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2023 DIGILAW 1364 (ALL)

Angad v. State of U. P.

2023-05-19

JYOTSNA SHARMA

body2023
JUDGMENT : JYOTSNA SHARMA, J. 1. Heard Sri Shashi Kant Dwivedi, learned counsel for the petitioner and Sri Gokaran Singh, learned counsel for the respondent no. 2 and learned A.G.A. for the State and perused the record. 2. This criminal writ petition under Article 226 of the Constitution of India has been filed against the judgment and order dated 05.09.2011 passed in Criminal Revision No. 222 of 2010, Ajay Kumar and Others vs. State of U.P. and Another) by Additional District & Sessions Judge, court no. 3, Mau whereby the order of Chief Judicial Magistrate, Mau passed in complaint case no. 4289 of 2008 dated 31.08.2010 was not interfered at and the revision was dismissed. 3. The petitioner has prayed for issuance of direction in the nature of ceriorari to quash both the orders dated 05.09.2011 and 31.08.2010. 4. For clarity following relevant facts are being narrated: (i) Respondent no. 2 Angnoo Singh Yadav filed a criminal complaint before C.J.M. Mau alleging that co-accused Dhanauti Devi sold her house to complainant’s aunt Buddha Devi in 1986; accused-petitioner no. 1 Angad stood as marginal witness, and Buddha Devi sold that house to complainant’s bhabhi Radha Devi in 2007 and since then purchaser was in possession thereof; accused-petitioner no. 1 was tenant in that house; when the purchaser demanded rent from him he did not pay the same and instead filed a case in civil court; he who himself was the marginal witness of the sale deed of 1986 fraudulently obtained receipt by depositing house tax of the house in question and got his name mutated in the Nagar Palika papers; On 03.12.2008 all the accused persons intruded in his house/shop and removed Rs.4000/-from cash counter and threatened him either to settle the matter or to face the consequences. (ii) Learned Magistrate summoned only Angad and Dhanauti Devi for the offence under Section 397, 504 and 506 I.P.C. The complainant filed a revision and the court of sessions set aside the summoning order and called upon the Magistrate to pass an order afresh. The Magistrate passed second order on 31.08.2010 summoning the petitioner no. 1 Angad and his wife Dhanauti Devi under Section 418 and 420 I.P.C. and petitioners no. 2 to 4 and Dhanauti Devi under Section 397, 504,506 and 120-B I.P.C. Challenging the above orders the petitioner preferred Criminal Revision no. The Magistrate passed second order on 31.08.2010 summoning the petitioner no. 1 Angad and his wife Dhanauti Devi under Section 418 and 420 I.P.C. and petitioners no. 2 to 4 and Dhanauti Devi under Section 397, 504,506 and 120-B I.P.C. Challenging the above orders the petitioner preferred Criminal Revision no. 222 of 2010 but the same was dismissed by order dated 05.09.2011. Now the petitioners are before this Court by means of this criminal writ petition under Section 226 of the Constitution of India. 5. It is contended on behalf of the petitioners that both the orders have been passed without application of mind. At the most controversy is only civil in nature. This complaint has been filed to harass and humiliate them. The entire story is false and concocted and in fact no prima facie case is made out against them. Subject matter of the sale deeds is house no. 94/1 and petitioners’ house is numbered as 94. 6. The contentions of the petitioners are opposed by respondent no. 2 on the ground that in a judicial order this Court is not allowed to interfere while exercising writ jurisdiction under Article 226 of the Constitution of India. Hence, the petition should be dismissed at the very threshold. To stress above point. Judgement of Hon’ble Supreme Court in the case of Radhey Shyam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423 has been referred to. The apex court in the aforesaid judgment held that writ of certiorari lies to bring decisions of an “Inferior court” tribunal, public authority or any other body of persons for review so that the court may determine whether they should be quashed or not. However, expression “interference” the court is not referable to the judicial courts Writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. The Apex Court in Para-25 further observed as below: “25. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to judicial courts.” 7. Thus it has been clearly laid down that order of civil court could be challenged under Article 227 of the Constitution of India and not under original writ jurisdiction under Article 226 of the Constitution of India. 8. Certain facts attract attention of this Court: This writ petition was filed on 26.09.2011 and it is pending since then, i.e., since more than 11 years now. All this while, this legal point was neither raised nor realized that this writ petitions seeks to invoke powers under Article 226 instead of Article 227 Constitution of India . This is settled law that non-mentioning or wrong mentioning of provisions of law should not come in the path of granting appropriate relief, if the litigant otherwise is entitled for the same. In my view, an ordinary litigant cannot be expected of having too minute knowledge of provisions of law. This question has always been troubling my judicial conscience that what a common man or ordinary litigant has to do with the provision of law under which he may be entitled for relief. This should be the concern of the Court of law or Court of justice or his counsel/advocate. Where no other deterrent except non mentioning or wrong mentioning of law poses a hurdle in the winding path to justice, the judge ought to play its expected role. The Judge or the Court shall be failing in its duty towards an ordinary man/litigant by not looking for solutions and dismissing the writ on technical ground. Where no other deterrent except non mentioning or wrong mentioning of law poses a hurdle in the winding path to justice, the judge ought to play its expected role. The Judge or the Court shall be failing in its duty towards an ordinary man/litigant by not looking for solutions and dismissing the writ on technical ground. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India. 9. Quite a number of arguments have been placed before me touching upon the merits of this matter including the one that in this case, there is a clear attempt to drag the petitioner in a criminal case, whereas the dispute, if any, is essentially civil in nature. Considering the settled law that even while exercising powers under Article 227 of the Constitution of India, the Courts are not permitted to go deep into the matter and test the arguments advanced by the parties on the anvil of evidence or decide disputed questions of fact, I, therefore refrain from interfering in the order passed by the revisional court in a second round of litigation between the parties. At the same time, I find it irresistible to mention that there are certain contentions which may have some substance as far as merits of the matter are concerned and which could have been seen by the trial court as well as by the revisional court. Hence, I find it fit to dispose of this writ petition in the manner as below: (I) The prayer for issuance of writ of certiorari is hereby refused. (II) In case, the petitioners appear before the court concerned and apply for bail within a month from today, their bail application shall be considered and disposed of as expeditiously as possible without granting any unnecessary adjournment to either sides. (III) In case, during the course of proceedings before the court concerned at appropriate stage the petitioners apply for their discharge by moving a suitable application under the provisions of section-245(1) or 245(2) Cr.P.C. as the case may be, the same shall be decided by the concerned Magistrate/Court by passing a reasoned and speaking order. 10. Accordingly this writ petition is disposed of.