VISHNU CHANDRA GUPTA, J. - (1.) BY means of this petition, under Section 482 of Cr.P.C., the petitioners have prayed for quashing the impugned summoning order dated 07.03.2007 passed by learned Judicial Magistrate, Court No.23, Sultanpur in Criminal Case No.6073 of 2006 (Babban Tiwari Vs. Kaushlendra and others), under Sections 147, 380, 427 IPC, Police Station Kurebhar, District Sultanpur and the impugned order dated 21.07.2005 passed by learned Additional District Judge, Court No.7, Sultanpur
(2.) BRIEF facts for deciding this petition are that opposite party no.3 Babban Tiwari filed a criminal complaint against the petitioners with the allegations that on 15.03.2004 at about 7:00 P.M., he was going to his house after taking medicine and when he reached in front of his shop situated at Mauja Ardih, he saw that the accused persons, who were armed with Sabbal, Ghan (heavy armour), Lathi, Danda and country made pistol, were demolishing his shop. When, he raised objection, the accused persons abused and extended threat. Thereafter, he ran away from the spot. It is also alleged in the complaint that the whole shop of the opposite party no.3 was demolished by the petitioners and also taken away the articles amounting to Rs.30,000/ - kept in the shop. This incident was witnessed by the several persons. The opposite party no.3 reported the incident to the police of Police Station Kurebhar. When the report was not lodged by the police of Police Station Kurebhar, the opposite party no.3 moved several applications to the police authorities but no action has been taken by the police authorities. Thereafter, the opposite party no.3 moved a criminal complaint before learned Additional Chief Judicial Magistrate, Court No.20, Sultanpur. After recording the statements under Sections 200 and 202, Cr.P.C., learned Additional Chief Judicial Magistrate rejected the complaint under Section 203, Cr.P.C. vide order dated 10.02.2005. Against the order dated 10.02.2005, the opposite party no.3 filed Criminal Revision No.176 of 2005, which was allowed vide order dated 21.07.2005 by learned Additional District and Sessions Judge, Court No.7, Sultanpur remanding the matter to the learned Magistrate. Learned Magistrate in compliance of order dated 21.07.2005 and after considering the statements recorded under Sections 200 and 202, Cr.P.C., summoned the petitioners vide order dated 07.03.2007 under Sections 147, 380, 427 IPC. Aggrieved by the orders dated 21.07.2005 and 07.03.2007, the present petition has been filed by the petitioners before this Court.
(3.) ACCORDING to the petitioners, the opposite party no.3 purchased a land measuring area 12 feet towards roadside on 21.10.1991 from Ram Das Pandey. Earlier to it, petitioner Kaushlendra and his brothers Lalmani and Arvind Pandey purchased a land measuring area 37 x 37 feet. Thereafter, Smt. Kusum Devi wife of Lalmani also purchased a land. When the petitioners came to take possession over the land along with the land purchased by Smt. Kusum Devi, they found that the opposite party no.3 illegally constructed his shop on their land. The petitioners filed Regular Suit No.987 of 1991 (Kaushlendra and others Vs. Babban Tiwari). The regular suit was decreed by learned Civil Judge, Sultanpur on 15.09.1999. Against the order dated 15.09.1999, the opposite party no.3 preferred Civil Appeal No.29 of 1999, which was dismissed vide order dated 07.02.2004 by learned Additional District Judge -Ist, Sultanpur. Thereafter, the petitioners filed Execution Case No.4 of 2004 (Kaushlendra Vs. Babban) before learned Civil Judge (Junior Division), North, Court No.25, Sultanpur. The executing court vide order dated 23.04.2005 directed the Commissioner to ensure possession of the land in dispute to the decree holder. In compliance of the order of executing court, the possession was handed over to the decree holder after demolishing the shop of the opposite party no.3. A memo was prepared by the Amin Commissioner on 19.05.2005 which was not only signed by the decree holders but also by the person to whom Supurdagi was given. It has been contended by learned counsel for the petitioners that the opposite party no.3 filed the aforesaid complaint with mala fide intention only to defame the petitioners. It has also been contended that the opposite party no.3 filed the aforesaid complaint after concealing the material facts. It has also been contended that learned Magistrate without applying his judicial mind illegally summoned the petitioners.;