Prabhu Dutt Tiwari vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2113 OF 2017 [@ SPECIAL LEAVE PETITION (CRL.) NOS. 10733 OF 2015]

PRABHU DUTT TIWARI Appellant(s)

VERSUS

THE STATE OF UTTAR PRADESH & ORS. Respondent(s)

J U D G M E N T

KURIAN, J.

1. Leave granted.

2. The appellant is aggrieved since an order

summoning the respondents was quashed by the High

Court as per the impugned order. The summoning order

issued by the Additional Chief Judicial Magistrate,

Court-19, Deoria reads as follows :-

“Complainant appeared along with the Counsel on being called. Arguments heard and record perused.

Complainant has stated that he is working in telecommunication department Varanasi and that they are three brothers and their father distributed the village land among them and all of them cultivate their land. The accused number-3 Pushpa Devi filed a case against accused number-5 Mahima, in collusion with the Signature Not Verified accused number 1, 2 and 4 and he was taken to their village Nautan Bihar by Digitally signed by JAYANT KUMAR ARORA Date: 2017.12.14 16:57:08 IST Reason:

threatening him where he was tortured in many different ways and they got the registered deed for the land khasra 2

number 377 and 1191 forcibly. The mental condition of accused number-5 is not stable and he remains disturbed and taking advantage of the same and all the accused by colluding themselves, in order to cause damage to him and his brother Manoj got a false and fabricated registered deed made on 3.10.2012 by producing false papers. Police station was informed and since no action was taken by them, this case has been filed in this court.

In support of the statement, the testimony of the self and the two other witnesses has been recorded under section 202 Cr. P. C. and a photocopy of the application submitted to the Superintendent of Police has been produced as documentary evidence.

On perusal of the documents available on record a case appears to be prima facie made out against the accused Narendra Mishra, Awadhesh Mishra, Pushpa Devi Ashutosh Tiwari and Mahima Tiwari under sections 419, 420, 468, 471 and 120B IPC. The matter is fit for summoning the accused for trial.

ORDER The accused Narendra Mishra, Awadhesh Mishra, Pushpa Devi, Ashutosh Tiwari and Mahima Tiwari are hereby summoned under sections 419, 420, 468, 471 and 120B IPC. The Complainant to comply within a week. List for attendance as above on 20.12.2012.” 3

3. The respondents challenged the order, extracted

above, in a criminal writ petition before the High

Court. The consideration of the High Court reads as

follows :-

“I have given my anxious judicial thoughts over the entire facts and circumstances of the case. Considering the fact that the bhumidhari right of Mahima Tiwari has never been challenged in the criminal complaint or in the evidence led in support of the allegations made therein and there is no allegation or evidence on record that the sale property was ancestral property or the complainant had any right by birth therein, Mahima Tiwari (accused no.5) was fully entitled to transfer his land in favour of Pushpa Devi and if he has executed the sale deed in question in her favour, neither he nor Pushpa Devi nor any other person can be held liable for criminal offence punishable under Sections 419, 420, 468, 471, 120-B of I.P.C. The court of learned Magistrate and learned revisional court are not supposed to shut their eyes to the transferable right of a Bhumidhar. They are not bound in all the circumstances to take it for granted that if the oral evidence under Sections 200 and 202 Cr.P.C. has been led in support of the allegations made in the criminal complaint, their hands are fettered upto 4

the extent that except issuing the process under Section 204 Cr.P.C. they would not pass any other order including the order of dismissal of the criminal complaint, if at all it appears to the Magistrate that accused have not committed any criminal offence. If there is any grievance to the complainant he is well within his right to agitate the matter before the civil court in a suit for cancellation of the sale deed. The criminal jurisdiction of the court cannot be invoked to settle the dispute purely of civil nature.”

4. At the stage of summoning the accused on the

basis of a private complaint, all that is required is

a satisfaction by the Magistrate that there is

sufficient ground to proceed against the accused in

the light of the records made available and the

evidence adduced by the complainant.

5. Having gone through the order passed by the

Magistrate, it is fairly clear that there has been

the required satisfaction. The discussion by the

High Court would give an indication that the

Magistrate had to appreciate the evidence and then

enter a finding as to whether the accused are guilty

or not. At the stage of summoning, as already stated

above, the satisfaction required for the Magistrate 5

is only to see whether there is sufficient ground to

proceed against the accused.

6. Such a satisfaction for summoning an accused

having been made out, the High Court went wrong in

interfering with the summoning order. It was too

early for the High Court to enter a finding

otherwise. The impugned order is, hence, set aside.

The appeal is allowed.

7. The party-respondents may appear before the trial

court within a period of one month from today. On

their appearance before the trial court, they shall

be released on bail on furnishing sufficient

surety/sureties to the satisfaction of the trial

court. We make it clear that we have not expressed

any opinion on the merits of the case and it is open

to the parties to take all available steps at the

appropriate stage.

.......................J. [ KURIAN JOSEPH ]

.......................J. [ AMITAVA ROY ]

New Delhi;

December 07, 2017.

6

ITEM NO.11 COURT NO.5 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 10733/2015

(Arising out of impugned final judgment and order dated 12-12-2014 in CRLMW No. 5935/2014 passed by the High Court Of Judicature At Allahabad)

PRABHU DUTT TIWARI Petitioner(s)

VERSUS

THE STATE OF UTTAR PRADESH & ORS. Respondent(s)

(FOR EXEMPTION FROM FILING O.T. ON IA 21786/2015)

Date : 07-12-2017 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE AMITAVA ROY

For Petitioner(s) Mr. Rajeev Kumar Bansal, AOR Mr. M. P. Singh, Adv.

Mr. Prashant Kumar, Adv.

For Respondent(s) Mr. Anupam Mishra, AOR Mr. V. J. Francis, Adv.

Mr. Harikumar V., Adv.

Ms. Pooja Singh, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is allowed in terms of the signed reportable

Judgment.

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA) (RENU DIWAN) COURT MASTER ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)