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2016 DIGILAW 971 (ALL)

Ratan Singh v. State of U. P.

2016-03-16

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard learned counsel for the revisionist and learned counsel for the opposite party no. 2 as well as learned A.G.A. for the State and perused the record. 2. This criminal revision has been filed by the revisionist with the prayer to quash the order dated 10.2.2016 passed by Civil Judge, Junior Division, Mathura in Criminal Case No. 837 of 2015 (Gopal Prasad Vs. Ratan Singh) under Section 451 , 380 IPC, Police Station Kosi Kalam District Mathura. 3. Submission of the learned counsel for the revisionist is that discharge application was rejected by the concerned Magistrate on insufficient ground. In-fact no offence under Section 451 and 380 IPC are attracted in the present matter. This Court in the writ jurisdiction has clearly held that matter is of civil nature. Thus, the court below ought to have allowed the discharge application. Observations recorded by the concerned Magistrate in the order dated 10.2.2016 are illegal and perverse. 4. Learned counsel appearing for the opposite party no. 2 as well as learned A.G.A. argued that relief claimed in the civil writ was different, hence the jurisdiction of the criminal court in the matter is not barred. Discharge application was rejected by the concerned Magistrate on sufficient ground. On the basis of grounds taken in the revision, no relief could be granted in favour of the revisionist. Thus, prayer has been made to dismissed the revision at this stage. 5. I have considered the rival submissions and gone through the entire record. 6. One Gopal Prasad Sharma had filed Writ-C No. 36740 of 2013 and the Division Bench of this Court on 10.7.2013 passed the following order: - "Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has grievance that in spite of approaching the District Level Authorities/Committee, he is not getting any help against private respondent nos.5 and 6 who have allegedly tried to interfere with two plots in industrial area which the petitioner claims to be his. Copy of the petitioner's application is not on record but he has already filed an application before Station House Officer, P.S. Kosikalan, District Mathura on 19.09.2011 for lodging F.I.R. against the private respondents. If the criminal proceeding is not having desired effect, petitioner is at liberty to approach the Civil Court for seeking injunction or other suitable interim orders. Copy of the petitioner's application is not on record but he has already filed an application before Station House Officer, P.S. Kosikalan, District Mathura on 19.09.2011 for lodging F.I.R. against the private respondents. If the criminal proceeding is not having desired effect, petitioner is at liberty to approach the Civil Court for seeking injunction or other suitable interim orders. It would not be proper for this Court to direct the Police or Executive Authorities to interfere in private dispute over property between individuals. Hence, the writ petition is dismissed with the liberty that petitioner if so advised, may approach the Civil Court for seeking relief. In case Civil Court passes an order in favour of the petitioner then it would be duty of the District Administration to implement the order of the Civil Court." 7. Applicant had earlier approached this Court taking recourse of the provisions under Section 482 Cr.P.C. No. 36759 of 2013 and this Court on 30.7.2015 passed the following order: - "Case has been listed peremptorily today. Heard learned counsel for the applicant, Sri Sandeep Shukla learned counsel holding brief of Sri Chandan Sharma learned counsel for the opposite party No. 2 and the learned A.G.A. Present application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Criminal Case no. 663 of 2012 arising out of case crime No. 390 of 2013 under Sections 451, 380 IPC, pending in the court of Judicial Magistrate, Chhata, district Mathura and to quash the summoning order dated 28.5.2013 passed in the aforesaid case. It is contended by learned counsel for the applicant that the applicant had purchased the property in question in auction from UPFC and was also put in possession of the same by the officials of UPFC on 11.10.1999. It is contended that after lapse of 11 years, opposite party No. 2, who is erstwhile owner of the property and was declared defaulter on account of non payment of the loan, has initiated present criminal proceedings with the allegation that the applicant has encroached upon the adjacent industrial plot of the opposite party No. 2. It is contended that after lapse of 11 years, opposite party No. 2, who is erstwhile owner of the property and was declared defaulter on account of non payment of the loan, has initiated present criminal proceedings with the allegation that the applicant has encroached upon the adjacent industrial plot of the opposite party No. 2. It is contended that the applicant is only in possession of the land which was given to him in auction by UPFC and that the matter is purely of civil nature which has been dragged into criminal prosecution of the applicant at the behest of the opposite party No. 2, which is bad in law. Learned counsel for the applicant further states that perusal of the order impugned would show that one Rakesh was found to be sitting in the premises which is alleged to have been encroached by the applicant but on the said date, the said Rakesh was in Ram Manohar Lohia hospital at Lucknow, therefore, the allegations are false. After hearing the learned counsel for the parties and after perusing the averments contained in the present application this Court is of the opinion that the controversy involved in the present case is basically factual in nature which can be well gone into by the trial Judge. Accordingly, the prayer for quashing the proceedings and summoning order is refused. However, present application is finally disposed of with liberty to the applicant to file appropriate application for discharge within a period of one month from today under the relevant provisions of Code of Criminal Procedure before the court concerned. In case such application is filed by the applicant within the time specified above, same shall be considered and decided by the court concerned most expeditiously, strictly in accordance with law, preferably within a period of five months from the date of filing of the aforesaid application. For a period of six months or till the disposal of the discharge application of the applicant, whichever is earlier, coercive action against the applicant shall be kept in abeyance. In case the applicant does not file discharge application within the time specified, protection granted by this Court shall automatically stand vacated. With the aforesaid directions, this application is finally disposed of. Interim order granted earlier by this Court, if any, stands discharged." 8. In case the applicant does not file discharge application within the time specified, protection granted by this Court shall automatically stand vacated. With the aforesaid directions, this application is finally disposed of. Interim order granted earlier by this Court, if any, stands discharged." 8. It appears that in compliance of the order dated 30.7.2015 passed by this Court, revisionist moved a discharge application and it was decided vide order dated 10.2.2016 by the court below, rejecting the same issuing non-bailable warrant against the revisionist. This Court in above Writ-C No. 36740 of 2013 while dismissing the writ petition has observed that if the criminal proceeding is not desired effect, petitioner is at liberty to approach the civil court for relief and other suitable interim orders. If the prayer in the aforesaid writ and the prayer made in the complaint is taken into consideration, the proceeding of the aforesaid complaint cannot be quashed on the ground taken in this revision. 9. So long as, the rejection of the discharge application is concerned, from the perusal of evidence available at this stage, it cannot be said that no pirma-facie case is made out. The court dealing with the matter at this stage has to see only prima-facie case. The complaint case was supported by the complainant and witnesses on oath. Essential ingredients to constitute the offences levelled against the revisionist are also available in the matter, hence on the basis of discussions made hear-in-above, no ground is made out to admit and allow the revision. 10. However, it is observed that in case the revisionist surrenders before the court below and applies for bail within thirty days from today, the same shall be considered and decided in view of the settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P., reported in 2004 (57) ALR 290 and affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P., reported in 2009 (3) ADJ 322 (SC). For a period of thirty days from today, no coercive action shall be taken against the revisionist. 11. It is made clear that no further time shall be allowed to the revisionist for surrender before the court concerned. Thus, the criminal revision is dismissed at this stage itself.