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2017 DIGILAW 1776 (ALL)

SHANTI DEVI v. STATE OF U. P.

2017-08-01

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar, J. 1. Heard Shri Manish Tiwary, Advocate for the revisionist, Shri Rajendra Tiwari, Advocate for opposite party no. 2, learned AGA for the State at length and perused the record. 2. The revision has been filed against the impugned order dated 11.06.2010 passed by the Vth Additional Chief Judicial Magistrate, Varanasi in Criminal Case No. 193 of 2010 (Case Crime No. 43 of 2009) State vs. Parvez Khan and Others, under sections 454, 427, 504, 506 IPC, PS Sarnath, District Varanasi rejecting the application of the revisionist for discharge. 3. After several illness slips by learned counsel for opposite party no. 2 and several requests for passing it over, the case was lastly passed over on his request on 26.07.2017 granting him further one week time for filing counter affidavit and is listed peremptorily today but no counter affidavit filed by opposite party no. 2. 4. Learned counsel for the revisionist submits that the revisionist is aged about 97 years and is one of the trustee of Sitaram Trust; that the father of opposite party no. 2 was earlier manager of the Trust who was removed before 1963 when Shri Jangi Lal Kapoor, husband of revisionist was appointed manager; that one other person named Shankar Lal claimed his bhumidhari rights over the Trust property on the ground of adverse possession and in collusion with the other trustee opposite party no. 2 Shankar Lal Kapoor son of Panna Lal, obtained an ex-parte decree, which has been set aside vide judgment and order dated 07.07.2005 passed by this Court in Writ Petition No. 30332 of 2005, Shankar Lal vs. Addl. Commissioner, Varanasi also reported in 2005 (99) RD 162, that in Execution No. 4 of 2000 before the Civil Court, revisionist as a trustee and decree holder obtained possession over the property in question through Dakhalnama dated 18.11.2008 (At this stage of dictation of order, Shri Rajendra Tiwari, Advocate despite having been warned repeatedly, again started narrating the facts which amounts to interference in delivery of justice and was again asked to desist, else necessary action will be taken against him under Contempt of Courts Act) that subsequently, opposite party no. 2 by filing a second execution application No. 5 of 2004 which was not legally maintainable and was also barred by time, procured a forged and fictitious Dhakhalnama of property in question dated 24.01.2009 in collusion with Court Amin, that when the matter came before the competent Civil Court of Civil Judge (Senior Division), Court No. 2, Varanasi in Misc. Case No. 4 of 2009 in objections filed by opposite party no. 2 under section 47 of CPC, the Court vide judgment and order (A-5) dated 05.11.2009 held that the possession over the property had already been delivered to the revisionist in Execution No. 4 of 2000 on 18.11.2008 and so the question of further delivery of possession to Shankar Lal Kapoor in a time barred Execution No. 5 of 2004 on 24.01.2009 does not arise and rejected the report of Amin regarding delivery of possession in time barred Execution No. 5 of 2004 and also dismissed objections under section 47 CPC dismissing the entire proceedings of Execution Application No. 5 of 2004 being wrong and illegal; that after obtaining the forged and fabricated Dhakhalnama on 24.01.2009 (which has been cancelled vide above order dated 05.11.2009 at A-5), the opposite party no. 2 moved a false application under section 156 (3) Cr.P.C on 06.02.2009 regarding the alleged incident dated 05.02.2009 stating that on 04.02.2009, the revisionist after breaking his locks, did put her locks and again on 05.02.2009 at her instigation, Parvez Khan and 3-4 other persons of Muslim community taken away the goods table, chair as well as the attachi (suitcase) containing Rs. 5000/- cash and papers as well as clothes, by way of theft and attempted to take possession over the property of the first informant; that the learned Magistrate despite agreeing with the legal position that findings of civil courts are binding on criminal courts and holding that the possession of the property in question has been delivered to the revisionist by the legal process, has rejected the application for discharge merely on the ground that the matter is to be decided upon evidence; that it is undisputedly proved from the evidence on record that the revisionist obtained possession over the property in question through process of court and the opposite party no. 2 never entered into the possession over the property in question so the question of interference in possession of opposite party no. 2 never entered into the possession over the property in question so the question of interference in possession of opposite party no. 2 and committing theft of his alleged articles does not arise at all; that it is also clear from the material on record that opposite party no. 2 had forged a Dakhalnama dated 24.01.2009 with the mala-fide intention to falsely implicate the revisionist in criminal case for theft and immediately thereafter lodged the FIR with a false and concocted story through application under section 156 (3) Cr.P.C. 5. Per contra, learned AGA and learned counsel for the opposite party no. 2/first informant contended that the impugned order is absolutely correct; that the matter of possession is to be decided upon the evidence before trial court; that the judgment and order of Civil Judge (Senior Division) dated 05.11.2009 at annexure 5 is not final as the same is under challenge in the proceedings under Article 227 of the Constitution of India filed by the opposite party no. 2 in matters under Article 227 No. 1269 of 2015. 6. In reply, the learned counsel for the revisionist submitted that the challenge of order dated 05.11.2009 under Article 227 of the Constitution in Petition No. 1269 of 2015 after a period of six years has no bearing and the proceedings of petition under Article 227 of the Constitution are not in continuation of the suit. 7. Upon hearing the parties' counsel and perusal of record, I find that it is proved from the material on record that opposite party no. 2, the first informant, who claims to have obtained possession over the property in question through Dhakhalnama dated 24.01.2009 and claims the breaking of locks and committal of theft in the property in question by revisionists and her associates, has been adjudged to have never entered into possession over the property in question vide order dated 05.11.2009 (A-5) passed by competent civil court in Misc. Case No. 4/2009. The above order is intact and is not alleged to have been set aside by any higher court. There is actually nothing on record to show that above order has been set aside. In view of the above facts when the first informant was not in possession over the property in question and the property was already in occupation of revisionist, the entire prosecution story becomes unreliable. There is actually nothing on record to show that above order has been set aside. In view of the above facts when the first informant was not in possession over the property in question and the property was already in occupation of revisionist, the entire prosecution story becomes unreliable. Moreover, the prosecution story of keeping cash, clothes and papers in a suitcase just after obtaining possession and its alleged theft also appears false and highly improbable. 8. Since opposite party no. 2 has been held to be not in possession at any point of time, the question of attempting his dispossession or committing theft of his goods by the revisionist herself or through the alleged persons does not arise. The allegations of theft made in the FIR becomes false and highly improbable on the basis of which, no offence is made out against the revisionist. 9. In view of the discussions made above, I have come to the conclusion that when the revisionist was proved to be in established possession over the property in question, the learned Magistrate has acted wrongly and illegally in rejecting her discharge application. The impugned order if allowed to stand may cause miscarriage of justice and irreparable injury to the revisionist. The impugned order is liable to be set aside and the revision is liable to be allowed and the discharge application is also liable to be allowed. 10. The revision is allowed accordingly. The impugned order is set aside and the revisionist's application for discharge stands allowed. 11. Let a copy of the order be sent to the Court below for passing necessary orders in the Criminal Case, as required in the law.