Allahabad High Court
Radhey Shyam And Another vs State Of U.P. Thru. Prin. Secy. ... on 6 July, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- APPLICATION U/S 482 No. - 3822 of 2022
Applicant :- Radhey Shyam And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrtt. Lko And Another
Counsel for Applicant :- Karunakar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Karunakar Srivastava, learned counsel for the applicants, learned Additional Government Advocate, representing respondent no. 1-State, as well as Mr. Rishabh Srivastava, Advocate, who has put in appearance on behalf of respondent no. 2, and gone through the record.
Vakalatnama filed on behalf of respondent no. 2 is taken on record.
2. By way of this application under Section 482 CrPC the applicants have prayed for quashing of orders dated 16.11.2021 passed by the Chief Judicial Magistrate, Gonda on an application filed by the applicants for discharge in Criminal Case No.4963 of 2016, arising out of Crime/FIR No.0241 of 2015, under Sections 419, 420, 323, 504 and 506 IPC lodged at Police Station Kotwali Colonelganj, District Gonda as well as for quashing of order dated 18.05.2022 passed by the Sessions Judge, Gonda in Criminal Revision No.144 of 2021 preferred by the applicants against the order dated 16.11.2021 passed by the Chief Judicial Magistrate.
3. Vide the impugned orders the learned Chief Judicial Magistrate rejected the application for discharge filed by the applicants against which revision was filed, which has also been dismissed.
4. As it comes out, FIR No. 0241 of 2015 came to be registered under Sections 419, 420, 467, 468, 323, 504 and 506 IPC on an application filed by the complainant under Section 156(3) CrPC.
5. Allegations in the FIR are that the complainant was co-sharer of land in Gata No.109/0.283 hectares situated in village Bairagipurwa, Sakraura Gramin; other co-sharer are his brothers, Ram Narain and Ram Sewak. Applicant no. 1, Radhey Shyam, in connivance and in criminal conspiracy with other co-accused on 14.06.2004 executed a sale-deed in respect of 0.05 dismal land of Gata No. 109/0.283 hectares in favour of petitioner no. 2, Phool Chandra Mishra, whereas Radhey Shyam Misra does not have any right, title or interest over the same. He also brought two witnesses, who put their signatures on the sale-deed. The complainant came to know about this fraud and illegal transfer of his land. When he confronted the applicants, the applicants did nothing and on 24.05.2015, at around 8 a.m., they tried to take possession of the said land, which was transferred illegally. When the complainant objected, he was abused in filthiest language and assaulted also by kicks ad fists.
6. The police after, completing investigation of the offence, filed charge-sheet against the applicants under Sections 419, 420, 323, 504 and 506 IPC. The applicants approached this Court earlier by filing an application under Section 482 CrPC bearing Application U/s 482 No.5194 of 2017. This Court, however, did not agree to quash the charge-sheet and granted liberty to the applicants to apply for bail and directed the lower Court to consider the bail application of the applicants, if filed, in light of judgment of the Supreme Court reported in [2009(3) ADJ 322 (SC)] (Lal Kamlendra Pratap Singh Vs. State of U.P.). It was also observed that the applicants may file an application for discharge so far as offence under Sections 419 and 420 IPC was concerned and, if such an application was filed, the same should be considered in accordance with law.
7. The applicants, after obtaining bail, filed discharge application, which had been rejected by the learned Magistrate on the ground that with respect to defence raised by the applicants in the application, the same would be considered and decided only after the evidence is led. However, at the stage of considering the application for discharge, the Court is required to consider prima facie case on the basis of evidence collected. The Court found that there was sufficient evidence available to support the charge-sheet under Sections 419, 420, 323, 504 and 506 IPC and, therefore, the application for discharge came to be rejected by the Chief Judicial Magistrate vide order dated 16.11.2021. Aggrieved by this order, the applicants approached the revisional Court. The revisional Court, however, found that the trial Court had not committed any error of jurisdiction or law in rejecting the application for discharge. However, it was held that the trial Court had rightly considered and held that at the time of considering the application for discharge what is required to be considered is whether prima facie the case is made out against the accused on the basis of evidence collected or not. The contention raised by the learned counsel for the applicants that the applicants had corrected mistake, which was crept in the sale-deed, could not absolve them from commission of offence inasmuch as the scope of civil case and criminal case is different. What is required to be considered in criminal case is mens rea of committing an offence as well as whether the offence is made out on the basis of the allegations and the evidence collected, the learned revisional Court has held that there is no error of jurisdiction or law and rejected the revision.
8. The learned counsel for the applicants has reiterated the contention raised before the revisional Court. Two courts below have considered each and every aspects of the matter and contention raised by the learned counsel for the applicants. In this view of the matter, this Court does not find any ground to interfere with the impugned orders passed by the learned Courts below. Hence, this petition, having no merit and substance, is hereby dismissed.
Order Date :- 6.7.2022
MVS/-
