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2012 DIGILAW 1564 (ALL)

BRAHMADEEN v. STATE OF U. P.

2012-07-17

VIJAY PRAKASH PATHAK

body2012
JUDGMENT Hon’ble Vijay Prakash Pathak, J.—Heard Sri Gaurav Kumar Shukla, learned counsel for the applicants, Sri Nar Singh Pandey, learned counsel for opposite party No. 2 as well as learned AGA and perused the record. 2. The present petition under Section 482 Cr.P.C. has been filed by the applicants with a prayer to set aside the order dated 24.7.2004 passed by learned Chief Judicial Magistrate, Basti in Criminal Case No. 4012/03 under Sections 323, 324, 504, 506, 429, 420, 467, 468 and 471 IPC whereby the applicants have been summoned to face trial under the aforesaid offences and the order dated 13.1.2009 passed by the learned Addl.Sessions Judge/FTC Court No. 3 in Criminal Revision No. 933/934 of 2007, whereby the criminal revision on behalf of the applicants has also been dismissed. 3. The brief facts of the case are that opposite party No. 2 filed an application under Section 156(3) Cr.P.C. with the allegation that Gata No. 21/06-6-19 which was recorded as Navin Parti during consolidation was bifurcated in two parts by Ex Lekhpal Ram Shiramoni Dubey in collusion with Ram Pragat and thereby recording Gata No. 21Ka/0-1-5 as Navin Parti whereas Gata No. 21Kha/0-5-14 was fraudulently shown in the khata of said Ram Pragat which was sold by him to Brahmdeen (applicant No. 1) by registered sale-deed. When the complainant came to know about the same, he moved an application before District Magistrate and Commissioner concerned and after enquiry into the matter, the said land was again recorded as Navin Parti, which is just adjoining to the Sahan land of the complainant. It is further alleged in the said application that on 18.5.2003 in the morning at 4 a.m., the applicants Brahmdeen, Hriday Ram, Rakesh Kumar, Ranjeet Kumar and Rajesh Kumar caused serious injuries to the bullock of the complainant by lathi and spear and when the complainant asked about the said incident, the accused started abusing in filthy language and threatened to beat him by lathi, spear and gadasa and also threatened to kill him. 4. 4. The said application under Section 156(3) Cr.P.C. came up for hearing before the learned Judicial Magistrate, Court No. 12, Bast, who vide order dated 10.6.2003 observed that so far the incident regarding recording of the land in the revenue record and trying to take illegal possession of the sahan land is concerned, that pertains to dispute of civil nature but so far the second incident regarding abusing, threatening and causing injury to the bullock of the complainant is concerned, it appears proper to proceed in the matter after registering it as a complaint. Thereafter the learned Magistrate directed to register the matter as complaint and for statement under Section 200 Cr.P..C. 5. The statement of the complainant Chhedi was recorded under Section 200 Cr.P.C.and that of the witnesses Vishram and Smt.Vidya Devi under Section 202 Cr.P.C. The complainant in his statement has stated that accused Hirday Ram caused injury to his bullock by spear. The other witnesses have also stated that the accused inflicted injury to the bullock of the complainant by lathi and spear and they also abused and threatened to kill Chhedi. 6. After considering the allegations in the complaint as well as statement of the complainant under Section 200 Cr.P.C. and that of the witnesses under Section 202 Cr.P.C.,the learned Chief Judicial Magistrate vide order dated 24.7.2004 summoned the accused applicants and Ram Shiromani Dubey Ex-Lekhpal to face trial under Sections 323, 504, 506, 324, 429, 420, 467, 468 and 471 IPC prima facie finding the said offences to be made out against them. 7. Aggrieved by the said order, two Criminal Revisions i.e. Criminal Revision No. 933/07 was filed by Ram Shiromani Dubey, Ex Lekhpal and Criminal Revision No. 934/07 was filed by applicant No. 4 Ranjit Kumar and two others. The said two revisions were dismissed by Addl.Sessions Judge/FTC Court No. 3, Basti by common judgment and order dated 13.1.2009. The learned revisional Court has observed in his judgment that against the summoning order passed under Section 204 Cr.P.C., petition under Section 482 Cr.P.C. is maintainable before the Hon’ble High Court. 8. Aggrieved by the aforesaid summoning order as well as the order passed by learned Addl.Sessions Judge/FTC Court No. 3, Basti, the petitioners have preferred the present petition. The learned revisional Court has observed in his judgment that against the summoning order passed under Section 204 Cr.P.C., petition under Section 482 Cr.P.C. is maintainable before the Hon’ble High Court. 8. Aggrieved by the aforesaid summoning order as well as the order passed by learned Addl.Sessions Judge/FTC Court No. 3, Basti, the petitioners have preferred the present petition. Learned counsel for the applicants has contended that the learned Magistrate has illegally summoned the applicants under Sections 323, 504, 506, 324, 429, 420, 467, 468 and 471 IPC whereas there is no such allegation of committing mar peet with the complainant or causing injuries to him. It is also contended that so far offence under Sections 420, 467, 468 and 471 IPC is concerned, the same pertains to matter of civil nature as already observed by learned Magistrate while treating the application of the complainant under Section 156 (3) Cr.P.C as a complaint. It is further contended by learned counsel for the applicants that the learned revisional Court has illegally dismissed the revision on merits while observing that against summoning order passed under Section 204 Cr.P.C., petition under Section 482 Cr.P.C. is maintainable before the Hon’ble High Court. It is further submitted that if at all any offence is said to be made out against the applicants then at the most offences under Section 429,504,506 IPC may be made out against applicants 1 to 5 but not the other offences as observed by the learned Magistrate and so far applicant No. 6 is concerned, no offence is made out against him. 9. Learned counsel for the opposite party No. 2 has contended that the applicants caused injury to the bullock of the opposite party No. 2 and injury report shows this fact that his bullock had received injury. It is also submitted that there is also allegations of abusing and threatening to kill the complainant by the accused applicants. 10. Having considered the respective arguments of the learned counsel for the rival parties and having perused the record, I find force in the argument advanced by the learned counsel for the petitioners for the following reasons. 11. In the application under Section 156(3) Cr.P.C. moved by the complainant Chhedi Lal, bifurcation of original Gata No. 21/06-6-19 into two parts is alleged against Ex Lekhpal Ram Shiromani Dubey in connivance with Ram Pragat (applicant No. 6). 11. In the application under Section 156(3) Cr.P.C. moved by the complainant Chhedi Lal, bifurcation of original Gata No. 21/06-6-19 into two parts is alleged against Ex Lekhpal Ram Shiromani Dubey in connivance with Ram Pragat (applicant No. 6). Regarding the second incident dated 18.5.2003 about causing injuries to the bullock and abusing and threatening to the complainant by lathi and spear, the allegation is only against applicant Nos. 1 to 5 and there is no allegation against applicant No. 6, Ram Pragat as he was not assigned any role in the said incident. The said application under Section 156 (3) Cr.P.C. was treated as complaint by learned Magistrate vide order dated 10.6.2003 observing therein that so far the first incident regarding entry of the plots in the revenue records and trying to take illegal possession of sehan land is concerned, the same is the dispute of civil nature and regarding the second incident of abusing,threatening to kill the complainant and causing injuries to his bullock, the matter was directed to be registered as a complaint. It is also relevant to point out that the complainant Chhedi Lal in his statement under Section 200 Cr.P.C. does not make any allegation of connivance of Ram Pragat (applicant No. 6) in the bifurcation of the said plot by Ex-Lekhpal. He has stated only this much that the Ex Lekhpal after bifurcating the Abadi land into two parts, got one part entered in the khata of Ram Pragat (applicant No. 6), which was sold by him to Brahmadeen (applicant no1). Due to said enmity, Hriday Ram (one of the applicants) caused injury to his bullock with spear. Further from a perusal of the statement of the witness Vishram under Section 202 Cr.P.C.,it appears that here is no whisper about bifurcation of the said plots into two parts and recording of the name of Ram Pragat (applicant No. 6). He has only stated about causing injury to the bullock of the complainant Chhedi Lal with spear and abusing and threatening to kill him by applicant Nos. 1 to 5. Same allegation has been made by the witness Vidya Devi, wife of complainant Chhedi Lal in her statement under Section 202 Cr.P.C. 12. He has only stated about causing injury to the bullock of the complainant Chhedi Lal with spear and abusing and threatening to kill him by applicant Nos. 1 to 5. Same allegation has been made by the witness Vidya Devi, wife of complainant Chhedi Lal in her statement under Section 202 Cr.P.C. 12. Thus from a perusal of the allegations in the complaint as well as statement of the witnesses, there appears to be no allegation of committing mar peet by the applicants with the complainant nor is there any allegation in recording the said Gata in the revenue records by the Ex Lekhpal against applicants 1 to 5. It appears that learned Magistrate has not properly considered the entire materials on record, including the allegations in the complaint and the statement of the witnesses in support thereto and without any justifiable grounds, which could have made out a prima facie case against the applicants, cursorily and in a mechanical manner passed the summoning order against the applicants to face trial for the offences punishable under Sections 323, 324, 504, 506, 429, 420, 467, 468 and 471 IPC, which shows his total non-application of mind, and is not sustainable in the eye of law. 13. Summoning order is not such a ordinary or common order, which could be passed mechanically as has been done in this case. By that order, an accused is put to trial. Before taking cognizance in a given case and proceeding to pass the summoning order, it is incumbent upon the Magistrate concerned to see the entire allegations made in the complaint as well as the statement recorded under Section 200 Cr.P.C of the complainant and that of the witness/witnesses under Section 202 Cr.P.C. in support thereto and to consider whether such allegations are duly supported by their statement, which justify for passing such an order. These considerations have not been properly taken into account by the learned Magistrate while passing the summoning order prima facie finding the aforesaid offences to be made out against the applicants. Learned revisional Court has also illegally dismissed the revision on merits without considering the entire materials on record and observing therein that against the summoning order passed under Section 204 Cr.P.C, petition under Section 482 Cr.P.C. lies before the Hon’ble High Court. Learned revisional Court has also illegally dismissed the revision on merits without considering the entire materials on record and observing therein that against the summoning order passed under Section 204 Cr.P.C, petition under Section 482 Cr.P.C. lies before the Hon’ble High Court. On the one hand the learned revisional Court observes that against the impugned order, petition under Section 482 Cr.P.C. lies in the Hon’ble High Court but on the other hand he dismisses the revision on merits stating that the order passed by the learned Magistrate is legal and according to the provisions of the Code of Criminal Procedure. In view of the aforesaid considerations and discussions, I come to the conclusion that the order passed by both the Courts below are not sustainable in law and are liable to be set aside. Accordingly this petition is allowed. The order passed by the learned Chief Judicial Magistrate, Basti in Criminal Case No. 4012/03, under Sections 323, 324, 504, 506, 429, 420, 467, 468 and 471 IPC as well as the order of the learned revisional Court dated 13.1.2009 in Criminal Revision No. 934/07 are set aside. The matter is remanded back to the learned Magistrate concerned to pass appropriate order after considering the entire materials on record, in accordance with law. ——————