Allahabad High Court
Daya Shanker Mishra vs State Of U.P. And Another on 3 February, 2010
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
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Court No. 42
Criminal Misc. Application No. 2767 of 2010
Daya Shanker Mishra Vs. State of U.P. and another
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Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the applicant, Sri Rajiv Lochan Shukla, learned A.G.A. Sri K.N. Bajpai for the State and and perused the record.
The present criminal misc. application under section 482 Cr.P.C. has been filed with prayer to quash the impugned charge sheet dated 19.8.2009 filed by the police in Case Crime No. 736 of 2009, under Sections 419/420/467/468/427 IPC at P.S. Rampur, District-Jaunpur, as well as summoning order dated 24.9.2009 passed by Addl. Chief Judicial Magistrate, Court No. 12, Jaunpur and the entire proceedings of Criminal Case No. 4783 of 2009 under the aforesaid sections. It has also been prayed in this petition for stay of further proceedings initiated pursuant to the charge sheet and the summoning order, aforesaid.
The prosecution story in brief is that an FIR was lodged by one Narendra Bahadur Singh, opposite party no. 2 against the applicant on 15.7.2009 on an application moved under Section 156 (3) Cr.P.C. before the A.C.J.M. Ist, Court No. 12, Jaunpur and pursuant to the directions of the court it was registered as Case Crime No. 736 of 2009, under sections 419/420/467/468/427 IPC at P.S. Rampur, District-Jaunpur, It is averred in the FIR that on 24.5.1983 the applicant by means of sale deed sold 51 decimal of land belonging to plot no. 926 measuring 3.3.9 acres situated in Village-Sidhwan, Post-Pachwal, Pargana-Barsathi, Tahsil-Mariyahoon, District-Jaunpur to one Babu Nandana son of Bharosh, who is also resident of the same village; that again on 13.7.2004 the applicant sold land measuring 0.182 2 hectare out of the same plot 926/3.39 to Suresh Chandra son of Shyam Narayan who is also resident of the same village by means of a registered sale-deed; that with an oblique motive the boundaries of the land sold from the aforesaid plot no. 926 were allegedly shown of the earlier sale deed dated 24.5.1983; and that many other sale-deeds in respect to the said plot are said to have been executed in favour of other persons.
The first informant had purchased the land in question from the heirs of first vendee Babunandan on 27.11.2006. The name of the informant was mutated in the revenue record and received possession of the land sold to him. It appears that other persons who had purchased the said land earlier from the applicant are having a dispute with the first informant over the boundaries.
After the FIR was registered evidence was collected by the Investigating Officer including three sale-deeds alleged to have been executed by the applicant. Site plan of the spot and inspection report was also prepared and statements of the opposite party no. 2, sons of Babu Nandan Yadav and son of his deceased son Rajwanta Yadav who had also executed the sale deed in the year 2006 and statement of Sub-Registrar Mutaina, Marihayun was also recorded by the Investigating Officer under section 161 Cr.P.C.
On the basis of the material collected in the investigation, charge sheet was submitted in the court of the Addl. C.J.M., Court No. 12, Jaunpur in Criminal Case No. 4783 of 2009; State Vs. Daya Shanker Mishra, as stated above. On consideration of the material summoning order was issued by the court.
The first contention of the learned counsel for the applicant is that perusal of the summoning order shows that it 3 is on a typed format wherein certain blanks have been filled in by pen. It is stated that this establishes that apparently there is no application of mind by the court below in issuing the summoning order; that before issuance of the summoning order no opportunity was granted to him by the court below even though the alleged offences against the applicant are not made and in these circumstances he does not expect fair trial in the matter by the court below.
The second submission made by learned counsel for the applicant is that under the provision of Section 204 Cr.P.C. summoning order should be passed on the basis of the certain material facts and evidence collected during investigation. According to him, since summoning order is in a typed format there is nothing on record to show that the summoning order impugned was issued by the court below on the basis of reasonable opinion formed by it.
In support of his case learned counsel for the applicant has referred to the charge sheet submitted by the Investigating Officer and the FIR which are appended as Annexures- 2 and 3. It is submitted by him that opposite party no. 2 had taken recourse to civil proceedings in Suit No. 913 of 2007; Narendra Bahadur Vs. Daya Shanker Mishra in which an interim injunction has been granted to him in the aforesaid civil suit vide order dated 19.4.2008. It is further submitted that from the allegation in the FIR the matter appears to be in domain of the civil court and, therefore, criminal court has no jurisdiction to pass such order. As such, the proceedings initiated pursuant to the application under section 156 (3)Cr.P.C. filed by opposite party no. 2 tantamount to abuse of process of court.
Learned counsel for the applicant has lastly submitted that not even a single person who had purchased the land is a 4 witness was ever examined by the Investigation Officer. Much less any independent and any opinion expressed of the Investigating Officer in the charge sheet regarding offence made out, does not constitute substantive material on the basis of which, the court below could have formed its satisfaction for issuance of summoning order.
Learned counsel for the applicant has relied upon a judgment rendered in the case of Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra and another reported in 2009 (64) ACC 962 wherein the only question involved is whether an application under section 482 Cr.P.C. can be dismissed only on the premise that an alternative remedy of filing a revision application under section 397 of the Code is available.
Similarly, the case of Pawan Kumar Sharma Vs. State of Uttaranchal in Special Leave to Appeal (Crl) No (s). 4701 of 2007 decided on 10.12.2007 relied by the learned counsel for the applicant is also not applicable in the present case. In this case we found that the magistrate has not acted in a manner as rubber stamp. In this case, the apex court has considered the documentary evidence on record and recorded satisfaction that there is sufficient material for issuing summoning order. It may be noted that this is a case where investigation has been made by the police pursuant to the application under section 156 (3) Cr.P.C., therefore, requiring a detailed reason and discussion of every evidence is not required at the stage of summoning order. The case of Devendra & others Vs. State of U.P. & another reported in JT 2009 (8) SC 120 relied upon by the learned counsel for the applicant is of no use to him as to the contrary, it has been held as under in para 20;
"Pare 20: There cannot, however, be any doubt or dispute whatsoever that in a given case a civil suit as also a criminal 5 proceeding would be maintainable. They can run simultaneously. Result in one proceeding would not be binding on the court determining the issue before it in another proceeding."
Since the court is considering the case on merits it is being held that none of the considerations recognized by the apex court in Bhajan Lal's case or R.P. Kapoor's case which may persuade the court to exercise its inherent jurisdiction under Section 482 Cr.P.C., the cases cited by the applicant's counsel do not apply in the facts and circumstances of the present case.
The question whether any charge is established pursuant to the charge sheet is a question to be considered on merits in the trial. The applicant can also move for discharge during the trial but court shall certainly not quash the charge sheet under section 482 Cr.P.C. or the proceeding of the criminal case without coming to any logical conclusion by the court.
Learned A.G.A. has submitted that there is no controversy on the case law cited by the learned counsel for the applicant. According to him, consideration or requirement in revision, 482 Cr.P.C. or in appeal etc. are totally different as they operate in different fields and in different situations i.e. question of consideration of propriety, legality and correctness of the same. It is further submitted that if in appeal, revision or in 482 Cr.P.C., some order is set aside, it is done on different legal considerations. But setting aside these orders impugned would not mean that whole process of law in making the judgment was an 'abuse of process of law'.
Learned A.G.A. has also submitted that merely because sections have been filled in by the magistrate, the summoning order in typed format would not mean that he has not applied his mind to the facts and circumstances of the case or has not 6 considered the material on record. It is alleged that there is fundamental differences between the complaint case and the charge sheet. In a complaint case where the magistrate himself makes inquiry and applies his mind as to whether summoning order should be issued when an investigation into alleged offence is made by the Investigating Officer, it does not require a detailed order.
From perusal of record it is apparent that the magistrate has gone through the material collected by the Investigating Officer i.e. sale-deed, statements under section 161 Cr.P.C. of number of persons and other documentary evidence and only thereafter he had issued summoning order after being satisfied.
Section 204 Cr.P.C. provides for recording satisfaction on the basis of the material on record, therefore, from the impugned order it is apparent that the magistrate has recorded his satisfaction on the basis of the material before him which were placed after due investigation by the police in pursuance to the application under section 156 (3) Cr.P.C.
The next argument which requires consideration is as to whether there is application of mind by the court below in filling the relevant sections in a typed proforma.
It is true that earlier law was that typed proforma did not constitute application of mind. However, later on there was change in this view. To my mind the magistrate summoning the accused under the provisions of law for which the accused alleged to have committed offence must have applied mind as the sections filled up in the summoning order relate to the charges against the applicant and the evidence collected also shows commission of some offence. Hence it cannot be said that while passing of the summoning order, the magistrate has not applied his mind.
7As regards the question whether the applicant in fact has or has not committed any offence under sections 419/420/467/468/427 IPC will be considered at the time of trial. The applicant has all liberty to take plea before the trial court with regard to the offence either by filing discharge application or may take any other remedy available to him in accordance with law.
In the circumstances, for all the reasons stated above, the Court is not inclined to interfere in this case.
The application under Section 482 Cr.P.C. is, therefore, dismissed not only on the basis of availability of alternative remedy but also because the Court does not find any abuse of process of court in this case.
Dated: 03.02.2010 RCT/-
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