Case :- APPLICATION U/S 482 No. - 46473 of 2019 Applicant :- Ahamad And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adeel Ahmad Khan Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants Ahamad and Mohammad Taiyab against State of U.P. and Virendra Pandey with prayer to quash the summoning order dated 8.7.2019 as well as entire proceedings of Complaint Case No. 404 of 2017, Virendra Pandey Vs. Mohammad Taiyab and others, under Sections 504, 506, 427, 379 I.P.C., P.S. Purandarpur, district Maharajganj, as well as order dated 27.11.2019 passed by Sessions Judge, Maharajganj, in Criminal Revision No. 99 of 2019, Ahmad and others Vs. State of U.P. and others.
Learned counsel for the applicants argued that it was a false accusation under abuse of process of law. In complaint there were three dates of occurrence, whereas in the statement recorded u/s 200 Cr.P.C. there was mention of only one occurrence and leaving the alleged two occurrences. Whereas the applicants purchased the land in dispute from Jamma and Jaish Mohammad, who had purchased the same from O.P. No. 2, Virendra Pandey for which O.P. No. 2 himself has given an application before the District Magistrate making accusation of deficiency in stamp duty in alleged sale deed dated 29.8.2016, which was executed by O.P. No. 2, Virendra Pandey in respect of the property in dispute to Jamma and Jaish Mohammad. Hence O.P. No. 2, being an Advocate, is adamant for retaining the above property and for this false accusation was made. Previously the Magistrate had summoned the applicants for the offences punishable u/s 406, 504, 506 I.P.C. This order was challenged in revision and the revisional court set aside the summoning order for offence punishable u/s 406 I.P.C. thereby affirmed summoning for offences punishable u/s 504, 506 I.P.C. Subsequently the Magistrate added 379 and 427 I.P.C., whereas the Magistrate was not with jurisdiction to add sections 379 and 427 I.P.C. because the revisional court had affirmed summoning u/s 504, 506 I.P.C. only. This was misuse of process of law. Hence this application.
Having heard learned counsel for the parties and gone through the material placed on record, it is apparent that sale deed in favour of the applicants is only for open piece of land and that has been taken from Jamma and Jaish Mohammad. It was not for trees or constructed house, whereas allegation in the complaint is for taking away trees and damage to the construction, thereby theft of trees. Hence the accusation was for above offences punishable u/s 504, 506, 427, 379 I.P.C. for which there is reiteration in the statement recorded u/s 200 Cr.P.C. and corroboration in the statement recorded u/s 202 Cr.P.C. Magistrate at the time of summoning u/s 204 Cr.P.C. is not expected to meticulously analyse the evidence. Rather application of judicial mind is to be there as to whether from the evidence prima-facie offence is made out or not and in the present case the same has been there. This has been affirmed by the revisional court. This court, in exercise of jurisdiction u/s 482 Cr.P.C. is not to embark upon factual metrix because it is to be seen by the trial court during trial. Accordingly this application merits its dismissal.
Dismissed as such.
However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within thirty days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of thirty days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.
However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 19.12.2019 Pcl