M.L.Sinha, J. - (1.) THIS is an application under Section 482 of the Code of Criminal Procedure of 1973 praying that the entire proceedings in case No. 1212 of 1968 (State of U.P. v. Mohd. Azhar Ullah Khan and others) pending in the Court of the Chief Judicial Magistrate, Moradabad, be quashed.
(2.) THE facts of the case, shorn of unnecessary details, are as follows : Mohammad Azhar Ullah Khan, Petitioner no. 1, claims himself to be the owner of House No. 49/D -10, Kath -Darwaza, Moradabad. On 20th of September, 1952, a notice was issued by the Assistant Custodian, Moradabad, treating that house to be evacuee property and calling upon the Petitioner to appear before him and to show cause against it. By an order dated 12th August, 1955, the house was declared to be evacuee property. Petitioner No. 1 then filed an appeal against the order of the Assistant Custodian dated 12th August, 1955, which was dismissed by the Deputy Custodian General on 20th of June, 1958. Another appeal was then filed against the same order by Smt. Asadi Begum, sister of Petitioner no. 1, and it is suggested on behalf of the opposite party that the said appeal was also filed at the instance of Petitioner no. 1. That appeal too was dismissed by the Deputy Custodian General on 10 -7 -1958. A third appeal was then got filed against the same order viz. the order dated 12th August, 1955, in the name of Najib Ullah Khan. This appeal was allowed by the Deputy Custodian vide his order dated 14th January, 1963. Some further litigation took place in regard to the same property, but it is not necessary for purposes of this case to make a reference to that litigation at any length. On or about 10th of May, 1968 Sri A. N. Bhargava, the District Relief and Rehabilitation Officer, Moradabad, acting for District Magistrate, Moradabad, sent a letter to the Superintendent of Police, inter alia, alleging that the memo of appeal filed in the name of Najib Ullah Khan was a forged and fictitious document ; that the said Najib Ullah Khan was not even present in India at the time of filing thereof ; that Petitioner no. 1, in collusion with one Sri Siddiqui, an Advocate, withdrew the amount of rent which was deposited in the office of Assistant Custodian, Evacuee Property by impersonating as Najib Ullah Khan's attorney and that Petitioner no. 1 had been wrongfully obtaining rent of the house which was evacuee property and in which the share of Petitioner no. 1 was very nominal. On this letter a case under Sections 468, 419 and 420 IPC was registered. Formal investigation then followed and a charge -sheet was ultimately submitted by the police for the prosecution of the Petitioners for offence under Section 120B, 467, 471, 468, 418, 419 and 420 IPC. A copy of that charge -sheet is Annexure 12 of the petition under Section 482, Code of Criminal Procedure. The case is now pending in the Court of Chief Judicial Magistrate, Moradabad. The prayer of the Petitioners is that the the said case and the entire proceedings thereunder be quashed. It is well settled that for purposes of Section 482, Code of Criminal Procedure (which corresponds to Section 561 -A of the old Code) the Court should proceed on the assumption that the allegations contained in complaint or charge -sheet are correct. The Court cannot enter into an investigation of the fact as to whether the allegations contained in the complaint or the charge -sheet are correct or not, for, that would amount to usurping the role of the trial Court. If, however, the Court comes to the conclusion that, even if the allegations contained in the complaint be taken to be true, they fail to constitute any offence, jurisdiction can be exercised under Section 482 Code of Criminal Procedure to quash the proceeding. Jurisdiction for this purpose can also be exercised, if it transpires that any action which is necessarily to be taken before launching prosecution or taking cognizance of a case by the Court has not been taken. The present case has to be examined keeping that legal position in mind.
(3.) AS already stated earlier, a copy of the charge -sheet by the police has been annexed with the petition as Annexure 12. It states that Petitioner no. 1 himself filed an appeal against the order dated 12th August, 1955 declaring house no. 49/D -10 to be an evacuee property. It is further suggested that when that appeal was dismissed, Petitioner no. 1 got another appeal filed against the same order through his sister which too ended in dismissal. The allegation contained in the charge -sheet thereafter is that the present Petitioner entered into a conspiracy with his daughter, Smt. Hajra Sultana and two others to prepare or got prepared a vakalatnama and a memo of appeal in the name of Najib Ullah Khan, who had migrated to Pakistan, to be able to assail the order of the Assistant Custodian dated 12th of August, 1955, in the name of Najib Ullah Khan. It is also contained in the charge -sheet that the signatures of Najib Ullah Khan on the Vakalatnama were forged and, according to the report of the hand -writing expert, it was Petitioner no. 2 who did that particular act and both the petitioners' thereby committed offences, punishable under Sections 120B, 465 and 471, IPC. It is further the prosecution case that by forging the Vakalatnama and the memo of appeal in the name of Najib Ullah Khan and by further representing that Petitioner no. 1 was an attorney of Najib Ullah Khan, the Petitioner no. 1 also, committed an offence under Section 120B read with Section 419 and 420, IPC, inasmuch as by doing that act, the Petitioners, and their associates induced the Deputy Custodian General to accept the memorandum of appeal and release the house in dispute and further, accepting Petitioner no. 1 to be the attorney of Najib Ullah Khan, permitted withdrawal of the deposits of rent in the office of the Assistant Custodian.;