Umesha Chandra - (1.) THIS revision is directed against an order, dated 6-11-1985, passed by Special Judge, Agra, in Sessions Trial No. 55 of 1985 Anil Kumar v. Mahendra Kumar and others, summoning all the accused persons to stand trial under section 395 IPC. The impugned order is as follows : " Perused the evidence recorded under sections 200 and 202 CrPC. The police had earlier investigated the case and submitted final report against which the complainant filed protest petition and filed the present complaint and adduced all possible evidence in support thereof. There is prima facie evidence supported with medical evidence to make out a case under section 395 IPC. Summon all the accused persons for facing trial under section 395 IPC Fix 2-12-1986,"
(2.) ON 29-11-1984 at 20.5 hours Mahendra Kumar Jain lodged a report against Rajendra Kumar and Pandey Anil Kumar under sections 323/503 IPC about an occurrence alleged to have taken place at about 5 P. M. at Chauraha Tundla. ON 30-11-1984 at 1.45 A. VA. Anil Kumar son of Rajendra Kumar also lodged a report against Mahendra Kumar and others about the incident alleged to have taken place on 29-11-1984 at about 5 P. M. These reports contained versions, one given by the petitioners and the other by opposite party no. 2 with regard to the incident which had taken place on 29-11-1984 as a result of a civil litigation between them. The facts in brief are that applicant Mahendra Kumar Jain is the owner of house no. 4/27 situate at Tundla Chauraha. This house was under the tenancy of Rajendra Kumar Jain opposite party no. 3 who allegedly vacated the same without intimating the landlord and got the same allotted in his favour on 14th December, 1977. Aggrieved by the ex-parte order of allotment, Mahendra Kumar Jain moved an application for cancellation of the order which was cancelled on 17-4-1979. Thereafter a revision was filed which was dismissed on 16th January 1981 by VIII Additional District Judge, Agra. Petitioner Mahendra Kumar then moved an application for release of the premises before the SDM (Rent Control and Eviction Officer), Etmadpur, district Agra. This application was rejected on 19th May 1981. Aggrieved against the order of rejection on the release application, a revision was filed which was ultimately allowed on 15th March, 1984. Armed with this order, the petitioners filed an application before the Sub-Divisional Magistrate for recovery of possession and on 22-11-1984 the Sub-Divisional Magistrate passed an order and issued process in Form D. On 29th November, 1984, the Sub-Inspector of Police attached to police station Tundla started delivering possession of the house to the landlord and it is alleged that the house was partially got vacated by 3 P. M. when the son of Rajendra Kumar Jain, namely, Anil Kumar opposite party no. 2, produced the order of the Sub-Divisional Magistrate,, Etmadpur, staying delivery of possession immediately. The entire process of giving possession was stopped and Rajendra Kumar Jain was put back in possession of the house. The police started investigation into the allegations made in the first information report of the opposite parties and on coming to the conclusion that no such offence was made out, submitted a final report in the case. A protest application was filed by Anil Kumar Jain opposite party no. 2 and the Special Judge recorded the statements of some witnesses under Sections 200 and 202 CrPC and passed the impugned order summoning the petitioners to face trial under section 395 IPC by putting appearance on 2-12-1985. Aggrieved against that order, the present revision has been filed.
(3.) THE order passed by the Special Judge under revision has been challenged on the following grounds : 1. That the allegations made in the report are patently absurd and inherently improbable so that no prudent person can reach a conclusion that there was sufficient ground for proceeding against the accused. 2. In view of the statements on record, no case against the applicants is made out, and the entire proceedings which have been initiated, are malicious and with ulterior motive. 3. THE Special Judge had no jurisdiction to record statement of the witnesses under Sections 200 and 202 CrPC and as this evidence has been taken into consideration, the Special Judge was influenced on extraneous considerations in summoning the petitioners to put in appearance for trial. 4. Lastly the impugned order has been passed mechanically and without application of judicial mind. Learned counsel for the opposite parties has argued that the present petition is not maintainable, inasmuch as the parties had fought out the case when an application was moved under section 482 CrPC by Mahendra Kumar Jain and others against opposite parties 2 and 3. Such an application was moved by the present petitioners on 30-11-1985 which was registered as Criminal Misc. Application No. 15712 of 1985. The petition was dismissed in limine after hearing the learned counsel for the petitioners on 29th January 1986. The record of this criminal miscellaneous application shows that the petition was directed against the summoning order which is now being challenged and the following grounds were taken: (1) a list of the prosecution witnesses required under section 204 (2) Criminal Procedure Code was not filed from the side of the complainant ; (ii) all the witnesses for the complainant were not examined as required under the proviso to sub-section (2) of Section 202 of the Code ; (iii) there is contradiction between the averments contained in the first information report, referred to above, and the affidavit filed by R. K. Jain dated November 30, 1984, which is Annexure-5 to the application; R. K. Jain it may be pointed, is the father of Anil Kumar Jain ; and (iv) the statement of Smt. Maina Devi, one of the injured persons made before the Special Judge is discrepant.;