- (1.) Heard learned counsel for the revisionist, learned A.G.A. for the State.
(2.) This revision has been directed against the order dated 30.03.2005 passed by the Additional Sessions Judge, Hathras in Revision No.189 of 2003, M.M. Zaidi Vs. State of U.P. and another whereby the learned Additional Sessions Judge, set aside the order of the Magistrate which was passed under Sections 245(2) Cr.P.C.
(3.) The brief facts of the case leading to filing of this revision are that the revisionist's wife filed a suit for permanent injunction and recovery of possession. The respondent was made a party in his personal capacity. An execution case bearing no.5 of 2001, Smt. Shakuntala Devi Vs. Adhyakchh Nagar Panchayat was filed for the execution of the decree in pursuance of which the Advocate Commissioner, Sri Digvijay Singh approached the respondent for effecting service of notice on him. The respondent opposed the execution and misbehaved with the Advocate Commissioner and cancelled his signature on the notice and tore up papers the advocate commissioner was carrying, when the husband of the decree holder, the revisionist, tried to intervene, the respondent hurled abuses and threats to his life and limb The complainant who is the husband of the decree holder, filed a complaint against the respondent for offences under Sections 504/506 I.P.C before the Magistrate. After the statements of the complainant and witnesses were recorded under Section 200 and 202 Cr.P.C. the Magistrate summoned the accused/respondent for offences under Sections 504/506 I.P.C. Against his appearance before the Magistrate the respondent moved an application under Section 245 Cr.P.C. contending therein that the complaint was lodged without any valid ground ; no offence was made out against him. It was also contended that though the allegation was levelled with regard to misbehaving with the Advocate Commissioner but the Advocate Commissioner himself did not make any complaint or report the matter to the Court. It was also contended that the respondent was a public servant and the prosecution was barred by Section 197 Cr.P.C. and as no sanction had been obtained the complaint was not maintainable and therefore he was entitled to be discharged. In his reply the revisionist filed an objection stating therein that the respondent was not a public servant he was an employee of Nagar palika Parishad, and further he was made party in his personal capacity.;