No requirement for criminal process to go on to settle the dispute, when the matter is a civil land dispute: High Court of Uttarakhand.
Where the dispute is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute and the demarcation report was unsure of the ground situation, then the Apex court observed that there was no requirement to carry on a criminal process in such a case. A single Judge bench comprising Hon’ble Justice N.S. Dhanik, in the matter of Hemant Dwivedi Vs. State of Uttarakhand and others (Criminal Misc. Application No. 79 of 2020), dealt with an issue where the petitioner filed the present criminal misc. application under Section 482 Cr.P.C. seeking from the court to Quash the charge-sheet pursuant to FIR for the offences cognizable under Section 420, 447, 504 &amp; 506 IPC as well as to Quash the cognizance order passed by learned Chief Judicial Magistrate, Nainital in Criminal Case, “State v. Hemant Dwivedi” pursuant to FIR for the offences cognizable under Section 420, 447, 504 &amp; 506 IPC, and the entire proceeding of the said criminal case. In the present case, respondent no. 3 had lodged FIR alleging offence under Sections 420, 447, 504 &amp; 506 IPC against the accused applicant, which the applicant charged by filing a criminal writ petition. The main ground of challenge raised in the said writ petition was that it was actually a land dispute and the complainant had wrongly initiated the criminal proceedings against the accused applicant. After the dismissal of the writ petition, the applicant approached the Apex court and the court stated that no coercive can be taken against the applicant. the Hon’ble Apex Court directed the Collector Nainital to issue necessary instructions to the SDM to carry out the demarcation in the presence of both the parties and sought the report of demarcation along with the covering report of the Collector. The demarcation was done and the report was submitted, to which the apex court observed that the dispute really is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute. The apex court held there was no requirement for the criminal process to go on. The apex court quashed the criminal process initiated and also directed that if any of the parties were aggrieved by the SDM report, the same may be assailed in accordance with the law. Moreover, directed that the possession must be maintained by the parties in accordance with the report of the SDM subject to any adjudication which may take place. The counsel for the applicant prayed to decide the present petition in the light of the Judgement passed by the apex court. The state counsel fairly conceded to it. The Hon’ble High court followed the decision of the Apex court and thereby allowed the C482 application and “State v. Hemant Dwivedi” was quashed.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 720 Hemant Dwivedi …..Applicant State of Uttarakhand and others Respondents Mr. Rakesh Thapliyal learned Senior Counsel assisted by Mr. Pankaj Chaturvedi learned counsel for the applicant. Mrs. Mamta Joshi learned Brief Holder for the State. None appears for respondent no. 3. Dated: 18th August 2021 Hon’ble N.S. Dhanik J.The present criminal misc. application under Section 482 Cr.P.C. has been filed by the applicant seeking the following reliefs: Quash the charge sheet No. 15 of 2018 dated 22.12.2018 pursuant to FIR No. 06 of 2018 for the offences cognizable under Section 420 447 504 & 506 IPC. ii) Quash the cognizance order dated 19.02.2019 passed by learned Chief Judicial Magistrate Nainital in Criminal Case No. 3619 “State v. Hemant Dwivedi” pursuant to FIR No. 06 of 2018 for the offences cognizable under Section 420 447 504 & 506 IPC as well as the entire proceeding of the said criminal case. Brief facts of the case are that respondent no. 3 lodged an FIR against the accused applicant on 04.03.2018 alleging offence under Sections 420 447 504 & 506 IPC against the accused applicant. Accused applicant challenged the said FIR by filing Criminal Writ Petition No. 4418. 2 Since during the pendency of the said writ petition charge sheet was submitted against the petitioner this Court dismissed the said writ petition as infructuous vide order dated 07.01.2019. The main ground of challenge raised in the said writ petition was that it was an actually land dispute and the complainant has wrongly initiated the criminal proceedings against the accused applicant. After dismissal of the said writ petition the accused applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court vide its order dated 08.02.2019 directed that no coercive steps shall be taken against the accused applicant. However since the trial court was regularly issuing summons to the accused applicant the present C482 application was filed challenging the charge sheet filed against the accused applicant. Meanwhile vide order dated 06.12.2019 the Hon’ble Apex Court directed the Collector Nainital to issue necessary instructions to the SDM to carry out the demarcation in the presence of both the parties and sought the report of demarcation along with the covering report of the Collector. Accordingly the demarcation was done and report was submitted and thereafter the Hon’ble Apex Court vide its order dated 03.11.2020 disposed of the appeal of the accused applicant by observing that “we find that the dispute really is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute. The demarcation report leaves little in doubt about the ground situation and thus we are of the view that there is no requirement for the criminal 3 to go on. Learned counsel respondents states that they seriously dispute the report of the SDM and naturally so as it does not now favour them. We have not precluded them from challenging the report in accordance with law”. The Hon’ble Apex Court passed following directions while disposed of the appeal of the accused applicant: “In view of the aforesaid the appeal is disposed of with the following directions: criminal process pursuance to FIR No. 6 of 2018 dated 04.03.2018 registered at PS Bhimtal stands quashed. The report of the SDM is taken on record and if any of the parties is aggrieved by the SDM report the same may be assailed in accordance with law. iii) The possession at present will be maintained by the parties in accordance with the report of the SDM subject to any adjudication which may take place as aforesaid. The appeal is accordingly allowed leaving parties to bear their own costs.” 6. Learned Senior Counsel applicant further prayed that the present petition be decided in the light of the judgment and order dated 03.11.2020 passed by the Hon’ble Apex Court in Special Leave to AppealNo. 1108 of 7. Learned State Counsel the present criminal misc. application may be decided as per the judgment and order dated 03.11.2020 passed by the Hon’ble Apex Court. 8. It is pertinent to mention here that despite sufficient service on respondent no. 3 and filing of Vakalatnama on his behalf by Mr. Bhupendra Prasad and Mr. Sanpreet Singh Azmani none appeared today on behalf of the respondent no. 3. 9. Having heard learned counsel for the circumstances of the case and particularly the judgment and order of the Honb’le Apex Court dated 03.11.2020 it is crystal clear that the dispute was purely of land dispute for which criminal proceedings were lodged. The Hon’ble Apex Court observed that the criminal process is used to settle that dispute. The demarcation report leaves little in doubt about the ground situation and thus we are of the view that there is no requirement for the criminal process to go on and the criminal process pursuance to the FIR lodged against the applicant with liberty to the private respondent to assail the report of the SDM. In view of the above the impugned criminal proceedings cannot be allowed to be continued as the Hon’ble Apex Court has quashed the criminal process pursuant to the FIR lodged by the private respondent no. 3 and the impugned proceedings are passed pursuant to the charge sheet filed against the accused applicant after investigation in the said FIR. Consequently this C482 application is allowed. The charge sheet dated 22.12.2018 and the cognizance order dated 19.02.2019 passed by learned Chief Judicial Magistrate Nainital in Criminal Case No. 361 of 2019 “State v. Hemant Dwivedi” is hereby accordingly. 18.08.2021 