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Madhya Pradesh High Court · body

2013 DIGILAW 264 (MP)

Brijbhan Singh Gaur v. P. N. Bajpai

2013-02-27

N.K.GUPTA

body2013
JUDGMENT : The applicant has preferred this revision against the order dated 3.2.1999 passed by the learned Additional Sessions Judge, Raisen in S.T.No.15/1998, whereby the application filed by the prosecution under section 321 of the Cr.P.C. was accepted and the respondents No.1 to 7 were discharged in the matter. 2. The prosecution's case, in short, is that, the complainant/applicant had lodged a criminal complaint before the Magisterial Court that a dispute relating to the house, situated at Abadai Nazul Mohalla, Shahpur, Hadaipur, Tahsil Begumganj was pending before the revenue Court of Tahsil Begumganj and vide order dated 10.7.1990 passed in favour of the complainant and his son. On 24.11.1991, the respondent No.2 ASI Shri Sakya, respondent No.1 SHO Shri Bajpai, one Naib Tahsildar and respondents No.5 and 6 went to the disputed house and directed to vacate the house. The house was got vacated on the basis of a possession warrant, which had already expired on 17.11.1991. There was no order by the SDM to issue such a possession warrant and to throw the movable property of the complainant from the house or to take away the building material including pipes, bricks, roof tiles, door frames and other material costing Rs.50,000/-. The complainant had lodged an FIR before the SDOP, Begumganj but, no action was taken. Ultimately, a complaint was registered and since it was triable by the Court of Sessions for the offence punishable under section 395 of the IPC, it was committed to the Court of Sessions. The complainant had moved an application for withdrawal of the case against some of the accused persons. He had also moved compromise applications, whereas, application under section 197 of the Cr.P.C. was moved by the respondents. In the last, an application under section 321 of the Cr.P.C. was moved by the prosecutor, which was accepted by the impugned order. 3. I have heard the learned counsel for the parties. 4. The learned counsel for the applicant submits that the applicant is a senior Advocate and he was dispossessed with malafide intention. The SHO as well as the SDM, Begumganj were annoyed with the complainant due to some reasons and therefore, they took the revenge and a dacoity was committed in the house. 4. The learned counsel for the applicant submits that the applicant is a senior Advocate and he was dispossessed with malafide intention. The SHO as well as the SDM, Begumganj were annoyed with the complainant due to some reasons and therefore, they took the revenge and a dacoity was committed in the house. In such a grave case, which was registered for offence punishable under section 395 of IPC, the prosecution was withdrawn, without any reason and therefore, it is prayed that the impugned order may be set aside. 5. The learned Panel Lawyer has submitted that during the enquiry for registration of the matter, a police report was called, in which it was mentioned that the impugned house was not an actual house but, it was a hut, in which the complainant was parking his scooter. There was a dispute of possession between the complainant and the persons, who purchased that property by registered sale deed. One Bahadur Singh had executed a document of sale in favour of son of the complainant for that Tapra (a hut) but, neither it was registered, nor it was executed according to the law and therefore, both the parties were claiming their ownership. Various cases were registered against both the parties and one application under section 145 of the Cr.P.C. was submitted before the SDM, Begumganj on 13.2.1987. In compliance with the order passed by the SDM, the possession of that property was taken. Neither any robbery or dacoity could be committed in the empty hut, nor any destruction was caused. The complainant being an Advocate had falsely prosecuted the complainant against SDM and police officers, without taking any sanction under section 197 of the Cr.P.C. If proceedings of the case are perused then, it would be apparent from the record that the applications under section 197 of the Cr.P.C. were yet to be decided. The complainant has filed compromise applications with respect to some of the respondents, which was dismissed because the offence was not compoundable. He has moved an application under section 321 of the Cr.P.C. for some of the accused persons and the same was dismissed because the complainant was not the authority to move an application under section 321 of the Cr.P.C. He tried to get the case transferred from the Court of learned Additional Sessions Judge, Begumganj, without any basis. He has moved an application under section 321 of the Cr.P.C. for some of the accused persons and the same was dismissed because the complainant was not the authority to move an application under section 321 of the Cr.P.C. He tried to get the case transferred from the Court of learned Additional Sessions Judge, Begumganj, without any basis. Under such circumstances, it was apparent that the complaint was lodged against various public servants and other persons, simply to harass them and to harass them, so that the disputed property be handed over to the complainant. Since there was no movable property inside the house and therefore, nothing was robbed or stolen. At the stage of framing of the charges, it was possible that the accused persons could be discharged and therefore, if the prosecutor has withdrawn the prosecution then, nothing illegal has been done by the prosecutor. 6. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the respondents No.1 and 2 had carried out the order passed by the SDM and the respondent No.7 was the SDM, Begumganj at that time and therefore, without getting any sanction under section 197 of the Cr.P.C., no prosecution could be lodged against these respondents. It is also apparent that the complainant has moved an application under section 321 of the Cr.P.C. to withdraw the prosecution against some of the accused persons, whereas, he filed a compromise application with some of the accused persons. If the entire evidence collected before the committal Court is perused including the police report then, it would be apparent that there was no legal document in favour of the complainant or his son that he purchased that property. It is shown in the application that he got a stay order from the Court of Additional Sessions Judge, in the meantime, the order passed by the SDM was executed. Under such circumstances, where the possession was prima facie handed over to the remaining respondents, it cannot be said that they were not in possession of the property kept in the house and therefore, if they took the property from the house then, it does not amount to a case of theft, robbery or dacoity because the property was given in their possession by execution of an order passed by the SDM. The matter was nothing but, a civil dispute and the complainant being an Advocate had lodged a criminal complaint against the various officers and the poor litigants, who executed a plain document of sale on a plain paper, in favour of the son of the complainant. The possibility cannot be ruled out that document was executed by adopting unethical practice by the complainant. 7. It would be apparent from the various order-sheets and proceedings of the committal Court as well as the trial Court that the complainant tried to create a situation where he could show that the prosecutor and the Court were acting according to his wishes and therefore, he moved so many applications, without any basis and ultimately, he tried to withdraw the case against those accused persons with whom a compromise took place. Such type of message should not go in a public that one citizen being a law knowing person can pressurize the Courts and avail favourable orders. Under such circumstances, withdrawal of the case was in public interest and therefore, if the learned Additional Sessions Judge has permitted to withdraw the case under section 321 of the Cr.P.C. then, no illegality or perversity has been done by the trial Court in passing the impugned order. There is no basis by which any interference can be done in the impugned order passed by the learned Additional Sessions Judge, Begumganj. 8. On the basis of the aforesaid discussion, there is no basis by which the revision filed by the applicant can be accepted. Consequently, it is hereby dismissed by confirming the order dated 3.2.1995 passed by the learned Additional Sessions Judge, Begumganj in S.T.No.15/1998. 9. Copy of the order be sent to the trial Court alongwith its record for information.