# Kaushlesh Mishra & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 81
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Criminal Revision No. 2194 of 2015
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushlesh-mishra-ors-revisionists-v-state-of-u-p-anr-49683
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 245(2)-rejectiondischarge
application-application
rejected
by
Magistrate

without
evaluating allegations of complaint and
considered police report submitted u/s
202 Cr.P.C.-Magistrate failed to apply
his mind to grounds of discharge and did
not consider relevant contention raised
in
this
respect-Thus,
Magistrate
proceeded on assumption that he has no
power to evaluate the material on record
and at that stage prayer of discharge
could not be entertained-This is a
violation of the legal provision which
requires a finding by Magistrate with
regard to charges against accused being
groundless or that there is ground for
presuming
that
the
accused
have
committed offence-Hence, the matter is
remanded back to lower court to pass a
fresh
order
on
the
discharge
application.(Para 1 to 10)

B. Section 245(2) Cr.P.C. provides that
the
Magistrate
is
empowered
to
discharge the accused at any previous
stage of the case i.e. before evidence
u/s 244 Cr.P.C., if he considers the
charge to be groundless. (Para 6)

The revision is allowed. (E-6)

List of Cases cited:
Manoj Mahabeer Prasad Khaitan Vs Ram Gopal
Poddar & anr. in CRLA No 1973 of 2010 (SLP
(Crl) No 2274 of 2008)

## Text

1 All. Kaushlesh Mishra & Ors. Vs. State of U.P. & Anr.
81
There is no illegality or infirmity in the
impugned and it need no interference.

9. Accordingly, the revision is devoid
of merits and is hereby dismissed.
----------
(2023) 1 ILRA 81
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 2194 of 2015

Kaushlesh Mishra & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Mohammad Mustafa Khan, Miss Afshan
Shafaut, Sri Byas Kumar Prasad

Counsel for the Opposite Parties:
G.A., Sri Santosh Kuamar Pandey, Sri
Saurabh Tripathi

A. Criminal Law - Criminal Procedure
Code,1973 - Section 245(2)-rejectiondischarge
application-application
rejected
by
Magistrate

without
evaluating allegations of complaint and
considered police report submitted u/s
202 Cr.P.C.-Magistrate failed to apply
his mind to grounds of discharge and did
not consider relevant contention raised
in
this
respect-Thus,
Magistrate
proceeded on assumption that he has no
power to evaluate the material on record
and at that stage prayer of discharge
could not be entertained-This is a
violation of the legal provision which
requires a finding by Magistrate with
regard to charges against accused being
groundless or that there is ground for
presuming
that
the
accused
have
committed offence-Hence, the matter is
remanded back to lower court to pass a
fresh
order
on
the
discharge
application.(Para 1 to 10)

B. Section 245(2) Cr.P.C. provides that
the
Magistrate
is
empowered
to
discharge the accused at any previous
stage of the case i.e. before evidence
u/s 244 Cr.P.C., if he considers the
charge to be groundless. (Para 6)

The revision is allowed. (E-6)

List of Cases cited:
Manoj Mahabeer Prasad Khaitan Vs Ram Gopal
Poddar & anr. in CRLA No 1973 of 2010 (SLP
(Crl) No 2274 of 2008)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Byas Kumar Prasad,
learned counsel for the revisionists and
learned A.G.A. for the State. However,
none appeared on behalf of opposite party
no.2.

2. This criminal revision has been
filed with the prayer to set aside judgement
and order dated 18.04.2015 passed by
learned
Chief
Judicial
Magistrate,
Siddharthnagar in Criminal Complaint
Case No.277 of 2013 (Ripusudan Mishra
Versus Kaushlesh Mishra and others) under
Sections 506 and 427 I.P.C. , Police Station
Siddharthnagar, District Siddharthnagar,
pending the court of Chief Judicial
Magistrate, Siddharthnagar.

3. In brief, the facts of the case are
that
opposite
party
no.2
moved
an
application under Section 156(3) Cr.P.C.
against revisionists and Sub Inspector
Santraj Yadav, Constable Rauf Khan and
five unknown constables, alleging therein
that the father of the opposite party no.2
paid Nazrana of Rs.20/- to ex-Zamindar on
82 INDIAN LAW REPORTS ALLAHABAD SERIES
30.09.1951 and obtained 00.3.10 area of
previous no.362, present no.56 of Village
Rehra. The applicant got constructed
foundation and boundary wall over the
same. On 20.09.2012 at about 5.00 p.m.
Kaushlesh Mishra pretending himself to be
a journalist moved an application with
forged signature of his uncle at Tehsil
Naugarh. On this application the accused
persons came on the spot with JCB
machine and got the foundation and
boundary wall dismantled causing loss of
Rs.24,000/-. The incident was seen by covillagers Bechu, Vyas Muni, Arun Kumar
Mishra and others. Learned Magistrate
treated this application as complaint.
Thereafter
the
complainant
examined
himself under Section 200 Cr.P.C. and two
witnesses Bechu and Arun Kumar under
Section 202 Cr.P.C. The complainant in his
statement stated that Guru Charan, Naib
Tehsildar, Rudramani, Junior Engineer and
Santraj Yadav, Sub Inspector and six
policemen reached on the spot with JCB
machine of Nawab Ali and they dismantled
foundation
and
boundary
wall.
The
witnesses also reiterated the aforesaid facts.
Learned Magistrate vide order dated
01.05.2014 summoned only one accused
Kaushlesh Mishra for the offence under
Section 506 I.P.C. Aggrieved with aforesaid
order, the opposite party no.2 filed
Criminal Revision No. 96 of 2014 and
Sessions Judge, Siddharth Nagar vide order
dated 24.07.2014 allowed the revision and
set aside the impugned order dated
01.05.2014 and directed the court below to
pass
fresh
orders
in
the
light
of
observations made in the body of the
judgement after affording opportunity of
oral hearing to the complainant. Thereafter,
learned Magistrate in compliance of order
of the revisional court passed fresh order on
02.12.2014 and summoned the revisionists
for the offence punishable under Sections
427 and 506 I.P.C. An application bearing
Criminal Misc. Application (U/S 482
Cr.P.C.) No.500 of 2015 was filed by the
revisionists-accused and in terms of the
order dated 17.01.2015 passed by this
Court in the aforesaid application, the
revisionists moved an application under
Section 245(2) Cr.P.C. for discharge on the
grounds that the revisionists are innocent
and they have been falsely implicated due
to enmity and for harassment, there is no
justification or evidence to file the
complaint, the allegations of the complaint
clearly establish that the nature of the
dispute is revenue and civil and there is no
ground to lodge a complaint, on the
complaint dated 07.05.2012 of Lalllan
Prasad Mishra, who is not a party in the
case,
while
taking
cognizance,
Sub
Divisional Magistrate vide letter dated
12.09.2012 passed the order against the
complainant
to
remove
his
illegal
encroachment by constructing boundary
wall on the banjar land of Gram Sabha, in
compliance of the aforesaid direction, in
presence of Circle Officer (Police), the
government employees in discharge of their
official duty removed illegal construction,
remaining applicants have no concern with
it, the complainant intentionally concealing
the facts and without impleading Sub
Division Magistrate, Naugarh and Lallan
Prasad Mishra, has moved application
against the revisionists under Section
156(3) Cr.P.C., there is no allegation in the
complaint which constitute an offence
under Section 506 I.P.C., despite this court
below in a casual manner summoned
Kaushlesh Mishra for the offence under
Section
506
I.P.C.,
while
remaining
accused persons were not summoned as no
evidence was found against them, the
complainant filed Criminal Revision No.96
of 2014 in which he himself has alleged
that Kaushlesh Mishra has been summoned
1 All. Kaushlesh Mishra & Ors. Vs. State of U.P. & Anr.
83
by the court only on the basis of surmises,
the revisional court has allowed the
revision only on the ground that on the
same evidence only one accused has been
summoned while others have not been
summoned and learned Magistrate has not
made any analysis of this. It is further
alleged that the revisionists are not party in
Original Suit No.387 of 1994, hence it is
not binding on the applicants, this original
suit has been filed by the complainant in
collusion with his real brother Janardan to
grab banjar land of Gram Sabha and they
have entered into a compromise and the
Gram Sabha is not a party in that suit.
Further grounds taken in the application are
that without taking any new and additional
evidence
the
revisionists
have
been
summoned, the complainant himself in
para-2 of memo of revision has alleged that
no offence under Section 506 I.P.C. has
been committed, no active role has been
assigned to the revisionists, from the
statement under Section 200 Cr.P.C. itself it
is established that complaint is not an eyewitness of the incident, witnesses Bechu
and Arun Kumar have not made any
allegations of the offence under Sections
427 and 506 I.P.C. against the revisionists,
they have also not stated that they are eyewitnesses of the incident, and no reason has
been assigned how they identified applicant
nos.4, 5 and 6, an order to recover damages
and to dispossess the complainant from
Arazi No.56M has been passed on
15.04.2014 by Tehsildar Naugarh in Case
No.102 of 2012 (Gram Sabha Versus
Ripusudan) under Section 122-B and Rule
115-C of U.P. Zamindari Abolition and
Land Reforms Act, the complainant filed
Revision No.7/15 of 2014 in the court of
District Magistrate, Siddharthnagar against
the order dated 15.04.2014, it has also been
dismissed on 06.12.2014, the complainant
with mala fide intention concealing real
facts just to grab the banjar land of Gram
Sabha has misused the process of the court,
there is no sufficient ground to proceed
against the revisionists and they are liable
to discharged under Section 245(2) Cr.P.C.
in pursuance of order of High Court dated
17.01.2015 passed in Criminal Misc.
Application (U/S 482 Cr.P.C.) No.500 of
2015. Learned Magistrate after hearing
both the parties vide impugned order dated
18.04.2015
rejected
the
discharge
application.

4 It is submitted by learned counsel
for the revisionists that revisionist nos. 1 to
3 and opposite party no.2 live in the same
village and civil dispute is pending between
them.
Opposite
party
no.2
always
threatened
the
revisionists
to
falsely
implicate them in criminal case. The
opposite party no.2 has encroached the land
of
Gram
Sabha
and
was
making
construction on Gata No.56M. Proceeding
under Rule 115-C of U.P. Zamindari
Abolition and Land Reforms Act was
initiated against him, but he continued to
make constructions on the Gram Sabha
land. Therefore, Sub-Divisional Magistrate
on 12.09.2012 has directed revisionist no.4
to
remove
illegal
construction.
In
compliance
of
this
order,
illegal
constructions have been removed by the
concerned authority. Opposite party no.2
wanted to take illegal possession of land of
Gram Sabha. The applicant nos. 4 and 5 are
government servants and they were acting
in discharge of their official duty, but
without obtaining any sanction under
Section 197 Cr.P.C. criminal proceedings
have been initiated against them. Further
revisionist no.6 is the owner of JCB
machine and no role has been assigned to
the revisionist nos. 1 to 3 and 6. It is also
contended that under Section 202 Cr.P.C.
the matter was investigated by the police
84 INDIAN LAW REPORTS ALLAHABAD SERIES
under the order of the Magistrate. In police
report, it has been clearly stated that due to
mala fide intention opposite party no.2 has
filed complaint. Lastly, it is contended that
no offence is made out against the
revisionists. They have not committed any
offence and have been falsely implicated
due to civil dispute. The earned Magistrate
without considering the entire facts and
circumstances of the case has rejected the
discharge application vide order dated
18.04.2015 which is illegal and bad in law
and as such liable to be quashed. Learned
Magistrate has committed gross illegality in
not following procedure laid down by the
law. The criminal case filed against the
revisionists is attended with mala fide
intention and proceedings are maliciously
instituted with ulterior motive for wrecking
vengeance
due
to
personal
grudge.
Reliance has been placed on the judgement
of Hon'ble Apex Court rendered in Manoj
Mahabeer Prasad Khaitan Versus Ram
Gopal Poddar and another in Criminal
Appeal No.1973 of 2010 (arising out of
Special Leave Petition (Crl.) No.2274 of
2008) decided on 8 October, 2010. Learned
counsel contended that it has been held by
the Hon'ble Apex Court that if criminal
proceeding is initiated with mala fide
intention, then it is liable to be quashed
because such proceeding is an abuse of
process of law and court.

5. Learned A.G.A. opposed the prayer
and submitted that at this stage only prima
facie case is to be seen and there is sufficient
material on record which establishes that
prima facie offfence under Sections 427 and
506 I.P.C. is made out against the revisionists.
There is no sufficient ground to discharge the
accused
under
Section
245(2)
Cr.P.C.
Learned Magistrate has rightly rejected the
application and there is no illegality or
infirmity in the impugned order.

6. Section 245(2) Cr.P.C. provides as
follows:

"245. When accused shall be
discharged. (1)..........

(2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless."

Aforesaid provision empowers
Magistrate to discharge the accused at any
previous stage of the case i.e. before
evidence under Section 244 Cr.P.C., if he
considers the charge to be groundless.

7. The material on record transpires
that a complaint was made with the
allegation that opposite party no.2 has
made encroachment on Gata No.56M
which is banjar land of Gram Sabha.
Proceeding under provision of U.P. Z.A. &
L.R. Act was initiated. Revenue Inspector
inspected the site and found the complaint
to be true i.e. the complainant has made
encroachment on the banjar land of Gram
Sabha by raising boundary wall on it. On
the basis of the report of Revenue
Inspector, the Sub-Divisional Magistrate
directed
for
removal
of
the
illegal
encroachment on 12.09.2012. In pursuance
of aforesaid order, Guru Charan, Naib
Tehsildar, Naugarh revisionist no.4 with the
aid
of
local
police
force
got
the
encroachment removed. So it is established
that illegal encroachment made by the
opposite party no.2 has been removed in
due process of law by the public servants in
discharge of their official duty. Revisionist
nos. 2 and 3 have no role in the entire
matter, JCB machine of revisionist no.6 has
been
used
for
removal
of
illegal
encroachment by the public authorities,
respondent no.1 has only made complaint
1 All. The State of U.P. Vs. Pooran Singh & Ors.
85
regarding illegal encroachment by opposite
party no.2, so, it appears that application
under Section 156 (3) Cr.P.C. was filed
with coloured version of incident. It also
transpires that after treating the application
as
complaint
learned
Magistrate
has
directed for inquiry under Section 202 (2)
Cr.P.C. by local police. The inquiry reports
are Annexure nos. 6 and 7 to the affidavit
filed in support of the criminal revision. It
also confirms that real incident is that
illegal encroachment of opposite party no.2
has been removed by the public authorities
in discharge of their official duty and no
offence has been committed.

8. Learned Magistrate has rejected the
discharge
application
observing
that
grounds on which discharge application has
been
moved
are
all
factual,
after
appearance of the accused, the complainant
will be provided an opportunity to produce
evidence and accused will have opportunity
of defence. It is also observed that the facts
alleged in the complaint are supported by
statements under Sections 200 and 202
Cr.P.C. and on its basis summoning order
has been passed.

9. From the above it appears that the
learned Magistrate proceeded on the
assumption that he has no power to
evaluate the material on record and at that
stage prayer of discharge could not be
entertained. This is in the violation of the
legal provision which requires a finding by
the Magistrate with regard to the charges
against the accused being groundless or
that there is ground for presuming that the
accused have committed the offence. The
finding
was
to
be
recorded
upon
considering the entire material on record.
The Magistrate has failed to evaluate the
allegations of the complaint and consider
the police report submitted under Section
202 Cr.P.C. The learned Magistrate has not
applied his mind to the grounds of
discharge and contention raised in this
respect. The learned Magistrate must have
considered the pleas taken in discharge
application and addressed the same by a
speaking
and
reasoned
order.
While
disposing of the discharge application the
learned Magistrate has not considered
relevant contention and rejected the same
in a cursory manner. So, a fresh order is
required to be passed on the discharge
application.

10. Accordingly, the revision is
allowed.
The
impugned
order
dated
18.04.2015 is set aside. The learned
Magistrate is directed to pass a fresh order
on the discharge application in accordance
with law, after affording opportunity of
hearing to the parties.
----------
(2023) 1 ILRA 85
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Government Appeal No. 22 of 1984

The State of U.P. ...Appellant
Versus
Pooran Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri Satish Trivedi

Counsel for the Opposite Parties:
Sri Prashant Vyas, Sri Santosh Kumar
Tiwari

A. Criminal Law-Criminal Procedure Code,
1973-Section 378 - Indian Penal Code,
1860-Sections 302, 307 & 34-Challenge to