- (1.) M. K. Mittal, J. This application has ben filed by Srimati Prema Devi widow of Ram Prasad Dubey under section 482 Cr. P. C. for quashing the orders dated 7. 8. 1986, 1. 9. 1986 and 24. 2. 1986 passed by S. D. M. Padrauna and the order dated 2. 7. 1987 passed by Sessions Judge, Deoria and also the proceedings in Criminal Case No. 248/86, under section 145 Cr. P. C. , Rajendra Dubey v. Prema Devi, pending in the Court of S. D. M. Padrauna at Kasia, District Deoria.
(2.) THE brief facts of the case are that the opposite party Rajendra Prasad Dubey filed an application under section 145 Cr. P. C. and S. D. M. passed the preliminary order on 7. 8. 1986. THE applicant filed an application (Annex ure-5) for dropping the proceedings as civil case was pending between the parties. Learned Magistrate by order dated 24. 2. 1987 rejected the application on the ground that he had no jurisdiction to review the earlier order. Against that order the Criminal Revision No. 121/87 was filed by Smt. Prema Devi in the Court of Sessions Judge which was also rejected by order dated July 2, 1987. Feeling aggrieved this application has been filed. The contention of the applicant is that originally her husband Rajendra Prasad Dubey was Bhumidhar of plot No. 209/1. 26 half portion and plot No. 197/1. 75 pertaining to chak Nos. 31, 209, 174, 197, situate in village Pakhnaha, P. S. Nebuwa Naurangia, Padrauna. Her husband died in 1978 and she inherited these plots and her name was also mutated in the revenue record. However, after the death of her husband Bachha Dubey, father of the opposite party claiming himself to be the real brother of Rajendra Prasad Dubey, moved an application for mutation of his name and in that matter the applicant filed an objection and her claim was accepted by Consolidation Officer. Bachha Dubey did not file any revision or appeal against the order dated 18. 4. 1984 passed by Consolidation Officer and the same became final. The opposite party managed to obtain a fictitious gift deed allegedly executed by the applicant on 31. 8. 1985 in the province of Bihar by setting up some fictitious Smt. Prema Devi. When the applicant came to know about it she filed a Civil Suit No. 737/85 in the Court of Munsif Kasia and interim order was passed on 3rd April, 1986 which still holds good. Thereafter, the opposite party No. 2 filed the present application under section 145 Cr. P. C. contending that he was in possession over the plot in suit on the basis of the gift deed executed by the applicant in favour of his son. On that application the orders were passed as referred above. The case of the applicant is that the application was not filed for review of the earlier order but was filed for dropping the proceeding as civil suit was pending between the parties and the learned Magistrate as well as the learned Sessions Judge fell into error when they rejected the application and the revision. The opposite party filed counter affidavit and contended that the applicant had executed the bakshish-nama on 31. 8. 1985 in the presence of the Registrar and on the basis thereof, the name of the applicant was also recorded in the land revenue record in the consolidation proceedings. According to the opposite party he was in possession over the disputed plots and that the proceedings under section 145 Cr. P. C. were not liable to be quashed because the gift deed could not be cancelled by the Civil Court. The applicant filed rejoinder affidavit and contended that the alleged bakshish-nama is a forged document and she has filed a suit for its cancellation in Civil Court which is maintainable. She has been in possession through out over the disputed plot and her name continues to be recorded in the revenue record. The order passed by Consolidation Officer mutating the name of the opposite party on the basis of the forged bakshish-nama was an ex-parte order. On the application filed for setting aside the said order, the same has been set aside and is no longer in existence. She continues to be in possession and the interim order still holds good. The dispute between the parties can be decided by the Civil Court and the Civil Suit is maintainable and proceeding under section 145 Cr. P. C. are liable to be quashed as it amounts to multiplicity of the proceeding.
(3.) I have heard Sri P. N. Tripathi learned Counsel for the applicant, Sri Arvind Srivastava learned Counsel for the opposite party, learned AGA and have perused the material on record. The contention of the learned Counsel for the applicant is that the applicant is the recorded tenure holder and the opposite party obtained a forged deed by impersonating her and the same has been challenged in the Civil Court and the Civil Court is competent to cancel that deed. He has also contended that since the matter is pending in the Civil Court the proceedings under section 145 Cr. P. C. are superfluous and are liable to be dropped. He also contended that the application filed in the Court of the Magistrate was not for review but was for dropping of the proceedings and the learned lower Courts erred in rejecting the same.;