1. This Application u/s 482 Cr.P.C. has been filed with a prayer to quash the orders dated 27.10.2009, 29.10.2009, 18.5.2010 and 9.8.2010 passed by Special Judicial Magistrate, C.B.I., Ghaziabad in criminal case no.257 of 2009, State (C.B.I.) Versus Moti Lal Goel & others under sections 120-B, 420 read with 511, 466, 471 IPC arising out of crime no.84 of 2005, Police Station Sihani Gate, Ghaziabad, subsequently registered by C.B.I., S.P.E., Dehradun as F.I.R. No. RC 0072006A 0015 year 2006 dated 28.7.2008.
2. After investigation, the charge sheet was filed. The investigation of the case was transferred to C.B.I. in pursuance of order dated 28.7.2008 passed by Allahabad High Court in Writ Petition No.1552 of 2005, Rajender Tyagi Versus State of U.P. & others.
3. By order dated 27.10.2009 passed by the Magistrate, an application, moved on behalf of the applicant and another co-accused for supplying the copies of certain documents as well as the copy of the case diary of investigation done by the police before being2 transferred to C.B.I., was rejected on the ground that the accused persons had not yet surrendered before the Court. By order dated 29.10.2009, the application for discharge moved on behalf of the accused persons including the applicant Moti Lal Goel was rejected and learned Magistrate found that there were sufficient grounds for framing charge under sections 120-B, 420 read with 511 IPC, 466, 471 IPC against the accused and non-bailable warrant of arrest was issued against the applicant.
4. On 18.5.2010, an application was moved on behalf of the applicant. Certain documents were filed by the applicant along with the application, which were ordered to be put on the right stage. Vide order dated 9.8.2010, the Special Magistrate declined to issue attachment warrant against the applicant on the ground that the period of a month had not elapsed since issuing proclamation under section 82 Cr.P.C. and the file was ordered to be put up on 21.8.2010. All the four aforesaid orders are under challenge in this Application u/s 482 Cr.P.C.
5. It can also be noticed that the instant Application u/s 482 Cr.P.C. was earlier filed in this Court as a criminal revision on 20.8.2010, but subsequently, permission was granted to the applicant to convert the revision in an Application u/s 482 Cr.P.C. vide order dated 15.3.2011. It will also be noticed that earlier on 15.6.2010, orders dated 27.10.2009 and 29.10.2009 passed by the Magistrate were challenged by the applicant by means of criminal misc. application u/s 482 Cr.P.C. No. 21080 of 2010 and subsequent to the filing of the aforesaid revision, a withdrawal application no.240999 of 2010 was moved on 17.8.2010 on the ground that the applicant had filed the Application u/s 482 Cr.P.C. on wrong advice whereas criminal revision was maintainable. The said withdrawal application was allowed and the Application u/s 482 Cr.P.C. was dismissed as withdrawn by order dated 16.9.2010, but no liberty was given to the3 applicant for filing fresh Application u/s 482 Cr.P.C.
6. Heard Sri Manish Tiwary, learned counsel for the applicant and Sri Anurag Khanna, learned counsel for C.B.I. and perused the material available on record.
7. Though the orders dated 27.10.2009, 29.10.2009, 18.5.2010 and 9.8.2010 have been challenged in the Application, but counsel for the applicant has pressed the Application only in respect of order dated 29.10.2009 whereby application for discharge moved on behalf of the applicant has been dismissed by the Magistrate. It may also be noticed that order dated 9.8.2010 is not an order in any manner prejudicial to the applicant and he had no right to challenge the aforesaid order. Orders dated 27.10.2009 and 18.5.2010 are also interlocutory orders. Perhaps, for this reason, the applicant has confined himself to the order dated 29.10.2009.
8. It is submitted by learned counsel for the applicant that there is no material on record to show involvement of applicant in the crime. Even if the statements of prosecution witnesses recorded by the C.B.I. are taken at its face value, no criminal offence is disclosed. The property, in dispute, was recorded in the name of Smt. Kasturi Devi, the grandmother of the applicant, and the revenue entries in favour of Smt. Kasturi Devi were not fictitious. There is no material on record to show that the revenue entries were concocted at the instance of the applicant. The statements of various witnesses recorded by C.B.I. were also referred to.
9. Sri Anurag Khanna, learned counsel for C.B.I. raised a preliminary objection that order dated 29.10.2009 was challenged by the applicant earlier by means of Application u/s 482 Cr.P.C. No.21080 of 2010, which was subsequently withdrawn and, therefore, no second Application u/s 482 Cr.P.C. is maintainable for the same relief and amounts to abuse the process of the Court. It was further submitted that as per the F.I.R. lodged by Kushal4 Pal Singh, Lekhpal, Dundahera, Tehsil Ghaziabad, the applicant Moti Lal Goel got entered the names of private persons in the revenue records of Village Dundahera, District Ghaziabad in respect of some land belonging to farmers and gram sabha by adopting corrupt practices in connivance with the revenue officials showing them as residents of the said village. The names of Moti Goel and others were fraudulently entered in the revenue records as patta holders and thus the accused persons illegally grabbed land measuring 74,840 sq. meters worth about Rs.74 crores. The details of beneficiaries were also given in the F.I.R. lodged by Lekhpal, which included the name of Smt. Kasturi Devi - wife of Raghunath Sahai, the grandmother of the applicant Moti Lal Goel. Nine forged entries were made in the khatauni of village Dundahera for the year 1356 fasli (calender year 1949) out of which seven entries were in favour of Ved Prakash and two entries were in favour of Smt. Kasturi Devi on the basis of patta. Again in the khatauni of the year 1362 fasli (year 1955), Ved Prakash and Smt. Kasturi Devi were shown as 'Seerdar' (owner) of the plots. Subsequent forged entries were made in khatauni for the fasli year 1369 to 1371 (year 1962 to 1964) showing separate khatas in the name of Smt. Kasturi Devi and Ved Prakash. During investigation, it was found that these entries were forged entries. The names of Ved Prakash and Smt. Kasturi Devi were not there in the khataunies of preceding or succeeding years and were not entered in the register 'Malikana' and no lagaan parchi (land revenue receipts) was issued in respect of these plots. It was further submitted that a fictitious case being suit no.57 of 2005 was filed in the Court of ASDO, Ghaziabad under section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in the name of Ved Prakash against State of U.P. wherein the applicant used to do pervee on behalf of Ved Prakash, but Ved Prakash subsequently has denied having filed any such suit and the5 case was accordingly dismissed. Despite knowledge of the forged entries in favour of grandmother of the applicant, the applicant filed writ petition no.6554 of 2005 before this Court for quashing the order dated 2/3-02-2005 passed by SDO, Ghaziabad with a prayer for a direction not to dispossess him from the land in dispute and claimed title on the basis of a perpetual lease whereas the investigation has revealed that the disputed land was Government land and was never in possession of Smt. Kasturi Devi or her legal heirs.
Learned counsel for C.B.I. relied on the statement of Lajja Ram Goel, father of the applicant and son of Smt. Kasturi Devi, who stated that Smt. Kasturi Devi and none of his family members ever resided in village Dundahera and did not possess any land in the said village.
10. From the perusal of the case diary, it is revealed that from 4.12.2004 to 8.12.2004, the applicant attempted to obtain land revenue receipts from Lilu Singh, Collection Amin in the name of Smt. Kasturi Devi and tried to persuade him to make forged entries, which he refused. Certain witnesses have been examined by the C.B.I. to show that one Sanjay Tiwari used to do pervee in revenue court on behalf of Ved Prakash whereas Ved Prakash did not file the said suit, but Sanjay Tiwari was also a perokaar of Moti Lal Goel in several cases. Lajja Ram Goel, the father of the applicant was examined by C.B.I. on 11.6.2007 and he stated that since year 1959, his family was residing at Ghaziabad. His father and mother used to live in village Pasaunda. Smt. Kasturi Devi died in the year 1973. His father or mother did not hold any land in village Dundahera. Learned counsel for C.B.I. has also relied on the statement of Suresh Chandra Mittal recorded by C.B.I. wherein he stated that he had seen Satish Verma, Jitendra Maheshwari and Shyam Singh making entries in the original khataunies at the residence of Moti6 Goel at his dictation. Statements of Mahesh Chand Tyagi and Ravindra Kumar Jain also reveal that Smt. Kasturi Devi did not own any land in village Dundahera. Learned counsel further submitted that charge sheet has been submitted after thorough investigation. Applicant and other co-accused have not surrendered before the Court and this is not the proper stage to appreciate the evidence. There is sufficient material on record to frame charge and the application for discharge moved under section 245 (2) Cr.P.C. was rightly rejected by the Magistrate.
11. As far as maintainability of the second Application u/s 482 Cr.P.C. is concerned, I agree with the preliminary objections raised by learned counsel for C.B.I. that the second Application u/s 482 Cr.P.C. is not maintainable. Earlier Application, being criminal misc. application no.21080 of 2010, was filed with a prayer to quash orders dated 27.10.2009 and 29.10.2009. The said application was dismissed as withdrawn. The withdrawal application was moved on the ground that the applicant was advised to file revision against the said order. No liberty was sought from the Court nor granted for filing fresh Application u/s 482 Cr.P.C. subsequently. In fact, the criminal revision no.819 of 2011 was filed even before withdrawal of first Application u/s 482 Cr.P.C. In criminal revision, the difficulty faced by the applicant was that orders dated 27.10.2009 and 29.10.2009 had become barred by limitation and, therefore, perhaps for this reason the applicant sought permission to convert the revision in an Application u/s 482 Cr.P.C., but no special ground has been mentioned by amendment or otherwise to justify the filing of second Application u/s 482 Cr.P.C. for the same relief. Thus, the instant Application prima facie does not appear to be maintainable. In arriving at the aforesaid view, I find support by a decision of the Apex Court in Rajinder Prasad Versus Bashir & Others (2001) 8 Supreme Court Cases 522.
12. Learned counsel for the applicant submits that in civil misc. writ petition no.6554 of 2005 (Moti Lal Goel Versus State of U.P. & others), the operation of the order passed by the revenue authorities has been stayed and, therefore, revenue entries must be deemed to be correct.
13. In this regard, learned counsel for the C.B.I. placed reliance on State of Assam Versus Barak Upatyaka D.U. Karamchari Sanstha (2009) 5 Supreme Court Cases 694 wherein the Apex Court has held that an interim order which does not finally and conclusively decide an issue cannot be a precedent and any reasons assigned in support of such non-final interim order containing prima facie findings are only tentative. In these circumstances, the said interim order is of no help to the applicant.
14. There is sufficient prima facie material on the case diary to indicate that Smt. Kasturi Devi, the grandmother of the applicant, never resided in village Dundahera and did not own any land in the said village. Prima facie the revenue entries in her favour were inserted in the revenue records at the instance of the applicant. One of the witness had seen Satish Verma, Jitendra Maheshwari and Shyam Singh making entries in the original khataunies at the instance of the applicant. Moreover, this case is not an isolated case against the applicant. The Apex Court has used very strong words against the applicant Moti Lal Goel and his brother Rakesh Kumar Goel in (2010) 8 Supreme Court Cases 263 Rakesh Kumar Goel & others Versus U.P.S.I.D.C. Limited and others in the paragraph nos. 39, 40 & 41, which are quoted below :
39. In compliance with the order, an affidavit sworn by one Shri R.N. Upadhyaya, Special Secretary, Department of Revenue, Government of Uttar Pradesh was filed on July 25, 2009. In this affidavit, it is stated that Moti Lal Goel, Rakesh Kumar Goel and their family members were accused in sixteen (16) criminal cases in district8 Gautam Budh Nagar. Out of the sixteen (16) cases, three (3) were at the stage of investigation and one (1) was referred for inquiry to the CBI. In rest of the twelve (12) cases charge sheets were filed before the competent court in year 2005 and onwards. In the district of Ghaziabad, Moti Lal Goel, Rakesh Kumar Goel and their family members were accused in ten (10) criminal cases. Out of the ten (10) cases, two (2) were at the stage of investigation and two (2) were referred to the CBI. In rest of the six (6) cases charge sheets were filed before the competent court in year 2005 onwards. In the affidavit a long list was given of the cases against Moti Lal Goel and Rakesh Kumar Goel and their other family members pending in the two districts. From the list of cases it appears that almost all the cases were under sections 420, 467, 468, 469 and 472 of the Penal Code and the different provisions of the Prevention of Corruption Act.
40. In the affidavit it was further stated that according to the report of the District Magistrate, Ghaziabad, Moti Lal Goel and his family members had got their name falsely and fraudulently entered in the revenue record in respect of land measuring about 129 hectares, the market value of which, in the year 2005, was approximately Rs. 1100 crores. Similarly, from the report of the District Magistrate, Gautam Budh Nagar, it appeared that Moti Lal Goel and his family members had got their name fraudulently entered in the revenue records in respect of land measuring 252 hectares, the market value of which in the year 2005 was about Rs. 400 crores. The affidavit also gave the list of the lands in regard to which Moti Lal Goel and his family members had got their names allegedly fraudulently recorded in the revenue records.
41. These, in short, are the credentials of the two appellants and the manner in which the two plots in question were put to auction sale purportedly for recovery of the government dues. The charge sheet and the summoning order have not been9 challenged by the applicant. The applicant never surrendered before the Magistrate. He has been filing various applications before the Magistrate through counsel even without having surrendered and without obtaining bail. The application for discharge has been rejected by the learned Magistrate after a detailed examination of material available on record, some of which has been indicated above. Learned Magistrate has found that Smt. Kasturi Devi, the grandmother of the applicant, did not hold any land in village Dundahera. She died in the year 1973. The disputed land was Government land and the applicant made efforts to grab the Government land by managing fictitious entries in the revenue records and, therefore, there was sufficient material on record to frame charge under sections 120-B, 420 read with 511, 466, 471 IPC against the applicant and the co-accused.
15. I do not find any error or illegality in the order dated 29.10.2009 passed by the Magistrate and the prayer for quashing the same cannot be accepted.
16. As far as other three orders are concerned, the same have not been challenged by the applicant at the time of arguments. In view of the aforesaid, I do not find any substance in the contentions raised by learned counsel for the applicant. There is sufficient material against the applicant for proceeding with the trial and framing of the charge.
17. The Application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed.
18. The trial court is directed to proceed in the matter expeditiously in accordance with law.