- (1.) This is an application under Section 482 CrPC to quash the order dated 29.11.1996 passed by the learned Magistrate as contained in Annexure-4 and the order dated 21.01.2004 passed by learned Revisional Court as contained in Annexure-5 and also every proceedings arising out of these orders. Heard learned counsel for the petitioners and learned Additional Government Advocate for the State and perused the record. No one appeared on behalf of the respondent No. 2, although a counter affidavit on behalf of respondent No. 2 is available on the record and no rejoinder affidavit has been filed by the petitioners against the same. Matter was listed for hearing after publication of the notice in the cause list dated 28.08.2010 classified as in the list of cases likely to be infructuous. Name of the counsel for the respondent No. 2 Sri Awdhesh Kumar is printed in the list, but as earlier said, on one appeared on his behalf.
(2.) Undisputed facts are that on 11.10.1993 in front of the house of the respondent No. 2 in the morning an occurrence has taken place and both the parties of the case had given different versions that how the occurrence has taken place. As per present case at about 6.30 A.M. when respondent No. 2 was at his house, petitioner No. 1 Chiddu alias Wahid Khan with his companion with an intention to "Loot forcibly entered into his house with deadly weapons and started abusing and threatening and "Looted- - household articles worth Rs. 2,000/- and Jewellry worth Rs. 5,000/- and also insulted ladies and children and threatened them. Under their fear, respondent No. 2 left his house to save his life. On raising alarm witnesses from the Mohalla came there. It is further said that petitioners have obstructed the respondent No. 2 saying that if FIR is lodged, they will manage to send him in jail. With the said reasons, the respondent No. 2 could not come to lodge the FIR and only on 14.10.1993 he informed the Superintendent of Police, Gonda through telegram, but no FIR was lodged. Application was sent to D.I.G. by registered post repeatedly for lodging the FIR. An application was also sent to I.G. and D.G.P. through registered post, but no heed was paid by the police personnel. Only then he moved application under Section 156 sub-clause (3) Cr.P.C. in the court of learned Magistrate, District Gonda. On the same, learned Magistrate passed the order directing the police personnel to register the case and to investigate in the matter. Case was registered at Crime No. 218/1995 under Section 395 IPC and FIR was lodged. Without doing any investigation in the matter and without recording the statement of the witness, final report was submitted by the police of P.S. concerned in the matter. When the same was reached at the Court of Magistrate, respondent No. 2 moved a protest petition with the prayer of re-investigation in the matter, but on the same, a complaint case was registered and after recording the statement of the complainant under Section 200 CrPC and his witness under Section 202 CrPC and hearing to the counsel for the complainant and also after going through the record, the learned Magistrate found that prima-facie case is made out and there are sufficient ground to summon the accused-persons and he ordered for summoning the accused-persons vide order dated 29.11.1995 for their trial for the offence under Section 395 IPC. A revision against the summoning order was filed in the Court of- - learned Session Judge, but the same was dismissed by the learned Session Judge vide its order dated 21.01.2004 and the summoning order of the accused petitioners for their trial was confirmed. Aggrieved by these two orders, this petition under Section 482 CrPC has been filed. In this petition also vide order dated 26.10.2004 operation of the summoning order dated 29.11.1996 against the petitioners was stayed by this Court.
(3.) In cross version it was averred that on 11.10.1993 at about 7.00 a.m., petitioner No. 1 Chiddu alias Wahid Khan has gone to ease and when he was returning to his house and reached near the house of the respondent No. 2, the women of the family of the respondent No. 2 started abusing him and when they were objected respondent No. 2 and his two sons namely Arjun and Alakhram came out and started beating to petitioner No. 1 which attracted his brother namely Ramjan petitioner No. 3 and Yasin alias Cheen petitioner No. 5. Due to injuries suffered by the petitioner No. 1, he became unconscious. Report of the incident was lodged by the brothers of the petitioner No. 1 and case Crime No. 338/1993 under Sections 323, 308, 504, 506 IPC was registered against the respondent No. 2 and others. After investigation in the matter, chargesheet was submitted by the police for their trial which resulted in conviction of the respondent No. 2 and his two sons in Session Trial No. 269/1996 State v. Mohlu Prasad vide order dated 16.03.2004 passed by learned Additional Session Judge, Court No. 4, Gonda. Learned Additional Government Advocate stated that in counter affidavit conviction in the case as above of respondent No. 2 and his two sons was not denied but it was averred that against the conviction order in the session trial, Criminal Appeal No. 696/2004 was filed and the same is pending before this Court and the respondent No. 2 and his two sons have already been enlarged on bail in the matter. Learned counsel for the petitioners have challenged the validity and propriety of the order passed by the two courts below on the ground that trial court and learned Session Judge have not seen that only to pressurize the applicants, respondent No. 2 managed to lodge the FIR against them and learned Magistrate has without application of mind and without taking into consideration of the pendency of the session trial against the respondent No. 2 and other straightway summoned the applicants and learned Session Judge erroneously rejected the revision filed by the petitioners.;