- (1.) THE petitioner has filed the instant petition under Section 482 Cr.P.C. for quashing of the impugned order dated 10.04.2014 passed by the Chief Judicial Magistrate, Shrawasti, whereby the learned Magistrate has rejected the discharge application of the petitioner. The brief facts giving rise to the instant petition are that the husband of the opposite party no. 2 was mentally sick since 40 years prior to his death. According to the opposite party no. 2 the petitioner as well as co -accused Rajesh Kumar had been harassing her after the death of her husband and as such she was living in her parental house. It is further alleged that after the death of the husband of the opposite party no. 2, the petitioner and co -accused in collusion with Village Lekhpal got the name of Rajesh mutated in place of Mangleshwar Pandey, who was the husband of the opposite party no. 2.
(2.) THE case of the opposite party no. 2 is that she sold her property to one Gayatri Devi. On the basis of written complaint of the opposite party no. 2 a case under Sections 419, 420, 467, 468 and 471 I.P.C. was registered against the petitioner and other accused persons and the police after completion of the investigation, submitted charge -sheet. The petitioner had earlier filed a petition under Section 482 Cr.P.C. challenging the order dated 5.7.2007, taking cognizance upon the charge -sheet, which was disposed of vide oder dated 14.05.2013. By means of the aforesaid order the petitioner was given an option for moving an application for discharge before the court below and it was provided that till the disposal of the discharge application, no coercive measures shall be taken against the petitioner. In pursuance of the order dated 14.05.2013 passed by this Court, the petitioner moved an application for discharge, which has now been rejected by the impugned order.
(3.) THE learned counsel for the petitioner has submitted that the opposite party no. 2 was married to Shri Mangelshwar Pandey, but in the year 1952 he became mentally sick and on this ground the opposite party no. 2 filed a suit for divorce, which was decreed and the marriage between them was dissolved. In the aforesaid suit for divorce, Late Shri Mangleshwar Pandey had also filed his written statement admitting the fact of mental illness. The co -accused Rajesh Kumar is the son of the opposite party no. 2 and he was only 9 years of old when the divorce between opposite party no. 2 and her husband took place. The opposite party no. 2 after a gap of 40 years lodged the F.I.R. against Rajesh Kumar denying her relationship with him only to usurp the property of her deceased husband. After the death of Mangleshwar Pandey the property came in the name of the co -accused Rajesh Kumar being his legal heir and representative, whose name was also mutated in the revenue records. The opposite party no. 2 had also moved an application before the Tehsildar Bhinga for mutation her name, which is still pending. However, the Tehsildar had asked a report from Lekhpal upon which the Lekhpal has submitted his report before the Tehsildar mentioning therein that Rajesh Kumar is the real son of Mangleshwar Pandey. The learned Magistrate while considering the discharge application of the petitioner did not take into account the fact that the dispute between the parties is of civil nature and there was no evidence on record to indicate that the petitioner has prepared any forged document and, thus, the continuance of criminal proceedings are malafide. It has further been submitted on behalf of the petitioner that a revision is also pending under Section 219 Land Revenue Act before the Commissioner, against the order passed by Naib Tehsildar and in that proceedings, objections have also been filed by the son of the petitioner. A suit for declaration is also pending in the Court of Civil Judge, Shrawasti. The petitioner is aged about 80 years and is suffering from Cancer. The opposite party no. 2 wants to harass the petitioner in one way or the other. Since the dispute between the parties can be resolved only by the revenue court or the civil court, the present criminal proceedings are nothing, but abuse of the process of the Court.;