Allahabad High Court
Jaipal Singh vs State Of Up And 6 Others on 23 October, 2019
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- APPLICATION U/S 482 No. - 38001 of 2019 Applicant :- Jaipal Singh Opposite Party :- State Of Up And 6 Others Counsel for Applicant :- Achyutanand Pandey Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
The present petition has been filed under Section 482 Cr.P.C. with a prayer to quash the order dated 27.08.2019 passed by Judicial Magistrate, Fareedpur, Bareilly in Case Crime No.471 of 2018 under Sections 147, 148, 149, 307, 323, 504 I.P.C., P.S.- Fareedpur, Bareilly.
Learned counsel for the applicant has submitted that he has moved an application under Section 156(3) before Competent Court and Magistrate who treated the application as complaint vide order dated 23.12.2017, against which applicant has filed an application No.17816 of 2018 under Section 482 Cr.P.C. After hearing the case, this court has passed the order on 24.05.2018 and set aside the order of Magistrate with order to remand the case and to decide the application under Section 156(3) Cr.P.C. afresh. After remand, learned Magistrate has reconsidered the application under Section 156(3) Cr.P.C. and passed the order to lodge the F.I.R and investsigate. Accordingly F.I.R. was lodged against the opposite parties under Sections 147, 148, 149, 307, 427 I.P.C.. After investigation, I.O. has submitted the final report on 14.11.2018 against which complainant has filed protest application on 22.05.2019. Considering the protest application, the Magistrate concerned vide order dated 27.08.2019 set aside the final report and directed that the protest application of applicant treated as complaint. He further submitted that the said order is illegal and in place of complaint , the order must be passed for further enquiry and F.I.R. be registered.
Learned A.G.A. has opposed the prayer and submitted also that applicant has not filed the copy of final report submitted by I.O.
Heard to learned counsel for the applicant and learned A.G.A. and perused the record.
Applicant has not filed the copy of application which was given by him under Section 156(3) dated 23.12.2017 as well as final report of police dated 14.11.2018. Impugned order shows that there is dispute of civil in nature. As according to case of applicant he is the owner of agricultural land bearing Gata No. 14. village- Saripur, District- Bareilly along with his brother and mother. Opposite parties have wrongly initiated the proceedings under Section 145/146 Cr.P.C. regarding the said land. In that connection High Court vide order dated 13.07.2017 has passed the order that no coercive action shall be taken against the applicants. Applicant and his family members are in possession over the said property. Applicant has cultivated crops over the land. Opposite parties have enmity with them and they tried to take illegal possession over the land. On dated 02.12.2017 in furtherance they tried to destroy the crops, when applicant asked them not to do so, then opposite party Manoj has threatened them by Tamancha, Suraj Pal tried to fire but it was missed. Applicant destroyed the crops of complainants fields which caused his loss of Rs.1,00,000/-. When police reached at the spot, the accused fled away along with their tractor. Complainant has given application against aforesaid persons before police but no action was taken place rather police has initiated proceedings under Section 151 Cr.P.C. against opposite parties and proceedings under Section 107/116 Cr.P.C. against complainant. Applicants have given complaint to S.S.P. and D.M. Bareilly but no action was taken place, then after that applicant moved an application under Section 156(3) Cr.P.C. vide Application No.421 of 2017 dated 23.12.2017.
Learned Magistrate has considered the protest application properly. Learned lower court has mentioned the case laws in Harikesh Vs. State of U.P. 2001(2) J.I.C. 786 as well as law laid down by Hon'ble Apex Court in the case of Abinandan Jha Vs. Dinesh Mishra AIR 1968, HC 177 and Tularam Vs. Kishan Singh AIR 1977 HC 420. It has been mentioned that in compliance of order of High Court, the application under Section 156 (3) Cr.P.C. was considered by the court below and order was passed for lodging F.I.R. and investigation of case. After investigation police has submitted final report. Learned Magistrate has also considered all the facts mentioned in the protest application with discussion that the facts are well in the knowledge of complainant and he is capable of giving evidence to prove his contention.
The dispute as shown in protest application is mainly of civil in nature. There is no description of any injury. Facts are well in the knowledge of complainant. Police persons are already over burdened with the investigation of criminal cases. Final report shows that no cognizable offence has taken place, therefore if learned Magistrate has passed the order to treat protest application as complaint then in that case the order does not suffer from any illegality, infirmity or jurisdictional error.
Having regard to the facts and circumstances of the case, after perusing the entire record and having considered the submissions made by the learned counsel for the applicant and learned A.G.A., I am of the view that no case is made out to interfere with the impugned order. The impugned order does not suffer from any infirmity or illegality. Learned Magistrate may exercise its jurisdiction judiciously and if it is of the view that in the facts and circumstances of the case, it will be appropriate to treat the application as a complaint case then the court of Magistrate may proceed with according to the procedure provided under Chapter XV of Cr.P.C. It is also clarified that if report is necessary on any point, the learned Magistrate is competent enough to call for report from the police concerned on given points. Further, it is open to the petitioner to raise the question before the court concerned at the appropriate stage. Hence, the prayer made in the present petition is refused.
The petition is dismissed.
Order Date :- 23.10.2019 Krishna