Ajay Kumar Bajpai Vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

APPLICATION U/S 482 No. - 2405 of 2021

Ajay Kumar Bajpai

.....Applicant(s) Versus State of U.P. and Another .....Opposite Party(s) Counsel for Applicant(s) : Ashish Raman Mishra Counsel for Opposite Party(s) : G.A., Anilesh Tewari, Desh Deepak Singh, Mohit Nigam

¶5

Court No. - 29

¶6

HON'BLE DR. GAUTAM CHOWDHARY, J.

¶7

List revised. None appears for the opposite party no.2.

¶8

Heard learned counsel for the applicant, Sri Sanjai Kumar Yadav, learned A.G.A. for the State and perused the record.

¶9

This application under Section 482 Cr.P.C., has been filed for quashing the proceedings of Case No. 4699 of 2019 (State Vs. Ajay Kumar Bajpai) arising out of Case Crime No. 276 of 2018 under Sections 504, 506, 447, 427 I.P.C., Police Station Fakharpur, District Bahraich pending before learned Judicial Magistrate Bahraich as well as to quash the charge sheet no. 1 of 2018 dated 31.01.2019 and also the impugned summoning order dated 16.03.2019 passed in the aforesaid case.

¶10

Brief facts of the case are that a first information report has been lodged by the opposite party no.2 on 27.12.2018 at about 12:20 hours with regard to the incident alleged to have taken place on 25.12.2018 at about 23:30 hours with the averments that informant is absolute owner of the Gata No. 203 area 1.720 hectare (herein after to be referred to as "land in dispute") situated at Village Bijjavarpur, Pargana Fakharpur, Tehsil Qaiserganj and only his name has also been recorded over the the land in dispute over which crops were also standing. On 25.12.2018 at about 11:30 P.M., he was intimated that the standing crops are being destroyed by the applicant and when he reached the field, he saw that half of his crops were destroyed,

¶11

A482 No. 2405 of 2021

¶12

2

¶13

upon resistance, he was abused and beaten and when the police reached the spot, he ran away. Upon aforesaid averments, a first information report was lodged in Case Crime No. 0276 of 20218 under Sections 504, 506, 447, 427 I.P.C., registered at Police Station Fakharpur, District Bahraich. Thereafter investigation was carried out, which has been culminated in submission of charge sheet, upon which cognizance was taken vide order 16.03.2019 and the accused applicant has been summoned to face trial under Sections 504, 506, 447, 427 I.P.C.

¶14

Learned counsel for the applicant has contended that the applicant and the opposite party no.2 are real brother. He further submits that the applicant is a Home Guard and at the time of alleged incident, the applicant was on his official duty, in this regard learned counsel has drawn attention of this Court to the G.D. Entry No. 28 demonstrating that the applicant was on his duty at 18:00 Hours, copy of which is at page no. 41 of the paper book. Learned counsel further argued that the applicant duty hours is six hours, therefore, the applicant was on duty till 24:00 hours in the night and the incident is alleged to have taken place at about 11:30 P.M., therefore the allegations levelled against the is false and concocted. Learned counsel has further argued that the land in question was purchased by the father of the applicant/informant during his life time but at the time of purchase of the land, the applicant and his brother were not born but the opposite party no.2 was aged about six years thus the same was purchased in his name. After his father's death, the applicant, opposite party no.2 and another brother namely, Vijay Kumar became the owner of the land in question having equal share. Learned counsel next argued that the dispute arose between the parties when the opposite party no.2 tried to dispossess the applicant and his brother as such a suit was filed by the applicant before the Sub-Divisional Officer, Qaiserganj, District Bahraich being its Suit No. 66/42/10 under Section 229-B of Land Revenue Act read with Section 176 of Z.A. Act, in which interim order of status quo has been granted vide order dated 13.05.2005, which order was extended from time to time. He further submits that in the aforesaid suit, the opposite party no.2 had filed an application for vacation of the interim order, which has been rejected vide order dated 07.08.2006. Learned counsel next argued that civil dispute has been dragged into criminal prosecution of the applicant at the behest of the opposite party

¶15

A482 No. 2405 of 2021

¶16

3

¶17

no.2, which cannot be sustained. Learned counsel thus argued that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. In support of his submissions, learned counsel has relied upon paragraph nos. 14, 15, 16, 19 of the recent decision of Hon'ble Apex Court rendered in the matter of P.M.Lokanath and others Vs. State of Karnataka and others , passed in Criminal Appeal No. 2514 of 2014 reported in 2025 (2) RCR (Criminal) 11, which are quoted below:-

¶18

"14. From the perusal of record, it is clear that it is the Appellants, who have filed two civil suits i.e. one for permanent injunction and the other for the declaration of the ownership of the suit property.

¶19

15. In the suit for permanent injunction, an order Under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure has been passed by the Principal City Civil and Sessions Judge, Bangalore on 19th December, 2006, thereby restraining respondent no.2 and his siblings from interfering with the physical possession of the Appellants.

¶20

16. It is thus clear that the allegations in the F.I.R. are totally absurd. When Respondent no.2 has not filed any suit, there is no question of Appellants threatening him of dire consequences if he does not withdraw the suit. It further appears from the record that Respondent No.2 is in the habit of filing false cases against the Appellants and his family members.

¶21

19. We are, therefore, of the considered view that Respondent no.2 and his relatives are in the habit of filing false and malicious cases against the Appellants only on account of long standing civil dispute between them."

¶22

Learned A.G.A. submits that the arguments raised by learned counsel for the applicants involves adjudication of a factual dispute and appraisal of evidence and the impugned summoning has been rightly passed by the concerned Court after considering

¶23

A482 No. 2405 of 2021

¶24

4

¶25

the evidence adduced before it, therefore the instant application is liable to be dismissed by this Court.

¶26

The Hon'ble Apex Court in the matter of P.M.Loknath and others (supra) has observed in paragraph no.14 that the appellants in the case, filed two civil suits one for permanent injunction and other for declaration of ownership of the suit property. In a suit for permanent injunction, an order Under Order XXXIX Rules 1 and 2 has been passed on 19th December, 2006 thereby restraining the respondent no.2 and his siblings from interfering with the physical possession of the appellants. However in the instant case, the suit for declaration has been filed by the applicant declaring the applicant, opposite party no.2 and their another brother as owner of 1/3rd share each and they be declared owner of the land in question. So far as interim order granted in the suit is concerned, there is no such interim order that the opposite party no.2 has been restrained from interfering in the possession of the applicant over the land in dispute, rather the order has been passed restraining the opposite party no.2 from selling the land in question. Furthermore, there is no whisper as to who is in the possession over the land in dispute rather it is evident from the perusal of the khatauni that the name of the opposite party no.2 has been exclusively recorded over the land in dispute, copy of which is at page no.56 of the paper book. Moreover, there is nothing on record to demonstrate that whether the applicant had ever in possession over the land in dispute or not and therefore the rulings cited before this Court in not applicable in the present case. Apart from the same, so far as the submissions advanced by learned counsel for the applicant that the applicant was on his official duty on 25.12.2018 at about 18:00 hours and the duty is of six hours as such he was on his duty till 24:00 hours is concerned, the plea of alibi may be seen at the stage of trial. Thus, the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant at this stage. All the submissions made at the bar, relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu

¶27

A482 No. 2405 of 2021

¶28

5

¶29

Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 .

¶30