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2016 DIGILAW 3207 (ALL)

SHIV DEVI v. STATE OF U. P.

2016-09-20

VIJAY LAKSHMI

body2016
Hon'ble Mrs. Vijay Lakshmi,J. The applicants by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to set aside the order dated 10.6.2011 passed by Judicial Magistrate, IInd, Gyanpur, Sant Ravidas Nagar, in Case no. 547 of 2011 (State Vs. Hanuman Chaubey) under Sections 417, 419, 420, 421, 423, 466, 465, 467, 468 and 471 I.P.C. By the impugned order dated 10.6.2011, the learned Magistrate has rejected the Final Report submitted by the police, allowed the protest petition filed by the complainant and has summoned the applicants under the aforesaid sections. Heard Mr. Radhey Shyam, learned counsel for the applicants, learned A.G.A. for the State and Mr. B.P. Mishra, learned counsel for opposite party no. 2. To properly adjudicate the controversy involved in the present case, it is desirable to have a look on the pedigree of the parties which is given below : Satya Narain Raj Narain Raj Kishore / Hanuman Chaubey -------------------------------------------- / / / / / Sanjay Kumar Radhey Krishna Sabhajeet Sarvesh Shyam Shyam Kumar The opposite party no. 2/the complainant Radhey Shyam, who is the eldest son of Raj Kishore, lodged an F.I.R. on 25.11.2008 by means of an application under Section 156(3) Cr.P.C. against Hanuman Chaubey and Sanjay Kumar (son and grandson respectively of Satya Narain) and two others (applicants no. 1 and 2 Shiv Devi and Gayatri Devi, who are the purchasers of disputed property), with allegations that in the family of three brothers consisting his father and two uncles, the second brother Raj Narain was unmarried and issueless, therefore, he bequeathed his share of property by a registered Will, in favour of sons of his two brothers, dividing it equally in 1/5 to each of them. (Copy of the Will is annexed as annexure no. 1 to the affidavit filed in support of instant application). On the basis of the aforesaid Will dated 14.8.1984 all the four brothers Radhey Shyam, Sabhajeet, Krishna Shyam and Sarvesh Kumar executed registered sale deed in favour of Panna Lal Vijay Nath and Sharad Prasad on 11.8.2000 as Sabhajeet was not present, he signed the registered sale deed on 28.7.2003. The applicant Hanuman Prasad Chaubey filed a partition suit in the civil court showing his half share in the property which was decreed ex-parte in his favour vide order dated 28.3.2005. The applicant Hanuman Prasad Chaubey filed a partition suit in the civil court showing his half share in the property which was decreed ex-parte in his favour vide order dated 28.3.2005. Thereafter applicant Hanuman Prasad sold his half share in the property fraudulently, showing him to be the owner of half share of the property to Shiv Devi and Gayatri Devi (applicant nos. 1 and 2). In the meantime the son of Hanuman Prasad co-accused Sanjay Kumar, filed another registered Will dated 18.5.1985 alleging it to be the last Will executed by Raj Narain bequeathing his entire share of property to Sanjay Kumar. On the aforesaid facts it was prayed that the matter be investigated and the accused be punished. On the said application, the Magistrate ordered that the case be registered and the matter be investigated. However, the police after investigation, submitted Final Report in the matter. The opposite party no. 2 filed a protest petition against the Final Report alleging that the I.O., without recording the statements of the complainant and the witnesses has submitted Final Report. The learned Magistrate after finding the aforesaid allegation to be true rejected the Final Report and summoned the applicants to face trial by impugned order dated 10.6.2011. The legality and correctness of the aforesaid summoning order has been challenged by learned counsel for the applicants on the grounds that a suit for cancellation of registered Will dated 18.5.1985 had already been filed by complainant Radhey Shyam and his brothers on 14.12.2007 i.e. about one year prior to the filing of the present application under Section 156 (3) Cr.P.C. which is still pending before the court below. But the present F.I.R. has been lodged by O.P. No. 2 during the pendency of the aforesaid civil suit only in order to build pressure on the accused-applicants. It is contended that the learned court below, without considering the aforesaid fact and without applying its judicial mind, has passed the summoning order arbitrarily and mechanically. Learned counsel for opposite party no. 2 and learned A.G.A. have vehemently opposed the application. In the counter affidavit filed by opposite party no. 2, it has been stated that the accused-applicants have not approached this Court with clean hands and they have willfully and deliberately concealed some material facts. Learned counsel for opposite party no. 2 and learned A.G.A. have vehemently opposed the application. In the counter affidavit filed by opposite party no. 2, it has been stated that the accused-applicants have not approached this Court with clean hands and they have willfully and deliberately concealed some material facts. It is submitted that in paras 8 and 25 of the affidavit filed in support of the application it has wrongly been mentioned by the applicants that no appeal was filed by opposite party no. 2 against the judgment and order dated 28.3.2005 passed by Civil Judge, Bhadohi whereas the true fact is that opposite party no. 2 had filed Misc. Appeal No. 78 of 2006 against the aforesaid ex-parte order dated 28.3.2005, which was allowed by judgment dated 27.9.2008 passed by Additional District Judge, Court no. 3, Gyanpur, Bhadohi and the ex-parte judgment was set aside. It has been stated that there is no such mention in the Will dated 14.8.1984, that half share belongs to Hanuman Chaubey. Property has been equally divided among all the brothers, therefore, he is entitled to only 1/5 share of the property. It has further been contended that the applicant Sanjay Kumar committed fraud by fabricating forged Will claiming entire share in the property, and on the basis of the aforesaid Will, got entered his name in the revenue records. On the aforesaid grounds it has been prayed that the application be dismissed. In the rejoinder affidavit, the applicants have stated that the civil suit with regard to genuineness of that Will deed is subjudice before the competent court. However, the applicants have expressed the feeling of regret with regard to their mistake of not bringing on record the judgment dated 27.9.2008, whereby the ex-parte order dated 28.3.2005 passed in their favour was set aside. Considered the submissions. Whether the property was divided equally between all sons i.e. allotting 1/5th share to each of them and whether in two equal portions, allotting half to Hanuman Chaubey and half to the sons of Raj Kishor is a disputed question of fact which cannot be ascertained by this Court in the proceedings under Section 482 Cr.P.C. The impugned order shows that the learned Magistrate, finding a prima facie case against the applicants, has summoned them to face the trial. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. The submissions made by the learned counsel for the applicants call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. So far as the argument of learned counsel for the applicants with regard to pendency of civil suit for cancellation of Will dated 18.5.1985 is concerned, it is well settled legal position that civil proceedings and criminal proceedings can proceed simultaneously. In Kishan Singh (D) through I.Rs. Vs. Gurpal Singh and others; AIR 2010 SC 3624 , the Hon'ble Supreme Court relying on the law laiddown in P. Swaroopa Rani V. M. Hari Narayana alias Hari Babu; AIR 2008 SC 1884 has held as under : "It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case......Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute......It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible." In Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra; (2009) 13 SCC 729 , the Apex Court has held that : "13. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Vishnu Dutt Sharma Vs. Smt. Daya Sapra; (2009) 13 SCC 729 , the Apex Court has held that : "13. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circumstances of each case." At this stage and I do not find any justification to quash the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court in a catena of judgments i.e. R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and recently in A.R.C.I. Vs. Nimra Carglass Technics (P) Ltd. (2016) 1 SCC 348 . which may justify its quashing. Therefore, the prayer for quashing the summoning order is refused. At this juncture, learned counsel for the applicants prayed that the applicants are ready to surrender before the court but some time may be granted to them for such purpose. In view of the above, it is directed that in case the applicants appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P., 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For the aforesaid period of 30 days no coercive action shall be taken against the applicants. The application is accordingly disposed of.