Hari and Others vs State of U.P.and Another

Vinod Prasad, J.—The five revisionists accused, namely, Hari, Buddhi, Ratan, Kamal and Narayan Singh have challenged the order dated 522004 passed by Judicial Magistrate (1st Class) Chhata in Case No. 77/IX/2004, Jagan v. Buddhi and Ors., under Sections 406, 420, 422 I.P.C., P.S. Chhata, District Mathura relating to Crime No. 159 of 2002.

The narration of facts giving rise to the present revision, in bird eye view, are that an application under Section 156(3) Cr.P.C. was filed by Jagan S/o Mool Chand before Judicial Magistrate Chhata on 2312002. with the allegations that applicant Jagan owned a land being plot Nos. 400/116 and 190 in his village Chhata, District Mathura. In the midst of his plot, then, is a pond being pond No. 448, which is not suitable for agriculture purposes, as the same has been entered in column 15 in the revenue records. The revisionists accused Ratan, Hari and Buddhi knowingly sold 6 decimals of land from the said the plot to Kamal Singh, Panna, Narayan Singh S/o Harchandi on 1071987. Further allegations were that the purchasers knew it very well that the sellers had no right to sell the land inspite of that they had purchased the said land. It is further alleged that Kamal and Narayan Singh aforesaid had executed another saledeed on 15101987 from the said plot. The applicant filed an application before SubDivisional Magistrate on 1911993 but no action was taken against the accused persons who committed fraud and cheating and therefore, the applicant prayed through his application under Section 156(3) Cr.P.C. for getting his F.I.R. registered against the applicants for the aforesaid crime.

It seems that the application of the applicant under Section 156(3) Cr.P.C. was allowed and the registration of F.I.R. and investigation was directed by the Magistrate. However, after investigation the police submitted final report No. 4/02 on 283 2002. On the said final report, a protest petition was filed by the informant Jagan, respondent No. 2. On his protest petition, his statement under Section 200 Cr.P.C. was recorded on 2232003 and the same day statement of his witness Dhramveer Singh Lekhpal was also recorded. Vide order dated 532003 Judicial Magistrate, 1st Class, Chhata rejected the final report and summoned the accused persons for offences under Sections 406, 420, 422 I.P.C. and fixed 1042003 for their appearance.

Aggrieved by the aforesaid summoning order, the accused persons preferred Criminal Revision No. 195 of 2003 before Sessions Judge, Mathura, which was heard and allowed by the Lower Revisional Court vide its order dated 7112003. The Lower Revisional Court directed the trial Court that it should have followed the procedure of the complaint case and should have recorded the statement under Sections 200 and 202 Cr.P.C and then he should have summoned the accused persons by passing a reasoned order as to why he is summoning the accused persons. After the said revision, it transpires that Judicial Magistrate, 1st Class, Chhata summoned the revisionists for offences under Sections 406, 420, 422 I.P.C. vide his detailed impugned order dated 5 22004.

On such facts the revisionists have challenged the impugned order of summoning.

In this revision a counteraffidavit and stay vacation application has been filed on behalf of the Jagan S/o Mool Chand, opposite party No. 2 to which a rejoinder affidavit has also been filed by the revisionists.

I have heard Sri S.B. Singh and Sri Rajesh Pachuari learned Counsel for the revisionists as well as Sri Rajesh Kumar holding brief of Sri S.K. Singh learned Counsel for the respondent informant and learned A.G.A. at a great length.

Learned Counsel for the revisionists contended that the whole prosecution of the applicants is mala fidy. He submitted that earlier to the filing of application under Section 156(3) Cr.P.C. Jagan, opposite party No. 2 informant had filed a civil suit against the revisionists claiming his title over the property in dispute being original suit No. 409/1982, Prem Singh and Jagan v. Mohan Lal and Ors. His aforesaid suit was dismissed on 511989 by 1st Additional Munsif, Mathura. Against the dismissal of his original suit respondent No. 2 Jagan filed Civil Appeal No. 9 of 1985 before Civil Judge, Mathura but his aforesaid appeal was also dismissed on 3051986. Against the order of the dismissal of the first appeal and the suit, a second appeal being Second Appeal No. 2524 of 1986 was filed by the plaintiffappellant informant in this Court, which is still pending but no interim order has been passed in favour of the plaintiffappellant informant in the aforesaid second appeal. Learned Counsel, therefore, contended that respondentinformant had lost the case from the Civil Court and therefore, mala fidly he has instituted the application under Section 156(3) Cr.P.C. and therefore, the whole prosecution against the applicants deserves to be quashed.

Learned Counsel for the respondents on the others hand contended that revision is based on disputed questions of facts, which cannot be looked into by this Court and consequently the revision should be dismissed. He further submitted that from the averments made in the application and statements as well as material contained in the case diary offence is disclosed and therefore, the informant must get a chance to substantiate his version by leading evidence in a proper trial and therefore, also the revision should be dismissed.

I have considered the submissions raised by both the sides. From the averments made by both the sides in the affidavit, counteraffidavit and rejoinder affidavit it is not in dispute that a original suit was filed by respondent No. 2 Jagan as plaintiff in the Civil Court being original suit No. 409 of 1982. In the said suit the revisionists were the defendants. The suit field by the plaintiff was dismissed by 1st Additional Munsiff, Mathura on 511985. Aggrieved by the dismissal of the suit the plaintiff (informant in the present case) filed civil appeal No. 9 of 1985, which appeal also was dismissed on 3051986 by Civil Judge, Mathura against which a second appeal No. 2524 of 1986 has been filed in this Court, which is still pending and in which no interim order has been passed by this Court. It is also not in dispute that in the said civil suit, the relief, which was claimed by the plaintiff was regarding the title over the plot in question, which suit failed and he was not considered to be the owner of the property in dispute. In such a view moving of application under Section 156(3) Cr.P.C. by respondent No. 2 without having any title over the property in question is nothing but mala fidy exercise of his right. Respondent No. 2 had no right or title over the plot in question and therefore, his whole averments made in the application under Section 156(3) Cr.P.C. as well as his statements under Section 200 and that of his witness under Section 202 Cr.P.C. are wholly purposive. The averments in respect of the civil suit, its dismissal, first appeal and its dismissal and pendency of the second appeal in this Court are mentioned in paragraph Nos. 10 to 13 of the affidavit filed in support of this revision by Buddhi, revisionist No. 2. In the counteraffidavit filed by Jagan, respondent No. 2 these paragraphs they have not been denied and instead the contents have been admitted.

In such a view, I find that the whole prosecution of the revisionists is wholly mala fidy and deserves to be quashed.

Resultantly, this revision is allowed. The impugned summoning order dated 522004 passed by Judicial Magistrate (1st Class) Chhata in Case No. 77/IX/2004, Jagan v. Buddhi and Ors., under Sections 406, 420, 422 I.P.C., P.S. Chhata, District Mathura is hereby set aside and the whole prosecution of the revisionists through the aforesaid case is hereby quashed.

Revision allowed.