HARSH KUMAR,J. - (1.) Heard Shri Manish Tiwary, Advocate for the revisionist, Shri Rajendra Tiwari, Advocate for opposite party no. 2, learned AGA for the State at length and perused the record.
(2.) The revision has been filed against the impugned order dated 11.06.2010 passed by the Vth Additional Chief Judicial Magistrate, Varanasi in Criminal Case No. 193 of 2010 (Case Crime No. 43 of 2009)'State v. Parvez Khan and others ' under sections 454, 427, 504, 506 IPC, PS Sarnath, District Varanasi rejecting the application of the revisionist for discharge. After several illness slips by learned counsel for opposite party no. 2 and several requests for passing it over, the case was lastly passed over on his request on 26.07.2017 granting him further one week time for filing counter affidavit, and is listed peremptorily today but no counter affidavit filed by opposite party no. 2.
(3.) Learned counsel for the revisionist submits that the revisionist is aged about 97 years and is one of the trustee of Sitaram Trust; that the father of opposite party no. 2 was earlier manager of the Trust who was removed before 1963 when Shri Jangi Lal Kapoor, husband of revisionist was appointed manager; that one other person named Shankar Lal claimed his bhumidhari rights over the Trust property on the ground of adverse possession and in collusion with the other trustee opposite party no. 2 Shankar Lal Kapoor son of Panna Lal, obtained an ex-parte decree, which has been set aside vide judgment and order dated 07.07.2005 passed by this Court in Writ Petition No. 30332 of 2005' Shankar Lal v. Addl. Commissioner , Varanasi' also reported in 2005 (99) RD 162; that in Execution No. 4 of 2000 before the Civil Court, revisionist as a trustee and decree holder obtained possession over the property in question through Dakhalnama dated 18.11.2008 (At this stage of dictation of order, Shri Rajendra Tiwari, Advocate despite having been warned repeatedly, again started narrating the facts which amounts to interference in delivery of justice and was again asked to desist, else necessary action will be taken against him under Contempt of Courts Act); that subsequently, opposite party no. 2 by filing a second execution application No. 5 of 2004 which was legally maintainable and was also barred by time, procured a forged and fictitious Dhakhalnama of property in question dated 24.01.2009 in collusion with Court Amin; that when the matter came before the competent Civil Court of Civil Judge (Senior Division), Court No. 2, Varanasi in Misc. Case No. 4 of 2009 in objections filed by opposite party no. 2 under section 47 of CPC, the Court vide judgment and order (A-5) dated 05.11.2009 held that the possession over the property had already been delivered to the revisionist in Execution No. 4 of 2000 on 18.11.2008 and so the question of further delivery of possession to Shankar Lal Kapoor in a time barred Execution No. 5 of 2004 on 24.01.2009 does arise and rejected the report of Amin regarding delivery of possession in time barred Execution No. 5 of 2004 and also dismissed objections under section 47 CPC dismissing the entire proceedings of Execution Application No. 5 of 2004 being wrong and illegal; that after obtaining the forged and fabricated Dhakhalnama on 24.01.2009 (which has been cancelled vide above order dated 05.11.2009 at A-5), the opposite party no. 2 moved a false application under section 156 (3) Cr.P.C , 1973on 06.02.2009 regarding the alleged incident dated 05.02.2009 stating that on 04.02.2009, the revisionist after breaking his locks, did put her locks and again on 05.02.2009 at her instigation, Parvez Khan and 3-4 other persons of Muslim community taken away the goods table, chair as well as the attachi (suitcase) containing Rs. 5000/- cash and papers as well as clothes, by way of theft and attempted to take possession over the property of the first informant; that the learned Magistrate despite agreeing with the legal position that findings of civil courts are binding on criminal courts and holding that the possession of the property in question has been delivered to the revisionist by the legal process, has rejected the application for discharge merely on the ground that the matter is to be decided upon evidence; that it is undisputedly proved from the evidence on record that the the revisionist obtained possession over the property in question through process of court and the opposite party no. 2 never entered into the possession over the property in question so the question of interference in possession of opposite party no. 2 and committing theft of his alleged articles does arise at all; that it is also clear from the material on record that opposite party no. 2 had forged a Dakhalnama dated 24.01.2009 with the mala fide intention to falsely implicate the revisionist in criminal case for theft and immediately thereafter lodged the FIR with a false and concocted story through application under section 156 (3) Cr.P.C., 1973;