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2019 DIGILAW 2136 (ALL)

Narendra Kumar Sharma v. State of U. P.

2019-09-16

RAM KRISHNA GAUTAM

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JUDGMENT : Ram Krishna Gautam, J. Heard learned counsel for the petitioner and learned A.G.A. for the State and peruse the record. 2. This application Under Article 227 of the Constitution of India has been filed by Narendra Kumar Sharma against State of U.P. and 7 others with a prayer for setting aside the impugned judgment of IVth Additional District and Sessions Judge/Special Judge, Bijnor, dated 23.08.2018, passed in Criminal Revision No.359 of 2014, (Narendra Kumar Sharma vs. State of U.P. and others), whereby order of Chief Judicial Magistrate, Bijnor passed in Criminal Complaint Case No.1321 of 2015, (Narendra Kumar Sharma vs. Pankaj Kumar Saxena and others), under Sections 392, 323, 504, 506 IPC, P.S. Heempur, dated 17.11.2015, has been confirmed, wherein complaint was dismissed under Section 203 Cr.P.C. 3. Learned counsel for the applicant argued that Araji No. 317 of village Sisona is recorded land of pond and it is property of Gram Sabha, for which a case in the court of Civil Judge Chandpur is pending, which was filed by complainant. The court of Tehsildar (Judicial) Chandpur, has passed an order for removal of illegal encroachment over this pond and a fine has been imposed against encroacher Pankaj Kumar Saxena, Tehsildar Chandpur, in connivance with Man Singh, Gram Pradhan, Pankaj (Lekhpal), Ramautar (Patwari) and Rameswar Rana, are permitting above encroachment. An application before the Chief Minister, U.P., was moved, on which a direction for inquiry was made. On 08.02.2015 at about 11.00 a.m. these accused persons tried to get earth filled at Araji No. 317 under work of National Rural Employment Guarantee Act (hereinafter referred as NREGA). This was against the order of Tehsildar (Judicial) Chandpur. A protest was lodged by complainant while above pond was being filled. Those accused persons had caught and assaulted the complainant, wherein Pankaj Kumar Saxena used filthy abuses and then on his exhortation, rest of accused persons assaulted him by kicks and fists. Upon rescue call, many persons of village reached on spot, they intervened and managed to save him from accused persons. Accused Roop Chand snatched a cash of Rs. 5,750/- from complainant and those accused persons, extended threat of dire consequence to kill him, if any complaint is made. Thereafter, he went to police station for filing complaint, but his report could not be lodged at police station. Accused Roop Chand snatched a cash of Rs. 5,750/- from complainant and those accused persons, extended threat of dire consequence to kill him, if any complaint is made. Thereafter, he went to police station for filing complaint, but his report could not be lodged at police station. Hence an application under Section 156 (3) Cr.P.C. was moved, which was treated to be a complaint, in which he was examined himself under Section 200 Cr.P.C. and his two witnesses were examined under Section 202 Cr.P.C. Thereafter, complaint was dismissed under Section 203 Cr.P.C. There was prima facie sufficient evidence for summoning all accused persons, but trial Magistrate failed to appreciate facts and evidence on record. 4. Criminal Revision under Section 397 Cr.P.C. was filed before the court of IVth Additional District & Sessions Judge/Special Judge, Bijnor, which was decided by impugned judgment, whereby judgment of the Chief Judicial Magistrate was affirmed and criminal revision was dismissed, which was beyond the jurisdiction of both of the courts concerned. Hence this petition under Article 227 of the Constitution of India has been filed with above prayer. 5. Learned AGA has vehemently opposed the aforesaid prayer. 6. From the very perusal of the complaint, statement recorded under Section 200 Cr.P.C. coupled with statements recorded under Section 202 Cr.P.C., it is apparent that some order of Tehsildar (Judicial) Chandpur, was passed regarding pond in question, but judicial proceeding is traveling in criminal court Chandpur, upon protest of complainant This is of no concern with the present occurrence. 7. Second set of circumstances is that a complaint was made before the Chief Minister Uttar Pradesh, in which some inquiry was ordered. This is of no concern with the present occurrence. 8. Third occurrence, which is concerned, in which proceeding of title is alleged; Occurrence is of 08.02.2015, in which admittedly under State Sponsored Scheme namely NREGA work of filling soil was being carried out by the accused persons, who are Revenue Officers and Village Pradhan, whereon this complainant rushed and he protested as above, for which there seems to be no locus and it was being done by Revenue Officers and Village Pradhan in performance of their official duties under State Sponsored Scheme of NREGA. When protest was lodged, this was counter protested by Revenue Officers and village Pradhan. 9. When protest was lodged, this was counter protested by Revenue Officers and village Pradhan. 9. Now, a Full Bench of Apex Court in State of U.P. vs. Paras Nath Singh, (2009) 6 SCC 372 , has propounded that no court shall take cognizance of such offence except with the previous sanction- the very cognizance is barred hence complaint cannot be taken notice of Apex Court in Criminal Appeal Nos. 1590, 1591 of 2013 in SLP, (Criminal) No. 6652, 6653 of 2013, Anil Kumar and others vs. M.K. Aiyappa and another propounded that no court shall take such cogent of such offence except that the previous sanction- the very cognizance is barred, hence the complaint cannot be taken notice of. According to BLACK, the word "Cognizance" means 'jurisdiction' or 'the exercise of jurisdiction' or 'Power' to try and determine causes. In the common parlance means taking note of. A Court, therefore, is precluded from entertaining a complaint or taking notice of or exercising jurisdiction, it is in respect of public servant, who is accused of an offence alleged to have been committed during discharge of his duty. 10. Meaning thereby, if public servant is accused of an offence committed during discharge of his official duties, a complaint for offence is not to be taken notice of, unless a previous sanction under Section 197 Cr.P.C. is there. 11. In present case, as per complaint as well as statements recorded under Section 200 and 202 Cr.P.C. coupled with memo of revision as well as this application under Article 227 of the Constitution of India, the contention is that accused persons, who are Revenue Officers, Village Pradhan and public servants, were on spot with regard to execution of NREGA Scheme. No offence was committed by accused persons and for this, complaint was filed against the law laid down by the Apex Court. The Magistrate was not supposed to take notice of it. But after taking notice of it and appreciating the evidence on record, the said complaint was dismissed under Section 203 Cr.P.C. No illegality or irregularity have been committed by the Magistrate. 12. The Magistrate was not supposed to take notice of it. But after taking notice of it and appreciating the evidence on record, the said complaint was dismissed under Section 203 Cr.P.C. No illegality or irregularity have been committed by the Magistrate. 12. A revision under Section 397 Cr.P.C. was filed before the court of Sessions Judge Bijnor, wherein no perversity or infirmity was found by Court, resulting in dismissal of revision and both of these orders have been assailed under Article 227 of the Constitution of India, whereas no illegality or irregularity is in the orders. 13. This application lacks merit and is dismissed accordingly.