Allahabad High Court
Shiva Kant Mishra And Another vs State Of Up And Another on 8 July, 2019
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- APPLICATION U/S 482 No. - 25996 of 2019
Applicant :- Shiva Kant Mishra And Another
Opposite Party :- State Of Up And Another
Counsel for Applicant :- D.M.Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard.
This application under Section 482 Cr.P.C. has been filed by Shiva Kant Mishra and another, against the State of U.P. and another with a prayer for quashing of the order dated 13.8.2018, passed by the Additional District and Sessions Judge, Court No.1/Fast Track Court, Kaushambi in Criminal Revision No.109 of 2016 (Shiva Kant & Ors. v. State of U.P.) and order dated 29.9.2016 passed by the Chief Judicial Magistrate, Kaushambi as well as entire proceeding of Criminal Case No.2128 of 2013 (State of U.P. v. Kamta Prasad & Ors.) arising out Case Crime No.176 of 2013 under Sections 352, 452, 504, 506 IPC, P.S-Sarai Akil, District Kaushambi, pending in the court of Chief Judicial Magistrate, Kaushambi.
Learned counsel for the applicants argued that the trial court as well as revisional court failed to appreciate facts and law placed before it. The first information report was got lodged for offence including offence of outraging modesty of informant, whereas in her statement under Section 161 Cr.P.C., this was categorically resiled by her and charge sheet for above offence of outraging modesty has not been filed. Admittedly, the civil suit for the same occurrence was got filed before registration of this case crime number. Subsequently, after filing of Original Suit No.756 of 2012 in the court of Civil Judge, Kaushambi, this case crime number was got registered by way of presenting an application under Section 156 (3) of Cr.P.C. before the Court of Judicial Magistrate, Kaushambi. Whereas this application was under misuse of law. Against the same occurrence, civil suit was got filed and subsequently this criminal case was got filed. Whereas there was enmity between the parties, regarding land dispute, and no occurrence ever took place. After investigation charge sheet for offence cognizable under Sections 352, 452, 504, 506 IPC was got filed for which cognizance was taken. A proceeding before this Court under Section 482 No.304036 of 2013 (Kamta Prasad Mishra & 3 Ors. v. State of U.P. & Anr.) was filed in which this Court directed for presenting discharge application, vide order dated 30.9.2013 and this discharge application was filed before the Court of Chief Judicial Magistrate, Kaushambi in Criminal Case No.2128 of 2016 (State v. Kamta Prasad) which was rejected by the Court of Magistrate and file was fixed for framing of charge. This order of Magistrate dated 29.9.2016 was challenged before the court of revision i.e. District and Sessions Judge, Kaushambi as (Shiva Kant and Ors. v. State) which was made over to Court no.1 of Fast Track Court of Additional District and Sessions Judge, Kaushambi as Criminal Revision No.109 of 2016 and this was got rejected vide order dated 13.8.2018. Both the above courts failed to appreciate facts and law placed before them. The judgment were result of perversity hence this proceeding under Section 482 Cr.P.C., with above prayer.
Learned A.G.A. has vehemently opposed this application with contention that filing of charge sheet in inference of accusation for offence punishable under Sections 352, 452, 504 and 506 IPC and cognizance taking order over it was challenged before this Court in application under Section 482 No.34637 of 2013 and this proceeding was decided by way of rejection of application regarding filing of charge sheet or cognizance order hence the same. This may not be raised in subsequent proceeding under Section 482 Cr.PC.
Regarding order of discharge passed by Court of Chief Judicial Magistrate and order of revisional court passed in criminal revision the same is well within jurisdiction of the Court concerned and based on material placed on record.
Having heard learned counsels both sides and gone through material placed on record, it is apparent that original suit was filed for a decree of injunction regarding the 'abadi' land which was owned and possessed by plaintiff and was being interfered and dispossessed by defendants. This was a separate occurrence for which civil relief was claimed in a civil suit. The above occurrence is of no concern, rather, after filing of above civil suit this annoyance resulted present occurrence in which those named accused persons, written in first information report, did criminal trespass in the house of the informant, committed offence of outraging modesty by doing criminal trespass with a abuse and extension of threat of dire consequences i.e. offence punishable under Sections 352, 452, 504, 506 IPC. This case crime number was got registered and investigated. After investigation and on the basis of material collected from investigation, including statement recorded under Section 161 Cr.P.C., Investigating Officer concluded with offence punishable under Sections 352, 452, 504, 506 IPC against charge-sheeted accused persons. All those four accused persons, against order of Magistrate filed a proceeding before this Court under Section 482 of Cr.P.C. as No.34637 of 2013. This proceeding was decided by this Court vide order dated 30.9.2013, in which application under Section 482 was dismissed regarding relief claimed for quashing of charge sheet and cognizance taking order. Meaning thereby the relief claimed at this stage was once claimed and finally rejected. Hence the same is not maintainable in this application.
Regarding discharge order and revisional court's order against this discharge order, passed in a criminal revision, it is apparent that Magistrate while making order of discharge application has categorically discussed statement of informant and other witnesses recorded under Section 161 Cr.PC. Meaning thereby evidence regarding offence punishable under Sections 352, 452, 504, 506 IPC was very well there in the statement under Section 161 Cr.P.C., hence the ground for filing discharge was seen to be not sufficient and cogent and the averment made in discharge application as held to be question of trial to be appreciated and seen on the basis of evidence produced during trial. Hence, the Magistrate was well within this jurisdiction and appreciated facts in correct perspective of law, regarding passing of impugned order. There was no perversity at all nor any mis-exercise or excess exercise of jurisdiction or apparent erroneous exercise of jurisdiction.
The revisional court appreciated this facts and circumstance and passed impugned order of revision which was well within jurisdiction of revisional court hence this application is rejected accordingly.
Order Date :- 8.7.2019
Jyotsana
