Heard learned counsel for the petitioners and learned A.G.A. for the State.
The present petition has been filed with the prayer to quash the impugned order dated 24.02.2020 passed by Chief Judicial Magistrate, Gonda in Case No.2068 of 2017 (State vs. Amirka & Others) arising out of Case Crime No.205 of 2017, under Sections 419, 420, I.P.C., Police Station Katra Bazar, District Gonda.
Learned A.G.A. has raised preliminary objection and submitted that the impugned order is revisable, therefore, petition under Section 482 Cr.P.C. is not maintainable.
Learned counsel for the applicant relied on the decision of Hon'ble Supreme Court in the case of Prabhu Chawla vs. State of Rajasthan and Another (2016) 16 SCC 30 and submitted that merely on the ground that remedy is available under Section 397 Cr.P.C., the petition under Section 482 Cr.P.C. cannot be dismissed and he relied on para Nos. 6 & 8 of the aforesaid judgment.
Considering the arguments of learned counsel for the petitioners as well as learned A.G.A. and going through the contents of the decision of Hon'ble Supreme Court in the case of Prabhu Chawla (supra), the petition cannot be dismissed on the ground that remedy is available to the petitioners under Section 397 Cr.P.C.
Accordingly, the petition is maintainable.
Learned counsel for the petitioners has submitted that uncle of petitioners namely Ram Kailash executed a registered will deed in favour of the petitioners which was registered on 24.07.1969 as Bahi No.III Jild 34 Page No.18-19 Serial No.98 in the office of Sub-Registrar, Tarabganj, Gonda. He further submitted that respondent No.2 (wife of Ram Kailash) was residing with the petitioners and after death of Ram Kailash, on the basis of form P-11, opposite party No.2 obtained mutation order with the collusion of area lekpal and when it came into the knowledge of the petitioners, then the alleged will deed was placed before the Tehsildar and thereafter, the property in question was mutated in favour of the petitioners.
Learned counsel for the petitioners has further submitted that in place of challenging the aforesaid will deed before the appropriate court by the private respondent, on the basis of concocted facts, Case Crime No.205 of 2017, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Karnailganj, District Gonda was lodged on 29.03.2017 with the allegation that only with the intention to grab the property of Ram Kailash, the fabricated will deed was prepared by the accused persons and during the course of investigation, the statement of one of the witness of registered will deed namely Jang Bahadur was recorded under Section 161 Cr.P.C. in which he categorically admitted that the alleged will deed was executed in front of him by Ram Kailash in the office of Sub-Registrar, Tarabganj, Gonda, but this fact was not considered by the Investigating Officer.
Learned counsel for the applicant has further submitted that as no evidence was found for the offences under Sections 467, 468, 471 I.P.C., therefore, charge sheet was filed under Sections 419, 420 I.P.C. Thereafter, the charge sheet was challenged before this Court in Criminal Misc. Case No.5797(u/s 482 Cr.P.C.) of 2017 and on 21.05.2018, notice was issued to the opposite party No.2 and interim order was also granted. Thereafter, on 24.01.2020, the said petition was disposed of with the direction that the petitioners may move an appropriate application for discharge through counsel before the court below within a period of 15 days and in case, any such application is moved, then the same shall be considered and disposed off in accordance with law.
Learned counsel for the applicant has further submitted that learned court below rejected the discharge application of the petitioners without considering the facts that alleged will deed was registered in the office of Sub-Registrar, Tarabganj, Gonda and one of the witness of will deed categorically stated before the Investigating Officer in his statement that will deed was executed by Ram Kailash in front of him, but merely on the basis of presumption, discharge application was rejected by the court below. Therefore, kind indulgence of this Court is necessary.
Learned A.G.A. has opposed the prayer of applicant and submitted that there is no illegality in the order passed by the court below and further submitted that the applicant may appear before the court below and at the appropriate stage of evidence, he may plead his case before the trial court.
Considering the arguments of learned counsel for the petitioners as well as learned A.G.A. and going through the contents of the order and the statement of witness of the alleged will deed, it is evident that the registered will deed was executed by Ram Kailash is not challenged anywhere and one of the witness of alleged will deed admitted before the Investigating Officer in his statement under Section 161 Cr.P.C. that the will deed was executed in front of him and he was an eye witness, but this fact was not considered at the time of passing of impugned order by the C.J.M., Gonda. In such circumstances, matter requires consideration.
Issued notice to the respondent No.2.
Steps be taken within ten days.
List this case in the second week of December, 2021.
Till the next date of listing, impugned proceedings shall remain stayed.
Order Date :- 27.10.2021 S. Shivhare