Sureshanand Disciple Swami Lakshamanand v. State of Uttarakhand & Another

an appeal was filed and the same was pending. This appeal 2 was ultimately allowed in due course of time, as stated by learned Counsel for the private respondent.

#3. It appears that before the matter could be adjudicated in the Civil Court, proceedings under Section 145 CrPC were launched in the Court of Sub Divisional Magistrate, Rishikesh who passed some orders on

17.5.2008 and 19.5.2008 in favour of Sureshanand. When the orders of Sub Divisional Magistrate dated 17.5.2008 were being executed on that day itself by the Government Machinery, which also included the Tehsildar, Rishikesh taking Sureshanand and his disciples with him, the same was resisted by Krishna Giri, which finally escalated into a fierce quarrel between the parties. So, the Tehsildar lodged an FIR on 17.5.2008 itself against Krishna Giri and his disciples. Investigation culminated into submission of chargesheet dated 22.8.2008 engendering the State Case No. 1371/2008 as the cognizance was taken upon the said chargesheet on 12.11.2008 and Krishna Giri and his associates were summoned to stand trial for the offences under Section 147, 149, 323, 506, 186 IPC.

#4. Another facet of the incident was launched by Krishna Giri by instituting a Complaint Case No. 1414/2008 on 10.6.2008 for the same incident of quarrel allegedly occurred on 17.5.2008. Learned Magistrate after recording the statements under Section 200 and 202 CrPC, did not find it a fit case to summon the proposed accused persons and dismissed the complaint under Section 203 CrPC on 7.2.2009. Feeling aggrieved, Krishna Giri filed a Revision No. 30/2009 which was adjudicated by the learned Additional Sessions Judge, Rishikesh by a short order dated 16.12.2010. By the said order dated

16.12.2010, learned Additional Sessions Judge, Rishikesh 3 also allowed an application bearing no. 16-Kha filed in that revision and the matter was remanded back to the Court of Magistrate with direction to hear the State Case No. 1371/2008 and the Complaint Case No. 1414/2008 together and then pass the further orders. So, this way learned Additional Sessions Judge disposed of the revision.

#5. Pursuant to the above direction, learned Chief Judicial Magistrate passed impugned order of cognizance dated 11.7.2011, whereby he took cognizance of the offences and summoned Sureshanand and his six associates asking them to stand trial for the offences under Section 148, 324, 504, 506 IPC. This order was challenged by way of filing a Revision No. 130/2011 in the Court of Sessions Judge.

#6. On the other hand, a Revision No. 104/2011 was filed by Krishna Giri with the prayer to pass the summoning order against rest of the Government Officials against whom no cognizance was taken by the Chief Judicial Magistrate even by his subsequent order dated

11.7.2011. Both these revisions, i.e. Revision Nos. 130/2011 and 104/2011 were dismissed by the Additional Sessions Judge, Rishikesh on 20.3.2011 and thus the impugned order of cognizance dated 11.7.2011 was sustained.

#7. Being dissatisfied with the aforesaid revisional order, Sureshanand has come up seeking invocation of inherent powers of this Court under Section 482 CrPC and to quash the order dated 16.12.2010 passed in Revision No. 30/2009 as well as the order of cognizance dated

11.7.2011 and also the entire proceeding of Complaint Case No. 1414/2008. 4

#8. Learned Counsel for the respondent has argued that accused applicant has not challenged the order dated

16.12.2010 and without challenging the said order passed in the Revision No. 30/2009, the order of cognizance dated

11.7.2011 cannot be assailed. This is simply a technical ground and the Court is not inclined to accept the same because the Revision No. 30/2009 itself could not have been adjudicated by the learned Additional Sessions Judge without impleading Sureshanand as a necessary party inasmuch as once the Magistrate refused cognizance against Sureshanand and his associates and dismissed the complaint under Section 203 CrPC, a right accrued in favour of Sureshanand and as such no order could have been passed in that revision without rendering an opportunity of hearing to him. This view has been affirmed time and again by the Hon(cid:146)ble Apex Court. In this regard, verdict of the Hon(cid:146)ble Apex Court in Raghu Raj Singh Rousha v. M/s Shivam Sundaram Promoters (P) Ltd. & Another, reported in 2009 (65) ACC 629 is notable. As such the order of cognizance dated 11.7.2011, which was passed in pursuance of the directions made in the Revision No. 30/2009, is per se illegal as the said revisional order could not have been adjudicated by the learned Additional Sessions Judge without impleading Sureshanand as a necessary party. So, the basis of the order of cognizance dated 11.7.2011 was itself an infirm order.

#9. Secondly, the learned Additional Sessions Judge did not even set aside the order of dismissal dated 7.2.2009 and passed a very short and unspeaking order directing the Magistrate to proceed both the State Case No. 1371/2008 and Complaint Case No. 1414/2008 together without 5 having taken note of the fact that the Complaint Case No. 1414/2008 was already dismissed by learned Magistrate under Section 203 CrPC.

#10. As regards the merits of the case, it is further adverted that Krishna Giri filed a complaint on 10.6.2008 for the same incident which occurred on 17.5.2008 i.e. he instituted the complaint almost after 23 days of the alleged incident, and that was obviously with an intention to create a cross-version of the incident in order to counter the allegations made in the FIR lodged by the Tehsildar, Rishikesh against him and his associates.

#11. It has been contended by learned Counsel for Krishna Giri that orders of Sub Divisional Magistrate dated

17.5.2008 and 19.5.2008 were challenged in the Revision No. 61/2008 before the Sessions Judge, Dehradun and the said revision was allowed on 26.7.2008. Be that as it may, but this by itself cannot confer any liberty to Krishna Giri to resort to violent means when the State officials were trying to execute the said orders of Sub Divisional Magistrate, which were issued in writing. That is why an FIR was lodged against him and the chargesheet was submitted on 22.8.2008.

#12. As such, the impugned complaint case launched by Krishna Giri was not an open-and-shut case as it was abundantly clear that the same was filed just to bamboozle the State officials and to negate the State Case No. initiated against Krishna Giri and his associates. 6

#13. For the reasons recorded above, this petition has substance and it is liable to be allowed. It is, accordingly, allowed. Consequently, the impugned order of cognizance dated 11.7.2011 and the entire proceedings of Complaint Case No. 1414/2008, Mahant Krishna Giri v. Chandra Singh Dharamshaktu & Orthers, under Section 148, 324, 504, 506 IPC, pending before the Chief Judicial Magistrate, Dehradun are hereby quashed.

#14. Inform the court concerned accordingly.

30.10.2012 Prabodh (Servesh Kumar Gupta, J.)