Phulgain and 3 Others Vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 482 No. - 8825 of 2023

Phulgain And 3 Others .....Applicant(s) Versus State of U.P. and Another .....Opposite Party(s) Counsel for Applicant(s) : Dhirendra Kumar Srivastava Counsel for Opposite Party(s) : G.A., Rachna Vyas, Syed Wajid Ali

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Court No. - 75

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HON'BLE SAMIT GOPAL, J.

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1. List revised.

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Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicants, Ms. Rachna Vyas, learned counsel for the opposite party no. 2, Sri Devendra Nath Mishra, learned counsel for the State and perused the record.

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Despite name of Ms. Rachna Vyas being printed in the cause list, there is no vakalatnama on the record. Office to trace it out and place it on the record and make a note about it in the order sheet.

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This application under Section 482 Cr.P.C. has been filed by the applicants- Phulgain, Baliram, Rajendra and Rajeshwar with the following prayers:-

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"It is, therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned summoning order dated 10.11.2022 as well as entire criminal proceedings of Criminal Complaint Case No. 5390 of 2022, under Sections 420, 468, 471 I.P.C., Police Station Chandauli, District Chandauli, pending before the court of Civil Judge (Senior Division)/Fast Track Court, Chandauli.

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It is further prayed that further proceedings of the aforesaid Criminal Complaint Case No. 5390 of 2022 in pursuance of the summoning order dated 10.11.2022 may kindly be stayed during the pendency of the present application under Section 482 Cr.P.c. before this Hon'ble Court, so that the justice may be done; otherwise the applicants shall suffer irreparable loss and injury and/Or may pass such other and further orders which this Hon'ble Court may deem fit and proper under the circumstances of the case."

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Counter affidavit dated 31.03.2023 of the State is on the record.

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A482 No. 8825 of 2023

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Learned counsel for the applicants submits that he does not propose to file any rejoinder affidavit to the same.

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Learned counsel for the opposite party no. 2 submits that she does not propose to file any counter affidavit in the matter.

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A complaint dated 11.8.2022 was filed by the opposite party no. 2 against the applicants (Phulgain, Baliram, Rajendra, Rajeshwar) and Shubham Prajapati for the offences under Sections 500, 501 and 384 I.P.C. with the allegation that on 08.11.2021 he had purchased a land from Rakesh falling in Arazi No.1334 having area 1146 square feet equal to 106.60 square meter, situated at Mauja- Chandauli on its appropriate value and on 08.11.2021 in Arazi No. 1333 area 2616 square feet equal to 243.12 square meter situated at Mauja- Chandauli from Rakesh Prajapati and Phoolwanti. Names of Rakesh Prajapati and Phoolwanti were recorded as owners in possession in the land in revenue records. On the basis of sale deed dated 8.11.2021 the complainant came in possession of the said land. He then moved an application for mutation before Tehsildar, Chandauli but the accused as being a party made objection regarding it on 08.07.2022 for which they had no legal right. They are people of criminal nature and are involved in disputed dealings of land. They made objection with intention to cause dispute. They used unparliamentary language. They even demanded money for getting the name mutated in the revenue records. In support of the complaint the statement of the complainant under Section 200 Cr.P.C. and the statement of Namvar Singh as P.W.-1 under Section 202 Cr.P.C. and Rajan Singh as P.W.-2 under Section 202 Cr.P.C. were recorded. Vide order dated 10.11.2022 passed by Civil Judge (Senior Division)/F.T.C., Chandauli Phulgain, Baliram, Rajendra, Rajeshwar were summoned for the offences under Sections 420, 468, 471 I.P.C. The present application has thus been filed before this Court with the aforesaid prayers.

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A co-ordinate Bench of this Court vide order dated 16.03.2023 passed the following orders:-

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"A perusal of the impugned complaint, the material in support thereof and the impugned order passed by the Magistrate at Chandauli dated 10.11.2022 shows that the Magistrate has summoned the applicants to stand trial for offences punishable under Sections 420, 468 & 471 IPC when prima facie none of those offences or any other offence is disclosed against the applicants.

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The allegations in substance against the applicant are that the complainant after purchase of certain land from its recorded tenure holder has applied for mutation which the opposite parties, using their resources, are opposing and not permitting to be effected. The applicant alleges that this has led to his good reputation in society and honour being adversely affected.

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There is no doubt an allegation that the applicants have demanded money from the complainant in order to let his mutation go through as such about that there is hardly and intangible evidence on record.

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A482 No. 8825 of 2023

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Admit.

Issue notice.

Notice be made returnable on 13.04.2023.

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Learned AGA to file a counter affidavit within four weeks.

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Opposite party No.2 may file return within the same period of time.

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List on 13.04.2023.

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Until further order, proceeding in Complaint Case No. 5390 of 2022 under Section 420, 468 & 471 IPC, P.S. Chandauli, District Chandauli, pending before Civil Judge (Senior Division)/Fast Tract Court, Chandauli, shall remain stayed."

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Submission of learned counsel for the applicants is that the order summoning is totally erroneous inasmuch as the applicants have been summoned under Sections 420, 468 and 471 I.P.C. whereas no offence whatsoever is made out against them in the said sections as per the complaint and even enquiry conducted by the trial court concerned. It is submitted that as such the summoning order is bad in the eyes of law and thus the impugned summoning order and the proceedings be quashed.

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Learned counsel for the opposite party no.2 submits that although 5 accused have been named in the complaint but only 4 have been summoned vide order dated 10.11.2022 under Sections 420, 468, 471 I.P.C. whereas the allegations in the complaint are totally different and the offences are totally different than that under which sections they have been summoned.

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Learned A.G.A. has also been heard who has opposed the prayers and the petition.

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After having heard learned counsels for the parties and perusing the records, it is evident that the present complaint has been filed under Sections 500, 501 and 384 I.P.C. with the allegations that the accused being 05 in number, have caused disrepute and insulted the complainant and have also demanded money for his land mutated in which they have objected when he applied for mutation. The summoning of four accused who are the present applicants, is under Sections 420, 468, 471 I.P.C. as per the impugned order dated 10.11.2022. The same does not, in any manner, gets synchronized with the allegations levelled in the complaint as well as the statements recorded under Sections 200 Cr.P.C. and 202 Cr.P.C.

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The impugned summoning order dated 10.11.2022 is set aside and the matter is remanded back to the court concerned for passing appropriate

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orders in accordance with law.

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In so far as the prayer for quashing of the proceeding is concerned, the same is hereby refused since the summoning order has been passed in different sections as discussed herein above.

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Needless to state that the court concerned shall pass orders afresh in accordance with law without being influenced by any of the observations of this Court in this order.

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The applicants are directed to file this order within 10 days before the court concerned from today, it shall then pass appropriate orders within three weeks thereafter. Since the parties have appeared before this Court and are duly represented the court concerned may not issue fresh notice to them as this order is being passed after hearing them.

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