Radhey Shyam Singh vs State of U.P.

Vishnu Chandra Gupta, J.—By means of the present petition under section 482 Code of Criminal Procedure (for short ''Cr.P.C.'') the petitioner has prayed for quashing of the order impugned dated 31.7.2012 passed by Additional Chief Judicial Magistrate, Court No. 17, Sultanpur in Complaint Case No. 2215 of 2011, whereby the petitioner and seven others have been summoned to face the trial under sections 147, 323, 427, 504 and 506 IPC P.S. Dhammaur, District Sultanpur and also the proceedings initiated in pursuance thereof.

Brief facts for deciding this petition are that opposite party No. 2 Asad Ullah moved an application under section 156(3) Cr.P.C. on 3.9.2011 before the learned Magistrate against the petitioner and seven others alleging therein that petitioner with his associates including labourers armed with sticks and fire arms on 1.9.2011 at 10.30 a.m. came at plot No. 44Ka and 55Ga situate in village Noorpur, Mampur, Pargana Meeranpur, Tehsil and District Sultanpur belonging to opposite party No. 2 and forcibly started digging the land of the aforesaid plots to construct the road. At that time the opposite party No. 2 was alone in his house. The petitioner and his associates abused him in filthy language and demolished the boundary wall of his Sahan and entered therein. They also dismantled his grocery shop and took away the items kept therein along with tin shed, by which the shop was covered. They also cut the trees of guava and neem standing on the boundary wall, which were about ten years old. They also thrown out the Kolhu (sugar crusher) installed in the Sahan of the opposite party No. 2 and after digging out the boundary wall constructed the road thereon. Thus they caused loss of several lacks of rupees to opposite party No. 2. When the family members of opposite party No. 2 tried to stop the petitioner and his associates, they were abused by them. Upon protest, they assaulted opposite party No. 2 by catching his hair and bolted him in room. Their hellish action was continued till 3.00 p.m. It is also alleged therein that wife of petitioner is presently Village Pradhan and wife of Vijai Kumar is also Village Pradhan of Dhammaur Village Panchayat. They are bully persons. The opposite party No. 2 went to police station Dhammaur to lodge a first information report against the petitioner and his associates. The Station Officer of police station Dhammuar did not lodge the report and threatened him to challan in Gangster Act. In this regard, opposite party No. 2 gave applications to the police authorities, but no action has been taken thereon.

The application under section 156(3) was treated as complaint by the learned Magistrate vide order dated 17.11.2011. The statement of opposite party No. 2 and his witnesses were recorded under sections 200 and 202 Cr.P.C. and after considering the material on record the learned Magistrate proceeded to summon the petitioner and seven others named in the application under section 156(3) Cr.P.C.

The petitioner has challenged the proceedings on the ground that no such incident was ever taken place and the complaint has been filed as counter blast as the police and administrative authorities removed the encroachment made by opposite party No. 2 on gaon sabha land. The opposite party No. 2 gave an application on 21.9.2011 to the Minority Commission, wherein it was found that the allegation made by opposite party No. 2 against the petitioner and his associates are incorrect. The commission held that opposite party No. 2 encroached more land than that was recorded in his name. He has occupied the land of one Sabbir Ahmad. Actually the land of Sabbir Ahmad, who is tenure holder of plot No. 44-Ga. has been used by the Gram Panchayat for construction of drain and road. The encroachment of opposite party No. 2 was removed in accordance with law after measurement made by revenue authorities. The Gram Sabha is competent to remove the encroachment of its own land as provided under the provisions of Rule 115-C of U.P. Zamindari Abolition and Land Reforms Rules, 1952 and section 209 of U.P. Zamindari Abolition and Land Reforms Act, 1950 and by way of summary proceeding under section 212-A of the Act for ejectment of public utility land. Thus every thing has been done within the four corners of law. The opposite party No. 2 after encroaching the land erected the boundary wall thereon and stopped the drainage which was removed in accordance with law.

Heard Shri Anurag Shukla, learned counsel for the petitioner and the learned A.G.A. None appeared on behalf of opposite party No. 2 despite sufficient service of notice upon him.

Learned counsel for the petitioner submits that in view of the judgment of Apex Court in Anjani Kumar Vs. State of Bihar and Another, the action taken in counter blast with mala fide intention will amount to abuse of process of court and the proceedings are liable to be struck down. He also relied upon the judgments of Apex Court reported in Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. and Others, and Rajiv Thapar and Others Vs. Madan Lal Kapoor, and has submitted that proceedings can be quashed on the basis of documents of unimpeachable character filed by the accused at the stage of challenging the summoning order in superior Court.

Per contra, learned A.G.A. appearing for the State submits that remedy of revision is available to the petitioner to challenge the summoning order, hence this petition is not legally maintainable.

Replying the argument of the learned A.G.A., the learned counsel for the petitioner submits that in view of judgment of Apex Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, the criminal proceedings can be quashed in exercise of powers under Article 226 or 227 of Constitution of India or section 482 Cr.P.C. The nomenclature under which petition has been filed is not relevant. Petition under Article 226 can be treated as one under Articles 227 or 482 Cr.P.C. Power of the court to discharge the accused at the stage of framing of charge or existence of remedy of appeal and revision could not create a bar to invoke the jurisdiction of the High Court under Article 226 or 227 of Constitution of India or 482 Cr.P.C.

In Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, the Hon''ble Apex Court held as under:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 10. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, . The illustrative categories indicated by this Court are as follows:-

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

The Supreme Court in Rajiv Thapar and Others Vs. Madan Lal Kapoor, cautioned High Courts in exercising the jurisdiction under Section 482 and observed as under:

"28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held." 12. I have considered the arguments of the learned counsel for the parties. The argument on behalf of the petitioner has been advanced treating the petitioner as Village Pradhan. Being husband of Village Pradhan the petitioner has no authority under law to act as Village Pradhan. It is not in dispute that plot Nos. 44 Ka and 45Ga belong to opposite party No. 2. If a person is in settled possession, may be illegal, cannot be evicted except in accordance with law. Admittedly, no proceedings under section 133 Cr.P.C. or Z.A. and L.R. Act were initiated. Moreover, due process of law has not been adopted and the petitioner and his associates forcibly demolished the boundary wall and constructed the road and drain thereon. Therefore, entire action of the petitioner and his associates comes within the ambit of criminal offence.

The report of Minority Commission that land of Sabbir Ahmad has been used for drainage and road construction with his consent and the opposite party No. 2 made encroachment on his land, is wholly irrelevant at this stage. Though the photostat copy of report of Minority Commission has been submitted by the petitioner but the basis on which report has been given, has not been brought on record. The report of Minority Commission is not conclusive proof of the fact alleged therein. Moreover, the defence of petitioner could be looked into during the course of the trial and not at this stage.

In this case, the allegations made in the complaint, prima facie, constitute alleged offence and make out the case against the petitioner. The allegations made in complaint seems to be probable. There is no legal impediment in proceeding with the case against the petitioner. There appears no reason to conclude at this stage that the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner. The defence of petitioner could not be considered at this stage in absence of any material or document of unimpeachable character.

The cases of Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. and Others, and Rajiv Thapar and Others Vs. Madan Lal Kapoor, are not applicable in this case on fact.

Having considered the facts and circumstances of the case, I am of the firm view that this petition lacks merit and deserves to be dismissed.

In view of the above, this petition is dismissed. The interim order, if any, shall stand discharged.