SIYA RAM AGRAHARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal Procedure has been filed on behalf of the petitioner praying to set aside the Impugned orders dated 16-1-2008 passed by the III Addl. Sessions judge, Room No. 3, Sultanpur and 14-8-2006 passed by Addl, Chief Judicial Magistrate, sultanpur, whereby the application moved under Section 153 (3), Cr. P. C. on behalf of the opposite party No, 2 Smt, Aarati ojha was allowed by the concerned Magistrate and concerned police was directed to register and investigate the case against the petitioner.

(2.) HEARD learned counsel for the petitioner and learned A. G. A. as well as perused the materials available on records.

(3.) LEARNED counsel for the petitioner has contended that the petitioner is owner in possession of Agraharl Complex situate at h. A. L. Gate No. 2, P. S. Munshlganj, district Sultanpur which has been constructed on the land so purchased by the petitioner from one Ramjas in the year 1999. The opposite party No. 2, who was given one room in the premises of the petitioner for some time, tried to grab the property and that on 19-6-2006, the petitioner asked the opposite party no. 2 and her family members for vacating the premises then they assaulted the petitioner and caused Injury on the body of the petitioner. Thereafter the petitioner lodged a F. I. R. on 19-6-2007 for the offence under Sections 147, 148, 149, 323. 504 and 506, IPC at Police Station Munshlganj, district Sultanpur. After lodging of the F,i. R. , the husband of the opposite party No. 2 filed civil Suit No. 622 of 2006 on 1-7-2007. In the aforesaid civil suit, a commission was sent on the spot and the commission report shows that on the premises, there is possession of the petitioner, Thereafter, the opposite party no. 2 filed an application under Section 156 (3), cr. P. C. alleging offences against the petitioner and two others, namely, Rakesh and Ramesh on 6th July, 2007 i. e. subsequent to the filing of the civil suit and the allegations, which are contained in the application under section 156 (3), Cr. P. C. are totally absent in the plaint and, therefore, the allegations under Section 156 (3), Cr. P. C. levelled by opposite party no. 2 are proved to be false prima facie and it seems that she has filed application under section 156 (3), Cr. P. C. as a counter blast to the first Information report lodged by the petitioner. It is further contended that on the said application, the local police of the concerned police station filed its report which does not support the allegations made in the said application moved under Section 156 (3), cr. P. C. However, the concerned magistrate has allowed the application without application of mind and not according to law. Learned counsel for the petitioner has further contended that the impugned order for registering and investigating the case passed by the court below is a Judicial order and not an administrative order in nature. The same has been held in the decision of this Court in Sukhwasi v. State of u. P, in Criminal Misc. Application No. 9297 of 2007 decided on 18-3-2007 : (2007 (4)ALJ (NOC) 672) by Hon'bte R. K. Rastogi. J. In such circumstances Hon'ble Mr. Justice vinod Prasad could not deem such order as administrative in nature. It is also contended that there is a Division Bench decision of the Court i. e. Ajai Malviya v. State of U. P. , (2000 (41) ACC 435 : (2000 All LJ 2730)wherein such order deemed as Judicial order and the criminal revision is also maintainable and the decision of Hon'ble Mr. Justice Vinod Prasad could not overrule the division Bench case. It is further contended that in Pepsi Foods Ltd. and another v. Special judicial Magistrate and others, (1998)5 SCC 749 : (1997 All LJ 2406) it was held that petition may be taken either under Article 226 of the Constitution of India or under Section 482, cr. P. C. Therefore, the petition is also maintainable according to the decision of the Apex Court. It is a case of civil dispute. The said application was moved for the purpose of counter blast as an F. I. R. has already been registered against the opposite party no. 2 including others. Therefore, the order will be deemed as Judicial order and it can be challenged in the petition under Section 482, Cr. P. C. and the same has not been passed by the court below according to law.