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2017 DIGILAW 1007 (ALL)

Gopal Das Maurya v. State of Uttar Pradesh

2017-04-13

PRABHAT CHANDRA TRIPATHI

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JUDGMENT : Prabhat Chandra Tripathi, J. Case called out. Sri Gopal Singh, learned counsel for the revisionist is present. None responds on behalf of the opposite party Nos. 1 and 2, namely, State of U.P. and Arvind Kumar. 2. Order-sheet dated 03.05.2006 reveals that notice has been served upon the opposite party No. 2 but neither he appeared before the Court nor any counsel has filed memo of appearance on his behalf. On behalf of the State a counter affidavit has been filed, it's rejoinder affidavit has also been filed by the revisionist. 3. Heard learned counsel for the revisionist and perused the records. 4. Arguments of the learned counsel for the revisionist are enumerated as follows: "Uncle of the opposite party No. 2 was a Gram Pradhan of village Bara, Tehsil and District Mahoba. Father of uncle of the opposite party No. 2 had damaged the Chak-Road adjoining to their Chak and had illegally occupied the land of Gram Sabha and at the relevant time, the revisionist was posted and working as Lekhpal of village Bara, Tehsil and District Mahoba. The revisionist has lodged an F.I.R. against the father and uncle of the opposite party No. 2 on 13.09.1993 for the aforesaid illegal acts of the father and uncle of the opposite party No. 2. Due to this enmity the opposite party No. 2 has falsely implicated the revisionist. As the outcome of the aforesaid F.I.R. a Criminal Case No. 915 of 1993 is still pending in the court of the learned Judicial Magistrate, Mahoba and the revisionist had been continuously prevented to produce oral evidence in the aforesaid criminal case. Sri Mahesh Chandra Tiwari, who is uncle of the opposite party No. 2 is an Advocate in Civil Court, Mahoba and his son Sanjay Tiwari is posted as a Clerk in the Civil Court, Mahoba in the Court of Civil Judge (Junior Division), Mahoba. At the alleged time of incident the revisionist was busy in the Computer Centre of Tehsil and District Mahoba because of the excess of work at that day, although, it was a Sunday. At the alleged time of incident the revisionist was busy in the Computer Centre of Tehsil and District Mahoba because of the excess of work at that day, although, it was a Sunday. The Tehsildar, Mahoba had issued a certificate to this effect that the revisionist was present at the Computer Centre of Tehsil and District Mahoba on the date of incident i.e. on 21.08.2005 from 7:00 A.M. to 08:00 P.M. The opposite party No. 2 has named Awadehsh Nayak as his witness but he was not examined under Section 202 Cr.P.C. Thus, the impugned summoning order dated 03.09.2005 in Criminal Case No. 339 of 2005 (Arvind Kumar v. Gopal Das and others), under Sections 323, 504, 506 I.P.C., P.S. Charkhari, District Mahoba may be quashed." 5. A perusal of the annexure No. 1 which is an F.I.R. by the informant Gopal Das Maurya, Lekhpal in Teshil and District Mahoba against the accused persons, Mahesh Chandra Tiwari, Suresh Chandra Tiwari and Subhash Lodhi has been lodged on 12.09.1993 at P.S. Srinagar, District Hamirpur as case crime No. 106 of 1993, under Sections 332, 353, 504, 506, 323 I.P.C. 6. Annexure No. 2 to the criminal revision is the complaint filed by the complainant Arvind Kumar against the accused person Gopal Das Maurya, Lekhpal in Tehsil and District Mohoba before the court of the learned Civil Judge (Junior Division), Charkhari, District Mahoba. 7. Annexure No. 3 is the work certificate dated 07.10.2005 issued by the Tehsildar, Mahoba. 8. Annexure No. 4 is the statement recorded under section 200 Cr.P.C. of the complainant Arvind Kumar Tiwari. 9. Annexure No. 5 is the statement of the witness Rajdhar recorded under Section 202 Cr.P.C. 10. A Perusal of the impugned order dated 03.09.2005 reveals that on 31.08.2005 (Sunday) the complainant Arvind Kumar was going to village Supa ahead of which village was situated a railway crossing. 11. Gopal Das Maurya, who was riding along with a pillion rider on the motorcycle asked for a side to go ahead. Since the path was wet the complainant could not give side to the accused person. Due to this Gopal Maurya and one unknown person alighted from the motorcycle and assaulted the complainant with legs and shoes and also abused the complainant. Since the path was wet the complainant could not give side to the accused person. Due to this Gopal Maurya and one unknown person alighted from the motorcycle and assaulted the complainant with legs and shoes and also abused the complainant. Accused person Golpal Das Maurya and one unknown person threatened that if the complainant would make any complaint in the police station he would be done to death. Rajdhar and Awadhesh Nayak reached at the spot and witnessed the incident. 12. Learned Magistrate after recording the evidence of the complainant Arvind Kumar Tiwari under Section 200 Cr.P.C. and of the witness Rajdhar under Section 202 Cr.P.C. and after hearing the arguments of the counsel for the complainant had summoned the accused persons Gopal Das Maurya under Sections 323, 504, 506 I.P.C. 13. Although, the learned counsel for the revisionist has submitted that a work certificate dated 07.10.2005 issued by the Tehsildar, Mahoba to the effect that Gopal Das Maurya, Lekhpal had worked on 21.08.2005 (Sunday) since 7:00 A.M. to 8:00 P.M. in the Computer Centre, Tehsil and District Mahoba due to excess work but this fact can only be verified at the stage of evidence. "Chapter XIX in The Code of Criminal Procedure, 1973 Trial of Warrant-Cases by Magistrates A.-....... B.-Cases instituted otherwise than on police report. Section 244. Evidence for prosecution.-(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section 245. When accused shall be discharged- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless." "Chapter XXII of The Indian Penal Code, 1860 Of Criminal Intimidation, Insult and Annoyance Section 506. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless." "Chapter XXII of The Indian Penal Code, 1860 Of Criminal Intimidation, Insult and Annoyance Section 506. Punishment of criminal intimidation. - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.-And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. State Amendment Uttar Pradesh.- Imprisonment of 7 years, or fine or both-Cognizable-Non-bailable-Triable by Magistrate of the first class-Non-compoundable. Vide Notification No. 777/VIII 9-4(2)-87, dated 31st July, 1989, published in U.P. Gazette, Extra., Pt. A, Sec. (kha), dated 2nd August, 1989." 14. At this stage, it would be premature to make any observations to quash the impugned summoning order dated 03.09.2005 in Criminal Case No. 339 of 2005 (Arvind Kumar v. Gopal Das and others), under Sections 323, 504, 506 I.P.C., P.S. Charkhari, District Mahoba. 15. Moreover, any hypothesis, presumption would amount a precursor to the trial. 16. Resultantly, the revision is liable to be dismissed. 17. Dismissed. 18. Interim order, if any, is vacated. 19. Certify this judgment to the District Judge, Civil and Sessions Court, District Mahoba for necessary compliance.