Allahabad High Court
Vishnu Prasad Mishra vs State Of U.P. And 5 Others on 11 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:101574 Court No. - 90 Case :- CRIMINAL REVISION No. - 4522 of 2022 Revisionist :- Vishnu Prasad Mishra Opposite Party :- State Of U.P. And 5 Others Counsel for Revisionist :- Shree Prakash Upadhyay Counsel for Opposite Party :- G.A.,Upendra Vikram Singh Hon'ble Syed Aftab Husain Rizvi,J.
Heard Mr. Shree Prakash Upadhyay, learned counsel for the revisionist, learned AGA for the State and Mr. Upendra Vikram Singh, learned counsel for the opposite party nos. 2 to 5.
This criminal revision has been filed against the order dated 14.09.2022 passed by the Additional Civil Judge (Junior Division/ Judicial Magistrate) Court no.10, Varanasi in Case No.2461 of 2012 (Dwarika Prasad Vs. Hriday Narayan Mishra) under Sections 323, 467, 471, 474, 120B I.P.C., P.S. Jansa, District- Varanasi. By the impugned order, the learned Magistrate has discharged opposite party nos.2 to 6, under Section 245(2) Cr.P.C.
The learned counsel for the revisionist contended that complaint was filed by Dwarika Prasad, the grand father of the revisionist- Vishnu Prasad Mishra. The case was fixed for evidence under Section 244 Cr.P.C. The opposite parties challenged the entire criminal proceedings before this Court in an application under Section 482 Cr.P.C. No.5324 of 1997 and this Court vide order dated 29.08.1997 was pleased to stay the further proceedings. During the pendency of the aforesaid application, the complainant i.e. grand father of the revisionist died on 11.02.2001 and the witnesses of the complaint have also died. As the proceeding of the case was stayed, the revisionist could not move application before the trial Court for substitution. This Court vide order dated 20.04.2016 dismissed the application under Section 482 (stay order). The revisionist moved an application under Section 256 Cr.P.C. before the Court below on 15.02.2018 and the trial Court on the same date invited objections from the accused- opposite parties. In the meantime, the earlier order dated 20.04.2016 passed by this Court dismissing the application filed under Section 482 Cr.P.C. in default was recalled and the case was restored to its original number vide subsequent order dated 20.04.2018. Learned counsel for the revisionist, Mr. Sabhajeet Yadav died on 16.09.2018. The application under Section 482 Cr.P.C. was finally decided by this Court vide order dated 19.12.2019. On 20.10.2020, the learned Court below passed order for intimating the counsels of both sides and fixed date for evidence under Section 244 Cr.P.C. The discharge application dated 14.09.2018 was filed by the accused- opposite parties under Section 245 Cr.P.C. before the learned Court below. The learned Court below vide impugned order dated 14.09.2022 has allowed the discharge application and discharged the accused- opposite parties on the ground that the record lacks evidence for framing of charges as the complainant has neither presented himself before the Court nor led evidence under Section 244 Cr.P.C. The order sheet reveals that the application under Section 256 Cr.P.C. moved by the revisionist was on record and objections were also invited which have not been taken into account while discharging the accused- opposite parties and as such the impugned order suffers from material irregularity and is liable to be set aside. The trial Court till date has not justified the fact as to whether the notices issued to the counsels for both the sides have been duly served or not. The impugned order lacks finding with respect to the disposal of application under Section 256 Cr.P.C. and also with respect to the service of notice upon the counsel for the revisionist and despite of having sufficient materials available on record, the order of discharge has been passed which is against the evidence on record. The impugned order is illegal, arbitrary and against the evidence on record which has been passed without application of judicial mind.
The learned counsel for the opposite parties submitted that the complaint was filed way-back in the year 1982 regarding the alleged incident of 1979. The order sheet reveals that the revisionist has appeared before the trial Court and moved application under Section 256 Cr.P.C. in which it has been admitted that the complainant and all the witnesses have died. As the complainant and all the witnesses have died, therefore, it will be inappropriate to allow the present revision which shall cause wastage of time. It is impossible to proceed the case when all the witnesses have died. It is next contended that the application under Section 256 Cr.P.C. has been filed by Sri S.K. Mishra, Advocate whose name is mentioned on Vakalatnama filed on behalf of the revisionist. The revisionist himself has not pressed his application under Section 256 Cr.P.C. at any stage of proceedings. At the most, the learned Court below may have granted permission under Section 256 Cr.P.C. to pursue the complaint. The said opportunity has already been provided to the complainant. He has appeared before the trial Court on various dates. The case was fixed for evidence under Section 244 Cr.P.C. but the complainant has failed to avail the opportunity and produce any evidence. It is next contended that dispute pertains to registered Will. The matter is of civil nature. Both the parties have contested before Consolidation Courts. The orders of Consolidation Courts are in favour of opposite party. All the Consolidation Courts have found the Will valid. Lastly, it is contended that the impugned order has been passed by the Court below after applying judicial mind. There is no illegality in the impugned order.
The perusal of the record reveals that complaint was filed on 26.08.1982. After taking evidence under Sections 200 and 202 Cr.P.C., summoning order was passed on 20.08.1982. After appearance of all the accused, the case was fixed for evidence under Section 244 Cr.P.C. for the first time on 25.11.1983. The case remained pending for different reasons. The opposite parties-accused have filed an application under Section 482 Cr.P.C. before this Court and the proceeding was stayed. Thereafter, that application was dismissed for want of prosecution. A restoration application was filed and finally the application under Section 482 Cr.P.C. was decided by this Court and the trial Court received the order on 21.10.2020. The trial Court fixed 01.12.2020 as date for recording evidence under Section 244 Cr.P.C. Thereafter, the case remained pending for two years for the aforesaid purpose and ultimately on 29.08.2022 the trial Court provided last opportunity to the revisionist/ complainant to produce evidence under Section 244 Cr.P.C. and fixed 14.09.2022. And finally on 14.09.2022, when the complainant was absent, opportunity of evidence under Section 244 Cr.P.C. was closed and on discharge application of the opposite parties-accused, they have been discharged.
It also appears that during pendency of the application under Section 482 Cr.P.C. before this Court, the complainant died and an application under Section 256 Cr.P.C. was filed by the revisionist on 15.02.2018. The opposite parties-accused have been summoned for offence under Sections 423, 120B, 467, 474 and 471 I.P.C. So, the case is warrant trial case while provisions of Section 256 Cr.P.C. is for summon trial cases. Hence, Section 256 Cr.P.C. will not apply in the present case.
It also appears that the revisionist was aware about pendency of the complaint case as he himself has moved application under Section 256 Cr.P.C. It is also established from the perusal of the order sheet that after final disposal of application under Section 482 Cr.P.C. when the case was fixed for evidence under Section 244 Cr.P.C., the revisionist neither pressed his application under Section 256 Cr.P.C. nor moved any adjournment application nor produced evidence under Section 244 Cr.P.C. The order sheets dated 22.08.2022 and 29.08.2022 mention the presence of the revisionist before the trial Court and even on that dates neither evidence under Section 244 Cr.P.C. was produced nor any adjournment application was filed by the revisionist. On both the dates, the Court adjourned the matter and 14.09.2022 was fixed as date for evidence under Section 244 Cr.P.C. giving the last opportunity to the revisionist to produce evidence but on 14.09.2022, the revisionist was absent. No adjournment application was moved on his behalf so the Court was left with no option but to close the opportunity of evidence under Section 244 Cr.P.C. As there was no evidence under Section 244 Cr.P.C. on the record, the discharge of the accused was inevitable.
The complaint case remained pending for near about 40 years and from 01.12.2020 to 14.09.2022, it remained pending for evidence under Section 244 Cr.P.C. but despite such a long period the revisionist has failed to conduct the proceedings of the case. Four out of nine accused have died during pendency of the cases. There is no plausible explanation of this period on behalf of the revisionist. The trial of the complaint case cannot be left at the mercy of the complainant as it will amount to harassment of the accused persons.
The impugned order does not suffer from any illegality and it needs no interference. The revision is liable to be dismissed.
Accordingly, the revision is hereby dismissed.
Order Date :- 11.5.2023 SP/-