R.K. Shrivastava Vs. Mullo Bai Kahar - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. orders.p. khare, j.1. this is a petition under section 482 of the code of criminal procedure, 1973 (hereinafter to be referred to as the code) for quashing the order dated 25-8-1999 of the judicial magistrate first class, gadarwara in criminal caseno. 564 of 1999 which has been affirmed in criminal revision no. 66 of 1999 by order dated 12-5-2000 of the additional sessions judge, gadarwara.2. non-applicant mullobai filed a complaint alleging that she has been cheated by the accused persons. accused no. 1 bhagchand was patwari and accused no, 2 r.k. shrivastava was the tehsildar. the magistrate recorded the statement of the complainant and her witnesses under section 200 of the code and perused the documents produced before him and was of the opinion that there is sufficient ground for proceeding against the accused persons. the complaint was registered under sections 420 and 468, ipc. it was stated in the complaint that the lands bearing khasra nos. 379 and 381 of village chichli were settled with her after taking an amount of rs. 30,0007- from her. rin pustika was given to her by the patwari as the document for settlement of the land with her. after sometime the collector, narsinghpur directed that the said illegal settlement be cancelled.3. a revision was filed before the additional sessions judge. he has held that there is prima facie case to proceed against the accused persons.4. in this petition under section 482, cr.p.c. it is contended that there is not sufficient ground to proceed against the applicant who was tehsildar at the relevant time. the original record of the criminal case was requisitioned by this court and the material available on record has been pursed. it is argued by the learned counsel for the applicant that he had passed the order in his capacity as tehsildar and even if that order was not according to law it cannot be said that he has committed the offence of forgery and cheating. it is also contended that there is no sanction of the state government under section 197 of the code for prosecution of the applicant. after considering the arguments this court is of the opinion that there is no abuse of the process of the court nor it would be in the interest of justice to quash the prosecution at its threshold. there is sufficient ground for proceeding against the accused persons. the complainant's specific case is that she was made to pay an amount of rs. 30,000/- for settlement of this land with her. she was given a rin pustika and then there was an order of the collector that an illegal order has been passed by the tehsildar. all the allegations must be considered together and not in isolation. the applicant will have an opportunity to defend himself in the criminal case. it cannot be said that the complaint is without any substance. the procedural law must be allowed to have its course. the case is not of such a nature in which this court should interfere at this stage. the applicant may raise his objections before the trial magistrate. it cannot be said that there is no case against the applicant. there is, prima facie case against him. at this stage it is not appropriate, as observed by the supreme court in rajesh bajaj v. state of delhi, air 1999 sc 1216, to 'sieve the complaint through a cullender of finest gauzes for testing the ingredients of section 415, ipc'. at this stage the court has to proceed on the basis of the allegations made in the complaint or documents accompanying the same and it has no jurisdiction to examine the correctness or otherwise of the allegations. the applicant should defend himself before the trial court.5. the petition is dismissed.6. misc. criminal case dismissed.

Judgment:
ORDER

S.P. Khare, J.

1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) for quashing the order dated 25-8-1999 of the Judicial Magistrate First Class, Gadarwara in Criminal CaseNo. 564 of 1999 which has been affirmed in Criminal Revision No. 66 of 1999 by order dated 12-5-2000 of the Additional Sessions Judge, Gadarwara.

2. Non-applicant Mullobai filed a complaint alleging that she has been cheated by the accused persons. Accused No. 1 Bhagchand was Patwari and accused No, 2 R.K. Shrivastava was the Tehsildar. The Magistrate recorded the statement of the complainant and her witnesses under Section 200 of the Code and perused the documents produced before him and was of the opinion that there is sufficient ground for proceeding against the accused persons. The complaint was registered under Sections 420 and 468, IPC. It was stated in the complaint that the lands bearing Khasra Nos. 379 and 381 of village Chichli were settled with her after taking an amount of Rs. 30,0007- from her. Rin Pustika was given to her by the Patwari as the document for settlement of the land with her. After sometime the Collector, Narsinghpur directed that the said illegal settlement be cancelled.

3. A revision was filed before the Additional Sessions Judge. He has held that there is prima facie case to proceed against the accused persons.

4. In this petition under Section 482, Cr.P.C. it is contended that there is not sufficient ground to proceed against the applicant who was Tehsildar at the relevant time. The original record of the criminal case was requisitioned by this Court and the material available on record has been pursed. It is argued by the learned counsel for the applicant that he had passed the order in his capacity as Tehsildar and even if that order was not according to law it cannot be said that he has committed the offence of forgery and cheating. It is also contended that there is no sanction of the State Government under Section 197 of the Code for prosecution of the applicant. After considering the arguments this Court is of the opinion that there is no abuse of the process of the Court nor it would be in the interest of justice to quash the prosecution at its threshold. There is sufficient ground for proceeding against the accused persons. The complainant's specific case is that she was made to pay an amount of Rs. 30,000/- for settlement of this land with her. She was given a Rin Pustika and then there was an order of the Collector that an illegal order has been passed by the Tehsildar. All the allegations must be considered together and not in isolation. The applicant will have an opportunity to defend himself in the criminal case. It cannot be said that the complaint is without any substance. The procedural law must be allowed to have its course. The case is not of such a nature in which this Court should interfere at this stage. The applicant may raise his objections before the Trial Magistrate. It cannot be said that there is no case against the applicant. There is, prima facie case against him. At this stage it is not appropriate, as observed by the Supreme Court in Rajesh Bajaj v. State of Delhi, AIR 1999 SC 1216, to 'sieve the complaint through a cullender of finest gauzes for testing the ingredients of Section 415, IPC'. At this stage the Court has to proceed on the basis of the allegations made in the complaint or documents accompanying the same and it has no jurisdiction to examine the correctness or otherwise of the allegations. The applicant should defend himself before the Trial Court.

5. The petition is dismissed.

6. Misc. Criminal Case dismissed.