J.P.CHATURVEDI, J. - (1.) THIS is an application under section 482 Cr. P.C. for quashing the order of the learned Chief Judicial Magistrate, Gorakhpur, dated 7th April 1976 summoning the petitioners Smt. Swaran Anand, Jogendra Lal Anand, Shyam Lal Anand, Makhan and Nanak for the offences under sections 426, 447 and 382 I.P.C. read with section 120B I.P.C. and to appear before him on 27th April 1976.
(2.) THE facts giving rise to the applica­tion are that a complaint was made by Ram Chandra Sharma against Smt. Swaran Anand, Jogendra Lal Anand, Shyam Lal Anand, Makhan and Nanak in the court of the Chief Judicial Magis­trate, Gorakhpur of the offences under sections 109, 120B, 426, 447 and 382 .P.C. alleging that the complainant Ram Chandra Sharma had a shop which he let out to Amar Nath Anand, husband of Smt. Swaran Anand applicant No. 1 in 1961. Amar Nath Anand and Mohammad Hanif had a partnership firm known as Perfect Engineering works. In the said shop Mohammad Hanif had invested the capital while Amar Nath Anand was the working partner. Amar Nath Anand died in 1968 whereupon applicant,No. 1 Smt. Swaran Anand and Jogendra Lal Anand became working partners with Moham­mad Hanif under a registered deed of partnership. Jogendra Lal Anand separated from the partnership undertaking in 1972. Mohammad Hanif dissolved the partnership after giving notice and ever since 1972 Mohammad Hanif had been in possession of the shop and Smt. Swaran Anand and Jogendra Lal Anand had nothing to do with it. The complainant brought a suit for eviction of Amar Nath Anand in the civil court and obtained a decree against him, Mohammad Hanif brought a suit against the complainant Ram Chandra Sharma in which there was a compromise on 19th March 1976 in accordance with which the entire machinery and goods in the shop were sold by Mohammad Hanif to the complainant Ram Chandra Sharma for Rs. 30,000/-Ram Chandra Sharma accordingly came into possession of the shop along with the machines and the goods therein on 19th March 1976 and the appellants Smt. Swaran Anand and others had nothing to do with it. There was a conspiracy between the applicants Smt. Swaran Anand and others for taking possession of the shop unlawfully. On 22nd March 1976 when the complainant and Mohammad Hanif were removing some articles from the shop the appli­cants Shyam Lal Anand, Makhan and Nanak along with 10 or 12 persons came and entered the shop. They btirnt some documents. They caught hold of the complainant Ram Chandra Sharma and Mohammad Hanif and beat them with iron rods. They removed two trans-formers wbich were used for welding purposes. They unlawfully took possession of the shop also. On 30th March 1976 Ram Chandra Sharma made an application under the provisions of section 94 Cr. P.C. whereupon the learned Chief Judicial Magistrate passed an order directing the Station Officer, Kotwali to -take possession of the shop. The complainant also gave a notice to the applicants Smt. Swaran Anand and others for vacating the shop. The learned Magistrate recorded the statements £of Ram Chandra Sharma, Mohammad Hanif and Ram Bhuwan Tewari on 6th April 1976 and ordered for summoning the accused.
(3.) LEARNED counsel for the applicants has contended that the learned Magis­trate has not applied his mind in passing the above order and as such there was abuse of the process of the court in summoning the applicants. It was also pointed out that in the application for proceedings under section 94 Cr. P.C. annexure V Sami Ullah, Hamid, Kallu, Shyam Sunder, Ram Nagar, Shanker Singh and others were cited as witnesses pf the incident of 22nd March 1976 while in the complaint two more persons Ram Bhuwan Tewari and Jangi Lal have been added. The application under section 94 Cr. P.C. was meant for a limited purpose that is for search of the shop. Any way the word 'etc.' in paragraph 11 of the application under section 94 Cr. P.C. suggests that there were some persons other than those mentioned therein and on the basis of the allegations in para­graph 11. therefore, the presence of Jangi Lal and Ram Bhuwan Tewari cannot be excluded. Even if the pre­sence of Ram Bhuwan Tewari is doubted there were two other witnesses whose statements were recorded by the learned Magistrate. They are Mohammad Hanif and Ram Chandra Sharma who were also alleged to be present in the application under section 94 Cr. P.C. It was also pointed out that the allega-tion as to the burning of documents inside the shop did not find support from the statement of the complainant himself recorded by the learned Magistrate under section 202 Cr. P.C. A certified copy of the statement of Ram Chandra Sharma is annexed with his counter affidavit and it is clearly stated therein in paragraph 3 that the miscreants burnt the documents which were kept in the shop. The learned Magistrate recorded the statements of three witnesses on 6th April 1976. He passed the order for summoning the applicants on 7th April 1976. The statements of the witnesses are in the hand writing of the learned Magistrate himself and it cannot be supposed that he did not consider them when he passed the order for summon­ing the applicants.;