Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 43 (ALL)

Kaushlesh Mishra v. State of U. P.

2023-01-05

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT : [Syed Aftab Husain Rizvi, J.] 1. Heard Sri Byas Kumar Prasad, learned counsel for the revisionists and learned A.G.A. for the State. However, none appeared on behalf of opposite party no.2. 2. This criminal revision has been filed with the prayer to set aside judgement and order dated 18.04.2015 passed by learned Chief Judicial Magistrate, Siddharthnagar in Criminal Complaint Case No.277 of 2013 (Ripusudan Mishra Versus Kaushlesh Mishra and others) under Sections 506 and 427 I.P.C. , Police Station Siddharthnagar, District Siddharthnagar, pending the court of Chief Judicial Magistrate, Siddharthnagar. 3. In brief, the facts of the case are that opposite party no.2 moved an application under Section 156(3) Cr.P.C. against revisionists and Sub Inspector Santraj Yadav, Constable Rauf Khan and five unknown constables, alleging therein that the father of the opposite party no.2 paid Nazrana of Rs.20/-to ex-Zamindar on 30.09.1951 and obtained 00.3.10 area of previous no.362, present no.56 of Village Rehra. The applicant got constructed foundation and boundary wall over the same. On 20.09.2012 at about 5.00 p.m. Kaushlesh Mishra pretending himself to be a journalist moved an application with forged signature of his uncle at Tehsil Naugarh. On this application the accused persons came on the spot with JCB machine and got the foundation and boundary wall dismantled causing loss of Rs.24,000/-. The incident was seen by co-villagers Bechu, Vyas Muni, Arun Kumar Mishra and others. Learned Magistrate treated this application as complaint. Thereafter the complainant examined himself under Section 200 Cr.P.C. and two witnesses Bechu and Arun Kumar under Section 202 Cr.P.C. The complainant in his statement stated that Guru Charan, Naib Tehsildar, Rudramani, Junior Engineer and Santraj Yadav, Sub Inspector and six policemen reached on the spot with JCB machine of Nawab Ali and they dismantled foundation and boundary wall. The witnesses also reiterated the aforesaid facts. Learned Magistrate vide order dated 01.05.2014 summoned only one accused Kaushlesh Mishra for the offence under Section 506 I.P.C. Aggrieved with aforesaid order, the opposite party no.2 filed Criminal Revision No. 96 of 2014 and Sessions Judge, Siddharth Nagar vide order dated 24.07.2014 allowed the revision and set aside the impugned order dated 01.05.2014 and directed the court below to pass fresh orders in the light of observations made in the body of the judgement after affording opportunity of oral hearing to the complainant. Thereafter, learned Magistrate in compliance of order of the revisional court passed fresh order on 02.12.2014 and summoned the revisionists for the offence punishable under Sections 427 and 506 I.P.C. An application bearing Criminal Misc. Application (U/S 482 Cr.P.C.) No.500 of 2015 was filed by the revisionists-accused and in terms of the order dated 17.01.2015 passed by this Court in the aforesaid application, the revisionists moved an application under Section 245(2) Cr.P.C. for discharge on the grounds that the revisionists are innocent and they have been falsely implicated due to enmity and for harassment, there is no justification or evidence to file the complaint, the allegations of the complaint clearly establish that the nature of the dispute is revenue and civil and there is no ground to lodge a complaint, on the complaint dated 07.05.2012 of Lalllan Prasad Mishra, who is not a party in the case, while taking cognizance, Sub Divisional Magistrate vide letter dated 12.09.2012 passed the order against the complainant to remove his illegal encroachment by constructing boundary wall on the banjar land of Gram Sabha, in compliance of the aforesaid direction, in presence of Circle Officer (Police), the government employees in discharge of their official duty removed illegal construction, remaining applicants have no concern with it, the complainant intentionally concealing the facts and without impleading Sub Division Magistrate, Naugarh and Lallan Prasad Mishra, has moved application against the revisionists under Section 156(3) Cr.P.C., there is no allegation in the complaint which constitute an offence under Section 506 I.P.C., despite this court below in a casual manner summoned Kaushlesh Mishra for the offence under Section 506 I.P.C., while remaining accused persons were not summoned as no evidence was found against them, the complainant filed Criminal Revision No.96 of 2014 in which he himself has alleged that Kaushlesh Mishra has been summoned by the court only on the basis of surmises, the revisional court has allowed the revision only on the ground that on the same evidence only one accused has been summoned while others have not been summoned and learned Magistrate has not made any analysis of this. It is further alleged that the revisionists are not party in Original Suit No.387 of 1994, hence it is not binding on the applicants, this original suit has been filed by the complainant in collusion with his real brother Janardan to grab banjarland of Gram Sabha and they have entered into a compromise and the Gram Sabha is not a party in that suit. Further grounds taken in the application are that without taking any new and additional evidence the revisionists have been summoned, the complainant himself in para-2 of memo of revision has alleged that no offence under Section 506 I.P.C. has been committed, no active role has been assigned to the revisionists, from the statement under Section 200 Cr.P.C. itself it is established that complaint is not an eye-witness of the incident, witnesses Bechu and Arun Kumar have not made any allegations of the offence under Sections 427 and 506 I.P.C. against the revisionists, they have also not stated that they are eye-witnesses of the incident, and no reason has been assigned how they identified applicant nos.4, 5 and 6, an order to recover damages and to dispossess the complainant from Arazi No.56M has been passed on 15.04.2014 by Tehsildar Naugarh in Case No.102 of 2012 (Gram Sabha Versus Ripusudan) under Section 122-B and Rule 115-C of U.P. Zamindari Abolition and Land Reforms Act, the complainant filed Revision No.7/15 of 2014 in the court of District Magistrate, Siddharthnagar against the order dated 15.04.2014, it has also been dismissed on 06.12.2014, the complainant with mala fide intention concealing real facts just to grab the banjar land of Gram Sabha has misused the process of the court, there is no sufficient ground to proceed against the revisionists and they are liable to discharged under Section 245(2) Cr.P.C. in pursuance of order of High Court dated 17.01.2015 passed in Criminal Misc. Application (U/S 482 Cr.P.C.) No.500 of 2015. Learned Magistrate after hearing both the parties vide impugned order dated 18.04.2015 rejected the discharge application. 4. It is submitted by learned counsel for the revisionists that revisionist nos. 1 to 3 and opposite party no.2 live in the same village and civil dispute is pending between them. Opposite party no.2 always threatened the revisionists to falsely implicate them in criminal case. The opposite party no.2 has encroached the land of Gram Sabha and was making construction on Gata No.56M. 1 to 3 and opposite party no.2 live in the same village and civil dispute is pending between them. Opposite party no.2 always threatened the revisionists to falsely implicate them in criminal case. The opposite party no.2 has encroached the land of Gram Sabha and was making construction on Gata No.56M. Proceeding under Rule 115-C of U.P. Zamindari Abolition and Land Reforms Act was initiated against him, but he continued to make constructions on the Gram Sabha land. Therefore, Sub-Divisional Magistrate on 12.09.2012 has directed revisionist no.4 to remove illegal construction. In compliance of this order, illegal constructions have been removed by the concerned authority. Opposite party no.2 wanted to take illegal possession of land of Gram Sabha. The applicant nos. 4 and 5 are government servants and they were acting in discharge of their official duty, but without obtaining any sanction under Section 197 Cr.P.C. criminal proceedings have been initiated against them. Further revisionist no.6 is the owner of JCB machine and no role has been assigned to the revisionist nos. 1 to 3 and 6. It is also contended that under Section 202 Cr.P.C. the matter was investigated by the police under the order of the Magistrate. In police report, it has been clearly stated that due to mala fide intention opposite party no.2 has filed complaint. Lastly, it is contended that no offence is made out against the revisionists. They have not committed any offence and have been falsely implicated due to civil dispute. The earned Magistrate without considering the entire facts and circumstances of the case has rejected the discharge application vide order dated 18.04.2015 which is illegal and bad in law and as such liable to be quashed. Learned Magistrate has committed gross illegality in not following procedure laid down by the law. The criminal case filed against the revisionists is attended with mala fide intention and proceedings are maliciously instituted with ulterior motive for wrecking vengeance due to personal grudge. Reliance has been placed on the judgement of Hon’ble Apex Court rendered in Manoj Mahabeer Prasad Khaitan Versus Ram Gopal Poddar and another in Criminal Appeal No.1973 of 2010 (arising out of Special Leave Petition (Crl.) No.2274 of 2008) decided on 8 October, 2010. Reliance has been placed on the judgement of Hon’ble Apex Court rendered in Manoj Mahabeer Prasad Khaitan Versus Ram Gopal Poddar and another in Criminal Appeal No.1973 of 2010 (arising out of Special Leave Petition (Crl.) No.2274 of 2008) decided on 8 October, 2010. Learned counsel contended that it has been held by the Hon’ble Apex Court that if criminal proceeding is initiated with mala fide intention, then it is liable to be quashed because such proceeding is an abuse of process of law and court. 5. Learned A.G.A. opposed the prayer and submitted that at this stage only prima facie case is to be seen and there is sufficient material on record which establishes that prima facie offence under Sections 427 and 506 I.P.C. is made out against the revisionists. There is no sufficient ground to discharge the accused under Section 245(2) Cr.P.C. Learned Magistrate has rightly rejected the application and there is no illegality or infirmity in the impugned order. 6. Section 245(2) Cr.P.C. provides as follows: “245. When accused shall be discharged. (1)………. (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 by such Magistrate, he considers the charge to be groundless.” Aforesaid provision empowers Magistrate to discharge the accused at any previous stage of the case i.e. before evidence under Section 244 Cr.P.C., if he considers the charge to be groundless. 7. The material on record transpires that a complaint was made with the allegation that opposite party no.2 has made encroachment on Gata No.56M which is banjar land of Gram Sabha. Proceeding under provision of U.P. Z.A. & L.R. Act was initiated. Revenue Inspector inspected the site and found the complaint to be true i.e. the complainant has made encroachment on the banjar land of Gram Sabha by raising boundary wall on it. On the basis of the report of Revenue Inspector, the Sub-Divisional Magistrate directed for removal of the illegal encroachment on 12.09.2012. In pursuance of aforesaid order, Guru Charan, Naib Tehsildar, Naugarh revisionist no.4 with the aid of local police force got the encroachment removed. So it is established that illegal encroachment made by the opposite party no.2 has been removed in due process of law by the public servants in discharge of their official duty. Revisionist nos. In pursuance of aforesaid order, Guru Charan, Naib Tehsildar, Naugarh revisionist no.4 with the aid of local police force got the encroachment removed. So it is established that illegal encroachment made by the opposite party no.2 has been removed in due process of law by the public servants in discharge of their official duty. Revisionist nos. 2 and 3 have no role in the entire matter, JCB machine of revisionist no.6 has been used for removal of illegal encroachment by the public authorities, respondent no.1 has only made complaint regarding illegal encroachment by opposite party no.2, so, it appears that application under Section 156 (3) Cr.P.C. was filed with coloured version of incident. It also transpires that after treating the application as complaint learned Magistrate has directed for inquiry under Section 202 (2) Cr.P.C. by local police. The inquiry reports are Annexure nos. 6 and 7 to the affidavit filed in support of the criminal revision. It also confirms that real incident is that illegal encroachment of opposite party no.2 has been removed by the public authorities in discharge of their official duty and no offence has been committed. 8. Learned Magistrate has rejected the discharge application observing that grounds on which discharge application has been moved are all factual, after appearance of the accused, the complainant will be provided an opportunity to produce evidence and accused will have opportunity of defence. It is also observed that the facts alleged in the complaint are supported by statements under Sections 200 and 202 Cr.P.C. and on its basis summoning order has been passed. 9. From the above it appears that the learned Magistrate proceeded on the assumption that he has no power to evaluate the material on record and at that stage prayer of discharge could not be entertained. This is in the violation of the legal provision which requires a finding by the Magistrate with regard to the charges against the accused being groundless or that there is ground for presuming that the accused have committed the offence. The finding was to be recorded upon considering the entire material on record. The Magistrate has failed to evaluate the allegations of the complaint and consider the police report submitted under Section 202 Cr.P.C. The learned Magistrate has not applied his mind to the grounds of discharge and contention raised in this respect. The finding was to be recorded upon considering the entire material on record. The Magistrate has failed to evaluate the allegations of the complaint and consider the police report submitted under Section 202 Cr.P.C. The learned Magistrate has not applied his mind to the grounds of discharge and contention raised in this respect. The learned Magistrate must have considered the pleas taken in discharge application and addressed the same by a speaking and reasoned order. While disposing of the discharge application the learned Magistrate has not considered relevant contention and rejected the same in a cursory manner. So, a fresh order is required to be passed on the discharge application. 10. Accordingly, the revision is allowed. The impugned order dated 18.04.2015 is set aside. The learned Magistrate is directed to pass a fresh order on the discharge application in accordance with law, after affording opportunity of hearing to the parties.