Bhagwan Das Agrawal vs State of U.P. and Others

Palok Basu, J.—Bhagwan Das Agrawal has filed this petition u/s 482 Code of Criminal Procedure with the prayer that the complaint and consequent proceedings initiated by Rajiv Nandan Misra pending in the Court of Chief Judicial magistrate. Varanasi, be quashed. Since affidavits have been exchanged, this application is being finally disposed of at the admission stage.

The question involved, however, will be as to whether it will be open to this Court in exercise of inherent powers u/s 482 Code of Criminal Procedure to weigh the respective pleas particularly the complaint''s in order to judge whether "bonafide dispute" concerning the property involved really exists.

The facts are that a first information report was lodged by Rajiv Nandan Mishra on 4-9-1986 at Police Station Chowk, Varanasi. The investigation followed but ended in a final report. It appears that protest petition was filed on behalf of the informant before the magistrate and it further appears that he directed the informant to proceed with the matter as a complaint case whereupon statement of Rajiv Nandan Mishra was recorded u/s 200 Code of Criminal Procedure on 20-10-1987, and those of Krishna Kumar Pandey, headconstable, Raj Kumar constable, Triloki Nath Tewari, Mahendra Nath Shukla, Hari Prasad and Ganga Saran Misra, eye-witnesses, were recorded. On a perusal of the material existing on the record the Chief Judicial Magistrate, Varanasi, summoned the applicant along with Radha Krishna Chaudhary, Ramji Yadav, Ramesh Chandra Chopra, Gopal Khanha and Shakhidhar under Sections 448/395 IPC.

Having come to know of the summoning order the applicant filed a revision before the Sessions Judge, which came to be decided on 17-7-1989 by the Second Additional District and Sessions Judge, Varanasi. From Annexure 18 it appears that Bhagwan Das Agarwal and others had filed the said revision but in this petition only Bhagwan Das Agarwal is the applicant. After hearing the parties, the said revision was dismissed, hence this petition u/s 482 Code of Criminal Procedure.

Sri. A.D. Giri, learned Senior Advocate along with Sri. S.K. Agarwal for the applicant, Sri. N.K. Roy for the opposite party No. 2 Rajiv Nandan Mishra, and Sri. R.P. Tripathi, learned Additional Public Prosecutor for the State of U.P. have been Heard at length.

Strong reliance, was placed by the learned Counsel, for the applicant on the statements of Rajiv Nandan Misra as contained in the first information report, the protest petition and the deposition before the magistrate u/s 200 Code of Criminal Procedure. On the strength of such statement it was argued that the inference should be readily drawn that there is a genuine dispute concerning the possession of Hanuman Temple the lock of which was forcibly broken open and from within which the valuables were removed by the accused. It may be remembered that the prosecution case, as per the said statement of the informant, is that on 4-9-1986 around 7 P.M. the accused named above along with some others came to the Hanuman Temple situated on Sindhia Ghat, Varanasi, broke open the lock, removed the crown of Hanuman and also removed a Ramayan and the donation-box containing approximately Rs. 200/-. Thereafter they took out procession, obstructed the passage and the main road as a result of which the informant could not lodge the FIR promptly. In the statement of the witnesses u/s 202 Code of Criminal Procedure, there is an added sentence that some one had given a push to a constable However, it is admitted case of the parties that no harm or damage was caused to the temple, no assault was made at any individual and no person was intimidated or exhorted.

Further, the argument on behalf of the applicants was that since in the original decree passed in the earlier suit filed by Rajiv Nandan Misra, the Hanuman Temple was not specifically shown as a suit property, the said decree should not be held to apply to the rights concerning the said Hanuman Temple situated on the Sindhia Ghat. It was asserted that since possession on the said temple is said to have been the result of "delivery of possession" in proceedings u/s 145 Code of Criminal Procedure which was done in conformity with the Civil Court''s decree this Court should, in exercise of powers u/s 482 Code of Criminal Procedure quash the proceedings because nothing further remains to be seen by the magistrate.

The learned Counsel for the informant on the other hand argued that even if details regarding the assault or pushing of all or some of the witnesses is not mentioned in the statement of the informant some of the witnesses have talked about it in their statements u/s 202 Code of Criminal Procedure and, therefore, this Court need not enter into further controversy and leave the matter to be decided by the magistrate concerned. It was further argued that there was no question of any bonafide dispute, the informant was in possession over the Hanuman Temple and the accused had committed an offence which came within the purview of Sections 395 and 448 IPC and, therefore, the summoning order need not be interfered with. It was further argued that in the report lodged by the accused''s side they have practically admitted the incident in regard to which also investigation had commenced and which was found false. It was further argued that the applicant has come through a fictitious Samiti which was surreptitiously got registered but the registration was cancelled on the objections of the complainant. It was further argued that the District Magistrate''s order dated 11-8-1986 showed that the parties were asked to maintain status quo. In view of all this it was suggested that this application should be dismissed. The learned Counsel for the State has supported the said argument.

No grievance can be made of the procedure adopted by the magistrate in the instant case. It is true that it was within the power of the magistrate to straightaway summon the accused rejecting the final report if from the material produced through the investigating agency it appeared to him that a prima facie case was made out. In this connection reference has been made to the latest decision of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. reported in 1989 AWC 386. All the earlier decisions relevant on the point have been duly considered in the said ruling. But in a given case if for some reason the magistrate has treated the protest petition as a complaint and directed the complainant/informant to produce evidence under Sections 200 and 202 Code of Criminal Procedure, the said procedure will not be illegal. The existence of material or evidence, as the case may be, is a prerequisite for summoning an accused. Though it may be open to an accused to challenge an order of summoning on the ground that there was no material, he cannot be permitted to find fault with a summoning order if there is material or evidence. His right to test the said material or evidence begins after he puts in appearance in response to the summons or warrant i.e. the process of the Court. Therefore, in the instant case the magistrate was competent to proceed with the matter as a complaint case and take evidence under Sections 200 and 202 Code of Criminal Procedure.

The other part of the law which is well-settled is that sufficiency of material or the magistrate''s right to rely upon it for the sake of summoning an accused cannot be judged by a superior Court at the behest of the accused. Making out of a prima facie case alone is the requirement of law which entitles the magistrate to issue process against the accused. In the instant case the allegations made by the informant Rajiv Nandan Misra indicates prima facie that the named or unnamed accused had broken open the lock and removed some property belonging to the Temple which, as per allegations, belonged to him. Therefore, the magistrate''s order does not suffer from any infirmity. The learned Counsel for the applicant, however, tried to show that since the complainant''s case was that his family had entered into possession of the Temple situated on the Sindhia Ghat when the said Ghat was released in proceedings u/s 145 Code of Criminal Procedure in conformity with the decree of the civil Court and that the said decree does not, in fact, show that the Temple was included as a disputed property in the suit, rather it was shown only as the outer boundary, the bonafide dispute about possession is per se evident and, therefore, the magistrate should not have issued the process. Reliance was placed on a decision of the Supreme Court in the case of Suvvari Sanyasi Apparao and Another Vs. Boddepalli Lakshminarayana and Another, .

It can never be doubted that where a bonafide claim of right exists it can be a good defence to prosecution for theft. An act does not amount to theft unless there be not only legal right but no colour of a right. But, then somebody will have to show existence of the said right by leading evidence and/or bringing in circumstances during trial. An accused cannot be permitted to raise such questions of fact which depend upon an appreciation of evidence and which cannot be decided on affidavits in exercise of inherent powers conferred upon this Court by Section 482 Code of Criminal Procedure. What was the property which, in fact, was given in possession in pursuance of what was characterised as ''''having been given in possession" in proceedings u/s 145 Code of Criminal Procedure in conformity with the decree of the civil Court must have to be proved as a fact. Therefore, the argument that in the present petition this, Court should go into the question of and deciding the claim of bonafide right must be rejected. In this view of the matter the other points argued by the complainant''s Counsel need not detain us any longer and those will be left as questions of fact to be decided if and when raised during trial.

There is, however, yet another aspect of the matter which requires consideration. If the complainant''s case as devulged through his FIR, the protest petition and deposition u/s 200 Code of Criminal Procedure is taken to be true which Section of the Indian Penal Code is attracted? It is known that theft or extortion becomes robbery if any person in order to the committing of the theft or in carrying away the property obtained by theft voluntarily causes or attempts to cause hurt or wrongful restraint and when such robbery is committed by five or more persons it becomes dacoity.

According to the statement of the complainant and his witnesses, none of the accused was armed with any weapon whatsoever. Again, no one had received any injury. The complainant did not say that anyone was pushed or knocked down. It is very difficult, therefore, to infer from the said statements, for the time being, that an offence u/s 395 IPC was prima facie disclosed. However, since the order of the magistrate indicates that he had summoned all the accused under Sections 448/395 IPC, therefore, the order, insofar as the accused have, thereby been summoned u/s 395 IPC is liable to be interfered with. In view of the dictum laid down by the Supreme Court in the case of State of Karnataka Vs. L. Muniswamy and Others, , no difficulty will arise if the said order is modified to the extent that it may be treated as summoning the accused only u/s 448 IPC for the time being.

Therefore, the order of the magistrate dated 15-12-1988 as upheld in revision cannot be sustained insofar as the accused were summoned u/s 395 IPC through it, but it has to be upheld in so far as Section 448, IPC is concerned. It must be added at once that if from the evidence during trial the magistrate finds that ingredients of any other offence such as under Sections 397, 380, 452, 454, 397 and 395 IPC or any other offence mentioned in the Indian Penal Code is made out, he will proceed to frame a charge or amend it or pass committal order, as the case may be, at the appropriate stage.

In view of the discussion above this application is partly allowed. The order of the magistrate dated 13-12-1988 is quashed in so far as it proceeded to summon the accused u/s 395 IPC but is upheld in so far as it relates to Section 448 IPC. The magistrate will no proceed to dispose of the case expeditiously keeping in view the observations made in the body of this judgment.

It is further directed that if the accused are arrested and brought before the competent Court or voluntarily surrender before it, and, make an application for bail, it will be decided in accordance with law on the day it is moved.