Mohammad Aslam vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—By way of this criminal miscellaneous application, the prayer has been advanced to quash the order of the revisional court dated 14.6.2006 dismissing the revision No. 35/2006, Mohd. Aslam v. State. The said revision was filed challenging the order of Judicial Magistrate 7.1.2006, whereby the Magistrate had refused to take cognizance of the matter and dismissed the complaint No. 564 of 2005, Mohd. Aslam v. Noor Hasan and Ors. u/s 203 Code of Criminal Procedure It has further been prayed that the learned Magistrate may be directed to take cognizance in the matter and summon the Respondents.

The bone of contention between the parties lies over an agricultural land situated in village Salempur Mehdood, Tehsil and District Haridwar bearing new Khata No. 140, Gata No. 1764, area 2-12-0 hectare. The said land, as per the averments of Mohd. Aslam, is in his possession for the last 40 years coming from his ancestors and recorded in the Category-9 of the concerning revenue record. This category does mean that he does not own the said land but yet occupying the same, while the name of one Sri Jimmu S/o Fakira over the said land was recorded in C.H. Form-5 showing his ownership over the land. Sri Jimmu made a sale deed of the same land in favour of Noor Hasan, who in turn after some time, further sold it to Respondent Nos. 6 to 10. It appears that Jimmu is now no more and his successors Respondent Nos. 4 and 5, namely, Akhtar Hasan and Wahid Hasan have been impleaded as the accused in the complaint No. 564 of 2005.

Feeling aggrieved by the said sale deed, the civil litigation started between the two and simultaneously, Mohd. Aslam filed a complaint on dated 8.11.2005 with the facts that on 22.10.2005 when he was busy in his work over the said land, the accused persons came there. All the accused assaulted him and his brother Akram with fists, kicks and slapped them. They all forced him to leave the agricultural land. Anyhow he could save his life from the accused persons. Complainant examined his brother Akram u/s 202 Code of Criminal Procedure but the Magistrate, having gone through the statements of the complainant and witness Akram and after perusal of the facts, refused to take cognizance in the matter and dismissed the complaint on dated 7.1.2006. After filing the revision, the learned Sessions Judge also affirmed the order of Magistrate and, as such, the revision was dismissed.

This Court has heard the learned Counsel of both the parties and is in agreement with the views, as taken by the trial court as well as the revisional court for the reason that this complaint obviously arose out of vengeance just to exert the pressure upon all the accused persons, who have got executed a sale deed from a rightful owner. The incident does not inspire confidence for yet another reason, inasmuch as, if five persons (accused) assaulted the complainant and his brother so vigorously, as described in the complaint, then the signs of assault should have been apparent on the body of complainant, which were not found, and that is why he did not submit himself for medical examination.

This miscellaneous application u/s 482 Code of Criminal Procedure is barred by yet another reason. Applicant Mohd. Aslam has already preferred the revision against the order of the Magistrate to the court of Sessions Judge and the powers of the Sessions Judge, hearing a revision, are equivalent to that of the High Court, as envisaged by Section 399(1) Code of Criminal Procedure This has been clarified by the Hon''ble Apex Court in the precedent of " Dharampal and others Vs. Smt. Ramshri and others, ". In that case too, the Sessions Judge dismissed the revision u/s 397 Code of Criminal Procedure Then, the Apex Court held that Section 399(3) bars the second revision application by the same party. It was further held that the settled position of law is that inherent powers u/s 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Court. Hence, the High Court, which had entertained the petition u/s 482 Code of Criminal Procedure, had clearly erred in entertaining the second revision under the garb of Section 482 Code of Criminal Procedure at the instance of revisionist. On this short ground itself, the impugned order of the High Court was set aside by the Apex Court.

So, in view of the above, this petition is liable to be dismissed on both the scores, i.e. on merits as well as lack of entitlement of the Petitioner to invoke the powers of this Court u/s 482 Code of Criminal Procedure Petition is, accordingly, dismissed.