The Allahabad High Court, while setting aside the order passed by the Chief Judicial Magistrate, Siddharth Nagar observed that the Magistrate has failed to evaluate the allegations of the complaint and consider the police report submitted under Section 202 CrPC.
The Magistrate has not applied his mind to the grounds of discharge and contention raised in this respect. While disposing of the discharge application the Magistrate has not considered relevant contention and rejected the same in a cursory manner.
A Single Bench of Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Revision filed by Kaushlesh Mishra and 5 Others.
The criminal revision has been filed with the prayer to set aside the order dated 18.04.2015 passed by Chief Judicial Magistrate, Siddharth Nagar in Criminal Complaint Case under Sections 506 and 427 IPC, Police Station Siddharth Nagar, District Siddharth Nagar, pending the court of Chief Judicial Magistrate, Siddharth Nagar.
The facts of the case are that opposite party no 2 moved an application under Section 156(3) CrPC against revisionists and Sub Inspector Santraj Yadav, Constable Rauf Khan and five unknown constables, alleging therein that the father of the opposite party no 2 paid Nazrana of Rs 20/- to ex-Zamindar on 30.09.1951 and obtained 00.3.10 area of the Village Rehra.
The applicant constructed a foundation and boundary wall over the same. On 20.09.2012 at about 5.00 p.m Kaushlesh Mishra pretending himself to be a journalist moved an application with forged signature of his uncle at Tehsil Naugarh. On this application the accused persons came on the spot with a JCB machine and got the foundation and boundary wall dismantled causing loss of Rs 24,000/-. The incident was seen by co-villagers Bechu, Vyas Muni, Arun Kumar Mishra and others.
The Magistrate treated the application as a complaint. Thereafter, the complainant examined himself under Section 200 CrPC and two witnesses, Bechu and Arun Kumar, under Section 202 CrPC. The complainant in his statement stated that Guru Charan, Naib Tahsildar, Rudramani, Junior Engineer, and Santraj Yadav, Sub Inspector, and six policemen reached the spot with the JCB machine of Nawab Ali and they dismantled the foundation and boundary wall. The witnesses also reiterated the aforesaid facts.
The Magistrate vide order dated 01.05.2014 summoned only one accused Kaushlesh Mishra for the offence under Section 506 IPC. Aggrieved with aforesaid order, the opposite party no 2 filed Criminal Revision and Sessions Judge, Siddharth Nagar order dated 24.07.2014 allowed the revision and set aside the order dated 01.05.2014 and directed the court below to pass fresh orders in the light of observations made in the body of the judgement after affording opportunity of oral hearing to the complainant.
Thereafter, the Magistrate in compliance with the order of the revisional court passed a fresh order on 02.12.2014 and summoned the revisionists for the offence punishable under Sections 427 and 506 IPC. An application bearing Criminal Misc Application (U/S 482 Cr.P.C) was filed by the revisionists accused and in terms of the order dated 17.01.2015 passed by the Court in the aforesaid application, the revisionists moved an application under Section 245(2) CrPC for discharge on the grounds that the revisionists are innocent and they have been falsely implicated due to enmity and for harassment, there is no justification or evidence to file the complaint, the allegations of the complaint clearly establish that the nature of the dispute is revenue and civil and there is no ground to lodge a complaint, on the complaint dated 07.05.2012 of Lalllan Prasad Mishra, who is not a party in the case, while taking cognizance, Sub Divisional Magistrate vide letter dated 12.09.2012 passed the order against the complainant to remove his illegal encroachment by constructing boundary wall on the banjar land of Gram Sabha, in compliance of the aforesaid direction, in presence of Circle Officer (Police), the government employees in discharge of their official duty removed illegal construction, remaining applicants have no concern with it, the complainant intentionally concealing the facts and without impleading Sub Division Magistrate, Naugarh and Lallan Prasad Mishra, has moved application against the revisionists under Section 156(3) CrPC, there is no allegation in the complaint which constitute an offence under Section 506 IPC, despite the court below in a casual manner summoned Kaushlesh Mishra for the offence under Section 506 IPC, while remaining accused persons were not summoned as no evidence was found against them, the complainant filed Criminal Revision in which he himself has alleged that Kaushlesh Mishra has been summoned by the court only on the basis of surmises, the revisional court has allowed the revision only on the ground that on the same evidence only one accused has been summoned while others have not been summoned and the Magistrate has not made any analysis of this.
It is further alleged that the revisionists are not party in Original Suit, hence it is not binding on the applicants, this original suit has been filed by the complainant in collusion with his real brother Janardan to grab banjar land of Gram Sabha and they have entered into a compromise and the Gram Sabha is not a party in that suit.
Further grounds taken in the application are that without taking any new and additional evidence the revisionists have been summoned, the complainant himself in para-2 of memo of revision has alleged that no offence under Section 506 IPC has been committed, no active role has been assigned to the revisionists, from the statement under Section 200 CrPC itself it is established that complaint is not an eye-witness of the incident, witnesses Bechu and Arun Kumar have not made any allegations of the offence under Sections 427 and 506 IPC against the revisionists, they have also not stated that they are eye-witnesses of the incident, and no reason has been assigned how they identified applicants, an order to recover damages and to dispossess the complainant from Arazi has been passed on 15.04.2014 by Tehsildar Naugarh in Case under Section 122-B and Rule 115-C of U.P Zamindari Abolition and Land Reforms Act, the complainant filed Revision in the court of District Magistrate, Siddharth Nagar against the order dated 15.04.2014, it has also been dismissed on 06.12.2014, the complainant with mala fide intention concealing real facts just to grab the banjar land of Gram Sabha has misused the process of the court, there is no sufficient ground to proceed against the revisionists and they are liable to discharged under Section 245(2) CPC in pursuance of order of High Court dated 17.01.2015.
The Magistrate after hearing both the parties the order dated 18.04.2015 rejected the discharge application.
It is submitted by the counsel for the revisionists that revisionists and opposite party no 2 live in the same village and civil dispute is pending between them. Opposite party no 2 always threatened the revisionists to falsely implicate them in criminal cases. The opposite party no 2 has encroached the land of Gram Sabha and was making construction. Proceeding under Rule 115-C of U.P Zamindari Abolition and Land Reforms Act was initiated against him, but he continued to make constructions on the Gram Sabha land.
Therefore, the Sub Divisional Magistrate on 12.09.2012 has directed revisionist no 4 to remove illegal construction. In compliance with this order, illegal constructions have been removed by the concerned authority. Opposite party no 2 wanted to take illegal possession of land of Gram Sabha. Some applicants are government servants and they were acting in discharge of their official duty, but without obtaining any sanction under Section 197 CrPC criminal proceedings have been initiated against them.
It is also contended that under Section 202 CrPC the matter was investigated by the police under the order of the Magistrate. In the police report, it has been clearly stated that due to mala fide intention the opposite party no 2 has filed a complaint.
Lastly, it is contended that no offence is made out against the revisionists. They have not committed any offence and have been falsely implicated due to civil dispute. The earned Magistrate without considering the entire facts and circumstances of the case has rejected the discharge application vide order dated 18.04.2015 which is illegal and bad in law and as such liable to be quashed.
A.G.A opposed the prayer and submitted that at this stage only prima facie case is to be seen and there is sufficient material on record which establishes that prima facie offence under Sections 427 and 506 IPC is made out against the revisionists. There is no sufficient ground to discharge the accused under Section 245(2) CrPC.
“From the above it appears that the Magistrate proceeded on the assumption that he has no power to evaluate the material on record and at that stage prayer of discharge could not be entertained. This is in violation of the legal provision which requires a finding by the Magistrate with regard to the charges against the accused being groundless or that there is ground for presuming that the accused have committed the offence.
The finding was to be recorded upon considering the entire material on record. The Magistrate has failed to evaluate the allegations of the complaint and consider the police report submitted under Section 202 CrPC. The Magistrate has not applied his mind to the grounds of discharge and contention raised in this respect. The Magistrate must have considered the pleas taken in discharge application and addressed the same by a speaking and reasoned order. While disposing of the discharge application the Magistrate has not considered relevant contention and rejected the same in a cursory manner. So, a fresh order is required to be passed on the discharge application”, the Court observed while allowing the petition.
“The order dated 18.04.2015 is set aside. The Magistrate is directed to pass a fresh order on the discharge application in accordance with law, after affording an opportunity of hearing to the parties”, the Court ordered.