- (1.) THE applicants feeling aggrieved by the summoning order dated 01.04.1997 passed by Additional Civil Judge (Junior Division), Sultanpur in Criminal Case No.1228 of 1996 have preferred the instant petition under Section 482 CrPC.
(2.) THE brief facts of the case are that the opposite party no.2 filed a complaint with the allegations that a case with regard to mutation of House No.323 was pending in which one Atul Chand Agarwal had also given an application for mutation. One more application for mutation was given by Suresh Chandra. All the three cases were to be jointly decided. However, before the cases could be decided, Ram Niwas Agarwal on 10.01.1989 passed an order in favour of Atul Chand Agarwal. It was further alleged in the complaint that Ram Niwas Agarwal in order to give wrongful gain to Atul Chand Agarwal, passed the mutation order in connivance with the applicants. When the opposite party no.2 came to know about the aforesaid order, he filed an appeal against the order dated 10.01.1989. The said appeal was allowed on 18.12.1993. The opposite party no.2, after the appeal was allowed, approached Kotwali, Sultanpur as well as Superintendent of Police, Sultanpur to register a case and investigate the matter. When no action was taken by them, he filed a complaint against them with the request that the accused persons be summoned and punished according to law. Learned Magistrate after following the procedure of complaint case and after hearing the learned counsel for the opposite party no.2 passed the summoning order directing the applicants as well as Ram Niwas Agarwal and Atul Chand Agarwal to face trial under Sections 419, 420, 467, 468 and 471 IPC.
(3.) I have heard learned counsel for the applicants, learned counsel for the opposite party no.2 and learned AGA and have also perused the order impugned in this petition. Learned counsel for the applicants has argued that from a perusal of the complaint, it reflects that the mutation order was passed by Ram Niwas Agarwal in favour of Atul Chand Agarwal and no specific roll was assigned to the present applicants. The only allegation against them was to the effect that they also extended their help and support to Ram Niwas Agarwal. Learned counsel for the applicants has also drawn the attention to the Court towards the statement of the opposite party no.2, which was recorded before the Magistrate under Section 200 CrPC. In the statement before the Magistrate, the opposite party no.2 has only stated that the mutation order was passed by Ram Niwas Agarwal and the applicants were also involved in the conspiracy. It has been submitted on behalf of the applicants that there is no prima -facie evidence of conspiracy and it has also not been disclosed either in the complaint or in the statement as to how the applicants were involved in the conspiracy. They have been made accused in the case because the applicants no.1 and 2 are the real brothers of Atul Chand Agarwal and the applicant no.3 is their father. Learned Magistrate while passing the impugned summoning order has also not recorded any satisfaction as to how he was satisfied that the applicants were also involved in the conspiracy. It is an admitted fact that neither the applicants passed any order nor the order of mutation was passed in their favour. Thus, the summoning order in respect of the applicants is without jurisdiction and is liable to be set aside.;