SMT. NISHA DEVI & ANOTHER Vs. STATE OF U.P. & ANOTHER

LAWS(ALL)-2017-8-7

HIGH COURT OF ALLAHABAD

Decided on August 10,2017

Smt. Nisha Devi And Another Appellant

VERSUS

State of U.P. and another Respondents

JUDGEMENT

HARSH KUMAR,J. - (1.) Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record. The present criminal revision has been filed against the order dated 18.1.2012 passed by Judicial Magistrate, Kayamganj, Farrukhabad in Criminal Case No.1069 of 2006 (State Vs. Jawahar Singh and others), under Sections 420 , 467 , 468 , 471 and 506 I.P.C., P.S. Kayamganj, District Farrukhabad, whereby the application of revisionists who have been summoned vide order dated 2.8.2007 to face the trial under Sections 420 , 467 , 468 , 471 and 506 I.P.C. in exercise of power u/s 319 Cr.P.C ., to recall application has been rejected by the Magistrate concerned. Learned counsel for the revisionists submits that the revisionist no.1 is the vendee of the impugned sale deed and revisionist no.2 is marginal witness of the sale deed in question which is alleged to have been obtained by way of fraud by impersonating some other persons in place of vendor; that though the revisionists were named in the F.I.R. but upon investigation no charge-sheet was submitted against them; that after examination of P.W.-1 upon application of the prosecution vide order dated 2.8.2007 the learned Magistrate issued summons to revisionists as well as Ishwar Dayal, the other marginal witness for trial together with the accused persons for the offences under Sections 420 , 467 , 468 , 471 and 506 I.P.C. allowing application 26B under Section 319 Cr.P.C.; that the revisionists moved an application for recall of order dated 2.8.2007 which has been rejected vide impugned order dated 18.1.2012, stating that the Court has no power of review; that since the power of revision under Section 401 Cr.P.C. are wide enough, the Court may kindly also consider the correctness of the order dated 2.8.2007 which was initially passed on application under Section 319 Cr.P.C. Per contra, learned A.G.A. supported the impugned order and contended that the Magistrate had no power of review of the application for recall of order dated 2.8.2007 which has been rightly rejected by the impugned order; that the revisionists could have challenged the order dated 2.8.2007 by filing revision or otherwise but have not challenged the same and so the revision against that order becomes barred by time and correctness of the order dated 2.8.2007 may not be looked into in this revision. He further contended that otherwise also the order dated 2.8.2007 is fully justified and has been passed in accordance with law; that since the fraud has been played on the first informant and his associates by obtaining sale deed in favour of revisionist no.1 through the imposters of real owners, and revisionist no.2 is marginal witness of the sale deed, there is sufficient material to try them together with other accused persons with every possibility of their conviction for the offences. Upon hearing learned counsel for the parties and perusal of record, I find that according to the averments made in F.I.R. the land in question belongs to the first informant Nanhe Lal and his brother and nephew Ram Prasad and Rajendra and on 10.1.1997 the revisionist no.1 Nisha Devi obtained a registered sale deed of their land in her favour on which sale deed Ishwar Dayal, Sheel Kamal and Ram Das stood as marginal witnesses while the sale deed was obtained by impersonating Jawahar, Kishore and Malkhan in place of Ram Prasad, Nanhe Lal and Rajendra respectively. Upon investigation, the I.O. submitted the charge-sheet only against four accused exonerating Ishwar Dayal, Sheel Kamal and Nisha Devi. During trial after examination of first informant Nanhe Lal as P.W.-1 an Application 26B was moved by prosecution under Section 319 Cr.P.C. for summoning the vendee Smt. Nisha Devi and marginal witnesses Ishwar Dayal and Sheel Kamal, for trial together with charge-sheeted accused persons for the offences under Sections 420 , 467 , 468 , 471 and 506 I.P.C. on which the trial court after hearing, has passed the detailed impugned order dated 2.8.2007. Feeling aggrieved with which the vendee and one marginal witness have come in revision. From the material on record, it is not disputed that the land in question belongs to the first informant Nanhe Lal, Ram Prasad and Rajendra and the sale deed dated 10.1.1997 has been obtained by impersonating some other persons as vendors in place of them. It is also pertinent to mention that according to the averments made in F.I.R. there was some clerical mistake in the sale deed in question and so a Titamma (Correction Deed) was also got executed through the above imposter on 17.7.1997. In the circumstances, it is not disputed that the revisionist no.1 is the main beneficiary being vendee under the sale deed and correction deed in question which have not been executed by real owners rather have been executed by co-accused Jawahar, Kishore and Malkhan and the revisionist no.2, the marginal witness may not be considered to be innocent in identifying the imposters as the real persons, the vendors. In view of above facts and circumstances, it does not lie in the mouth of the revisionists that they are innocent and may not be tried and there is no evidence against them. The order dated 2.8.2007 does not suffer from any irregularity or illegality. In view of above, I find that learned counsel for the revisionists has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or for setting it aside the impugned order. The revision has got no force and is liable to be dismissed. The revision is dismissed, accordingly. The impugned order dated 18.1.2012 as well as the order dated 2.8.2007 are confirmed. Interim order, if any, stands vacated. Let a copy of this order be sent to court below for expeditious disposal of trial in accordance with law. ;

Click here to view full judgement.