ABDUL KADIR Vs. STATE OF U P

JUDGEMENT

(1.) -Application has been filed under Section 482, Cr. P.C. to quash the proceedings in Complaint Case No. 13525 of 2004, Fahmeed alias Abdul Haque v. Rabia Begum and others, pending in the Court of Metropolitan Magistrate I, Kanpur Nagar wherein the applicants have been directed to be summoned by order dated 3.6.2004 under Sections 147, 148, 325, 504, 452 and 506, I.P.C. by Addl. Metropolitan Magistrate I, Kanpur Nagar.

(2.) BRIEF facts of the case are that opposite party No. 2 Fahmid alias Abdul Haque filed a complaint against Smt. Rabia Begum and others in the Court of Additional Metropolitan Magistrate I, Kanpur Nagar alleging that he is owner of House No. 88/295 situate in Chamanganj, Mala Road, P.S. Chamanganj, Kanpur. After the death of his father he became owner of this house and was running cold drink shop in it. Accused No. 1 Smt. Rabia Begum had no concern with this house and was also not having any title therein and is living with her family in Iftikharabad, Kanpur Nagar but in collusion with the police Inspector of P.S. Chamanganj, the accused persons on 13.5.1999 at about 4 p.m. came to his cold drink shop and damaged it and looted Rs. 3,000 from the cash box and also took forcible possession over the house. When the complainant went to lodge the report the inspector told him that he himself had damaged his shop and the inspector took a false report from accused No. 1 and took him in custody. The accused Nos. 1 and 2 had no evidence to show that the house belonged to them. In the circumstances he filed his complaint on 14.1.2000.

(3.) ACCORDING to applicants suit for partition was pending between applicant No. 2 and others and opposite party No. 2 and others and that was finally decided on the basis of compromise on 10.10.1991. During arguments, learned counsel for the applicants produced the certified copy of the decree of Original Suit No. 873 of 1990, Smt. Rabia Begum v. Fahmeed alias Abdul Haque and others. In this suit, the plaintiffs had claimed one-sixth share in House No. 88 of 295 Chamanganj and House No. 97/57 Talak Mahal, Kanpur City. On the basis of compromise, it was agreed that the plaintiffs had one-sixth shares of these houses. They were entitled to get the same. Further contention of the learned counsel for the applicants is that they asked the opposite party No. 2 to release their share but he was not willing for the same and on 13.5.1999 at about 3 p.m., when the applicant was not present as she had gone to attend some funeral and on her return she found that the accused had broken the wall and taken possession of two rooms of applicant No. 2 and also misappropriated the household goods that were kept there. She raised alarm, Abdul Haque, i.e., opposite party No. 2 came there and gave kicks and fist blows and also threatened her. However, witnesses came and saved her. In that connection she lodged first information report at Police Station Chaman Ganj on 18.5.1999 at 9.05 p.m. Copy of the report is Annexure-2. The present complaint has been filed by opposite party No. 2 as counter-blast to the report of applicant No. 2 on 14.1.2000 whereas the incident is alleged to have taken place on 13.5.1999. ACCORDING to the applicants they were continuing in possession of this house and there was no question of taking any forcible possession by damaging the cold drink shop of opposite party No. 2.