Saroj Devi Pandey and Others vs State of U.P. and Another

K.N. Sinha, J.—By means of present application u/s 482, Cr. P.C. the applicant has prayed for quashing of the proceeding of Criminal Case No. 3572 of 1997, Suraj v. Smt. Saroj Devi and others, under Sections 420, 467, 468 and 471, I.P.C. Police Station, Kasya, district Kushi Nagar.

The brief facts, giving rise to this application, are that Respondent No. 2 filed an application u/s 156(3), Cr. P.C. before the Additional C.J.M. Kasiya. It appears that it was treated as complaint case and the Magistrate, after examining two witnesses u/s 202, Cr. P.C. summoned the applicants as accused, by his order dated 17.8.1999, which is Annexure-4 to the application.

This order has been challenged on the ground that no case is made out by the evidence adduced by the complainant and Respondent No. 2 is an imposter and has somehow managed to procure the residence certificate on the basis of which, he filed the application.

Counter-affidavit was filed on behalf of Respondent No. 2 and rejoinder-affidavit was filed by the Petitioner.

Counter-affidavit was filed on the ground that the statement of two witnesses was recorded u/s 202, Cr. P.C. which shows that the applicants, with mala fide intention to grab the property, prepared a false Will showing the Respondent No. 2 to be dead and moved Tahsildar to get the name of Applicant No. 1, mutated. The Respondent No. 2 had no remedy except to approach the Court and the Court has passed the said order after being prima facie satisfied. In the rejoinder-affidavit, the contents of the petition have been reiterated.

I have heard learned Counsel for the applicants and learned A.G.A. Sri R. K. Sahi, learned Counsel for Respondent No. 2 did not turn up to argue the case.

Learned Counsel for the applicant has made the first submission that the application was moved u/s 156(3), Cr. P.C. but it was treated as complaint and this Court in Shyam Lal Jaiswal v. State of U. P., 2003 (46) ACC 1164, has held that power u/s 156(3), Cr. P.C. is quite different to the power u/s 200, Cr. P.C. and the application u/s 156(3), Cr. P.C. cannot be registered as complaint. In this case, the application u/s 156(3), Cr. P.C. was moved by Respondent No. 2 and the Court ordered the same to be registered as complaint. The statement of witnesses were recorded and summoning order passed. The Respondent No. 2 did not raise any such objection before the Magistrate at any point of time. Moreover, the statement under Sections 200 and 202, Cr. P.C. has already been recorded and summoning order has already been passed. Thus, at this stage, this authority does not help to the applicants.

I have perused this complaint, Annexure-1 to the application, which shows that Respondent No. 2 was shown as dead and the Will was prepared by the applicants, who also moved for mutation on the basis of that Will in respect of the property of Respondent No. 2. Not only that, the applicants succeeded in recording the name of Smt. Saroj Devi, they also made an effort to dispossess him. On this complaint, the statement of Mahatama Tiwari, village Pradhan was also recorded, who stated that the Respondent No. 2 Suraj Pandey is alive and his nephew has wrongly shown him to be dead and prepared the Will.

Section 202, Cr. P.C. lays down that any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself... as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

According to law laid down by the Apex Court in the case of Smt. Nagawwa v. Veeranna Shiva-linagappa Nonjalgi and others, 1979 (13) ACC 224 (SC), the enquiry u/s 202, Cr. P.C. is limited only to ascertainment of truth or falsehood of the allegations made in the complaint-firstly, on the material placed by the complainant and secondly, for limited purpose of finding out whether a prima facie case for issuing of process is made out or not.

In S. W. Palanitkar and Ors. v. State of Bihar and Anr. 2002 (1) ACR 219 (SC): AIR 2001 SC 2926, the terms ''sufficient ground'' has been explained to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

In view of the above authority the enquiry u/s 202, Cr. P.C. is limited only to the fact that the Magistrate will see whether prima facie case is made out showing sufficient ground to summon the accused. In the present case, at hand, the complainant has examined himself and the witnesses to show that the applicants, treating him to dead prepared a forged Will with a view to grab his land and applied for mutation. This fact has also been supported by village Pradhan. The person coming forward and deposing that he is not dead, is more than sufficient evidence to substantiate his complaint. It makes out a prima facie case to proceed against the accused.

The learned Magistrate has rightly summoned the accused and it is not a case of misuse of process of the Court. Hence, the application u/s 482, Cr. P.C. is hereby dismissed. Interim order, if any, stands vacated.