Criminal Procedure Code, 1973 – Section 173(8) – Further Investigation – Refusal of Permission for Further Investigation – Once a permission was sought and declined, then Police department did not have any authority to continue the investigation.
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. – 3384 of 2014
Applicant :- Arun Kumar Vs. Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Vinay Saran; Counsel for Opposite Party :- Govt. Advocate,Apul Mishra
Hon’ble Bharat Bhushan,J.
1. Two brothers, applicant Arun Kumar and respondent no. 2 Mritunjay Kumar are at each other’s throat vying for possession of two bedroom flat bearing no. B-138, Kendriya Vihar, Sector-51, Noida, District Gautam Buddh Nagar resulting in civil as well as criminal litigation including present charge sheet dated 17.9.2013 under
Sections 392, 452, 342, 323, 504, 506, 427 Indian Penal Code
(in short, IPC) arising out of Case crime no. 33 of 2010, Police Station Sector-49 Noida, District Gautam Buddh Nagar.
2. Applicant seeks quashing of the aforesaid charge sheet and subsequent proceedings. The brief facts relating to the dispute are that applicant Arun Kumar is working in Border Security Force (in short, BSF) as an employee. He was allotted a two bedroom flat no. B-138, Kendriya Vihar, Sector-51, Noida, District Gautam Buddh Nagar by Central Government Employees Welfare Housing Organization (in short, (C.G.E.W.H.O.) under para-military quota in the year 1997. The possession of the flat was handed-over to the applicant in the year 1999. Applicant, his wife and two children started living in this flat. Since the applicant mostly remains outside on account of his onerous duty, he allowed his elder brother respondent no. 2 to stay in a portion of the aforesaid flat so that during his absence, his elder brother can take care of his family and manage the property while remaining portion was occupied by the applicant’s family. Respondent no. 2 was unmarried till 2006
3. It is stated that for day to day management of the property including telephone connection and power connection etc. a general power of attorney (in short, G.P.A.) and a Will was executed in favour of respondent no. 2. Respondent no. 2 got married in the year 2007. It is further stated that respondent no. 2 developed oblique interest in the property of the applicant and on suspecting the motive of respondent no. 2, applicant cancelled G.P.A. and executed a fresh Will in favour of his wife and children and duly intimated respondent no. 2. In fact, applicant also asked respondent no. 2 to shift to some other property because he required entire flat for growing family needs but Mritunjay Kumar respondent no. 2, instead of vacating the portion of the flat, which was in his possession, issued a legal notice dated 29.5.2007 through his Advocate, which was replied by counsel of the applicant on 28.7.2007. The crux of the dispute is that respondent no. 2 started claiming ownership right on the ground that money for acquisition of the aforesaid flat was supplied by the family especially parents and other brothers of the applicant and family settlement gave this property to respondent no. 2. His claim is that entire money for purchase of the aforesaid property was supplied by the parents, other brothers and respondent no. 2 and now after escalation in value of property, the applicant is trying to grab the property.
4. Applicant, on the other hand, says that the property was allotted to him as a part of his para-military employment and that respondent no. 2 does not have any right over the property. He further claims that no family settlement had been executed and entire family property is still intact without any division. In any case, he claims that his property can not become part of family settlement. The property is self-acquired, even if, some money was paid by their parents and other brothers that would not change nature of title of the property allotted to the applicant by C.G.E.W.H.O. Authority.
5. Apparently, civil litigation started between the parties . Criminal disputes also erupted. Applicant says that he went to Police Station for registration of the complaint against respondent no. 2 but Police initially refused to lodge the complaint but acknowledged it after a considerable delay and modification of the complaint, as suggested by the Police. After acknowledgment of the complaint, respondent no. 2 vacated the flat on his own.
6. It is further stated that on the same day, respondent no. 2 moved an application under section 156(3) Criminal procedure Code (in short, Cr.P.C.) levelling serious allegations against the applicant. The application alleges that applicant along with 5-6 miscreants assaulted respondent no. 2 and robbed his household goods and thereafter, forcibly threw him out of the disputed flat. It was also alleged that a cash amount of Rs. Two lacs and some jewelry was also pillaged by applicant and his companions. Respondent no. 2 claims that his report was not lodged by the Police, therefore, he sought and obtained direction from the court. This report was lodged as Case crime no. 33 of 2010 under sections 392,452,342,323,504,506, 427 and investigation was conducted. The Investigating Officer concluded that there was no satisfactory evidence in support of allegations and that dispute was essentially civil in nature. Thereafter, final report dated 12.10.2010 was submitted.
7. Respondent no. 2 filed a protest petition against final report dated 12.10.2010 and Chief Judicial Magistrate, Gautam Buddh Nagar after considering the entire material on record rejected the protest petition on 14.3.2011 and accepted the final report. This order of Chief Judicial Magistrate, Ghaziabad dated 14.3.2011, approving the final report was challenged by respondent no. 2 by filing Criminal Revision No. 93 of 2011 (Mritunjay Kumar versus State of U.P.). This criminal revision was allowed by Additional Sessions Judge, Ghaziabad vide order dated 17.8.2011 and consequently learned Magistrate was directed to pass fresh orders after considering the report dated 6.6.2010 prepared by Sri Sudhir Kumar, Superintendent of Police (Transport), Meerut. The matter was again considered by Chief Judicial Magistrate, Ghaziabad and this time a detailed order dated 22.9.2011 was passed wherein he considered all the materials as had been directed by the revisional court. Learned Chief Judicial Magistrate again rejected the protest petition dated 25.2.2011 and accepted the final report by this order dated 22.9.2011. This order was again challenged by filing Crl. Revision No. 278 of 2011 (Mritunjay Kumar versus State of U.P.). This time revisional court rejected the criminal revision and affirmed the order dated 22.9.2011 passed by the Chief Judicial Magistrate vide judgment and order dated 18.5.2012.
8. After rejection of this criminal revision against the acceptance of final report dated 12.10.2010, an application was moved before the then Senior Superintendent of Police (in short, S.S.P), Gautam Buddh Nagar on 24.7.2012 for ordering further investigation under section 173(8)Cr.P.C. and S.S.P. Gautam Buddh Nagar with alacrity ordered further investigation on same day without taking into consideration two earlier orders of Chief Judicial Magistrate accepting final report and revisional order dated 18.5.2012 affirming such acceptance.
9. Investigating Officer S.I. Girish Kumar moved an application before Chief Judicial Magistrate, Gautam Buddh Nagar and sought permission for further investigation. The Chief Judicial Magistrate considered the request in the light of acceptance of final reports twice and revisional order dated 18.5.2012 affirming such acceptance and rejected the application vide order dated 17.9.2012 (Annexure-10 to the application). The said order passed by the Chief Judicial Magistrate, Gautam Buddh Nagar is reproduced below :-
10. The aforesaid rejection order did not deter Police personnel in utter disregard to the judicial order dated 22.9.2011 passed by Chief Judicial Magistrate, revisional judgment dated 18.5.2012 of Sessions Court and refusal of permission for further investigation vide order dated 17.9.2012. Investigating Officer continued to investigate the dispute and filed charge sheet against the applicant bearing no. 147 of 2013 under sections 323, 504, 506, 427 IPC.
11. This charge sheet was submitted before Additional Chief Judicial Magistrate II, Gautam Buddh Nagar whereupon learned Magistrate took cognizance and case was registered as Criminal Case No. 1683 of 2013. It appears that matter did not rest there. Senior Superintendent Of Police, Gautam Buddh Nagar again ordered further investigation on 10.8.2013 but this time, investigation was entrusted to some other Investigating Officer of different Police Station. Police official working at the Police Station Sector-39 Noida, was given responsibility for further investigation despite submission of the charge sheet dated 18.7.2013. This time permission of learned Magistrate was not even sought. The matter was further investigated pursuant to direction of S.S.P. Gautam Buddh Nagar and another charge sheet dated 17.9.2013 under sections 392, 452, 323, 504, 506, 427 IPC was submitted, meaning thereby that new charge sheet also contained two new sections, namely, sections 392 and 452 IPC making the charge-sheet under cognizable and non-bailable offences. This second charge sheet dated 17.9.2013 and subsequent proceedings are under challenge before this Court on behalf of applicant.
12. Heard Sri Vinay Saran, learned counsel for the applicant, Sri Apul Misra, learned counsel for respondent no. 2 and learned AGA for the State.
13. Learned counsel for the applicant claims that entire dispute essentially is of civil in nature and same has deliberately been converted into criminal case in order to grab the property of the applicant by taking benefit of the fact that applicant is mostly posted at distant place with poor connectivity. He further claims that stated G.P.A. agreement and Will can not transfer the title of the property in dispute to respondent no. 2, even if, it is assumed that some money was paid by their parents in order to facilitate the purchase of property. Learned counsel for the applicant has also submitted that two final reports have been submitted by various Investigating Officers and revision against them have been dismissed by the revisional court vide judgment and order dated 18.5.2012.
14. That learned counsel for the applicant has also argued that once an application was moved by Investigating Officer seeking permission from the Magistrate in order to commence further investigation under section 173(8) Cr.P.C., his further action must be in consonance with the order of the Magistrate. He has also drawn attention of this Court towards the application moved for further investigation which was dismissed but in gross violation and utter disregard of the judicial order dated 18.5.2012, the further investigation was conducted. Learned counsel for the applicant has submitted that this course of action is not permissible in view of judgment of Apex Court in