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TMI Blog2023 (8) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 82 of Registration Act, 1908, Police Station- Kavi Nagar- Ghaziabad. II. Issue an appropriate writ, order or direction in the nature of MANDAMUS directing the Respondent no.2 not to arrest and/or take any coercive steps against the petitioners or ay of its officers, officials, representatives, employees, managers, etc. in pursuance of the first information report dated 22.07.2023 (Annexure No.1 to this petition) vide Crime No. 611 of 2023, U/s 420 and 120-B IPC and Section 82 of Registration Act, 1908, Police Station- Kavi Nagar- Ghaziabad. III. Issue an appropriate writ, order or direction in the nature of MANDAMUS directing to stay all investigations or any consequential actions by any authority/agency pursuant to registration of FIR No. 611 of 2023 dated 22.07.2023 registered at PS Kavi Nagar and the allegations contained therein; IV. Issue any other or further Writ, Order or Direction which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case. V. To award the cost of Writ Petition." 3. The matter was heard by a Division Bench of this Court. After hearing the matter the Bench was divided in its view. One of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before this Court today itself, he wants some time to seek proper instructions. However, he submits that individual offence would attract individual first information report and has to be proceeded individually, therefore, the present matter stands on a different footing. 10. Though, we have heard learned counsel for the parties for sometime, in the interest of justice, as on date, in view of the interim protection granted by the Hon'ble Apex Court wherein while permitting the petitioners to approach respective High Courts having jurisdiction, interim protection was granted and also by this Court as well in other petition, we are inclined to pass an interim order till the next date of listing. 11. Paragraph nos. 18 and 19 of the order dated 13.07.2023 passed in Criminal Misc. Writ Petition No. 10893 of 2023 (Neeraj Tyagi and another vs. State of U.P. and 3 others) are quoted as under : "18. Further, on 4 July, 2023, in the case Ganga Banga vs. Samit Mandal & Anr. (Contempt Petition (Civil) No.774 of 2023), the Supreme Court has passed the following order: "6. In the circumstances, as it may also involve adjudication on facts, we deem it appropriate to permit the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by this Court to the petitioners of the abovenoted petition it is provided that in the present case as well, the interim protection as granted in the aforesaid case vide paragraph no. 19 is also extended to the present petitioners till the next date of listing. 13. Put up this matter as fresh on 11.08.2023." 4. The other Hon'ble Judge passed a separate order of the same date. The same is extracted herein below:- "1. Heard Sri Rakesh Dwivedi, learned Senior Advocate assisted by Sri Raghav Dwivedi, learned counsel for the petitioners, Sri Manish Tiwari, learned Senior Advocate assisted by Sri Sayed Imran Ibrahim, learned counsel appearing for respondent no. 3 and Sri Ratan Singh, learned AGA for the State. 2. Learned A.G.A. submits that as this matter has come out of turn, therefore, he is not having instructions as on date and shall seek instructions if sometime is granted. 3. This writ petition has been filed praying to quash the first information report dated 22.07.2023, registered as Case Crime No.611 of 2023, under sections 420 and 120-B I.P.C. and Section 82 of Registration Act, 1908, Police Station : Kavi Nagar, District : Ghaziabad, with the following main pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another vs. State of U.P. and 3 others), are quoted the Supreme Court order as under : "18. Further, on 4 July, 2023, in the case Ganga Banga vs. Samit Mandal & Anr. (Contempt Petition (Civil) No.774 of 2023), the Supreme Court has passed the following order: "6. In the circumstances, as it may also involve adjudication on facts, we deem it appropriate to permit the petitioners to approach the respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the respective High Courts to consider and decide the petitions expeditiously, not later than six months of their presentation. 7. We also direct DGPs of respective States to look into the matter, examine the contentions of the petitioners in respect of the contents of FIRs, and to take appropriate measures in accordance with law within a period of one month. 8. Till final disposal of the respective petitions, interim order dated 28.04.2023 passed in W.P. (Crl.) No.166/2013 would continue in the three FIRs mentioned therein. 9. In so far as the further FIR No.197/2023 dated 15.04.2023 filed by YEIDA and ECIR bearing No.ECIR/HIU-I/06/2023 are concerned, no coer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and each and every fact is not necessary to have mentioned in it. 10. Normal practice of this Bench is that without instruction to AGA, this Bench is not inclined to hear the matter and AGA seeks time to have instructions from the police station concerned. Proper way is to give time to AGA to take necessary instructions and later to pass effective order causing damage to other side. 11. In my view, considering the facts and other circumstances of the matter and other material on record, no prima facie case for issuing interim protection, at this stage, is made out and I do not think it proper to issue any interim protection in favour of petitioners without having response from informant as well State. It would be appropriate to have response from other side before issuing any direction. 12. Put up this matter as fresh on 11.08.2023 for hearing." 5. Since there was a difference of opinion between the members of the Bench, the matter was directed to be placed for nomination before Hon'ble the Chief Justice under Chapter VIII Rule 3 of the Allahabad High Court Rules, 1952 vide order dated 27.07.2023 of the Bench. The said order is extracted herein below:- "In view of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1908, Police Station- Kavi Nagar, District- Ghaziabad by Mohit Singh the opposite party no.3 against the petitioner no.1- Smt. Reena Bagga, Sumit Kumar Narwar, Rajiv Goyal, Parvinder Singh and Amit Nain on the basis of an application addressed to the Chief Minister, Government of Uttar Pradesh, Lucknow alleging therein that he is the authorised representative of M/s. Shipra Hotel. On Plot No. 9, Ahinsakhand Indirapuram, District Ghaziabad, Shipra Mall of Shipra Hotel company is situated which has been sold in an illegal manner in conspiracy, forgery, cheating and against the provisions of law by Smt. Reena Bagga the authorised representative of India Bulls Housing Finance Ltd. to Himri Estate Pvt. Ltd., New Delhi by executing a saledeed in favour of Rajiv Goyal the authorised representative of Himri Estate Pvt. Ltd. on 12.05.2023 for Rs. 551 crore whereas the approximate value of Shipra Mall is more than 2000 crore but by intentionally showing its lesser value, the Government of U.P. has been put to a loss of revenue amounting to crores of rupees. Sumit Kumar Narwar the shareholder of the India Bulls Housing Finance Ltd. and Himri Estate Pvt. Ltd. by threatening has got an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom the matter has been nominated for opinion after difference in the Division Bench, after perusing the two orders of dated 27.07.2023 passed by the Hon'ble members of the Bench independently comes to a conclusion that the difference therein is on the point as to whether the Court without granting time to the learned A.G.A. and learned counsel for the first informant for seeking instructions could have proceeded to hear the matter an passed an interim order. 14. Learned counsel for the petitioners argued that the dispute is purely a civil dispute. It is argued that no offence whatsoever has been made out. It is argued that the matter is squarely covered by the order of the Apex Court in the case of Gagan Banga vs. Samit Mandal & another: Contempt Petition (Civil) No. 774 of 2023 in Criminal Appeal No. 463 of 2022 decided on 04.07.2023 whereby FIRs identical in nature were the subject matter and the Apex Court passed an order granting protection against the financial institution, its officers, representatives and managers till final disposal of petitions by the High Court as the Court was of the opinion that the petitioners should approach the respective jurisdictional High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the respective High Courts to consider and decide the petitions expeditiously, not later than six months of their presentation. 7. We also direct DGPs of respective States to look into the matter, examine the contentions of the petitioners in respect of the contents of FIRs, and to take appropriate measures in accordance with law within a period of one month. 8. Till final disposal of the respective petitions, interim order dated 28.04.2023 passed in W.P.(Crl.) No. 166/2023 would continue in the three FIRs mentioned therein. 9. In so far as the further FIR No. 197/2023 dated 15.04.2023 filed by YEIDA and ECIR bearing No. ECIR/HIU-I/06/2023 are concerned, no coercive steps would be taken against the petitioner financial institution and its officers, representatives and managers till final disposal of such petitions by the High court, and it would be open for the petitioners to seek stay of proceedings which would be considered by the High Court on its own merits. It is clarified that this interim protection would only be applicable to the petitioner fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of the a Division of this Court in the case of Manoj Kumar Barnwal and others Vs. State of U.P. and others, 2021 SCC OnLine All 280 and argued that while considering a petition for quashing and relying upon the judgement of the Apex Court in the case of Neeharika Infrasturcture Pvt. Ltd. Vs. State of Maharasthra, Criminal Appeal No. 330 of 2021 decided on 13 April, 2021 refused to interfere in the matter. 17. Learned Additional Advocate General for the State of U.P. submits that since the offences are punishable up to 7 years, the petitioners shall not be arrested. He has placed before the Court the some judgements of the Apex Court to submit that in view of the said judgements the petitioners will not be arrested and if needed the proceedings will be taken up as per the directions given in the said judgments. The same are:- 1. Arnesh Kumar Vs. State of Bihar ; (2014) 8 SCC 273, 2. Satender Kumar Antil Vs. Central Bureau of Investigation ; 2022 LiveLaw (SC) 577, 3. Pratibha Manchanda & anr. Vs. State of Haryana ; Criminal Appeal No. 1793 of 2023 decided on 7.7.2023, 4. Md. Asfak Alam Vs. The State of Jharkhand & anr. ; Criminal Appeal No. 2207 of 2023 decided on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned F.I.R. No.0197 of 2023 dated 15.04.2023, under Sections 420, 467, 468, 471 and 120-B I.P.C., Police Station Beta-2, Greater Noida, Gautam Buddh Nagar, registered by Respondent No.3 with all the consequential proceedings arising therefrom together with the consequent proceedings initiated by Respondent No.4 in E.C.I.R. bearing No.ECIR/HIU-1/06/2023. 3. The petitioners, by way of interim relief, have prayed for stay of the summoning of the petitioners, its Officers, Representatives and Managers by the Officers of Respondent Nos.2 & 4 as also the proceedings qua them arising from and consequent to the institution of the impugned F.I.R. No.197 of 2023 dated 15.04.2023 and ECIR/HIU-1/06/2023 registered by Respondent No.2 and 4 respectively. 4. Sri Rakesh Dwivedi, learned Senior Counsel appearing for the petitioners has addressed this Court on the question of Section 420 I.P.C. being manifestly, arbitrary and ultra vires of the Constitution of India on the vice of Articles 14 and 21 of the Constitution by submitting that there are mainly two provisions in the I.P.C. providing for punishment for cheating concerning delivery of property i.e. Sections 417 and 420 I.P.C. It is conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be recovered. Ultimately, Petitioner No.2, Indiabulls Housing Finance Ltd., under the share sale and purchase agreement dated 01.07.2021 sold the pledged equity shares to one M/s Finalstep Developers Pvt. Ltd. (earlier known as Creative Souls Technology India Pvt. Ltd.) with M3M India Pvt. Ltd., as confirming party for a consideration of R.900.00 Crores. The fact of the sale was informed to YEIDA/ Respondent No.3 by M/s. Kadam Developers within 45 days of the sale. Besides the sale of the shares of M/s Kadam Developers, the Petitioner No.2 also sold a property mortgaged by Shipra Group namely "Shipra Mall" after favourable orders were passed in favour of Petitioner No.2 by Debt Recovery Tribunal, Lucknow, this Court as also the Delhi High Court. It is also contended that between 2021 to 2023, various civil proceedings were initiated by the Shipra Group but it failed to get any protection from any Court. 8. In the aforesaid backdrop, the impugned F.I.R. dated 15.04.2023 has been lodged at the instance of Respondent No.3, YEIDA, alleging that the transfer of share holding of M/s Kadam Developers Pvt. Ltd. was in violation of the law and has caused financial loss of Rs.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 641/2023 before the Apex Court. The Apex Court disposed off the petitions by making observations as regards the impugned F.I.R. and E.C.I.R. that no coercive steps would be taken against the petitioner financial institution and its Officers, Representatives and Managers till final disposal of the writ petition before the High Court and it would be open for the petitioners to seek stay of the proceedings which would be considered by the High Court on its own merits. 10. In the light of the above, it is submitted that the interim relief prayed for be granted. Reliance has been placed upon the decision of the Apex Court in the case of Vijay Choudhary versus Union of India reported in 2022 SCC Online 929. 11. The application for interim relief has been opposed by the counsel for Respondent No.4 on the ground that E.C.I.R. bearing No. ECIR/HIU-I/06/2023 has been registered at Delhi and since the Apex Court while disposing off the contempt proceedings has permitted the petitioners therein to approach the respective High Courts to challenge the F.I.R.'s and the E.C.I.R, it would be appropriate for the present petitioners to invoke the jurisdiction of the Delhi High Court and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petition (Crl.) No. 166 of 2023 stayed the criminal proceedings in the three F.I.Rs. including the F.I.R. No. 427 of 2023 dated 9.4.2023 registered at Police Station Indirapuram which F.I.R. has reference in the impugned F.I.R. and at the same time has directed that no coercive steps would be taken against the petitioner financial institution and its Officers, Representatives and Manager till final disposal of the writ petition. The protection granted by the Apex Court is operative in favour of the petitioners herein. The order dated 28.4.2023 reads as under: "Issue notice returnable on 16.05.2023. Dasti service, in addition, is permitted. There shall be stay of all proceedings in the impugned three FIRs filed in three different States." 18. Further, on 4 July, 2023, in the case Ganga Banga vs. Samit Mandal & Anr. (Contempt Petition (Civil) No.774 of 2023), the Supreme Court has passed the following order: "6. In the circumstances, as it may also involve adjudication on facts, we deem it appropriate to permit the petitioners to approach the respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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