Smt. Usha vs State of Uttarakhand and Others

Hon''ble Servesh Kumar Gupta, J.—By way of this petition, a prayer has been made to quash and set aside the order dated 28.07.2007 passed by learned Sessions Judge, Haridwar in Criminal Revision no. 436 of 2006 Ashok Kumar and others Vs. State. It has also been prayed to quash the order dated 07.09.2007 passed by learned Chief Judicial Magistrate in Misc. Application No. 194 of 2006 moved by Smt. Usha (petitioner) u/s 156(3) Cr.P.C. It has further been prayed that lower court be directed to pass appropriate order on the abovementioned Misc. Application.

It is pertinent to mention that learned counsel on behalf of applicant has been given hearing by this Court while none turns up on behalf of respondents no. 2 to 7 despite sufficient service upon them.

Having gone through the record of the case, it appears that Smt. Usha, wife of late Sri Ramesh Chandra, is a co-sharer in an agriculture land, situated in village Bahadrapur Jat, District Haridwar. While she, after demise of her husband, is working as ANM in Community Health Centre, Kairana District Muzaffarnagar. One prospective accused is Ashok Kumar, who is brother-in-law of Smt. Usha and another prospective accused is Usha, who is wife of Ashok Kumar. Smt. Usha (petitioner) moved an application u/s 156(3) Cr.P.C. to the court of Chief Judicial Magistrate with the allegations that a part of agriculture land owned by her has been sold by Ashok Kumar and his wife (Usha) to Surendra Singh (prospective accused) making Godavari Devi and Kailash Chauhan (both prospective accused) as witness of that deed while Yashpal (prospective accused) is dead writer. So all the prospective accused persons hatched a conspiracy to transfer the land owned by Smt. Usha taking benefit of identical name (Usha) possessed by wife of Ashok Kumar.

Chief Judicial Magistrate while exercising his power u/s 156(3) Cr.P.C. issued direction to the concerned police station on 14.11.2006 for registration and investigation of the matter. That order was challenged in Revision No. 436 of 2006 and the learned Sessions Judge vide judgment and order dated 28.07.2007 has held that sale deed was duly executed, hence, assertion of Smt. Usha (petitioner) regarding spuriousness of the deed is to be assessed in evidence. So prima facie, he was of the view that the matter is of civil nature. Although, at the same time he was of the view that criminal and civil prosecution can run simultaneously but in the instant controversy he did not find any propriety to get the criminal case registered at the police station and accordingly, the matter was remanded back to Chief Judicial Magistrate for reconsideration. As per his observation, learned Chief Judicial Magistrate passed impugned order dated 07.09.2007, holding that prima facie, there is no doubt regarding genuineness of the sale deed, accordingly, he rejected the application moved by Smt. Usha. Against these orders, this petition has been filed.

Having heard learned counsel for the petitioner, this Court is of the view that it is not a fit case where the matter should be got registered at the police station and direction be issued for investigation of the same. However, petitioner will be at liberty, if she so likes, to file complaint case in the court of competent jurisdiction.

With the above observations, this petition has no merits and is liable to be dismissed. The petition is, accordingly, dismissed.