Tej Pratap Singh and Another vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed by the applicants Tej Pratap Singh and Smt. Manju Singh with a prayer to quash the proceedings of Complaint Case No. 2720 of 2007 under Sections 218, 464, 465, 468, 471 and 504, I.P.C. pending in the court of learned Additional C.J.M., Sonbhadra and the order dated 19.8.2008, passed by the learned Additional Sessions Judge, Sonbhadra in Criminal Misc. Revision No. 57 of 2008, whereby the revision filed by the applicant had been dismissed.

The facts of the case in brief are that a complaint has been filed on 6.1.2007 by O. P. No. 2 Babu Lal Pal in the Court of learned C.J.M., Sonbhadra, thereafter, statement under Sections 200 and 202, Cr. P.C. was recorded, after considering the same the learned Magistrate concerned has taken cognizance and summoned the applicants to face the trial, thereafter, the applicants moved an application for recalling the cognizance order on different grounds, the same was rejected by the learned A.C.J.M., Sonbhadra on 5.9.2008, thereafter, the learned A.C.J.M., Sonbhadra has framed the charge for the offence punishable under Sections 465, 468, 471 and 504, I.P.C. and separate charge for the offence u/s 218, I.P.C. against the applicant Tej Pratap Singh and co-accused Rajmani on 11.4.2008. The applicants challenged the order dated 5.2.2008 by which the learned A.C.J.M., Sonbhadra has rejected the application u/s 245(2), Cr. P.C. in the Court of learned Sessions Judge, Sonbhadra by way of filing a Criminal Revision No. 57 of 2008, the same has been dismissed on 19.8.2008 by the learned IInd Additional Sessions Judge, Sonbhadra by which the revisional court has affirmed the order dated 11.4.2008 also by which the charge has been framed against the applicants.

Being aggrieved from the order dated 19.8.2008, the applicants filed this application with a prayer to quash the order dated 19.8.2008, passed by the learned IInd Addl. Sessions Judge, Sonbhadra and the proceedings of the Complaint Case No. 2720 of 2007 pending in the court of learned A.C.J.M., Sonbhadra.

Heard Sri K.M. Tripathi, learned Counsel for the applicants and the learned A.G.A. for the State of U.P.

It is contended by the learned Counsel for the applicants that in pursuance of the order dated 20.11.1986, passed by the Apex Court, in Criminal Misc. Writ Petition. No. 106 of 1982, State Government published a notification u/s 4 of the Forest Act for determining the bhumidhari right of the tenure holders, who were in possession over the land prior to 1385 F. or 30th June, 1978, under survey operation, the possession of the applicants was found over Gata No. 1794/302 J, thereafter their names have been recorded as bhumidhar in the revenue record vide order dated 10.7.1986 but O. P. No. 2 has not filed any objection nor it has been challenged, one Laxmi Narain owner/bhumidhar of Gata No. 293 executed a power of attorney in the name of 0. P. No. 2 on 8.12.1995, O. P. No. 2 sold the property of Gata No. 293 to his wife Smt. Prabha Devi Pal and to grab the land the applicants filed suit no 28 of 1998 u/s 229B of U.P.Z.A. and L.R. Act in the Court of S.D.M., Robertsganj, when Laxmi Narain came to know about it, he cancelled the power of attorney dated 8.12.1995 on 29.9.2007 and also not pressed the Suit No. 28 of 1998 on 24.10.2007, for the purpose of harassing the applicants O. P. No. 2 filed a complaint and the present case, which is based on false and frivolous allegation but the learned Magistrate concerned has taken cognizance in a mechanical manner without applying the judicial mind, the cognizance is barred by Section 197, Cr. P.C., thereafter, the applicants moved an application u/s 245(2), Cr. P.C., the same has been illegality rejected by the learned Magistrate concerned on 11.4.2008, the revisional court has also not considered the illegality done by the learned Magistrate in rejecting the application u/s 245(2), Cr. P.C. on 11.4.2008 and the illegality committed in framing of the charge dated 11.4.2008, the learned revisional court has dismissed the revision. The impugned order dated 19.8.2008 is illegal, even on the basis of the allegation made against the applicants no offence is made out, the remedy available to O. P. No. 2 is of filing the suit etc. in civil court and O. P. No. 2 was not having any locus standi to file the complaint of this case and the applicants is entitled to get the benefit of Section 197, Cr. P.C. because no sanction for prosecution has been obtained because applicant No. 1 was posted as Survey Lekhpal.

In reply to the above contention it is submitted by the learned A.G.A. on the basis of the allegation made in the complaint and the statement recorded under Sections 200 and 202, Cr. P.C., a prima facie offence is made out. The learned Magistrate concerned has not committed any error in passing the order dated 5.2.2008 by which the application u/s 245(2), Cr. P.C. filed by the applicants has been rejected, the learned Magistrate has not committed any error in framing the charge against the applicants on 11.4.2008, the revisional court has not committed any error in dismissing the revision on 19.8.2008 because the benefit of sanction u/s 197, Cr. P.C. may not be given to the applicant No. 1 because the act done by him was not during the discharge of his duty, it is a separate offence and the allegations are of purely criminal in nature. The remedy, if any, is available from the civil court in respect of the right of O. P. No. 2, if it is not available to him, he may approach the civil court in future, the applicants may not be exonerated for the offence, the present applicant is devoid of merit, the same may be dismissed.

Considering the submission made by the learned Counsel for the applicants and the learned A.G.A. and from the perusal of the record it appears that in the present case O. P. No. 2 has lodged a complaint, thereafter statement under Sections 200 and 202, Cr. P.C. has been by the learned Magistrate, considering the same the learned Magistrate concerned has taken cognizance and summoned the applicants to face the trial, the complaint and the statement recorded under Sections 200 and 202, Cr. P.C., prima facie discloses the commission of the offence, the learned Magistrate concerned has not committed any error in taking the cognizance and summoning the applicants to face the trial and the learned Magistrate concerned has not committed any error in rejecting the application u/s 245(2), Cr. P.C. vide order dated 5.2.2008, the learned trial court has not committed any error in framing the charge for the offence punishable under Sections 465, 468, 471 and 504, I.P.C. against the applicants and u/s 468, I.P.C. against the applicant Tej Pratap Singh, revisional court has also not committed any error in dismissing the revision vide order dated 19.5.2008. So far as the plea regarding Section 197, Cr. P.C. is concerned, it may be considered by the trial court at the stage of the trial. Therefore, the prayer for quashing the impugned order dated 19.8.2008, passed by the IInd Additional Sessions Judge, Sonebhadra in Criminal Revision No. 57 of 2008 and to quash the proceedings of Complaint Case No. 2720 of 2007 pending in the Court of learned Additional C.J.M., Sonbhadra is refused.

However, considering the facts and circumstances of the case, it is directed that the applicants shall appear before the Court concerned within 30 days from today till then N.B.W. issued against them shall be kept in abeyance. In case they apply for bail, the same shall be heard and disposed of on the same day.

With the above direction this application is finally disposed of.