Court No. - 72
Case :- APPLICATION U/S 482 No. - 25172 of 2017 Applicant :- Mohd. Kashim And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vinay Kumar,Satya Dheer Singh Jadaun Counsel for Opposite Party :- G.A.,Siya Ram Verma
Hon'ble Saumitra Dayal Singh,J.
1. Heard Mr. Satya Dheer Singh Jadaun, learned counsel for the applicants, Shri Siya Ram Verma, learned counsel for opposite party no.2 and Shri Vikas Goswami, learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the summoning order dated 30.06.2016 passed by the Additional Civil Judge (Junior Division), Court No.1, Kanpur Nagar in Complaint Case No. 4020 of 2016 (Mubeena Khatoon Vs. Jameel Ahmad & Ors.), under Sections 323, 457, 380, 504, 506, 448, 427 IPC, Police Station Rail Bazar, District Kanpur Nagar as well as the order dated 06.07.2017 passed by the Additional District & Sessions Judge, Court No. 12, Kanpur Nagar in Criminal Revision No. 237 of 2016 (Mohd. Qasim & Ors. Vs. State of U.P. & Anr.) with Criminal Revision No. 257 of 2016 (Jameel Ahmad Vs. State of U.P. & Anr.), under Sections 323, 457, 380, 504, 506 IPC, Police Station Rail Bazar, District Kanpur Nagar.
3. Learned counsel for the applicants submits that, in the first place, the property where the occurrence is alleged to have taken place is a joint property of the applicants and opposite party no.2 with respect to which a civil dispute has already been decided and the decree of the civil court executed. Therefore, it has been submitted, the allegations of trespass and theft etc are wholly false as the applicants have always remained in possession of their part of the joint property. Second, it has been submitted, in any case, allegations made against the applicants in the complaint are not supported by statements under Sections 200 and 202 Cr.P.C. Therefore, it has been submitted, the summoning order is vitiated. Third, it has been submitted that even if the statement as recorded are believed to be true, no ingredients of offence under Section 323 I.P.C. are made out.
4. Responding to the above, learned counsel for opposite party no.2 and the learned AGA, would submit that the present prosecution has no connection with the civil dispute. The complainant has specifically stated that the applicants had committed trespass, theft and other offences in the premises falling in her share which had been recently vacated by the tenant upon conclusion of eviction proceedings. Then, it has been submitted, at this stage, insofar as the complaint allegations are concerned, the same are completely supported by the statement of the complainant under Section 200 Cr.P.C., who claims to be an eye witness. Therefore, the applicants cannot take benefit of the statement recorded under Section 202 Cr.P.C. by reading it in isolation. As regards the submission that the ingredients of the offence under Section 323 I.P.C. are not made out, it has been submitted, the same may remain open to be considered by the learned court below.
5. Having considered the arguments so advanced by learned counsel for the parties, in the first place, at present, it is difficult to quash the complaint for the reason that there existed a civil dispute between the parties which has since been decided, inasmuch as it would be a question of fact whether the portion of the property where the offence was committed fell in the share of the applicants or opposite party no.2. Insofar as the complaint allegations are specific that the occurrence took place in the portion falling in the share of opposite party no.2, at present, it has to be assumed to be true.
6. Second, it is not necessary that the allegations in the complaint should be completely identical to that of statement recorded under Sections 200 and 202 Cr.P.C. Insofar as the complaint allegations are plainly supported with statement of the complaint recorded under Section 200 Cr.P.C., no defect is seen in the summoning of the applicants.
7. Third, as to the objections raised by the learned counsel for the applicants that there is no material to support the allegations of offence committed under Section 323 IPC, the same is well founded. A plain reading of the complaint and the statement recorded under Sections 200 and 202 Cr.P.C. would suggest that no allegation has been made of having caused voluntary hurt. To that extent, the revisional order dated 06.06.2017 and the order passed by the revisional court is plainly erroneous.
8. Accordingly, the revisional order dated 06.07.2017 is modified to the extent that the present applicants shall appear and surrender before the court below for offences under Sections 457, 380, 504 & 506 IPC within 45 days from today and apply for bail, their prayer for bail shall 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 judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
9. For a period of 45 days from today, no coercive measure shall be taken against the applicant.
10. With the aforesaid directions, this application is finally
disposed of.
Order Date :- 25.4.2019 AHA