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2013 DIGILAW 2448 (ALL)

Madhuri Devi v. State of U. P.

2013-09-27

RAVINDRA SINGH

body2013
Ravindra Singh,J.:- Heard Ms. Seema Mishra, Sri Arvind Singh, Sri P.N.Tripathi, learned counsel for the applicant, learned A.G.A. for the State of U.P.and Sri Sriprakash Dwivedi, counsel for O.P.Nos. 4 to 6 ( in Criminal Misc. Application No. 1661 of 2005). 2. The applicant Madhuri Devi has moved the Criminal Misc. Application Nos. 1661 of 2005 and 35968 of 2008, in both the applications the common issue is involved , therefore, both the above mentioned applications are being disposed of by a common order. 3. The Criminal Misc. Application No. 1661 of 2005 has been moved with the following prayer: "That this Hon'ble Court may graciously be pleased to allow this application and quash the Judgment and order of registration of FIR by the opposite party no. 1 against the applicant to be lodged as criminal case ( FIR) directing the O.P.No.2 to lodge before Police Station Cantt.Varanasi against Madhuri Devi, applicant and further be pleased to direct the Respondent No. 2 not to harass and initiate proceedings in pursuance of the order dated 15.1.2005 passed by Respondent no. 1 during the pendency if the application before this Hon'ble Court otherwise the applicant shall suffer great loss and injury" 4. The Criminal Misc. Application No. 35968 of 2008 has been filed with the following prayers : " That this Hon'ble Court may graciously be pleased to quash the impugned charge sheet Regd. at Case No. 10216 of 2007 (arising out of Case Crime No. C-73/05) under sections 419/420/467/468/471 I.P.C., Police Station Cantt. District Varanasi and is now pending before learned C.J.M.Varanasi and all consequential proceedings thereon in the interest of Justice. May also be pleased to stay further proceedings of the aforesaid case during pendency of this criminal misc. application before this Hon'ble Court. And/or to pass such other and further orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 5. The facts, in brief, of this case are that name of the applicant was mutated by Vivad Grast Karya Karini,Nagar Nigam, Varanasi on the house No. B-2/32 Mohalla Bhadaini, City Varanasi. And/or to pass such other and further orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 5. The facts, in brief, of this case are that name of the applicant was mutated by Vivad Grast Karya Karini,Nagar Nigam, Varanasi on the house No. B-2/32 Mohalla Bhadaini, City Varanasi. Against the order of mutation dated 30.12.1999 Sri Kamlakar Dubey, Sri Prabhakar Dubey and Dhananjay Dubey filed the first appeal No. 19 of 2001 in the Small Causes Courts, Varanasi, the same was allowed on 12.12.2003, the order dated 12.12.2003 was challenged by the applicant by way of filing the Second Appeal No. 7 of 2004, the same was dismissed on 15.1.2005 by learned Additional District Judge V, Varanasi but by the order dated 15.1.2005 a direction for lodging the FIR was issued to Officer-in-Charge of Police Station Cantt., District Varanasi. In pursuance of the direction issued by learned Additional District Judge V, Varanasi the FIR in case crime No.C-73 of 2005 under sections 420, 467, 468, 471 I.P.C. was lodged at police station Cantt. on 31.5.2005 against the applicant and Kripa Shanker Dubey and others, in which after completing the investigation, the charge sheet dated 27.6.2007 was submitted in the court of learned Magistrate concerned against the applicant and co-accused Kripa Shanker Dubey on which the learned Magistrate concerned took the cognizance on 7.8.2007. Being aggrieved by the order dated 15.1.2005 passed by learned Additional District Judge V, Varanasi in second appeal no. 7 of 2004 and charge sheet submitted against the applicant, the present applications under section 482 Cr.P.C. have been filed. 6. Being aggrieved by the order dated 15.1.2005 passed by learned Additional District Judge V, Varanasi in second appeal no. 7 of 2004 and charge sheet submitted against the applicant, the present applications under section 482 Cr.P.C. have been filed. 6. It is contended by learned counsel for the applicant that learned Additional District Judge V, Varanasi has committed an error in directing the officer-in-charge of police station Cantt to register the case and investigate the same against the applicant and others, such direction has been issued in the order dated 15.1.2005 by which the second appeal has been dismissed and no reason has been recorded by learned Additional District Judge V, Varanasi for issuing such direction, such direction may not be issued because it is against the provisions of section 340 Cr.P.C. The learned Additional District Judge V, Varanasi has not considered the mandatory provisions of Section 340 (A)(B)(C)(D)(E) of Cr.P.C. The order of registration of the FIR is bad in law, if the FIR is registered and after doing the investigation charge sheet has been submitted the same has also become illegal, the same may be quashed. 7. In reply of the above contention it is submitted by learned A.G.A. that in case any court comes to the conclusion that any offence has been committed which required the investigation, the direction for lodging the FIR may be issued. In the present case also, the learned Additional District Judge V, Varanasi recorded the finding that prima facie the offence of forgery was committee which required investigation, in such circumstances, the direction issued to Officer-in-Charge of Police Station Cantt. to lodge the FIR is not suffering from any illegality or irregularity, the provisions of section 340 Cr.P.C.shall not be applicable in the present case. In pursuance of the direction issued by the learned Additional District Judge V, Varanasi, the FIR in case crime No. C-73 of 2005 under sections 419, 420, 467, 468, 471 I.P.C., Police Station Cantt. District Varanasi was registered, the same was properly investigated and after completing the investigation, the charge sheet dated 27.6.2007 under sections 419, 420, 467,468, 471 I.P.C. has been submitted against the applicant and Sri Kripashanker Dubey on which the learned Magistrate concerned has taken cognizance on 7.8.2007. The material collected by the I.O.is prima facie disclosing the commission of the cognizable offence and there was sufficient material to proceed further against the applicant. The material collected by the I.O.is prima facie disclosing the commission of the cognizable offence and there was sufficient material to proceed further against the applicant. The Magistrate concerned has not committed any error in taking the cognizance on the charge sheet submitted against the applicant. There is no illegality in the impugned charge sheet, therefore, the prayer for quashing the impugned order may be refused, both the applications under section 482 Cr.P.C. are devoid of the merits, the same may be dismissed. 8. Considering the facts, circumstances of the case, submission made by learned counsel for the applicant and learned A.G.A. for the State of U.P. and Sri Sriprakash Dwivedi, appearing on behalf of Sri Kamlaker Dubey, Prabhakar Dubey, Dhananjay Dubey ( O.P.4 to 6 in Criminal Misc. Application No. 1661 of 2005) and from the perusal of record it appears that learned Additional District Judge V, Varanasi decided the second appeal No. 7 of 2004 vide order dated 15.1.2005 by which the appeal has been dismissed and recorded the finding that offence of forgery was prima facie committed which required investigation and the officer-in-charge of the P.S. Cantt.was directed to register the case and investigate the same. The learned Additional District Judge V, Varanasi has not committed any error in issuing the direction vide order dated 15.1.2005 because court was prima facie, satisfied that offence of forgery required investigation, therefore, direction issued by learned Additional District Judge V, Varanasi for lodging the FIR is not suffering from any illegality or irregularity, therefore, the prayer for quashing the order dated 15.1.2005 issuing the direction to officer-in-charge of Police Station Cantt. District Varanasi to lodge the FIR and investigate the same is refused. 9. So far as the next prayer to quash the charge sheet of Case Crime no. C-73 of 2005 under sections 419, 420, 467, 468, 471 I.P.C., Police Station Cantt. District Varanasi to lodge the FIR and investigate the same is refused. 9. So far as the next prayer to quash the charge sheet of Case Crime no. C-73 of 2005 under sections 419, 420, 467, 468, 471 I.P.C., Police Station Cantt. pending in the court of learned C.J.M.Varanasi vide criminal case No.10216 of 2007 is concerned, the charge sheet dated 27.6.2007 shows that I.O.recorded the statement of the witnesses whose names are mentioned in the list of witnesses, the material collected by the I.O. is prima facie disclosing the commission of cognizable offence and there was sufficient material to proceed further against the applicant, after considering the same,learned C.J.M. Varanasi took the cognizance on 7.8.2007, the impugned charge sheet is not suffering from any illegality or irregularity, the prayer for quashing the same is refused. 10. The interim order dated 24.3.2005 passed in Criminal Misc. Application No.1661 of 2005 is hereby vacated. 11. However, considering the facts and circumstances of the case, it is directed that in case the applicant appears before the court concerned within 30 days from today and applies for bail, the same shall be heard and disposed of finally in view of Smt. Amrawati and another Vs. State of U.P. 2005 Cr.L.J. 755 and Lal Kamlendra Pratap Singh Vs. State of U.P. and others 2009 (1) JIC 677 (SC) : (2009) 4 SCC 437 . 12. With the above direction, the above mentioned applications are finally disposed of. _____________