High Court
Case Details
Neutral Citation No. - 2023:AHC:130539-DB Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 8348 of 2023 Petitioner :- Brajpal Singh And 12 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sharad Shekhar Sharma Counsel for Respondent :- G.A.,Prashant Vardhan Hon'ble Vivek Kumar Birla,J. Hon'ble Rajendra Kumar-IV,J.
Legal Reasoning
Heard Sri Sharad Shekhar Sharma, learned counsel for the petitioners as well as learned AGA appearing for the State respondents and Sri Prashant Vardhan, learned counsel for the informant. The petitioner, by means of this writ petition under Article 226 of the Constitution of India, has invoked the jurisdiction of this Court with prayer to quash the impugned First Information Report dated 28.01.2023 registered as Case Crime No. 0049 of 2023, under Sections 420, 467, 471, 474, 426, 448, 120-B IPC, P.S. Phase-2, District Gautam Budh Nagar and for a direction to the respondents not to arrest the petitioner in pursuance of impugned First Information Report. Learned counsel for the petitioners has made a request for adjournment. Learned counsel for the informant opposed the prayer for adjournment and he has placed before this Court an order dated 04.04.2023 passed by a co-ordinate Division Bench of this Court of which one of us was the member in Criminal Misc. Writ Petition No. 3659 of 2023 has already been dismissed the petition in same Case Crime No. 42 of 2023 in respect of one accused Sher Singh after considering the arguments advanced by both the sides. Learned counsel for the informant further submits that in one of the F.I.R. of Case Crime No. 42 of 2023, 12 identical F.I.Rs. were lodged by the informant against different accused persons on identical ground and for the offence committed under the identical provisions of I.P.C. therefore, the arguments contained in the present petition are also identical in nature and the stand taken by the informant is also identical in nature. Therefore, no different view can be taken. In such view of the matter, the prayer for adjournment is rejected.
Decision
Therefore, we proceed to consider the present case on merit. After perusal of record, we find substance in the argument of learned counsel for the informant and we are not persuaded to take a different view of the matter in view of the grounds of challenge taken in the writ petition. The order dated 04.04.2023 passed by co-ordinate Bench of this Court in Criminal Misc. Writ Petition No. 3659 of 2023 is quoted as under : "Supplementary affidavit filed on behalf of the petitioner in the Court today is taken on record. Sri Rakesh Kumar and Sri Prashant Vardhan, Advocates, have filed vakalatnama on behalf of the informant in the Court today which is taken on record. Heard Sri Vinay Prakash Shukla, learned counsel for the petitioner, Sri Rakesh Kumar and Sri Prashant Vardhan, learned counsels for the informant and Sri A. N. Mulla, learned A.G.A for the State-respondents. The relief sought in this petition is for quashing of the F.I.R. dated 23.01.2023 registered as Case Crime No. 42 of 2023, under Sections 420/471/474/426/448/467/120-B I.P.C., Police Station- Phase-II, District- Gautam Buddh Nagar. Further prayer has been made not to arrest the petitioner in the aforesaid case. Submission of learned counsel for the petitioner is that the first information report has been lodged by filing an application u/s 156 (3) Cr.P.C. It is submitted that a perusal of the first information report itself would disclose that a civil litigation is involved in the present case which has been given colour of criminal prosecution by alleging that four sale deeds were got executed from the son of the original land owner whereas the correct fact is that the sale deeds executed by the original owner, Sukhpal, were set-aside by a competent court and ultimately that suit was dismissed in default wherein restoration application has been filed and the same has been restored. Submission, therefore, is that no offence as alleged has been made out. Per contra, Sri Rakesh Kumar, learned counsel appearing for the informant pointed out that in the present case, a fraud has been played by the son of the original owner by executing sale deed although he was infact marginal witness of the original sale deed executed by his father from whom the informant has purchased the property. It was further pointed out that the ex-parte decree was obtained by the accused's side taking benefit of the fact that the informant is settled in United Kingdom since long along with the entire family. Therefore, they were not aware of the same and when application to set-aside the ex-parte decree was filed, the same was allowed by the competent court. Therefore, the accused got their suit dismissed in default and subsequently, when criminal prosecution was initiated, they filed an application for restoration of the suit. Submission, therefore, is that it is not a case where civil litigation is being given colour of criminal prosecution. The fact remains that all the offences as alleged are made out in the present case. It was further pointed out that 12 application u/s 156 (3) Cr.P.C. were allowed and F.I.R.s were directed to be lodged which includes the present one which is against the petitioner. Sri A. N. Mulla, learned A.G.A. on the basis of instructions received confirms the aforesaid fact that has emerged during investigation and submits that cognizable offence is made out. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report. Therefore, the writ petition is dismissed leaving it open for the petitioner to apply before the competent court for anticipatory bail/bail as permissible under law and in accordance with law." We do not find any good ground to take a different view of the matter, the charge sheet cannot be quashed in part. The petition is accordingly, dismissed. Order Date :- 3.7.2023 Manoj Digitally signed by :- MANOJ KUMAR YADAV High Court of Judicature at Allahabad