THE HONOURABLE^{SRI JUSTICE K' LAKSHMAN} CRIMIN ALP^{ETITIONNo.285of 2018}

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ORDER:

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This criminal^{Petitionis filed under Section 482 of cr.P'c.seeking to} quash the proceedings^{in C.C.No.52 of 2017 pending on the file of the Judicial} Magistrate of First Class,^{Chevella,Ranga ReddyDistrict.}

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The petitioner herein is sole accused in the^{said C.C. The offences} alleged against him are under Sections 447 and^{427 IPC.}

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3" As per the contents of charge sheet, respondent No.2 herein-de focto complainant has purchased an agricultural land admeasuring Acs.4.23 guntas in Sur"rey No.328/A and an extent of Acs.6.29 guntas in Survey No.328/AA of Alluru Village, Chevella Mandal, in the year 2015 from its owner and he has constructed a cattle shed and erected fencing poles therein. It is alleged that the petitioner herein has previous grudges with respondent No.2-de Jitcto complainant and while so, on 04.10.2016 in the evening hours, while respondent No.2 herein was not present in his agricultural land, the petitioner herein along with his henchmen trespassed into the said land and dismantled the fencing poles and the cattle shed and went away. Thus, the petitioner herein has committed the offences punishable under Sections 447 and 427 of IpC.

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4' Heard Sri Zulfaquar Alam, reamed counsel for the petitioner, and the leamed Pubric prosecutor appearing for respondent No.1-State. None appears on behalf of respondent No.2.

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5' Leamed counsel for the petitioner wourd submit that though the alleged incident took place on 04.10.2016, respondent No.2 herein has lodged the complaint on 13.10.2016. Thus, there is a delay of 9 days in todging the complaint. The Police have not examined any independent witness including the neighbouring land owners of the subject land and there is no eye witness to the alleged incident. Even as per the charge sheet and the complaint, respondent No.2 herein lodged the complaint basing on hear-say evidence. There are contradictions in the versions of respondent No.2 herein made in the complaint as well as in the statement recorded by the Police under Section 161 Cr.P.C. There are civil disputes befween the petitioner herein and respondent No.2 herein with regard to the above said land and that respondent No.2 herein tried to criminalise the said civil disputes. In the said course of^{action,respondent} No.2 herein has lodged the^{present complaintand implicatedthe petitioner} herein in the above case.

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Learned counsel for the^{petitioner would furthersubmitthat in respect of} the subject land, the^{petitioner herein filed Writ PetitionNo.8313 of 2009} against respondent No.2^{hereinand others,and this Court, by order dated} 22.4.2009 in wPMP.No.10174 0f^{2009 in the said writ Petition, directedthe}

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parties therein^{to maintain statusquoobtainingas on that date' The said orderis} still subsisting^{as on today'Learned counselwould furthersubmitthat the} petitionerhereinlodgedacomplaintwithChevellaPoliceon2S.l2,2015against respondent^{No.2 herein stating that he has trespassedinto his land and cut the} trees in violation^{ofthes/alas quo ordetsgranted by this Court in the above said} Writ Petition.^{Despite receiving and acknowledgingthe said complaint'the} Police have^{not registereda case against respondent No'2 herein' Learned} counsel for^{the petitioner, referringto the proceedingsdated 10.12.2008issued} by the Joint Collector-Il,^{Ranga Reddy District, wouldfurthersubmitthat} respondent No.2^{hereindoesnot have any right over the said land and therefore,} the question of^{his being in possessionof the said land doesnot arise. Therefore,} the petitioner herein^{never trespassedinto the subjectland as allegedby} respondent No.2 herein.

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7 . With the above said submissions,^{learned counsel for the petitioner} sought to^quash the^{proceedings againstthe petitioner herein in C.C.No.52of} 2017 pending on the file of the Judicial^{FirstClass Magistrate, Chevella,Ranga} Reddy District.

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Learned Public Prosecutor appearing^{for respondentNo'l-Statewould} submit that there are several^{triableissuesand the petitioner hereininstead of} facing trial filed the present Criminal^{Petitionseekingto quashthe proceedings}

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in C.C.No.52 of 2017 and therefore, the present Criminal petition may be dismissed.

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9' Admittedly, the petitioner herein has fired a writ petition, vide writ Petition No'g313 0f 200g against the Joint collector, Ranga Reddy District and others challenging the order dated 10.12.200g passed by the Joint collector with regard to the subject rand and this courl vide order dated 22.4.200g in the said writ Petition directed the parties to maintain status quo obtaining as on that date' The said order is still subsisting and the said writ petition is pending. The Revenue Divisional officer, chevella, vide ord,er dated 31.g.20r5 directed the Tahsildar, chevella, not to entertain any mutation proceedings in respect of land in Survey Nos.328/A and 328lAA admeasuring Acs.20.lg guntas of Alluru Village, Chevella Mandal. Subsequently, the petitioner herein lodged a complaint against respondent No.2 herein stating that he has trespassed into the land of the petitioner herein and cut the trees therein in violation of the status quo order granted by this court. Despite receiving and acknowledging the said complaint, the Police have not acted upon it. However, thereafter, the petitioner herein did not take any further steps.

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A perusal ofthe charge sheet would reveal that the Police have examined respondent No.2-de facto complainant as L.W-1 and one Sri Abdu Khadar and one Sri Ibrahim as L.Ws.2 and 3, respectively, as circumstantial witnesses. The Police have not examined any independent witnesses including the

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neighbouring^{land owners of the subject land' There is no eye-witness to the} alleged incident^{at all' Even in the complaint dated 13 ' 10'201 6' respondentNo'2} herein stated that^{whenhe wentto his agriculturalland on 05.10.20i6, he found} that some fencing^{poles and cattle shed have been dismantled and on veriffing} with the neighbouring^{land owners, he learnt that the petitionerhereinalong} with his henchmen trespassed^{into the said land and dismantled the cattle shed} and fencing poles and went^{away. Thus,respondentNo.2 herein is alsonot an} eye-witness to the alleged incident.^{He has lodged the said complaintbasing on} hearsay evidence. Respondent No.2 herein^{hasnot even mentioned the nameof} the said neighbouring land owner who informed^{him that the petitioner herein} along with his henchmen trespassed into the land and dismantled the cattle shed and some fencing poles. Even the Investigating Officer has not examined the neighbouring land owner who has informed respondent No.2 herein about the alleged trespass by the petitioner herein and his henchmen and thus, the Investigating Officer did not conduct the investigation properly. Basing on the complaint of respondent No.2 herein, which is hear-say evidence, the Police have laid the present charge sheet. Moreover, there is no considera.tion of the order dated 22.04.200 passed by this Court in Writ Petition No.8313 of 2009 and the letter dated 31.08.2015 addressed by the Revenue Divisional Officer, Chevella to the Tahsildar, Chevella, and the Police have not acted upon the complaint lodged by the petitioner herein on 28.12.2015.

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I I " The above stated facts would reveal that the Police have not conducted . the investigation properly and basing on the compraint of respondent No.2 herein' which is hearsay, filed the charge sheet against the petitioner herein.

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12' The Police have neither examined any revenue official nor fired any revenue record to show that respondent No.2 herein is the owner of the said land and he has been in possession ofthe same.

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At the cost of repetition, it is relevant to note that the Investigating officer has not recorded the statements of the neighbouring land owners of the subject land to prove that respondent No.2 herein is the owner and he is in possession of the subject property and that on the date of alleged incident, the petitioner herein along with his henchmen trespassed into the said land and dismantled the cattle shed and fencing poles. Thus, it is a clear abuse ofprocess of law.

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The Apex Court in several^judgments examined^{the scope and ambitof} powers of High Court under Section 482 of Cr.P.C. ln^{State of HaryanaVs.} Bhajan Lalt , the Hon'ble Apex Court^{cautioned that power of quashing should} be exercised very sparingly^{and circumspectionand that too in the rarestofrear} cases. While exarnining^{a complaint, quashingof whichis sought,Court cannot} embark upon an enquiry^{as to the reliability or genuinenessor otherwiseof the} allegations made in the^{FIR or in the complaint. The Apex Courl in the said}

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'1992^{Supp. (1) scc335}

I t

judgment laid down certain^{guidelines/parametersfor exercise of powers nnder}

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Section^- 482 of^{Cr.P.C.,whichare as under:}

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"(1) Where the allegations made^{in the first information} report or the complaint, even if they^{are takenat their} face value and accepted in their entirety do^{not prima} facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information repoft and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifring an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview ofSection 155(2) ofthe Code"

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of anv offence and make out a case against the accused.

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(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) ofthe Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the ,{ct concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Co;e or Act concerned, providing efficacious redress for the grievance of the aggrieved par-ty"

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lr).,*Orr?^{a criminal proceedingis manifestiyauended} wfin mala tide and/or where the procLeding is maliciously instituted with an ulterioi motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge"

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One of the aforesaid parameters laid down by the Hon'ble Apex Coult is that this Couft can exercise the power under Section 482 of Cr.P.C. to^prevent abuse of process of law.

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16.. As discussed supra, the^{instantcase is a classic case ofabuse of process} of law. Therefore,^{relying on the parameters laid down by the Hon'ble Apex} conrt in Bhajan lal^{(supra), this court is inclinedto exerciseits power under} Section 482 of Cr.P.C.^{to quash the proceedings in c.c.No.52of 2017 pending} on the file of the Judicial^{First Class Magistrate, Chevella,RangaReddy District} against the^petitioner.

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1-l . This criminal^{Petition is accordingly allowed and the proceedings in} c.c.No.52 of^{2017 pendingoh the file of the JudicialFirst class Magistrate,} chevella,^{RangaReddyDistrict, against the petitioner hereinare hereby} quashed.

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Miscellaneous^{petitions pending,if any,shall stand disrnissed}

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Sd/-K,SAILESHI ASSISTANT REGISTRAR //TRUE COPY' ei, SECTION OFFICER

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The Judicial lvlagistrate of^{First Class, Chevella, Ranga Reddy District.} 2. The Station House Officer, Chevella^{Police Station, Ranga Reddy District} J. Two CCs to the Public Prosecutor,^{High Court for the State of Telangana,} Hvderabad^(OUT)

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Ohe CC to Sri Zuifaquar Alam,^{Advocate (OPUC)} A Two CD Copies fr)

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HIGH COURT

DATED:1910412021

ORDER

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CRLP.No.285 of 2018

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ALLOWING THE CRL.P,

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Syed Mustafa v. The State of Telangana Rep by its P.P

Case brief

What is this about?

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Syed Mustafa v. The State of Telangana Rep by its P.P

Case brief

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What did the court decide?

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