VISHNU CHANDRA GUPTA, J. - (1.) BY means of this petition, under Section 482, Cr.P.C., the petitioner has sought for quashing of the order dated 06.12.2012 passed by learned Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Criminal Revision No.14 of 2011 (Sri Munna Vs. Babu and others) as well as the further proceedings of Complaint Case No.5413 of 2010 (Noor Ali Vs. Babu and others), under Sections 467, 468, 420 IPC, Police Station Kotwali, District Kheri pending in the court of learned Chief Judicial Magistrate, Kheri.
(2.) BRIEF facts for deciding this petition are that one Noor Ali son of Hazari moved an application under Section 156(3), Cr.P.C. dated 11.08.2008 against the petitioner and one Fundan Ali Khan stating therein that he is the co -sharer of Gata No.173 area 0.50 decimal (Non Z.A.) along with Mahboob Ali and Mohd. Ali sons of Hazari. Abdul Moham with the connivance of Ajmat Ali and Babu executed a forged Will dated 27.05.1972 in his favour whereas Mohd. Ali was already died on 05.04.1969. Fundan Ali and Babu after committing criminal conspiracy by impersonating Babu as Mohd. Ali get the aforesaid Will executed. On the aforesaid application dated 11.08.2008, learned Chief Judicial Magistrate passed an order on 25.07.2009 for lodging the FIR against the petitioner and one Fundan Ali. During this process, Noor Ali moved another application before Circle Officer, Kheri for lodging an FIR in the light of earlier order passed by learned Chief Judicial Magistrate on 25.07.2009. In pursuance of this application moved before Circle Officer and in the light of order dated 25.07.2009, a first information report was lodged with Case Crime No.C -3303 of 2009, under Sections 420, 467, 468 IPC, Police Station Kotwali Sadar, District Kheri. The Investigating Officer after completing the investigation submitted final report. The learned Chief Judicial Magistrate, Kheri accepted the final report but in the meantime, the informant Noor Ali died. Thereafter, the opposite party no.2, who claimed himself to be the nephew of Noor Ali, filed protest petition against the final report submitted by the police alleging therein that the Investigating Officer without collecting the evidence submitted final report. The learned Chief Judicial Magistrate treated the protest petition as complaint, which was registered as Complaint Case No.5413 of 2010. The opposite party no.2 also claimed himself to be sole legal heir of Noor Ali. He filed a copy of order dated 05.04.1969 passed in Case No.1370 by Consolidation Officer in which it has been shown that the aforesaid plot in question was sold by Mahboob Ali, Noor Ali and Mohd. Ali sons of Hazari for consideration of Rs.1000/ - in favour of Abdul Moham Ansari. While deciding the protest petition, the Magistrate was of the opinion that the aforesaid sale deed was not only executed by Mohd. Ali but also executed by Mahboob Ali and Noor Ali and therefore, it is not possible that the alleged forged Will was executed in the presence of two real brothers. It was also observed by learned Magistrate that Munna was directed to produce the death certificate of Mohd. Ali but he did not filed the same and the order, which was passed by the Consolidation Authority, was neither the certified copy nor original to establish the death of Mohd. Ali. On the aforesaid observations and also considering the statements recorded under Sections 200 and 202 Cr.P.C., the learned Magistrate rejected the complaint vide order dated 12.01.2011 for want of evidence and accepted the final report submitted by the police. Aggrieved by the order dated 12.01.2011, the opposite party no.2 filed Revision No.14 of 2011. The revisional court observed that a direction was issued to the police to produce the case diary and final report but in spite of adequate opportunity provided; the police had not produce the case diary. It has also been observed that the main question and the controversy is the death of Mohd. Ali which according to the prosecution is 05.04.1969 i.e. before the execution of the sale deed dated 27.05.1972. The revisional court has also observed that this controversy is a disputed question of fact which could be finally disposed of after recording the evidence on this issue. The finding arrived at by the learned Magistrate disbelieving the allegations levelled by the opposite party Munna cannot be allowed to sustain. Hence, the order passed by learned Magistrate has been set aside by the revisional court and the matter was remitted back to reconsider the matter after giving adequate opportunity to the parties to produce their evidence.
(3.) I have heard Sri Bhupendra Veer Singh, learned counsel for the petitioner, learned A.G.A. for the State and Sri Amjad Siddiqui, learned counsel for the opposite party no.2. Learned counsel appearing for the petitioner submitted that the opposite party no.2 is not the sole legal heir of Noor Ali. Noor Ali has two daughters and, therefore, he has no right to challenge the final report submitted by the police. The opposite party no.2 is not the family members of the deceased informant. The controversy is purely of a civil nature and no prima facie offence is made out on the basis of allegations made by the opposite party no.2. Hence, the order passed by the revisional court is liable to be set aside and the proceedings are liable to be quashed.;