# Smt. Munni Devi & Ors v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Matters Under Article 227(Crl.) No. 9699 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-munni-devi-ors-v-state-of-u-p-anr-45217
- **Pages:** 4

## Headnote

A. Criminal Procedure Code, 1973 - Section
197 - Summoning of Area Lekhpal - If Area
Lekhpal, in performance of his official duty,
has got some act done, under conspiracy,
then, that is an act or offence, committed
by a public servant, in performance of his
official duty - for taking cognizance, for
such offence, sanction of the competent
542 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, under Section 197 of Cr.P.C., is to
be taken - No recital in the impugned order
as to whether any sanction of competent
authority was taken for taking cognizance
against Area Lekhpal - Impugned order set
aside.

B.
Criminal
Procedure
Code,
1973
-
summoning order - Allegation that accused
by committing fraud got her name mutated
with respect to Arazi no. 472 and took
possession - Held - no document regarding
mutation for Arazi No.472 was placed
before court below - name of complainant
shown in Khatauni for Arazi No. 472 - so far
as illegally taking of possession and raising
construction over Arazi No.472 - there can
be no summoning unless this fact is being
adjudicated upon by the civil/revenue court
which is competent to dispossess an
encroacher.

Matter Under Article 227 allowed. (E-5)

## Text

1 All. Smt. Munni Devi & Ors. Vs. State of U.P. & Anr.
541
regard to presumption of service of notice
in a case of a notice sent by registered post
there can be no quarrel with the aforesaid
proposition. However, in order to attract
the provisions under Order XXXIX Rule
2A there has to be not mere 'disobedience'
but it should be a 'willful disobedience'
and the act of willful disobedience is
required to be proved by cogent evidence
and a person cannot be held to be guilty of
the disobedience merely on the basis of a
constructive notice or a presumption with
regard to service of notice. In this regard,
reference may be had to the observations
made in the case of Rajendra Sharma Vs.
Satish Chandra Garg & others4.

"13. We have perused these and
we find that in the affidavit the appellant
in para 3 has stated that respondent nos. 1
to 3 were bound by the order dated 23rd
February, 2004 being successor in interest
of the third party. This statement is not a
statement of fact but it is a legal principle
which may amount to constructive notice
of the injunction order dated 23.2.2004 but
for constituting willful disobedience of the
injunction order the disobedience must be
willful and both should be proved by
cogent evidence. A person cannot be held
guilty of such disobedience merely on the
basis of constructive notice or surmises."

21. This Court may also take notice
of
the
fact
that
the
power
of
superintendence conferred under Article
227 is discretionary and is to be exercised
very sparingly on equitable principles. The
power of interference under Article 227 by
exercising this reserve and exceptional
power is to be kept to the minimum and
the Court exercising this power cannot act
as a Court of appeal over the orders of the
Court or tribunal subordinate to it. The
parameters of interference by High Courts
in exercise of its power of superintendence
are to be guided by the principles laid
down in the case of Waryam Singh and
another Vs. Amarnath and another5
and reiterated in Shalini Shyam Shetty &
Anr. Vs. Rajendra Shankar Patil6 and
also in Radhey Shyam & Anr. Vs.
Chhabi Nath & Ors.7

22. Counsel for the petitioner has not
been able to point out any material error or
illegality in the orders passed by the court
below so as to warrant interference in
exercise of power under Article 227 of the
Constitution of India.

23. The petition lacks merit and is
accordingly dismissed.
----------
(2020)1ILR 540

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Matters Under Article 227(Crl.) No. 9699 of 2019

Smt. Munni Devi & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Shivajee Singh Sisodiya

Counsel for the Respondents:
G.A., Sri Kunwar Tejandra Bahadur

A. Criminal Procedure Code, 1973 - Section
197 - Summoning of Area Lekhpal - If Area
Lekhpal, in performance of his official duty,
has got some act done, under conspiracy,
then, that is an act or offence, committed
by a public servant, in performance of his
official duty - for taking cognizance, for
such offence, sanction of the competent
542 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, under Section 197 of Cr.P.C., is to
be taken - No recital in the impugned order
as to whether any sanction of competent
authority was taken for taking cognizance
against Area Lekhpal - Impugned order set
aside.

B.
Criminal
Procedure
Code,
1973
-
summoning order - Allegation that accused
by committing fraud got her name mutated
with respect to Arazi no. 472 and took
possession - Held - no document regarding
mutation for Arazi No.472 was placed
before court below - name of complainant
shown in Khatauni for Arazi No. 472 - so far
as illegally taking of possession and raising
construction over Arazi No.472 - there can
be no summoning unless this fact is being
adjudicated upon by the civil/revenue court
which is competent to dispossess an
encroacher.

Matter Under Article 227 allowed. (E-5)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This proceeding, under Article 227 of
the Constitution of India, has been filed by
Munni Devi and three others, with a prayer for
setting aside order, dated 23.11.2019, passed
by the Additional Sessions Judge, Court
No.15, Bareilly, in Criminal Revision No. 140
of 2019/C.N.R. No. UPBRO 1-004303-2019
(Munni Devi & others vs. State of U.P. and
another) as well as order, dated 26.2.2019,
passed
by
Additional
Chief
Judicial
Magistrate, Court No.6, Bareilly, in Complaint
Case No. 3207 of 2018 (Chheda Lal Vs.
Munni Devi & others), under Sections 420,
467, 468, 471 and 506 of Indian Penal Code,
Police Station-Fatehganj Paschimi, District
Bareilly.

2. Learned counsel for applicants
argued that a case crime number was got
registered upon a report of Chheda Lal,
after lapse of 22 years, as Case Crime No.
482 of 2012, under Sections 420, 467, 468,
471 and 506 of Indian Penal Code, Police
Station-Fatehganj
Paschimi,
DistrictBareilly, wherein, investigation resulted in
submission of final report. Thenafter, a
protest
petition
was
filed,
wherein,
Magistrate took cognizance, examined
complainant and his two witnesses, under
Sections
200
and
202
of
Cr.P.C.
Thereafter,
complaint
was
dismissed,
under Section 203 of Cr.P.C.

3. Against this order of the
Magistrate, a criminal revision was filed,
wherein, revisional court set aside order,
dated 9.11.2017 of the Magistrate, thereby,
allowed criminal revision and remanded
back matter for fresh adjudication over
protest petition.

4. In compliance whereof, Magistrate
passed impugned order of summoning,
wherein, applicants, Munni Devi, Ram
Murti, Shiv Mangal, Indresh and Naqi Raza
Khan, have been summoned for offences,
punishable, under Section 420, 467, 468,
471 and 506 of IPC. Both of these courts
have failed to appreciate facts and law
placed before them and have committed
misuse of process of law. Hence, invoking
jurisdiction of this Court of general
superintendence over subordinate courts, as
conferred upon it by Article 227 of the
Constitution of India, this Application has
been filed, with above prayer.

5. On the other hand, learned
counsel, appearing on behalf of Opposite
party no.2, argued that sale of Arazi No.
489 was made by way of a registered deed,
in favour of Munni Devi, but, under
connivance with Area Lekhpal, Naki Raza
Khan, mutation was got made, with
respect of Arazi No.472, which was
adjacent to road and possession was taken
1 All. Smt. Munni Devi & Ors. Vs. State of U.P. & Anr.
543
over it. On protest being made, accusedpersons, abused and extended threat of
dire consequences. Hence, an application
was moved and a civil suit was also filed,
wherein, there is an order in favour of
Opposite parties and learned Additiional
Sessions Judge has rightly appreciated
facts and law, thereby, allowed criminal
revision, remanded back the matter for
consideration
by
the
Magistrate,
whereupon, impugned summoning order
has been passed. Hence, this Application is
liable to be dismissed.

6. Learned AGA, representing State
of Uttar Pradesh, has also vehemently
opposed this Application.

7. Heard learned counsel for both
sides and gone through materials on
record.

8. From very perusal of the first
information report, complaint, filed by
way of protest petition and statements of
complainant, recorded, under Sections 200
of Cr.P.C., as well as, under Section 202 of
Cr.P.C. of witnesses, it is apparent that the
allegations levelled by the complainant
was that he had sold land of Gata No. 489
of Village-Tithariya Khetal, by way of a
registered deed, dated 22.10.1990, in
favour of Munni Devi and it was mutated
in the revenue record on 23.1.1996. Arazi
No. 489 is away from highway, whereas,
Arazi No. 472 is adjacent to highway and
complainant was residing at Haldwani.
Hence, taking advantage of it, Munni
Devi, under connivance of area Lekhpal,
Naqi Raza Khan, got mutated her name for
Arazi No.472, instead of, Arazi No.489
and, thereby, she got possession over it.
Thereafter, construction was raised over it.
Hence, it was done by committing fraud
and manufacturing forged and fictitious
documents, under connivance of area
Lekhpal.
Firstly,
learned
Magistrate
dismissed complaint, thenafter, on the
same evidence, in compliance of order of
revisional
court,
passed
impugned
summoning order, whereas, no document
regarding mutation for Arazi No.472 was
placed before both of the courts, rather,
mutation for Arazi No. 489 was there. A
judgment of civil court, rendered in,
Original Suit No. 18 of 2012, Chheda Lal
vs. Munni Devi, decided on 5.1.2019, has
been filed before this Court, wherein, it is
apparent that name of Chheda Lal is there
in Khatauni for Arazi No. 472, meaning
thereby, basic allegation of mutation for
Arazi No. 472 is not substantiated by
above factual position. Moreso, civil suit,
before civil court, regarding registration,
as well as before revenue court, regarding
mutation, is admittedly, pending and this
has been entered, by Investigating Officer,
in submission of final report. Meaning
thereby, mutation was there for Arazi
No.489, which was admittedly transferred
to Munni Devi and no mutation is there
regarding Arazi No. 472.

9. Now so far as taking of possession
and raising construction over Arazi No.472
for which there was no right is concerned,
it is an offence of illegal encroachment
and land grabbing, but, no summoning is
for it and unless this fact is being
adjudicated upon by the civil court in
above civil proceeding or by revenue
court, in revenue proceeding, which is
competent to dispossess an encroacher
from the revenue plot, in question,
summoning for such an offence cannot be
ordered.

10. So far as summoning of Area
Lekhpal is concerned, his summoning may
not be there. If Area Lekhpal, in
544 INDIAN LAW REPORTS ALLAHABAD SERIES
performance of his official duty, has got
some act done, under conspiracy, then, that
is an act or offence, committed by a public
servant, in performance of his official duty
and for taking cognizance, for such
offence,
sanction
of
the
competent
authority, under Section 197 of Cr.P.C., is
to be taken, but, no such recital is there as
to whether any sanction of competent
authority was taken for taking cognizance
against Area Lekhpal, Naqi Raza Khan or
not.

11. Hence, under all above facts and
circumstances, it is apparent that both of
the courts below failed to appreciate facts
and law and passed impugned orders,
without there being any basis and as such
both the impugned orders are being set
aside and matter is being remanded back
to the court of Magistrate, where, he will
hear
complainant
and
will
pass
summoning order, if any, afresh, after
taking into consideration the materials
placed before him and after making an
enquiry, and also taking into consideration
of relevant Khataunis, for the year
concerned, for specifying as to whether
mutation was there or not and if it was
there and it is found to be, under any
conspiracy, then sanction, under Section
197 of Cr.P.C., is there or not against Area
Lekhpal, Naqi Raza Khan and the
procedure, as per law, is to be adopted.

12. In view of observations made
above, this Application stands disposed of
accordingly.
----------
(2020)1ILR 544

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 378 Cr. P.C.No. 69 of 2002

Panna Lal Sharma ...Appellant
Versus
State of U.P. & Anr. ...Oposite Parties

Counsel for the Appellant:
Sri Sudhir Dixit

Counsel for the Oposite Parties:
A.G.A., Sri S.P.S. Chuhan, Smt. Meenakshi
Chauhan

A. Maxim- Buyer Beware

Under Transfer of Property Act, there is a
principle of buyer beware. Meaning thereby,
there is a legitimate expectancy about conduct
of buyer. He too is expected to make inquiry
from public office about the ownership of
property going to be purchased or going to be
transacted and if buyer is not aware, he cannot
say the same to be an offence unless that
comes within definition of deception. (Para 8)

B. Code of Criminal Procedure, 1973 -
Section 378(4) & Indian Penal Code,1860
- Section 420 -application-grant of leave
to
file
appeal-rejection-no
wilful
deception
could
be
proved
by
prosecution-communication
of
cancellation of transfer deed by public
auction before alleged transfer made by
accused could not be proved. (Para 7 & 9)

In present case, no wilful deception could be
proved by prosecution because complainant
himself was not sure as to whether Rewati
Prasad was aware of this cancellation of
transfer of public property or not. His public
witness too was not sure. Rewati Prasad was in
possession over plot in question and he
executed the same through registered sale
deed. (Para 7)

Application U/S 378 Cr. P.C. dismissed.
(E-6)

List
of
cases
cited:-