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2019 DIGILAW 2594 (ALL)

Mahesh Kumar v. State of U. P.

2019-11-19

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. This Application, under Article 227 of the Constitution of India, has been filed by the Applicants, Mahesh Kumar, Suresh Kumar and Rudresh, against State of U.P. and Dinesh Kumar Agrawal, with a prayer for setting aside impugned order, dated 18.4.2016, passed by the Additional Sessions Judge, Sant Kabir Nagar, in Criminal Revision, filed against the order of Chief Judicial Magistrate, Sant Kabir Nagar, dated 15.3.2016, passed in Complaint Case No. 2190 of 2010,Dinesh Kumar Agrawal vs. Mahesh Kumar and others. 2. Learned counsel for applicants argued that the Chief Judicial Magistrate, Sant Kabir Nagar, in Complaint Case No. 2190 of 2010, while deciding Application, moved, under Section 245 of Cr.P.C., held that offence, punishable under Section 452 of Indian Penal Code (IPC), was not made out, at the stage of evidence, recorded, under Section 244 of Cr.P.C., though offences, punishable, under Sections 323, 504, 506 of IPC were prima facie present. Hence, offence, under Section 452 of IPC was dropped. Against this order of Chief Judicial Magistrate, Sant Kabir Nagar, Criminal Revision was preferred by complaint, Dinesh Kmar Agrawal, where in, learned Sessions Judge, Sant Kabir Nagar, admitted revision, relying upon version of Opposite party no.2, and came to conclusion that by framing charge under Section 452 of IPC, no loss will be caused to the applicants. Thus, directed for framing of charge by Chief Judicial Magistrate. Against this order, passed in revision, this Application, for invoking jurisdiction of superintendence of the High Court, over subordinate courts, regarding misuse of process of law, has been moved, under Article 227 of the Constitution of India. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Heard learned counsel for both sides and gone through the impugned order as well as materials placed on record. 5. From very perusal of impugned order, dated 18.4.2016 of Sessions Judge, Sant Kabir Nagar, it is apparent that statement of complainant, PW-1, recorded under Section 244 of Cr.P.C., on 3.3.2016, was entered in it, wherein, complainant has admitted that complainant, Dinesh Kumar Agrawal and present applicants, Mahesh Kumar, Suresh Kumar and Rudresh are real brothers. 5. From very perusal of impugned order, dated 18.4.2016 of Sessions Judge, Sant Kabir Nagar, it is apparent that statement of complainant, PW-1, recorded under Section 244 of Cr.P.C., on 3.3.2016, was entered in it, wherein, complainant has admitted that complainant, Dinesh Kumar Agrawal and present applicants, Mahesh Kumar, Suresh Kumar and Rudresh are real brothers. All of them were residing in a single premises, side by side, after partition amongst themselves, though no separate house number was yet allotted and on the basis of this statement, offence of criminal trespass, punishable, under Section 452 of Cr.P.C. was held to be not made out by learned Chief Judicial Magistrate, Sant Kabir Nagar, but his finding has not been changed by learned Sessions Judge, rather a direction for decision at the time of judicial decision making, regarding offence, punishable under Section 452 of IPC, was given. 6. No doubt, complainant and three accused persons were residing in one and common premises, but it was specifically said that there had been a mutual partition in that premises, but no separate house number was allotted, but ingress and trespass was said by the complainant in his own portion of premises where he was residing and on the basis of it, direction was given by the learned Sessions Judge. Hence, there remains nothing illegal or irregular in the order of the learned Sessions Judge. More so, accused persons are having opportunity to make cross-examination of witnesses of prosecution on this point and it is a question of fact to be seen by the Trial court on the basis of evidence led before it. Hence, there remains nothing for any indulgence to be granted by this Court, in exercises of power of superintendence, over subordinate court, vested in the High Court, by way of Article 227 of the Constitution of India. 7. Accordingly, this proceeding, being devoid of merits, stands dismissed, but with a direction to the Chief Judicial Magistrate, Sant Kabir Nagar that, while recording his finding, he will not be influenced, either by the findings of learned Sessions Judge or observations made by this Court, hereinabove, in this order. Judicial decision making shall be taken on the basis of evidence led before the Magistrate.