Court No. - 77
Case :- APPLICATION U/S 482 No. - 46387 of 2019 Applicant :- Pawan And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjeev Kumar Khare Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Vakalatnama filed today by Sri Ram Milan Mishra on behalf of O.P. No. 2 is taken on record.
Heard learned counsel for the applicants, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants Pawan, Pradeep and Omkar Nath against State of U.P. and Mukteshwar with prayer to quash the summoning order dated 6.7.2018 as well as entire proceedings of Complaint Case No. 151 of 2017, Mukteshwar Vs. Omkar and others, under Sections 504, 506, 436 I.P.C., P.S. Jalalpur, district Jaunpur, pending in court of A.C.J.M. 1st, Jaunpur.
Learned counsel for the applicants argued that in a proceeding u/s 122B of U.P.Z.A.L.R. Act it was held that encroachment by complainant was illegal and for removing it police force was needed. A Civil Suit was also filed in between and was pending. Subsequently this false concoction was made, wherein above summoning is there. No offence, for which summoning order was passed, was committed by the applicants. It was an abuse of process of Court. Hence this application with above prayer.
Learned A.G.A. as well as learned counsel for O.P. No. 2 have vehemently opposed above arguments.
From the very perusal of order passed in proceeding u/s 122B of U.P.Z.A.L.R. Act, it appears that there had been some civil dispute regarding encroachment over public land and it was settled that encroachment of complainant is illegal and for removing the same police force was needed. But the allegation in the complaint is not regarding encroachment. Rather it is for offences said to have been committed by the applicants on the date and time mentioned in the complaint, where mischief by fire of above construction is alleged and thereby damage to the belongings of the complainant was said. This fact was said by the complainant in his complaint that occurrence was of 8.00 P.M. of 27.3.2015 when the applicants by mischief committed fire by igniting Madaha thereby damaging belongings of the complainant. This has been reiterated in statement u/s 200 Cr.P.C. and corroborated by statement u/s 202 Cr.P.C. Hence at the time of passing of summoning order the Magistrate has to apply his judicial mind as to whether there was prima-facie case for summoning the accused. In the present case it was very well there. This court, in exercise of inherent jurisdiction u/s 482 Cr.P.C., is not to embark upon factual matrix because the same is question of trial to be seen by the trial court. 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