Pras Ram Dubey vs State Of U.P.
2019 Latest Caselaw 2924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 4361 of 2008
 

 
Applicant :- Paras Ram Dubey
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- D.K. Singh
 
Counsel for Opposite Party :- Govt. Advocate,Dinesh Upadhyay
 

 
Hon'ble Dinesh Kumar Singh,J.

1. This petition under Section 482 Cr.P.C. has been filed for setting aside the order dated 28.8.2008 passed by the Judicial Magistrate-II, Faizabad (Now Ayodhya Ji) in Case No.2427 of 2008 and the judgement and order dated 23.10.2008 passed by the Session Judge, Faizabad in Revision No.Nil of 2008.

2. Judicial Magistrate-II, Faizabad has rejected the prayer of the petitioners for dropping the proceedings in Case No.2427 of 2008 pending before him. Against the aforesaid order, a revision was filed and the revisional court has also dismissed the revision on the ground that once the cognizance has been taken in good faith even erroneously, the proceedings cannot get vitiated in view of the provisions contained under Section 460 Cr.P.C.

3. The facts as stated in the petition, are that petitioner no.1 had filed a regular Suit no.294 of 2002 for permanent injunction regarding Sahan land of residential house, which was used as a passage by both the families with the prayer to restrain the opposite parties from making any construction over the land in question. The court concerned had passed an order directing both the parties to maintain status-quo on the land in question, which is still operative.

4. It is alleged that despite the order of the Civil Court, the opposite parties started raising construction over the land in question on 7.5.2005. The petitioners objected, on which some incident took place. Petitioner no.2 thereafter, went to the police station and lodge NCR No.35 of 2005 under Sections 323, 504, 506 IPC on the same date at 11.20 AM. Petitioner no.2 had been medically examined and treatment was given to him. Thereafter, on 10.5.2005, petitioner no.2 had moved an application before the court concerned under Section 155(2) Cr.P.C. for directing the police station concerned to investigate the matter, on which the court concerned had passed an order to the police concerned to investigate the matter. It is also alleged that as a counter blast to the aforesaid proceedings initiated on behalf of the petitioners, an application under Section 156(3) Cr.P.C. was filed on behalf of the opposite party no.5, wherein the entire family of the petitioners has been roped in.

5. The Magistrate concerned called for a report from the police concerned on the application filed under Section 156(3) Cr.P.C. filed by the opposite party no.5. In pursuance to the aforesaid direction, the police has submitted a report on 7.7.2005 before the Magistrate concerned, wherein it was staid that the present application under Section 156(3) Cr.P.C. was filed to create a defence. On the basis of the aforesaid report, the Additional Chief Judicial Magistrate-I, Faizabad had proceeded to pass an order on 12.7.2005 rejecting the application of the opposite party no.5 filed under Section 156(3) Cr.P.C.

6. Aggrieved by the aforesaid order dated 12.7.2005, opposite party no.5 had preferred Criminal Revision No.239 of 2005. The revisional court allowed the revision filed by the opposite party no.5 vide judgement and order dated 24.9.2005 and directed the Magistrate to pass an order for registration of the case and for its investigation. Feeling aggrieved by the aforesaid judgement and order dated 24.9.2005 passed by the revisional court, petitioners filed Criminal Misc. Case No.2236 of 2005 before this Court. While the aforesaid case was pending here, in the meantime, on 29.9.2005 the Additional Chief Judicial Magistrate-I, Faizabad had passed an order in compliance of the direction by the revisional court directing the Station House Officer concerned for registering the case against the petitioners and to investigate the same and also issued a direction to submit report under Section 173 Cr.P.C. In compliance of the aforesaid order dated 29.9.2005, an FIR was registered on 2.10.2005 against the petitioners and others at case Crime No.582 of 2005 under Sections 147, 452, 323, 506, 427 IPC at Police Station Cantt., City and District Faizabad.

7. This Court on 4.10.2005 allowed the petition filed under Section 482 Cr.P.C. bearing no.2236 of 2005 and set aside the order dated 24.9.2005 passed by the revisional court, whereby the direction was issued to the Magistrate for passing an order for registration of the FIR and to investigate the same. It is also said that certified copy of the order dated 4.10.2005 passed by this Court was submitted before the Additional Chief Judicial Magistrate-I, Faizabad along with an application dated 24.10.2005 with the prayer to ensure compliance of the same. The Additional Chief Judicial Magistrate-I, Faizabad issued notice to the complainant on the said application fixing 31.10.2005. Despite the notice issued on two-three occasions, the complainant did not appear in pursuance of the application filed by the petitioners before the learned Magistrate.

8. It appears that the police after investigation submitted the charge sheet and the Additional Chief Judicial Magistrate-I, Faizabad on 23.11.2005 had taken cognizance of the offence under Sections 323, 504, 427 IPC against the petitioners. After cognizance was taken, the petitioners had moved an application on 1.10.2007 before the Judicial Magistrate-II, Faizabad for dropping the proceedings of the criminal case. Learned Magistrate, however, vide order dated 28.8.2008 had rejected the said application, against which the petitioners preferred Revision No.Nil of 2008 before the learned Sessions Judge, Faizabad and the aforesaid revision has also been dismissed vide order dated 23.10.2008.

9. Learned counsel for the petitioners submits that when the very basis of the order for registering the FIR has gone in view of the judgment and order passed by this Court on 4.10.2005, whereby the order dated 24.9.2005 passed by the revisional court was set aside, there was no question of registering the FIR. He further submits that subsequent proceedings including the submission of the charge sheet and taking cognizance are void ab initio.

10. In support of his contention, Sri D.K. Singh, learned counsel representing the petitioners has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Naresh Kavarchand Khatri vs. State of Gujarat and another, (2008) 8 SCC 300. Paragraph 12 of the aforesaid order reads as under :-

"12. Investigation has been carried out by the officer in charge of Police Station Waghodia only pursuant to the order of the High Court. If the order of the High Court is to be set aside, the investigation must be held to have been carried out without any jurisdiction. We are not herein concerned with the quality of the investigation but the effect of the order passed by the High Court. We do not know as to whether (sic the issue of) proper investigation as contended, has in fact been considered by the court or not."

11. Sri S.P. Tiwari, learned AGA, however, submits that once the charge sheet has been submitted and the cognizance has been taken, it is open to the petitioners to move an appropriate application for discharge etc. and this Court in exercise of its inherent powers under Section 482 Cr.P.C. should not ordinarily quash the criminal proceedings.

12. I have heard rival submissions of the parties carefully and gone through the judgement cited by the learned counsel representing the petitioners.

13. The facts are not in dispute. Learned Magistrate initially on the basis of the report submitted by the police, rejected the application under Section 156(3) Cr.P.C. filed by the opposite party no.5. Against the aforesaid order, opposite party no.5 filed a revision and the revision was allowed with a direction to the Magistrate to direct the concerned police for registering the FIR and to investigate the same and file a report. The aforesaid order was challenged by the petitioners before this Court in a petition under Section 482 Cr.P.C. and this Court had set aside the aforesaid order. Once the order of the revisional court had been set aside, on the basis of which the order for registering the FIR was passed, the very basis for registering the FIR got disappeared. Thus, proceedings in pursuance of the order passed, can not continue.

14. Thus, the petition is allowed and the orders dated 28.8.2008 passed by the Judicial Magistrate-II, Faizabad (Now Ayodhya Ji) in Case No.2427 of 2008 and the judgement and order dated 23.10.2008 passed by the Sessions Judge Faizabad in Revision No.Nil of 2008 are hereby set aside and the consequent proceedings are also quashed.

( Dinesh Kumar Singh, J.)

Order Date :- 15.4.2019

Rao/-