Girja Shankar Singh and Others Vs State of U.P. Thru. the Secy. Deptt. of Home, Lko. and Another

Neutral Citation No. - 2023:AHC-LKO:43570

Court No. - 28

Case :- CRIMINAL MISC. WRIT PETITION No. - 3836 of 2023

Petitioner :- Girja Shankar Singh And Others Respondent :- State Of U.P. Thru. The Secy. Deptt. Of Home, Lko. And Another Counsel for Petitioner :- S.P. Singh Somvanshi Counsel for Respondent :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Order on Application dated 03.07.2023

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In compliance of the order dated 18.05.2023, the applicant has moved an amendment application dated 03.07.2023, wherein, he has prayed that he may be allowed to correct the pleadings as mentioned in para 5 transcribing the word 'permanent injunction' on place of 'permanent' in para 5 of the pleadings.

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Learned counsel for the State has no objection to the submission aforesaid.

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In view of the aforesaid submission, the present applicant is allowed to correct the same during course of the day.

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Order on Memo

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Heard learned counsel for the petitioner, learned AGA for the State and perused the material placed on record.

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The instant application has been filed with a prayer to quash the order dated 23.03.2022 passed by the Additional Chief Judicial Magistrate, Kunda, Pratapgarh in complaint case No. 433/2020 (Shiv Sagar Singh Vs. Girja Shankar Singh and others) as well as N.B.W. Order dated 24.01.2023 passed by the concern Court and order dated 02.02.2023 dismissed the revision of applicant and affirms the order of the Additional Chief Judicial Magistrate, Shri Pradeep Kumar Singh-II, Session Judge, Pratapgarh.

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The learned counsel appearing for the petitioners submits that the petitioners are innocent and have falsely been implicated in the instant matter. He next added that initially the present petitioners filed a suit for permanent injunction against the opposite party no. 2, Shiv Sagar Singh with a prayer that he

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should be restrained to interfere with a peaceful possession over the land in question. He added that in fact the dispute pertains to the matter, which is civil in nature and that is being given colour of criminality. He next added that the order impugned dated 23.03.2022 which has been passed by the trial Court is without recording reasons. Drawing attention towards the same, he added that it is a settled proposition of law that once the proposed accused was summoned in complaint case, it is mandate that the reason must be recorded. Adding his arguments, he submits that from bare perusal of the impugned order, it emerges that the reason has not been recorded and the present petitioners have been summoned. In support of his contention, he has placed reliance on a judgement reported in (2020) 10 SCC 710; Hitesh Verma Vs. State of Uttarakhand & Anr. and Writ Petition (Crl.) No. 1593 of 2006 & Criminal M.A. No. 6859 of 2006; Ashwani Kumar Vs. State & Anr. and added that the case of the present petitioners is covered with the ratio of the aforesaid judgement. He further added that against the order dated 23.03.2022, the present petitioners preferred a revision but the perversity as well as the erroneousness raised by the present petitioner, have not been considered and the application has been dismissed. Thus, submission is that the order dated 23.03.2022 and 02.02.2023 may be set-aside.

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On the other hand, the learned counsel appearing for the State has vehemently opposed the contention aforesaid and submits that there is disputed question of fact which can be decided by the trial Court. He next added that the learned trial Court has rightly passed the order dated 23.03.2022 as the facts have been narrated over there and the present petitioners have been summoned and thus no interference is warranted in the instant matter.

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Considering the submissions of the learned counsel for the parties and after perusal of the material placed on record, it transpires that the applicants have been summoned vide order dated 23.03.2022. From bare perusal of the order impugned, it is evident that the reasons have not been recorded and facts have been narrated therein which shows that the same is against settled proposition of law.

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This Court has further noticed the fact that even the revisional Court did not apply its mind over the aforesaid unlawfulness in the order impugned and has dismissed the revision of the present petitioners.

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In view of the aforesaid submissions and discussions, the order dated 23.03.2022 and 02.02.2023 are hereby set-aside and the

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matter is remitted back to the trial Court to pass fresh order adhering thereto the settled proposition of law, while recording the reasons in detail, for summoning the accused persons.

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The learned counsel for the applicant is directed to submit this order before the trial Court within a period of one week, failing which the benefit of this Order will not remain available to him. If the order is intimated to the trial Court, the trial Court shall pass fresh order within a further period of 30 days from the date of the order is produced, strictly in accordance with law.

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With the aforesaid observations, the instant application is hereby allowed .

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Order Date :- 6.7.2023 Anurag

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Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Girja Shankar Singh and Others v. State of U.P. Thru. the Secy. Deptt. of Home, Lko. and Another

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Girja Shankar Singh and Others v. State of U.P. Thru. the Secy. Deptt. of Home, Lko. and Another

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