Rajendra Singh Gurjer & Others vs State Of U.P. & Another
2017 Latest Caselaw 7768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 17
 

 
Case :- CRIMINAL REVISION No. - 4787 of 2005
 

 
Revisionist :- Rajendra Singh Gurjer & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Dharam Pal Singh,S. Niranjan
 
Counsel for Opposite Party :- Govt. Advocate,J.S. Audichya
 

 
Hon'ble Prabhat Chandra Tripathi,J.

Heard Sri Dharam Pal Singh, learned Senior Counsel for the revisionists, Sri Jai Shanker Audichya, learned counsel for the opposite party no. 2, learned A.G.A. for the opposite party no. 1 and perused the record.

The revisionists has made following prayers:-

(i) Call for the records of the case;

(ii) Set aside/quash the summoning order dated 27.8.2005, the charge sheet dated 16.3.2005 and all subsequent proceedings in pursuance thereof pending against the applicants in criminal case no. 1428 of 2005 (State vs. Arun Kumar Srivastava and others) pending in the court of Chief Judicial Magistrate, Orai, under Sections 420/467/468 and 471 of I.P.C., Police Station Kotwali Orai, District Jalaun,

(iii) Stay further proceedings of criminal case no. 1428 of 2005 (State Vs. Arun Kumar Srivastava and others), pending in the Court of Chief Judicial Magistrate, Orai under Sections 420/467/468 and 471 of I.P.C., Police Station Kotwali Orai, District Jalaun;

(iv) Pass such other and further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case to secure the ends of justice.

Learned counsel for the revisionists has argued as follows:-

(1) Plot No. 241 is a public land. The area of Plot No. 276 is 4.80 acres out of which 0.25 decimal area of land belongs to the opposite party no. 2. Plot No. 256 belongs to the revisionists.

(2) The abovementioned Plot nos. 241, 276 and 256 are situated adjacent to each other.

(3) In the civil courts having territorial jurisdiction in the district of Jalaun at Orai different civil suits are pending.

(4) The opposite party no. 2 does not possess any authority to move any application under Section 156(3) Cr.P.C., 1973 because he is not an aggrieved party.

(5) The matter in dispute can be adjudicated by the civil courts or revenue courts and not by the criminal courts.

(6) This is a malicious prosecution.

(7) Case No. 2 of 1992 was filed under Section 133 Cr.P.C. against Sri Ram Hetu (one of the transferees of informant) alleging that aforesaid Ram Hetu has illegally occupied certain portion of gata no. 241. Regarding that, the court of learned the then District Judge, Jalaun at Orai had passed a judgment and order dated 28.10.1994 in Misc. Civil Appeal No. 67 of 1994-Sri Bramha Dutt Pathak Vs. Zila Panchayat Jalaun at Orai dismissing the appeal with cost which has been filed as Annexure-4 to the affidavit filed in support of revision.

(8) While passing the impugned order dated 27.8.2005, no judicial mind was applied by the then learned Chief Judicial Magistrate, Jalaun at Orai.

(9) No offence is made out against the revisionists.

Learned counsel for the opposite party no. 2 has submitted as follows:-

(1) The summoning order cannot be challenged in the criminal revision.

(2) Mere institution/pendency of the civil suits may not bar the criminal proceedings.

(3) In such type of offence, there is precedence of the criminal case over civil case.

(4) There is no bar for the private individual to lodge the F.I.R. in such type of offences.

(5) The issue of locus standi raised by the learned counsel for the revisionists has no force.

The factual matrix of the case in narrow compass is enumerated as below:-

The informant/applicant Bramha Dutt Pathak on 16.4.2001 presented an application under Section 156(3) Cr.P.C., 1973 before the court seized with the criminal judicial territorial jurisdiction situated in district Jalaun at Orai for registering the F.I.R. against the opposite parties/accused persons namely Arun Kumar Srivastava, Rajendra Singh Gurjar, Krishna Kant Gupta, Raghvendra Singh Gurjar and Manvendra Singh Gurjar, under Sections 420, 406, 467, 468, 471, 472 I.P.C. by the Inspector Incharge Police Station Kotwali Orai. This application under Section 156(3) Cr.P.C., 1973 was presented regarding Plot Nos. 241, 256, 257 and 276 alleging therein that the aforementioned opposite parties have committed the offences of criminal breach of trust cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for the purpose of cheating, using as genuine a forged document or record and making or possessing the same of the land belonging to the Government and the then U.P. Electricity Board and also roadside Government land and have executed sale-deed thereof to the different persons. Upon the aforesaid application of the revisionist-applicant Bramha Dutt presented under Section 156(3) Cr.P.C.,1973; the criminal case was registered against the aforementioned five accused persons.

The Investigating Agency swung into the action and investigated the case. The investigation culminated into filing of police report/charge sheet under Sections 420, 467, 468, 471 I.P.C. by the police of Police Station Kotwali Orai against the accused persons namely Arun Kumar Srivastava, Rajendra Singh, Krishna Kant Gupta, Manvendra Singh and Raghvendra Singh. When the charge sheet was submitted before the court concerned, the learned court of the then Chief Judicial Magistrate, Jalaun at Orai took the cognizance, ordered for it's registration and for preparation of copies of police papers and also issued the summons for appearance against the accused persons Arun Kumar Srivastava, Rajendra Singh, Krishna Kant Gupta, Manvendra Singh and Raghvendra Singh to appear before the court on 05.10.2005. 

It would not be out of place to mention here the Section 43 of Cr.P.C., 1973 which reads as under:-

"Arrest by private person and procedure on such arrest-(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall rearrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released."

When there is provision in the Section 43 Cr.P.C., 1973 which empowers any private person to arrest a person who in his presence commits non-bailable and cognizable offence or any proclaimed offender, then this argument of learned counsel for the revisionists has no basis that the F.I.R. cannot be lodged by a private person against the wrongs done by a private person regarding immovable landed property which belongs to the Government.

The courts whether criminal, civil, revenue or any other type of courts have legal and moral duty to take the cognizance of any wrong done against the State. To uphold and protect the majesty of law is the paramount obligation of the courts. The courts either cannot shun from this legal duty or cannot shut their eyes for the wrongs committed against the State.

The cardinal principle of the criminal justice is that; any punishable offence is committed against the State. Although the personal wrong/injury may be caused to any individual(s).

In the instant matter, the F.I.R. was registered on 22.5.2001 and the police report/ charge sheet was submitted before the court concerned on 27.8.2005 and on the same date the impugned order was passed by the learned court of the then Chief Judicial Magistrate, Jalaun at Orai.

The impugned order dated 27.8.2005 passed by the then Chief Judicial Magistrate, Jalaun at Orai is a speaking order. The then learned Chief Judicial Magistrate, Jalaun at Orai was seized with the criminal judicial territorial jurisdiction of the case. There is no illegality, impropriety or perversity in the impugned order dated 27.8.2005 passed by the learned the then Chief Judicial Magistrate, Jalaun at Orai. The revision is devoid of merits. Resultantly, the revision is liable to be dismissed on merits.

The criminal revision is dismissed on merits.

Order Date :- 7.12.2017

Rmk.