KAUSHLESH MISHRA Vs. STATE OF U.P

JUDGEMENT

(1.) Heard Sri Byas Kumar Prasad, learned counsel for the revisionists and learned A.G.A. for the State. However, none appeared on behalf of opposite party no.2.

(2.) This criminal revision has been filed with the prayer to set aside judgement and order dtd. 18/4/2015 passed by learned Chief Judicial Magistrate, Siddharthnagar in Criminal Complaint Case No.277 of 2013 (Ripusudan Mishra Versus Kaushlesh Mishra and others) under Ss. 506 and 427 I.P.C. , Police Station Siddharthnagar, District Siddharthnagar, pending the court of Chief Judicial Magistrate, Siddharthnagar.

(3.) In brief, the facts of the case are that opposite party no.2 moved an application under Sec. 156(3) Cr.P.C. 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.20.00 to ex-Zamindar on 30/9/1951 and obtained 0/3/10 area of previous no.362, present no.56 of Village Rehra. The applicant got constructed foundation and boundary wall over the same. On 20/9/2012 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 JCB machine and got the foundation and boundary wall dismantled causing loss of Rs.24,000.00. The incident was seen by co-villagers Bechu, Vyas Muni, Arun Kumar Mishra and others. Learned Magistrate treated this application as complaint. Thereafter the complainant examined himself under Sec. 200 Cr.P.C. and two witnesses Bechu and Arun Kumar under Sec. 202 Cr.P.C. The complainant in his statement stated that Guru Charan, Naib Tehsildar, Rudramani, Junior Engineer and Santraj Yadav, Sub Inspector and six policemen reached on the spot with JCB machine of Nawab Ali and they dismantled foundation and boundary wall. The witnesses also reiterated the aforesaid facts. Learned Magistrate vide order dtd. 1/5/2014 summoned only one accused Kaushlesh Mishra for the offence under Sec. 506 I.P.C. Aggrieved with aforesaid order, the opposite party no.2 filed Criminal Revision No. 96 of 2014 and Sessions Judge, Siddharth Nagar vide order dtd. 24/7/2014 allowed the revision and set aside the impugned order dtd. 1/5/2014 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, learned Magistrate in compliance of order of the revisional court passed fresh order on 2/12/2014 and summoned the revisionists for the offence punishable under Ss. 427 and 506 I.P.C. An application bearing Criminal Misc. Application (U/S 482 Cr.P.C.) No.500 of 2015 was filed by the revisionists-accused and in terms of the order dtd. 17/1/2015 passed by this Court in the aforesaid application, the revisionists moved an application under Sec. 245(2) Cr.P.C. 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 dtd. 7/5/2012 of Lalllan Prasad Mishra, who is not a party in the case, while taking cognizance, Sub Divisional Magistrate vide letter dtd. 12/9/2012 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 Sec. 156(3) Cr.P.C., there is no allegation in the complaint which constitute an offence under Sec. 506 I.P.C., despite this court below in a casual manner summoned Kaushlesh Mishra for the offence under Sec. 506 I.P.C., while remaining accused persons were not summoned as no evidence was found against them, the complainant filed Criminal Revision No.96 of 2014 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 learned Magistrate has not made any analysis of this. It is further alleged that the revisionists are not party in Original Suit No.387 of 1994, 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 Sec. 506 I.P.C. has been committed, no active role has been assigned to the revisionists, from the statement under Sec. 200 Cr.P.C. 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 Ss. 427 and 506 I.P.C. 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 applicant nos.4, 5 and 6, an order to recover damages and to dispossess the complainant from Arazi No.56M has been passed on 15/4/2014 by Tehsildar Naugarh in Case No.102 of 2012 (Gram Sabha Versus Ripusudan) under Sec. 122-B and Rule 115-C of U.P. Zamindari Abolition and Land Reforms Act, the complainant filed Revision No.7/15 of 2014 in the court of District Magistrate, Siddharthnagar against the order dtd. 15/4/2014, it has also been dismissed on 6/12/2014, 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 Sec. 245(2) Cr.P.C. in pursuance of order of High Court dtd. 17/1/2015 passed in Criminal Misc. Application (U/S 482 Cr.P.C.) No.500 of 2015. Learned Magistrate after hearing both the parties vide impugned order dtd. 18/4/2015 rejected the discharge application.