Court No. - 83
Case :- APPLICATION U/S 482 No. - 6087 of 2021 Applicant :- Jay Prakash Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manoj Kumar,Navendu Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Manoj Kumar, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging order dated 21.11.2009 passed by Judicial Magistrate-I, Gorakhpur in Complaint Case No.4677 of 2009, (Smt. Bindu Vishwakarma Vs. Param Dev Yadav and another), under Sections- 427, 504, 506, 406 I.P.C., Police Station- Shahpur, District- Gorakhpur, as well as judgement and order dated 30.01.2021 passed by Additional Sessions Judge, Court No.1, Gorakhpur in Criminal Revision No.124 of 2017, (Jay Prakash Yadav and another Vs. State of U.P. and another), whereby aforesaid criminal revision arising out of order dated 21.11.2009 has been dismissed.
Record shows that complainant/opposite party-2, Smt. Bindu Vishwakarma filed Complaint Case No.4677 of 2009, (Smt. Bindu Vishwakarma Vs. Param Dev Yadav and another) alleging therein that inspite of having received consideration applicant-2, Param Dev Yadav has refused to execute sale deed in respect of disputed land.
After lodging of aforesaid complaint, concerned Magistrate proceeded with the same. Statement of complainant/opposite party-2 was recorded under Section 200 Cr.P.C. and that of her witnesses under Section 202 Cr.P.C. Thereafter, concerned Magistrate summoned applicants under Sections- 427, 504, 506, 406 I.P.C. vide Summoning Order dated 21.11.2009.
Applicants challenged summoning order dated 21.11.2009 by filing a criminal revision before District and Sessions Judge, Gorakhpur which was registered as Criminal Revision No.124 of 2017, (Jay Prakash Yadav and another Vs. State of U.P. and another). Aforesaid criminal revision came to be dismissed vide order dated 30.01.2021 passed by Additional Sessions Judge, Court No.1, Gorakhpur. Revisional court concurred with the view taken by concerned Magistrate that is to summon the applicants in above-mentioned complaint case. Revisional court, however, relied upon judgement of Apex Court in Nupur Talwar Vs. C.B.I. and others, AIR 2012 SC 1921, wherein it has been held that the 'term' "sufficient to proceed" is distinct from 'term' "sufficient to prove and establish". Reliance was also placed upon Kumari Nisha Sharma Vs. State of U.P. and others, 2016 (92) ACC 364 Alld., wherein it has been held that prima facie evidence means evidence sufficient for summoning the accused. Consequently, when order of Magistrate was examined by revisional court in light of above, no illegality or irregularity was found in summoning order.
Feeling aggrieved by aforesaid orders, applicants have now approached this Court by means of present Criminal Misc. Application under Section 482 Cr.P.C.
Learned counsel for applicants contends that from perusal of allegations made in complaint dispute between parties is essentially a civil dispute. He has then invited attention of Court to the plaint of Original Suit No.311 of 2009, (Shivji Shikshan Sansthan through its Manager, Smt. Bindu Vishwakarma Vs. Param Dev Yadav). On the basis of aforesaid, it is urged by learned counsel for applicants that complainant/opposite party-2 has filed above-mentioned suit for a decree of permanent injunction. Subsequently, plaint was amended and paragraphs- 8A and 8B were amended. Complainant/opposite party-2 in paragraph-8A of plaint has pleaded that on the basis of memorandum dated 19.08.2007, complainant was handed over possession over the land in dispute. It is thus submitted that allegations made in complaint and plaint are contradictory to each other.
It is next contended that summoning order dated 21.11.2009 passed by Judicial Magistrate-I, Gorakhpur is cryptic as no prima facie satisfaction has been recorded by concerned Magistrate. In support of aforesaid submission, reliance is placed upon judgement and order of this Court in Mahboob and others Vs. State of U.P. and another, 2017 (2) JIC 320 (All) (LB) and Smt. Shiv Kumar and others Vs. State of U.P. and another, 2017 (2) JIC 589 (All) (LB).
Mr. Manoj Kumar, learned counsel for applicants further contends that revisional court instead of examining the illegality/irregularity in order dated 21.11.2009 passed by concerned Magistrate has proceeded to improve upon same. Procedure so adopted by revisional court is unsustainable in law.
On the aforesaid factual and legal premise, it is urged that orders impugned in present application cannot be sustained and are therefore liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. However, learned A.G.A. could not dispute the facts as noted above as well as submission urged by learned counsel for applicant.
Having heard learned counsel for the parties and upon perusal of record, matter requires consideration.
Notice on behalf of opposite party-1 has been accepted by learned A.G.A.
Issue notice to opposite party-2.
All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.
List for admission on the date fixed in the notice, before appropriate Bench.
Until further order of this Court, further proceedings of Complaint Case No.4677 of 2009, (Smt. Bindu Vishwakarma Vs. Param Dev Yadav and another), under Sections- 427, 504, 506, 406 I.P.C., Police Station- Shahpur, District- Gorakhpur, pending before Judicial Magistrate-I, Gorakhpur, shall remain stayed against applicants.
Order Date :- 27.7.2021 Saif