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2007 DIGILAW 1457 (ALL)

Hari v. State of U. P.

2007-05-14

VINOD PRASAD

body2007
VINOD PRASAD, J. ( 1 ) THE five revisionists accused, namely, Hari, Buddhi, Ratan, kamal and Narayan Singh have challenged the order dated 5. 2. 2004 passed by Judicial magistrate (1st Class) Chhata in Case no. 77/ix/2004} Jagan v. Buddhi and Others, under Sections 406, 420, 422, IPC, P. S. Chhata, District Mathura relating to Crime no. l59 of 2002. ( 2 ) THE narration of facts giving rise to the present revision, in bird eyeview, are that an application under Section 156 (3), Cr. P. C. was filed by Jagan s/o Mool Chand before judicial Magistrate, Chhata on 23. 1. 2002 with the allegations that applicant Jagan owned a land being plot No. 400/116 and 190 in his village Chhata, District Mathura. In the midst of his plot, there is a pond being pond No. 448, which is not suitable for agriculture purposes, as the same has been entered in Column 15 in the revenue records. The revisionists accused Ratan, Hari and buddhi knowingly sold 6 decimals of land from the said put to Kamal Singh, Panna, narayan Singh s/o Harchandi on 10. 7. 1987. Further allegations were that the purchasers knew it very well that the sellers had no right to sell the land in spite of that they had purchased the said land. It is further alleged that Kamal and Narayan Singh aforesaid had executed another sale deed on 15. 10. 1987 from the said plot. The applicant filed an application before Sub-Divisional Magistrate on 19. 1. 1993 but no action was taken against the accused persons who committed fraud and cheating and, therefore, the applicant prayed through his application under Section 156 (3), Cr. P. C. for getting his FIR registered against the applicants for the aforesaid crime. ( 3 ) IT seems that the application of the applicant under Section 156 (3), Cr. P. C. was allowed and the registration of FIR and investigation was directed by the Magistrate. However, after investigation the police submitted final report No. 4/02 on 28. 3. 2002. On the said final report, a protest petition was filed by the informant Jagan, respondent No. 2. On his protest petition, his statement under Section 200, Cr. P. C. was recorded on 22. 3. 2003 and the same day statement of his witness Dhramveer Singh lekhpal was also recorded. Vide order dated 5. 3. 3. 2002. On the said final report, a protest petition was filed by the informant Jagan, respondent No. 2. On his protest petition, his statement under Section 200, Cr. P. C. was recorded on 22. 3. 2003 and the same day statement of his witness Dhramveer Singh lekhpal was also recorded. Vide order dated 5. 3. 2003 Judicial Magistrate, 1st Class, chhata rejected the final report and summoned the accused persons for offences under Sections 406, 420, 422, IPC and fixed 10. 4. 2003 for their appearance. ( 4 ) AGGRIEVED by the aforesaid summoning order, the accused persons preferred criminal Revision No. 195 of 2003 before sessions Judge, Mathura, which was heard and allowed by the Lower Revisional Court vide its order dated 7. 11. 2003. The Lower revisional Court directed the Trial Court that it should have followed the procedure of the complaint case and should have recorded the statement under Sections 200 and 202, Cr. P. C. and then he should have summoned the accused persons by passing a reasoned order as to why he is summoning the accused persons. After the said revision, it transpires that Judicial Magistrate, 1st Class, chhata summoned the revisionists for offences under Sections 406, 420, 422, IPC vide his detailed impugned order dated 5. 2. 2004. ( 5 ) ON such facts the revisionists have challenged the impugned order of summoning. ( 6 ) IN this revision a counter affidavit and stay vacation application has been filed on behalf of the Jagan s/o Mool Chand, opposite party No. 2 to which a rejoinder affidavit has also been filed by the revisionists. ( 7 ) I have heard Mr. S. B. Singh and Mr. Rajesh Pachauri, learned Counsel for the revisionists as well as Mr. Rajesh Kumar holding brief of Mr. S. K. Singh, learned counsel for the respondent informant and learned A. G. A. at a great length. ( 8 ) LEARNED Counsel for the revisionists contended that the whole prosecution of the applicants is mala fide. He submitted that earlier to the filing of application under Section 156 (3), Cr. P. C. Jagan, opposite party no. 2 informant had filed a civil suit against the revisionists claiming his title over the property in dispute being original suit no. 409/1982, Prem Singh and Jagan v. Mohan Lal and Others. His aforesaid suit was dismissed on 5. 1. He submitted that earlier to the filing of application under Section 156 (3), Cr. P. C. Jagan, opposite party no. 2 informant had filed a civil suit against the revisionists claiming his title over the property in dispute being original suit no. 409/1982, Prem Singh and Jagan v. Mohan Lal and Others. His aforesaid suit was dismissed on 5. 1. 1989 by 1st Additional munsif, Mathura. Against the dismissal of his original suit respondent No. 2 Jagan filed civil Appeal No. 9 of 1985 before Civil Judge, mathura but his aforesaid appeal was also dismissed on 30. 5. 1986. Against the order of the dismissal of the First Appeal and the suit, a Second Appeal being Second Appeal no. 2524 of 1986 was filed by the plaintiff-appellant informant in this Court, which is still pending but no interim order has been passed in favour of the plaintiff-appellant informant in the aforesaid Second Appeal. Learned Counsel, therefore, contended that respondent-informant had lost the case from the Civil Court and, therefore, mala fidely he has instituted the application under Section 156 (3), Cr. P. C. and, therefore, the whole prosecution against the applicants deserves to be quashed. ( 9 ) LEARNED Counsel for the respondents on the other hand contended that revision is based on disputed questions of facts, which cannot be looked into by this Court and consequently the revision should be dismissed. He further submitted that from the averments made in the application and statements as well as material contained in the case diary offence is disclosed and, therefore, the informant must get a chance to substantiate his version by leading evidence in a proper trial and, therefore, also the revision should be dismissed. ( 10 ) I have considered the submissions raised by both the sides. From the averments made by both the sides in the affidavit, counter affidavit and rejoinder affidavit it is not in dispute that an original suit was filed by respondent No. 2 Jagan as plaintiff in the Civil Court being Original Suit no. 409 of 1982. In said suit the revisionists were the defendants. The suit filed by the plaintiff was dismissed by 1st Additional munsif, Mathura on 5. 1. 1985. Aggrieved by the dismissal of the suit the plaintiff (informant in the present case) filed Civil Appeal no. 9 of 1985, which appeal also was dismissed on 30. 5. 409 of 1982. In said suit the revisionists were the defendants. The suit filed by the plaintiff was dismissed by 1st Additional munsif, Mathura on 5. 1. 1985. Aggrieved by the dismissal of the suit the plaintiff (informant in the present case) filed Civil Appeal no. 9 of 1985, which appeal also was dismissed on 30. 5. 1986 by Civil Judge, mathura against which a Second Appeal No. 2524 of 1986 has been filed in this Court, which still pending and in which no interim order has been passed by this Court. It is also not in dispute that in the said civil suit, the relief, which was claimed by the plaintiff was regarding the title over the plot in question, which suit failed and he was not considered to be the owner of the property in dispute. In such a view moving of application under Section 156 (3), Cr. P. C. by respondent No. 2 without having any title over the property in question is nothing but mala fide exercise of his right, respondent No. 2 had no right or title over the plot in question and, therefore, his whole averments made in the application under Section 156 (3), Cr. P. C. as well as his statements under Section 200 and that of his witness under Section 202, Cr. P. C. are wholly purposive. The averment in respect of the civil suit, its dismissal, first appeal and its dismissal and pendency of the second appeal in this Court are mentioned in paragraph nos. 10 to 13 of the affidavit filed in support of this revision by Buddhi, revisionist no. 2. In the counter affidavit filed by Jagan, respondent No. 2 these paragraphs they have not denied and instead their contents have been admitted. ( 11 ) IN such a view, I find that the whole prosecution of the revisionists is wholly malafidely and deserves to be quashed. ( 12 ) RESULTANTLY, this revision is allowed. The impugned summoning order dated 5. 2. 2004 passed by Judicial Magistrate (1st class), Chhata in case No. 77/ix/2004, jagan v. Buddhi and Others, under Sections 406, 420, 422, IPC, PS Chhatta, District mathura is hereby set aside and the whole prosecution of the revisionists through the aforesaid case is hereby quashed. Petition allowed. . .