Madhya Pradesh High Court
Ashish Upadhyay vs The State Of Madhya Pradesh on 17 January, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:2234
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 17th OF JANUARY, 2025
WRIT PETITION No. 36242 of 2024
ASHISH UPADHYAY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yogesh Mohan Tiwari - Advocate for the petitioner.
Shri Madhur Shukla - Advocate for the respondents.
ORDER
This petition under Article 226 of the Constitution of India has been
filed by the petitioner while seeking following reliefs:-
“It is therefore prayed that this Hon’ble Court pleased to
call for entire of the petitioner:-
A. To issue a writ in the nature of certiorari to quash the
impugned FIR No.50/2019 dated 07.12.2019 and entire
charge sheet.
B. Grant any other relief as deemed fit and proper in the
circumstances of this case, along with the cost of this
writ petition be also awarded.”
2 . The facts of the case, in nut shell, are that the petitioner and his
brother Ashish Kumar are the owners of an agricultural land situated at
Khasra No. 422, Mouja Kajarwara, District Jabalpur and in respect of the
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said land they executed an agreement as per Article 5(D) in favour of M/s
Chaitanya Developer and Promoter. One Suresh Upadhyay and Smt.
Anuradha Upadhyay are uncle and aunt of the petitioner and one Sachin
Upadhyay is the cousin brother of the petitioner. Suresh Upadhyay was
working in the Department of Public Health Engineering and on the basis of
the allegation of acquiring disproportionate asset, an offence was registered
against him vide FIR No. 25/2019 under Section 13(1)(B) read with Section
13(2) of the Prevention of Corruption Act and Section 120 of the Indian
Penal Code. Smt. Anuradha Upadhyay and Sachin Upadhyay were also made
co-accused. Upon registration of the offence, an application was moved
before the Special Court Act by the prosecution in terms of Section 3 of the
Criminal Law (Amendment) Ordinance, 1944 read with Section 5(6) and 18-
A (2) of the Prevention of Corruption Act for attachment of the property,
which were owned by the accused persons in the said case. Accordingly, the
Special Court passed an order dated 2.8.2019 (Annexure P-3) attaching the
property, which were owned by Suresh Upadhyay. Along with the order,
there was a list of the properties, which were under attachment, which
included Khasra No. 423, Mouja – Kajarwara, District Jabalpur. The
petitioner is the owner of plot No. 213 situated at Khasra No. 422, which was
sought to be sold to one Veer Bahadur Singh and accordingly a sale-deed
was executed on 21.10.2019 (Annexure P-4). However, as the plot number
was incorrectly mentioned as 181 in the sale-deed dated 21.10.2019, a suit
was filed for declaration of the said sale-deed to be null and void. The suit
was decreed vide judgment dated 14.2.2022 (Annexure P-6).
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3. The respondents EOW registered a case against the petitioner under
Section 420, 120-B of the IPC while alleging that the sale-deed in question
was in respect of the land situated at Khasra No. 423, Mouja – Kajarwara,
District Jabalpur, which was covered by the order of attachment and despite
there being an order, the sale-deed (Annexure P-4) was executed in favour of
Veer Bahadur Singh. Hence, this petition has been filed by the petitioner
seeking quashment of the FIR and ensued proceedings.
4 . The counsel for the petitioner contends that the petitioner is the
owner of Khasra No. 422 and there is no dispute as regards the fact that
Khasra No. 422, Mouja – Kajarwara, District Jabalpur is not a part of the
order of attachment. It is contended that the petitioner had executed the sale-
deed in favour of Veer Bahadur Singh on 21.10.2019, however, on account
of inadvertent and bonafide error, the plot number was incorrectly mentioned
in the same. The plot No. 213 situated at Khasra No. 422, Mouja –
Kajarwara, District Jabalpur was to be sold but instead of Plot No. 213,
incorrect plot No. 181 was mentioned. As the buyer did not wish to buy the
property any further, therefore, he had sworn-in an affidavit dated
22.11.2019 (Annexure P-5) and the Civil Court ultimately allowed the civil
suit filed by the petitioner in which the buyer was impleaded as defendant
and declared the sale-deed to be null and void. The judgment of the Civil
Court was delivered on 14.2.2022 (Annexure P-6). However, after execution
of the sale-deed, the respondents registered a case against the petitioner
while alleging that by executing the sale-deed there was violation of the
order of attachment and the order of attachment having been passed under
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the statutory provisions, ought to have been complied with.
5. It is further contended that this Court vide order dated 9.1.2025 had
directed the respondents to file an affidavit of the Investigating Officer
demonstrating as to whether Khasra No. 422, Mouja – Kajarwara, District
Jabalpur is covered by the attachment order or not. In compliance of the
same, an affidavit has been filed by the Investigating Officer in which it has
been stated that Khasra No. 422, Mouja – Kajarwara, District Jabalpur is not
covered by attachment order.
6 . It is further contended by the counsel for the petitioner that the
present petitioner is the owner of Khasra No. 422, Mouja – Kajarwara,
District Jabalpur and he has no connection with Khasra No. 423, Mouja –
Kajarwara, District Jabalpur, which according to the respondents is under
attachment. Hence, entire prosecution of the petitioner would be an exercise
in futility and no case is made out to prosecute the petitioner, particularly
when the sale-deed was executed in respect of Khasra No. 422, Mouja –
Kajarwara, District Jabalpur only and which has been subsequently declared
as null and void.
7. Per contra, the counsel for the respondents submits that the present
petition is liable to be dismissed. It is contended that the in the present case,
there is a report which reflects that plot No. 181 is a part of Khasra No.
423, Mouja – Kajarwara, District Jabalpur. However, the petitioner has
projected that plot No. 181 was situated at Khasra No. 422 and 1000 sq. ft. of
land of plot No. 181 was alienated vide sale-deed dated 21.10.2019
(Annexure P-4) in favour of Veer Bahadur Singh. The said action of the
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petitioner was illegal and thereby an offence was committed by the
petitioner. It is further contended that no part of Khasra No. 423, Mouja –
Kajarwara, District Jabalpur could have been sold or alienated in view of the
order of attachment dated 2.8.2019 (Annexure P-3). It is contended that the
offence of cheating has been committed in respect of Khasra No. 423, Mouja
– Kajarwara, District Jabalpur, however, in the sale-deed (Annexure P-4),
Plot No. 181 was shown to be a part of Khasra No. 422 and the said fact was
incorrect. Hence taking into consideration, the intention of the petitioner at
the time of execution of the sale-deed, the petition be dismissed as the
petitioner himself having realized that there could not have been any sale-
deed, later on approached the Civil Court seeking declaration of the sale-
deed to be a nullity. The counsel for the respondents has placed reliance on
the decision of the Apex Court in Kaptan Singh Vs. State of U.P. – (2021) 9
SCC 35; State of Uttar Pradesh and another Vs. Akhil Sharda and others –
2022 SCC Online SC 820; State of M.P. Vs. Surendra Kori – (2012) 10 SCC
155 and Manik Bi Vs. Kadapala Shreyas Reddy and another – SLP 9Cri) No.
2924 of 2023.
8. No other point is argued or pressed by the counsel for the parties.
9 . Heard the submissions advanced on behalf of the parties and
perused the record.
10. On perusal of the record, it reveals that an order was passed by the
Special Court on 2.8.2019 (Annexure P-3) of attachment of the properties
and the said order of attachment included Khasra No. 423, Mouja –
Kajarwara, District Jabalpur. A case under the provisions of the Prevention
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of Corruption Act was registered against the uncle, aunt and cousin brother
of the petitioner vide FIR No. 25/2019, however, the petitioner was not
accused in the said case. Later on, according to the prosecution, against the
order of attachment, the petitioner executed a sale-deed and made an attempt
to alienate Khasra No. 423, Mouja – Kajarwara, District Jabalpur also, which
was part of the order of attachment.
11. To deal with the allegation so levelled by the prosecution, if the
sale-deed dated 21.10.2019 (Annexure P-4) is perused, it reveals that the
entire sale-deed nowhere refers to Khasra No. 423, Mouja – Kajarwara,
District Jabalpur. The said sale-deed contained plot No. 181, area 1000 sq.
fot Khasra No. 422, Mouja – Kajarwara, District Jabalpur. The sale-deed was
not in respect of Khasra No. 423, Mouja – Kajarwara, District Jabalpur. It is
undisputed that Khasra No. 423 is covered by the order of attachment but the
Khasra No. 422 is not covered by the order of attachment.
1 2 . The respondents have alleged that plot No. 181, which is
mentioned in the sale-deed, in fact is a part of Khasra No. 423 and not
Khasra No. 422, Mouja – Kajarwara, District Jabalpur, therefore, an attempt
was made by the petitioner to alienate the property situated at Khasra no.
423, Mouja – Kajarwara, District Jabalpur. This contention of the
respondents if considered while taking into consideration the contents of the
sale-deed (Annexure P-4), it would reveal that the sale-deed nowhere
contains reference of Khasra No. 423, Mouja – Kajarwara, District Jabalpur,
therefore, apparently there was no question of alienating the property which
was situated at Khasra No. 423 Mouja – Kajarwara, District Jabalpur. Even
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assuming the contention of the respondents that plot No. 181 was a part of
Khasra No. 423 and was not a part of Khasra No. 422 to be correct, even
then if the sale-deed was not pertaining to transaction in respect of Khasra
No. 423 Mouja – Kajarwara, District Jabalpur, no property on the strength of
the said sale-deed could have been alienated to third party. Even otherwise,
the proposed buyer also sworn-in an affidavit dated 22.11.2019 (Annexure P-
5), in which he also admitted that plot number was incorrectly mentioned in
the sale-deed and, therefore, he expressed his consent as regards cancellation
of transaction. The Civil Court also ultimately declared the sale-deed to be
null and void vide judgment dated 14.2.2022 (Annexure P-6). In such
circumstances, if the sale-deed in question was not in respect of Khasra No.
423 Mouja – Kajarwara, District Jabalpur, which was covered by the order of
attachment, the present petitioner could not have been prosecuted, inasmuch
as, the petitioner is not the owner of Khasra No. 423 Mouja – Kajarwara,
District Jabalpur and no sale-deed was executed by the petitioner in respect
of Khasra No. 423.
13. The Apex Court in Mahmood Ali and others vs. State of Uttar
Pradesh and others – 2023 SCC OnLine SC 950 in para-13 ruled thus :
“13. In frivolous or vexatious proceedings, the Court
owes a duty to look into many other attending
circumstances emerging from the record of the case
over and above the averments and, if need be, with due
care and circumspection try to read in between the lines.
The Court while exercising its jurisdiction under
Section 482CrPC or Article 226 of the ConstitutionSignature Not Verified
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need not restrict itself only to the stage of a case but is
empowered to take into account the overall
circumstances leading to the initiation/registration of
the case as well as the materials collected in the course
of investigation. Take for instance the case on hand.
Multiple FIRs have been registered over a period of
time. It is in the background of such circumstances the
registration of multiple FIRs assumes importance,
thereby attracting the issue of wreaking vengeance out
of private or personal grudge as alleged.”
14. Further, the Apex Court in the case of State of Haryana Vs. Bhajan
Lal – 1992 Supp. (1) SCC 335 held as under:-
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure
the ends of justice, though it may not be possible to lay
down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at theirSignature Not Verified
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face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) XXXXXXX
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6)XXXXXXXXXXXXXXX
(7) XXXXXXXXXXXXX
15. Thus, in view of the aforesaid decision of the Apex Court and the
analysis made hereinabove, in the considered opinion of this Court the
prosecution of the petitioner is unsustainable and is liable to be quashed.
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1 6 . So far as the decisions relied upon by the respondents are
concerned, they are of no assistance being distinguishable on facts.
1 7 . Accordingly, the petition is allowed . FIR dated 50/2019 dated
7.12.2019, so far as it relates to the petitioner, registered against the
petitioner and ensured proceedings are hereby quashed. The petitioner is
discharged from the aforesaid charges.
(MANINDER S. BHATTI)
JUDGE
PB
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