Crl. Misc. No. M-10347 of 2011 (O&M) (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-10347 of 2011 (O&M) DATE OF DECISION: 08.04.2011 Nayyum and others ..........Petitioners Versus Rasul Khan ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. J.S. Bhatia, Advocate for the petitioners. **** DAYA CHAUDHARY, J. Crl. Misc. No. 19044 of 2011 Application is allowed as prayed for. Crl. Misc. No. M-10347 of 2011 The present petition under Section 482 Cr.P.C. has been filed on behalf of petitioners, namely, Nayyum, Salim and Asiam for quashing of complaint No. 74 dated 20.3.2003 (Annexure P-1), summoning order dated 23.8.2003 (Annexure P-2) and order dated 13.11.2010 (Annexure P-6) passed by Additional Sessions Judge, Gurgaon vide which order (Annexure P-2) has been upheld. Learned counsel for the petitioners contends that allegations have been levelled only against main accused Chaman Lal Shankla, SDM, who has allegedly passed the wrong order and as such the very genesis of dispute is order passed by him. Learned counsel for the petitioners further submits that the complainant has not supported his case as he has Crl. Misc. No. M-10347 of 2011 (O&M) (2) specifically stated that he did not want to proceed against C.L.Shankla. Learned counsel also submits that the order of correction of khasra girdawri has been passed by learned Assistant Collector Ist grade in discharge of his official duties and exercising the powers vested in quasi judicial authority and the aggrieved party has right to challenge the same by way of appeal. The only allegation against the petitioners is that they were in connivance with main accused-C.L. Shankla and correction of khasra girdwari was illegally made but once the main accused has been left by the complainant then no offence is made out against the conspirators, even if the allegations levelled in the complaint are taken to be correct. Heard the arguments advanced by learned counsel for the petitioners and have also gone through the contents of the complaint as well as orders passed by the Courts below. In this case, a complaint was filed under Sections 420,467,468,471,319 and 120-B IPC against the petitioners and others with the allegations that complainant was in continuous actual physical possession of the agricultural land comprised in khewat/khatoni No. 686/898, Rect. No.13, Killa No. 22 (8-0), total measuring (8-0), situated within the revenue estate of village Ghasera, Tehsil Nuh, District Gurgaon now Mewat. Previously, Nasir Khan son of Kehar was in cultivating possession of the land in dispute as Gair Marusi Tenant since 1970-71 till the year 1997 and he was succeeded by his son, namely, Umardin, being only legal heir of deceased Nasir Khan. The aforesaid Umardin came in cultivating possession of the aforesaid land after the death of his father Nasir Khan and transferred his possessory rights of the aforesaid land in favour of the complainant by moving an affidavit in this regard on 12.10.2000 before the Executive Magistrate, Nuh and put the complainant in actual, physical and cultivating possession of the aforesaid land. The Crl. Misc. No. M-10347 of 2011 (O&M) (3) revenue officials in accordance of the affidavit dated 12.10.2000 entered a Rapat Rojnamcha No. 77 dated 22.10.2000 in favour of the complainant. However, said Rapat Rojnamcha was not reflected in the subsequent jamabandi in favour of the complainant. Subsequently, Aslam moved a false application before C.L. Shankla, Sub Divisional Officer (Civil), Ferozepur Jhirka, who was also having additional charge of Sub Divisional Officer, (Civil) Nuh, claiming himself in cultivating possession of the land in dispute. On the basis of said application, C.L. Shankla called Om Pal, Halqa Patwari for making entry but Halqa Patwari refused to do so. On this accused-C.L. Shankla became annoyed and threatened Halqa Patwari to suspend him from the job. Subsequently under the pressure of Sh. C.L. Shankla, girdwari was changed in favour of Hassan Mohammad, Haneef, Habib, Nayyum and Salim. The said order was passed by Sh. C.L. Shankla on a simple paper and no entry was made in Kargujari Register. Accused-C.L. Shankla in collusion with other accused caused a wrongful gain to other accused including the present petitioners and a wrongful loss to the complainant by way of passing fictitious order with the help of Halqa Patwari. No notice was given to the complainant before making any entry and even no spot inspection was ever made by Sh. C.L. Shankla. It has also come on record that Sh. C.L. Shankla was on leave on that day and was away to Chandigarh in connection with departmental examination. An appeal was filed by the complainant against order dated 9.11.2000, which was set aside by the Commissioner, Gurgaon vide judgment dated 7.3.2002. It has also come on record that on the basis of illegal khasra girdawaris entries, accused reached at the spot on 25.11.2000 and tried to take possession of the land in question from the complainant and Majida etc. forcibly, on which, a dispute arose between the parties and accused No.5 murdered a person from the complainant side besides causing multiple and grievous injuries to the complainant and others regarding Crl. Misc. No. M-10347 of 2011 (O&M) (4) which a criminal case being FIR No. 260 dated 25.11.2000 under Sections 148/149/302/307/323 IPC and 25/54/59 of Arms Act was registered in Police Station, Nuh against them. After examining the complainant as PW1 Satish Kumar, Clerk in the office of Additional Deputy Commissioner, Gurgaon as PW-2, Kifayatulla, Field Kanungo, Nuh as PW-3 and Alim as PW-4, order dated 23.8.2003 was passed vide which all the accused except Sh. C.L. Shankla were summoned to face trial for the commission of offence punishable under Sections 420/467/468 and 120-B IPC. Against the aforesaid order dated 23.8.2003, revision was filed, which was also dismissed. The argument raised by learned counsel for the petitioners that since main accused C.L. Shankla has not been examined, no allegations can be there against the petitioners, does not carry much weight as specific allegations are there against the petitioners and it was on record that on the basis of revenue entries, the land in dispute has been transferred. Moreover, at the time of summoning, only it is be seen whether prima facie case is made out against the accused persons or not. For summoning evidence is not to be discussed. In the present case also, specific allegations are there against the petitioners and the allegations levelled in the complaint have been supported by the statement of other witnesses as well as revenue record. The petitioners have already lost upto the revisional Court and as far as conspiracy and other allegations are concerned, the same is a matter of evidence, which is to be seen during trial on appreciation of evidence and the same cannot be decided at this stage. Accordingly, there is no merit in the petition and the same is dismissed accordingly. April 08, 2011 (DAYA CHAUDHARY) pooja JUDGE Crl. Misc. No. M-10347 of 2011 (O&M) (5) Note:-Whether this case is to be referred to the Reporter .......Yes/No