Allahabad High Court
Kishun Pal Singh And 4 Others vs State Of U.P. And Another on 6 February, 2020
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- APPLICATION U/S 482 No. - 34400 of 2018 Applicant :- Kishun Pal Singh And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjeev Kumar Mishra Counsel for Opposite Party :- G.A.,Satish Kumar Shukla Hon'ble Harsh Kumar,J.
Learned counsel for opposite party no.2 submits that there is no need to file counter affidavit and he do not want to file any counter affidavit.
Heard Sri Sanjeev Kumar Mishra, learned counsel for applicants, Sri Satish Kumar Shukla, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 31.8.2018 passed by Additional District and Sessions Judge-II/Special Sessions Judge (S.C./S.T. Act), Kasganj as well as entire criminal proceedings of Complaint No.7 of 2018 (Kaptan Singh Vs. Kish Lal Thakur and others) under sections 452, 427 IPC and 3(1) X S.C./S.T. Act, P.S. Ganjdundwara, District Kasganj, pending in the Court of Additional District and Sessions Judge-II/ Special Sessions Judge (S.C./S.T. Act), Kasganj.
Learned counsel for applicants contends that applicants have been falsely implicated; that one Jai Singh is a mentally weak person of village, on some portion of whose house, opposite party no.2 had taken forcible possession under apprehension that he may transfer his house to village Pradhan Chob Singh and also stolen some of his household goods, upon which he made a complaint to S.P. Kasganj on 30.9.2016, copy at Annexure No.12; that above Jai Singh was working at the place of applicant no.1, who intervened in the matter and upon Panchayat meeting with interference of police, the unauthorized possession of opposite party no.2 over part of house of Jai Singh was removed and upon dispute on 3.10.2016, opposite party no.2 Kaptan Singh and applicant no.2 Pankaj and others were challaned under sections 151, 107 and 116 Cr.P.C.; that feeling annoyed with the interference of applicants for safeguarding the interests of poor and weak minded Jai Singh and making his attempt to grab house of Jai singh unsuccessful, opposite party no.2 himself damaged his household goods and moved a false application under section 156(3) Cr.P.C. for lodging F.I.R. against applicants for alleged incident of 1.10.2016, very next day of removal of his unauthorized possession; that on above application, report was called by Magistrate from police station concerned and report Annexure No.2 was submitted by P.S.Ganjdundwara narrating correct facts; that on 17.11.2016 C.J.M., Kasganj allowed application under section 156 (3) Cr.P.C., in furtherance of which F.I.R. was lodged against applicants on 7.12.2016 and upon investigation and recording statements of first informant Kaptan Singh and witnesses Shekhar, Bhudev, Ram Chandra, Suraj Pal, Raj Pal and Suresh Chandra, Investigating Officer finding no evidence of offence submitted final report; that against final report, opposite party no.2 filed protest petition and after recording statements under sections 200 and 202 Cr.P.C., Magistrate has passed impugned summoning order, summoning applicants for offences under sections 452, 427, IPC and 3(1) X S.C./S.T. Act; that entire prosecution story is absolutely false, concocted and incorrect; that on 1.10.2016 or any other day, applicants or any of them neither entered the house of opposite party no.2 nor abused him with caste name nor damaged his household goods nor outraged modesty of ladies in his house nor put his house or household goods on fire; that in his statement under section 161 Cr.P.C., opposite party no.2 has stated that he did not sustain any injury in the incident and accused neither outraged modesty of ladies of his house nor committed marpeet with them, but to the contrary in his statement under section 200 Cr.P.C. he has stated that applicants feeling annoyed with the purchase of house of Jai Singh, abused him, committed marpeet with ladies of his house and outraged their modesty and also put his household goods on fire; that opposite party no.2 claims to have purchased the house of his cousin brother Jai Singh for a sum of Rs.5,00,000/-, as mentioned in para 2 of application under section 156(3) Cr.P.C., but there is no such sale deed was ever produced before Investigating Officer or Court and the contention of sale deed could not be reiterated by him in his statement under section 200 Cr.P.C.; that the prosecution witness Shekhar in his statement under section 161 Cr.P.C. has stated that Jai Singh is his real uncle and opposite party no.2 neither belong to their family nor is cousin brother of Jai Singh; that the learned Magistrate has not considered material on record correctly and acted wrongly in passing the impugned summoning order; that incident is alleged to have taken place inside the house of opposite party no.2 and not at public place, so in any case offence under section 3 (1) X S.C./S.T. Act is not made out against applicants; that there is no prima facie case of offence against applicants and the impugned summoning order, which has been passed without application of mind, is liable to be quashed as well as proceedings against applicants are liable to be quashed; that pendency of proceedings of complaint case on the basis of impugned summoning order are nothing but abuse of process of Court and have been initiated to harm and harass applicants for the reason that due intervention of applicants, attempt of opposite party no.2 in grabbing the house of mentally weak person Jai Singh, could not succeed.
Per contra, learned AGA and learned counsel for opposite party no.2 vehemently opposed the prayer for quashing. Supporting the impugned summoning order they contended that neither Jai Singh nor any one from his family has come forward to oppose impugned summoning order, nor denied execution of sale deed of house by Jai Singh for a consideration of Rs.5,00,000/-, so the applicants have no locus standi to challenge the validity of impugned order; that it was proved from the statements of opposite party no.2 and his witnesses under sections 200 and 202 Cr.P.C. that applicants entered the house of opposite party no.2, abused him with caste name and damaged his household goods; that application has been moved with absolutely false and incorrect allegations and is liable to be dismissed.
Upon hearing parties counsel and perusal of record, I find that opposite party no.2 could not dare to contradict the averments made in affidavit given in support of application under section 482 Cr.P.C. by filing any counter affidavit and neither the alleged sale deed, (which is mentioned in para 2 of application under section 156 (3) Cr.P.C. at Annexure No.1), has been filed nor the opposite party no.2 could dare to give date of execution or particulars of registration of alleged sale deed nor could support the averments made in application under section 156(3) Cr.P.C. It is proved from the material on record that for taking over possession on the house of Jai Singh, challan of opposite party no.2, applicant no.2 and others under sections 151, 107 and 116 Cr.P.C. was made on 3.10.2016 and Jai Singh moved a complaint against opposite party no.2 to S.P. Kasganj on 30.9.2016. As per averments made in application under section 156(3) Cr.P.C. dated 15.10.2016, the incident in question did take place on 1.10.2016 at 07:00 a.m., i.e. on the very next day when the possession of opposite party no.2 was allegedly removed from the portion of house of mentally weak Jai Singh.
From the material on record, it is very much clear that the bone of contention between the parties was house of Jai Singh. According to opposite party no.2, he had purchased the house of his cousin brother Jai Singh, while according to applicants opposite party no.2 taken over unauthorized possession over portion of the house of mentally weak Jai Singh (a worker of applicant no.1) and upon interference of applicants and local police after Panchayat in village, his unauthorized possession was removed on 30.9.2016 from the house of Jai Singh. As per complaint case of opposite party no.2, applicants were jealous of purchasing of house of Jai Singh by opposite party no.2 and so committed the incident in question on 1.10.2016. It is settled principle of law that after 1.1.1977 in view of provisions of Indian Registration Act, a property worth more than Rs.100/- may not be transferred without a registered document. There is no whisper what to say of specific averments in application under section 156(3) Cr.P.C. or in statement of opposite party no.2 about the date of execution and registration of sale deed, if any. No sale deed, transfer deed or its copy has been filed on record, which indicates that there is no such sale deed has been executed by Jai Singh in favour of opposite party no.2. Transfer deed other than registered sale deed, if any, is inadmissible in evidence. The opposite party no.2 has not dared to controvert the allegations made in affidavit given in support of application under section 482 Cr.P.C. and uncontroverted contention of applicants may not be disbelieved at this stage. It appears correct that since opposite party no.2 failed to grab the house of mentally weak Jai Singh and his unauthorized possession from portion of house of Jai Singh was removed upon interference of applicants, so he has falsely implicated applicants by moving application under section 156(3) Cr.P.C. on 15.10.2016 for the alleged incident dated 1.10.2016 in which upon investigation final report was submitted and he filed protest petition, which was treated as complaint. The Special Judge has not applied its mind to the facts of cace and has passed impugned order in cursory manner.
It is settled principle of law that at the time of considering the complaint following procedure laid down under Chapter XV of Cr.P.C. it is the duty of Magistrate to consider all the aspects and whether even a prima facie case is made out or not. The Court is not expected to pass summoning orders in cursory manner without due application of mind. The material on record shows that Magistrate has failed to consider the totality of facts and circumstances as well as material on case diary and passed the impugned summoning order without due application of mind.
In view of discussions made above, I have come to the conclusion that the impugned summoning order if allowed to stand may cause unnecessary harassment of applicants and would result in miscarriage of justice and the pendency of proceedings in furtherance of impugned summoning order are abuse of process of Court, which are liable to be quashed for securing ends of justice. The application is liable to be allowed and the summoning order dated 31.8.2018 passed by Additional District and Sessions Judge-II/Special Sessions Judge (S.C./S.T. Act), Kasganj as well as criminal proceedings of Complaint No.7 of 2018 (Kaptan Singh Vs. Kish Lal Thakur and others) under sections 452, 427 IPC and 3(1) X S.C./S.T. Act, are liable to be quashed.
Accordingly, the application u/s 482 Cr.P.C. is allowed and the summoning order dated 31.8.2018 passed by Additional District and Sessions Judge-II/Special Sessions Judge (S.C./S.T. Act), Kasganj as well as criminal proceedings of Complaint No.7 of 2018 (Kaptan Singh Vs. Kish Lal Thakur and others) under sections 452, 427 IPC and 3(1) X S.C./S.T. Act, are quashed.
Interim order, if any, stands discharged.
Order Date :- 6.2.2020 Tamang