Mr. H. I. Pathan, Advocate for the v. Lavte, APP for
Legal Reasoning
(1) appln-2070-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2070 OF 20201.Gaus Khan S/o Hayat Khan Pathan,Age: 65 Years, Occu: Agri,2.Matin Khan S/o Hayat Khan Pathan,Age: 60 Years, Occu: Agri,3.Liyakat Khan S/o Hayat Khan Pathan,Age: 55 Years, Occu: Agri, citizen of4.Javed Khan S/o Gaus Khan Pathan,Age: 40 Years, Occu: Agri,5.Aayaj S/o Matin Khan Pathan,Age: 38 Years, Occu: Agri,6.Ayyub S/o Maheboob Khan Pathan,Age: 60 Years, Occu: Agri,7.Juber S/o Dastgir Pathan,Age: 38 Years, Occu: Agri,8.Jamer S/o Dastgir Pathan,Age: 32 Years, Occu: Agri,9.Muradbi S/o Dastgir Pathan,Age: 55 Years, Occu: Agri, All R/o Mandai Chowk, Paranda, Tq. Paranda, Dist. Osmanabad.Versus1.The State of MaharashtraThrough Police Station Paranda, Tq. Paranda, Dist. Osmanabad.2.Ataur Raheman Khaja SaudagarAge: 52 Years, Occu: Social Worker, R/o Nalsab Galli, Behind old Tahsil Office, Paranda, Tq. Paranda, Dist. Osmanabad...Respondents (Res. No.2. Orig. Complainant)
Legal Reasoning
(2) appln-2070-2020.odt …Mr. H. I. Pathan, Advocate for the Applicants.Mr. A. V. Lavte, APP for Respondent No.1.Mr. P. S. Chavan, Advocate for Respondent No.2. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 10th SEPTEMBER, 2024.ORDER (Per S. G. Chapalgaonkar, J.):- 1.The applicants have approached this Court under Section482 of the Criminal Procedure Code praying to quash FIR in CrimeNo.242/2020 dated 10.10.2020 registered with Paranda PoliceStation, District Osmanabad for the offences punishable underSections 120-B, 420, 467, 468, 471 r/w 34 of the Indian Penal Codeas well as criminal proceeding in RCC No.130/2022 pending beforeJudicial Magistrate First Class at Paranda.2.The respondent no.2 lodged FIR dated 10.10.2020 allegingthat land bearing Survey No.235 admeasuring 26 acres 32 gunthasis in the possession of applicants as restricted owners. It wasgranted in favour of late Amin Khan Babalal Pathan under Section6(3) of the Hyderabad Abolition of Inams and Cash Grants Act,1954 (for short ‘Act of 1954’) as restricted owners. The Amin Khanexpired on 30.10.1971. In terms of condition of grants, there wasrestriction to transfer land by any mode like partition, sale etc.However, on death of Amin Khan, his sons namely Ayat KhanAmin Khan Pathan and Maheboob Amin Khan Pathan partitionedland amongst them and executed various sale deeds in favour ofdifferent persons. The transfers are without obtaining necessarypermission from the Collector and in contravention of condition ofgrants under order dated 12.04.1971. It is further alleged that theaforesaid transactions are made by manipulation of office record.Consequently, loss is caused to the Government and purchasers of (3) appln-2070-2020.odtlands. It is further alleged that constructions are raised by accusedpersons without obtaining permission from the Municipal Council,ignoring reservation under development plan. It is, therefore,alleged that applicants/accused have committed offences underSections 120-B, 420, 467, 468, 471 r/w 34 of the Indian Penal Code.3.In pursuance of aforesaid FIR the investigation progressedand charge-sheet has been filed against applicants for offencespunishable under Sections 420 r/w 34 of the Indian Penal Code.The gist of the charge-sheet states that although land SurveyNo.235 was granted under Section 6(3) of the Act of 1954 asrestricted owner, subsequently same has been shown as land ofClass-I occupancy. The manipulated Mutation Entry No.679 wasentered in the name of late Amin Khan. Later on Mutation EntryNo.729 certified in the name of his heirs and thereafter, withoutobtaining necessary permission for transfer of land, sale deedshave been effected. The valuation of land is about Rs.5 crores and50% amount is chargeable for conversion of Class-II land to Class-Iland. However, without such conversion, the land has been falselyshown as Class-I occupancy and transfers have been effected byaccused persons, so also constructions have been raised withoutpermission from Municipal Council. Consequently, offences underSections 420 r/w 34 of the Indian Penal Code alleged to have beencommitted by accused persons. 4.Mr. Pathan, learned Advocate appearing for applicantssubmits that applicants had received land as legal heirs of originalgrantee under the Act of 1954. He would submit that sincebeginning land was Class-I occupancy and there was no restrictionfor transfer. He would submit that if there is violation of conditionof grants as alleged, the appropriate action can be taken under the (4) appln-2070-2020.odtprovisions of the said Act. However, no case for prosecution foroffence under Section 420 of the Indian Penal Code can be madeout against applicants. He would further submit that firstinformant is unconcerned with land in question. He had filed anapplication under Section 156(3) of the Criminal Procedure Code.The FIR has been registered in pursuance of directions given bythe learned Magistrate. According to Mr. Pathan contents of FIRor material in the charge-sheet is bereft to make out any offenceagainst applicants. He would, therefore, urge that FIR andconsequential criminal proceeding be quashed and set aside.5.Per contra, Mr. Lavte, learned APP appearing for the Stateand Mr. P. S. Chavan, learned Advocate appearing for respondentno.2 vehemently opposed the prayers in the application. Theywould submit that criminal law can be set in motion by any person.The order passed by the learned Magistrate for registration of FIRis not challenged by applicants. In pursuance of FIR, investigationprogressed. The material collected during the investigation issufficient to make out offences under Sections 420 r/w 34 of theIndian Penal Code. Mr. Chavan would point out that grant of landin favour of late Amin Khan was under Section 6(3) of the Act of1954 with specific condition that he has no transferable rights. Heshall not entitle for partition or distribution of land. According tohim, initial entry in 7/12 extract in the name of late Amin Khanclearly stipulates that he was restricted owner. However, whilemutating name of legal heirs, note regarding restricted ownershiphas been removed in collusion with Revenue Authorities.Subsequent transfers of land without obtaining permission fromcompetent authorities and deposit of Nazarana for conversion ofland in Class-I occupancy would amount to cheating to attractpenalty under Sections 420 r/w 34 of the Indian Penal Code. (5) appln-2070-2020.odt6.We have considered submissions advanced by the learnedAdvocates appearing for respective parties. The applicants seek toinvoke jurisdiction of this Court under Section 482 of the CriminalProcedure Code. The parameters for exercise of powers underSection 482 are laid down by Supreme Court of India in variousjudgments. Although such powers are wide enough, the exercise ofsuch powers can be resorted in exceptional circumstances, aselaborated in case of State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors.1. It has been elaborated by the SupremeCourt of India that powers are to be sparingly used where contentsof FIR are bereft to make out any offence or when criminalprosecution would result into abuse of process of law.7.A careful scrutiny of contents of FIR would show that landSurvey No.235 admeasuring 26 acres 32 gunthas was re-granted infavour of late Amin Khan Babulal Pathan under Section 6(3) of theAct of 1954. The certificate/agreement of allotment, which isavailable on record clearly demonstrate that late Amin Khan beingpossessor of land, conferred with occupancy rights as stipulatedunder Section 6(3) of the Act of 1954 subject to condition that heshall not transfer the land without permission of the Collector andshall pay land revenue. Apparently, certificate of grant dated12.04.1971 in the name of late Amin Khan shows that land wasgranted to him as Class-II occupancy. The Mutation Entry No.679clearly depicts that name of late Amin Khan was entered asrestricted owner. Thereafter, on death of Amin Khan names of hislegal heirs were recorded. Thereafter, several transfers are madeby the applicants. Prima facie, the contents of the charge-sheetsuggests that there is no document of conversion of the land fromClass-II to Class-I occupancy. There is no record to show as to howentry regarding restricted ownership has been converted into1AIR 1992 SC 604. (6) appln-2070-2020.odtClass-I occupancy. There is no record to show that Nazarana ispaid for such conversion. The FIR and charge-sheet alleges thatapplicants have manipulated the record in collusion with RevenueAuthorities to convert nature of ownership from Class-II to Class-Ioccupancy and effected transfers in favour of several persons.Prima facie, this Court finds triable case against applicants.Hence, this is not a fit case to exercise jurisdiction under Section482 of the Criminal Procedure code. 8.Consequently, Criminal Application stands rejected.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024