TEJ PRATAP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS application has been filed by the applicants Tej Pratap Singh and Smt. Manju Singh with a prayer to quash the proceedings of Complaint Case No. 2720 of 2007 under Sections 218, 464, 465, 468, 471 and 504, I.P.C. pending in the court of learned Additional C.J.M., Sonbhadra and the order dated 19.8.2008, passed by the learned Additional Sessions Judge, Sonbhadra in Criminal Misc. Revision No. 57 of 2008, whereby the revision filed by the applicant had been dismissed.

(2.) THE facts of the case in brief are that a complaint has been filed on 6.1.2007 by O. P. No. 2 Babu Lal Pal in the Court of learned C.J.M., Sonbhadra, thereafter, statement under Sections 200 and 202, Cr. P.C. was recorded, after considering the same the learned Magistrate concerned has taken cognizance and summoned the applicants to face the trial, thereafter, the applicants moved an application for recalling the cognizance order on different grounds, the same was rejected by the learned A.C.J.M., Sonbhadra on 5.9.2008, thereafter, the learned A.C.J.M., Sonbhadra has framed the charge for the offence punishable under Sections 465, 468, 471 and 504, I.P.C. and separate charge for the offence under Section 218, I.P.C. against the applicant Tej Pratap Singh and co-accused Rajmani on 11.4.2008. THE applicants challenged the order dated 5.2.2008 by which the learned A.C.J.M., Sonbhadra has rejected the application under Section 245 (2), Cr. P.C. in the Court of learned Sessions Judge, Sonbhadra by way of filing a Criminal Revision No. 57 of 2008, the same has been dismissed on 19.8.2008 by the learned IInd Additional Sessions Judge, Sonbhadra by which the revisional court has affirmed the order dated 11.4.2008 also by which the charge has been framed against the applicants.

(3.) IT is contended by the learned counsel for the applicants that in pursuance of the order dated 20.11.1986, passed by the Apex Court, in Criminal Misc. Writ Petition. No. 106 of 1982, State Government published a notification under Section 4 of the Forest Act for determining the bhumidhari right of the tenure holders, who were in possession over the land prior to 1385 F. or 30th June, 1978, under survey operation, the possession of the applicants was found over Gata No. 1794/302 J, thereafter their names have been recorded as bhumidhar in the revenue record vide order dated 10.7.1986 but O. P. No. 2 has not filed any objection nor it has been challenged, one Laxmi Narain owner/bhumidhar of Gata No. 293 executed a power of attorney in the name of 0. P. No. 2 on 8.12.1995, O. P. No. 2 sold the property of Gata No. 293 to his wife Smt. Prabha Devi Pal and to grab the land the applicants filed suit no 28 of 1998 under Section 229B of U.P.Z.A. and L.R. Act in the Court of S.D.M., Robertsganj, when Laxmi Narain came to know about it, he cancelled the power of attorney dated 8.12.1995 on 29.9.2007 and also not pressed the Suit No. 28 of 1998 on 24.10.2007, for the purpose of harassing the applicants O. P. No. 2 filed a complaint and the present case, which is based on false and frivolous allegation but the learned Magistrate concerned has taken cognizance in a mechanical manner without applying the judicial mind, the cognizance is barred by Section 197, Cr. P.C., thereafter, the applicants moved an application under Section 245 (2), Cr. P.C., the same has been illegality rejected by the learned Magistrate concerned on 11.4.2008, the revisional court has also not considered the illegality done by the learned Magistrate in rejecting the application under Section 245 (2), Cr. P.C. on 11.4.2008 and the illegality committed in framing of the charge dated 11.4.2008, the learned revisional court has dismissed the revision. The impugned order dated 19.8.2008 is illegal, even on the basis of the allegation made against the applicants no offence is made out, the remedy available to O. P. No. 2 is of filing the suit etc. in civil court and O. P. No. 2 was not having any locus standi to file the complaint of this case and the applicants is entitled to get the benefit of Section 197, Cr. P.C. because no sanction for prosecution has been obtained because applicant No. 1 was posted as Survey Lekhpal.