J.J.MUNIR,J. - (1.) Heard Sri. Abhishek Gupta, learned counsel for the applicants at length, Sri. Kamal Singh Yadav along with Sri. Avanish Shukla learned AGA appearing on behalf of the State and perused the record.
(2.) The submission of learned counsel for the applicant is that the first information report has been lodged by the informant-Deependra Singh with an allegation that he was repairing his shop when Irfan and Yunus natives of Kasba, Rabupura submitted an objection to the SDM, Jewar, District Gautam Budha Nagar that the first informant was making illegal constructions over land of a Kabristan. The matter was investigated by the SDM, Jewar and found that the objection/application was unfounded. Thereafter, the first informant resumed his construction. On the date of occurrence at about 02:30 pm. Ikbal, Iliyas, Yunus, Irfan, Aslam, Salim, Atra, Jamil, Mursalim and 35-40 other persons reached the construction site and without provocation resorted to stone pelting and opened fire. They demolished the wall and damaged the Scorpio Car of the informant bearing No.U.P. 16 AX 8631 and a motorcycle bearing the registration No.U.P. 13C 0608. They also opened fire with an intent to kill the first informant, however, he managed to escape. Yunus, Irfan and applicants Aslam (applicant No.3), Atra (applicant No.6), Ikbal and Salim all were carrying country made pistols. They looted the nearby shops in consequence of which there was a big commotion in the locality with the shop keepers fleeing, leading to an atmosphere of terror. It is said that a number of persons like Kallu, Tinku, Rahul and Neeraj are eye-witnesses of the occurrence. It is argued by Sri. Abhishek Gupta, learned counsel for the applicants that there are no independent witness of the occurrence and the applicants have not committed any offence. The impugned charge-sheet and cognizance order is bad in the eye of law, illegal and contrary to the evidence on record where allegations are vague and superfluous and ones made to lend colour to the case. It has been submitted that contrariwise the incident alleged never happened. The F.I.R. is based on an entirely frivolous account of facts that is no more than a story. It is submitted that one Netrapal who is the Chairman of Nagar Panchayat, village Rabupura, District Gautam Budh Nagar in connivance with other land mafiosi illegally occupied Khasra Plot No.1680 ad measuring 1.4400 sq. meters and attempted to construct shops there on 03.12.2015. It is urged that the said land belongs to the Muslim Cemetery (Kabristan) recorded as such in the revenue record and is used by the persons professing the Muslim faith to bury their dead. It has submitted that the applicants are persons who profess the Muslim faith and, therefore, their rights as part of that community were affected by this action in consequence of which they objected to it. It is said on the strength of averments in paragraph 14 of the affidavit that the day following the illegal construction by Netrapal, co-accused Irfan and Yunus on behalf of all the applicants and the local Muslim community submitted a Complaint/Application dated 04.12.2015 to the SDM, Jewar, District Gautam Budh Nagar requesting him to stop construction over land belonging to the Muslim cemetery (Kabristan) and the SDM, Jewar was pleased to pass an order to the following effect: "S.O., Rabupura Kindly enquire and stop illegal construction over land of Kabristan immediately and taking action against the guilty in accordance with law ensure maintenance of peace and order. Signed Sd illegible 04.12.2015 S.D.M" (Translated into English from Hindi vernacular)
(3.) The applicants have also annexed a copy of the Khatauni of the land over which the alleged constructions were being raised in order to show that it was recorded in the name of the Muslim cemetery. It has further been pointed out that co-accused Irfan and Yunus on behalf of all the applicants and the local Muslim community filed a suit for permanent injunction on 09.12.2015 that came to be registered as Original Suit No.192 of 2015 (Mohd. Yunus and others v. Netrapal Singh) which is pending in the Civil Court, Gautam Budha Nagar. A copy of the plaint giving rise to the suit is annexed as Annexure 9 to the affidavit.;