# Chhaila Khan v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 1294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-14
- **Case number:** Matters U/A 227 No. 868 of 2021
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhaila-khan-v-state-of-u-p-ors-48413
- **Pages:** 4

## Headnote

Criminal Law - Code of Criminal Procedure
-Allegation of forgery against the TahsildarCognizance only taken if sanction u/s 197
Cr.P.C. granted by the Government-Lower court
rightly held that without sanction the court
cannot take cognizance.
4 All. Chhaila Khan Vs. State of U.P. & Ors.
1295
Petition dismissed. (E-9)
List of Cases cited:
Gian Singh Vs St. of Pun. & anr., (2012)10 SCC
303,

## Text

1294 INDIAN LAW REPORTS ALLAHABAD SERIES
that when his Restaurant would start running
smoothly and profitably, then he would shift
his family from the First Floor and the
Second Floor and take another residential
accommodation, and start using the building
in question as a Hotel after taking due
permissions and making alterations as are
necessary in the construction. The learned
Trial Court as well as the Appellate Court
have noticed that the building in question was
situated in Arya Nagar, Naka Hindola, with
Aishbagh Road on the North and a PWD
Road on the South and it is a busy
Commercial area which has hundreds of
Restaurants/Hotels for travellers as it was
close to Charbagh Railway Station and the
Airport. The need of the Landlord was found
genuine and bonafide.

(22) With regard to the comparative
hardships, the Appellate Court has relied
upon judgments of the Supreme Court and of
this Court namely Shiv Swaroop Gupta Vs.
M.C. Gupta reported in AIR (2001) SC
2896 that if the tenant fails to look for
alternative accommodation even during long
pendency of release application, the issue can
be decided in favour of the Landlord.

(23) The proposition in law having been
correctly appreciated and also the facts as
mentioned in the pleadings on record, this
Court sitting in limited jurisdiction under
Article 227 of the Constitution of India, does
not find any good ground to show
interference in the order impugned.

(24) The petition stands dismissed.

(25) No order as to costs.

(26) Learned Senior counsel at this
stage, has requested that some time be
given to the petitioner to vacate the
premises. The petitioner shall vacate the
premises within two months from today
and shall continue to pay rent/damages as
directed by the learned Trial Court during
the time of his possession till such time that
he delivers vacant and peaceful possession
to the Landlord the rent, if any has already
been deposited by the petitioner, shall be
adjusted in such dues as are admissible to
the Landlord.

(27) Since this Court has not
interfered in the order of the learned Courts
below, it is expected that the Landlord shall
give two years of rent that he had offered
for the property which was commercial, as
compensation
to
the
tenant
on
his
delivering vacant and peaceful possession
of the shop in question to the Landlord.
----------
(2022)04ILR A1294
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Matters U/A 227 No. 868 of 2021

Chhaila Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mahabir Yadav, Sri Najakat Ali, Sri Ram
Awtar, Sri R.A. Rao

Counsel for the Respondents:
A.G.A.

Criminal Law - Code of Criminal Procedure
-Allegation of forgery against the TahsildarCognizance only taken if sanction u/s 197
Cr.P.C. granted by the Government-Lower court
rightly held that without sanction the court
cannot take cognizance.
4 All. Chhaila Khan Vs. State of U.P. & Ors.
1295
Petition dismissed. (E-9)
List of Cases cited:
Gian Singh Vs St. of Pun. & anr., (2012)10 SCC
303,
(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Shri Mahabir Yadav, learned
counsel for the petitioner and Shri L.D.
Rajbhar, learned A.G.A. on behalf of the
State.

2. The instant petition under Article
227 of the Constitution of India has been
filed with the prayer to quash the impugned
order dated 03.11.2020 passed by the
learned Additional Sessions Judge, Court
No.2, Rampur in Criminal Revision No.112
of 2018 (Chhaila Khan v. State of U.P. &
Ors.) as well as the impugned order dated
13.07.2018 passed in Criminal Misc. Case
No.225 of 2018 (Chhaila Khan v. Niyamat
Khan & Ors.).

3. The brief facts necessary for
disposal of this petition are that the land
Arazi No.286 (area 0.785 hectare) situated
in Village-Bhitar Gaon, Tehsil- Shahbad,
District-Rampur was vested with the State
Government. The respondents in collusion
with respondent no.9-Bhagwant Swaroop
posted as Tehsildar made forgery in the
column of 'tippadi', deleted the sign of
cross and entered their names fraudulently.
A case numbered as Case No.05 of 2001-02
(Niyamat Khan & Anr. v. State of U.P.) was
filed and learned Additional CollectorRampur vide order dated 30.3.2002 held
that the said land vested with the State
Government. The opposite party challenged
the said order by filing Revision No.145 of
2008-09
before
learned
Additional
Commissioner
(Judicial)
Moradabad,
Division Moradabad. The said revision was
dismissed on 20.11.2009 and the order
dated 30.3.2002 was affirmed.

4. It is contended by learned counsel
for the petitioner that inspite of the
aforesaid orders passed by the courts
below, the revenue authorities are not
complying with the orders and the private
respondents are still in possession of the
said land. It is further contended that forged
entry was made by the private respondents
in collusion with respondent no.9.

5. Per contra, learned A.G.A. has
vehemently opposed the contentions of
learned counsel for the petitioner and
contended that under Section 156(3)
Cr.P.C., the court may pass order of
registration of the First Information Report
against the accused regarding which he is
competent to take cognizance i.e. in
contrast of Section 154 Cr.P.C. It is further
contended that it is also barred by Section
195 Cr.P.C. for which only complaint can
be filed before the competent authority
before whom the judicial proceeding was
pending.
Learned
A.G.A.
has
also
contended that the said application under
Section 156(3) Cr.P.C. was also barred by
Section 197 Cr.P.C.

6.

I
have
given
thoughtful
consideration to the contentions raised by
learned counsel for the parties.

7. The power of lodging FIR by the
the Station House Officer under Section
154 Cr.P.C. and the power of Magistrate
under Section 156(3) Cr.P.C. is almost
similar with one distinction that order for
registration of FIR under Section 156 (3)
Cr.P.C., the learned court was competent to
take cognizance of offence on the basis of
the application under Section 156 (3)
Cr.P.C. Cognizance can only be taken in the
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
cases in which sanction under Section 197
Cr.P.C. was granted by the Government. No
such cognizance could be taken against the
public servant regarding illegal act done by
the public servant in discharge of his
official duty.

8. In above circumstances, learned
lower court has rightly held that without
sanction the court cannot take cognizance.
Apart from the complaint being barred by
Section 156 (3) Cr.P.C. it is also barred by
Section
195
Cr.P.C.
because
the
proceedings could be initiated after enquiry
under Section 340 Cr.P.C. by lodging the
complaint and no cognizance otherwise
could be taken.

9. In this regard, the relevant Sections
195 Cr.P.C. and 197 are reproduced below:-

"195. Prosecution for contempt
of lawful authority of public servants,
for offences against public justice and
for offences relating to documents given
in evidence.- (1) No Court shall take
cognizance-

(a) (i) of any offence punishable
under sections 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860 ),
or

(ii) of any abetment of, or
attempt to commit, such offence, or

(iii) of any criminal conspiracy
to commit such offence,

except on the complaint in
writing of the public servant concerned
or of some other public servant to whom
he is administratively subordinate;

(b) (i) of any offence punishable
under any of the following sections of the
Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, or

(ii) of any offence described in
section 463, or punishable under section
471, section 475 or section 476, of the
said Code, when such offence is alleged
to have been committed in respect of a
document produced or given in evidence
in a proceeding in any Court, or

(iii) of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in sub-
clause (i) or sub- clause (ii),

except on the complaint in
writing of that Court, or by such officer of
the Court as that Court may authorise in
writing in this behalf, or of some other
Court to which that Court is subordinate."

"197. Prosecution of Judges and
public servants-(1) When any person who
is or was a Judge or Magistrate or a public
servant not removable from his office save
by or with the sanction of the Government
is accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official
duty,
no
Court
shall
take
cognizance of such offence except with the
previous sanction-

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a
State,
of
the
State
Government:
[Provided that where the alleged offence
was committed by a person referred to in
clause (b) during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1297
expression" State Government" occurring
therein,
the
expression"
Central
Government" were substituted.]

(2) No Court shall take cognizance
of any offence alleged to have been committed
by any member of the Armed Forces of the
Union while acting or purporting to act in the
discharge of his official duty, except with the
previous sanction of the Central Government.

(3) The State Government may, by
notification, direct that the provisions of sub-
section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public order
as may be specified therein, wherever they
may be serving, and thereupon the provisions
of that sub- section will apply as if for the
expression" Central Government" occurring
therein, the expression" State Government"
were substituted.

[(3A)
Notwithstanding
anything
contained in sub- section (3), no court shall
take cognizance of any offence, alleged to have
been committed by any member of the Forces
charged with the maintenance of public order
in a State while acting or purporting to act in
the discharge of his official duty during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force therein, except with the previous
sanction of the Central Government.]

[(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State Government or
any cognizance taken by a court upon such
sanction, during the period commencing on
the 20th day of August, 1991 and ending with
the date immediately preceding the date on
which the Code of Criminal Procedure
(Amendment) Act, 1991 , receives the assent of
the President, with respect to an offence
alleged to have been committed during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid and it
shall
be
competent
for
the
Central
Government in such matter to accord sanction
and for the court to take cognizance thereon.]

(4) The Central Government or the
State Government, as the case may be, may
determine the person by whom, the manner in
which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or
public servant is to be conducted, and may
specify the Court before which the trial is to be
held."

10. In above circumstances, this Court is
not inclined to interfere in the impugned order.

11. The petition under Article 227 of the
Constitution of India is dismissed, accordingly.
----------
(2022)04ILR A1297
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters U/A 227 No. 3015 of 2018

Hari Mohan Sharma ...Petitioner
Versus
Goverdhan Dutta & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anshul Kumar Singhal

Counsel for the Respondents:
Sri Shyam Sunder Sharma

Civil Law - Code of Civil Procedure-Order
XXII Rule 5 - Parties impleaded by the Trial
court-challenged-since no proprietory right in
the estate of deceased would be determinedunder Order XXII Rule 5-allowing substitution -
hardly affect the merit of suit-impugned order
affirmed.