A Magistrate must provide reasons and apply judicial mind when summoning accused in a complaint case, failing which the order is liable to be set aside.

JUDGMENT :

Vipin Chandra Dixit, J.

1. This criminal revision under Section 397 /401 Cr.P.C. has been filed on behalf of revisionists against the summoning order dated 7.6.2022 passed by Judicial Magistrate-IIIrd, Gorakhpur in Complaint Case No.147428 of 2021 (Gulab Shankar Singh vs. Krishna Mohan Singh & others), by which revisionists were summoned under Sections 307 & 392 IPC.

2. Brief facts of the case are that the father of opposite party No.2 had executed a will deed on 9.12.2014 in favour of opposite party no.2. The brother of opposite party no.2 namely Kripa Shanker Singh had filed a suit for cancellation of will deed which was registered as Case No.1464 of 2016. The application under Order 39 Rule 1 & 2 CPC filed for interim injunction was rejected by the learned trial court vide order dated 17.1.2018. The brother of opposite party No.2 had challenged the order dated 17.1.2018 by filing Misc. Appeal No. 14 of 2018 and the lower appellate court vide order dated 26.2.2019 was pleased to set aside the order dated 17.1.2018 and directed the parties to maintain status quo in respect of suit property.

3. It is further noted that there was dispute regarding ancestral property in between opposite party no.2 and his brother Kripa Shanker Singh and several litigations are going on. Kripa Shanker Singh had lodged an FIR against opposite party No.2 and his son Udai Shanker Singh @ Udai Bhan Singh in Police Station Campierganj, District Gorakhpur which was registered as Case Crime No. 342 of 2015 under Sections 380, 427, 504, 506, 120B IPC. The Investigating Officer after due investigation has submitted charge sheet against opposite party No.2 and his son. The revisionist Nos. 1, 3 and 4 are witnesses of prosecution in the charge-sheet submitted by the Investigating Officer. The revisionist no.2 is aged about 80 years and was working at the agricultural land of revisionist no.1.

4. The opposite party No.2 had moved an application under Section 156(3) Cr.P.C. on 28.9.2021 against revisionists and it was registered as a Complaint Case No. 147428 of 2021. The statement of complainant/opposite party no.2 was recorded under Section 200 Cr.P.C. on 24.2.2022 and the statement of P.W.-1 Udai Shanker Singh was recorded under Section 202 Cr.P.C. on 15.3.2022. Statement of P.W.-2 Akhand Pratap Singh @ Mohan was recorded under Section 202 Cr.P.C. on 6.4.2022. The learned Magistrate had summoned revisionists under Section 307, 392 IPC vide order dated 7.6.2022 which is impugned in the present criminal revision.

5. Heard Sri V.K. Mishra, learned counsel for revisionists, learned AGA for the State of U.P./opposite party no.1 and Sri Arvind Yadav, learned counsel for opposite party No.2, and perused the record.

6. It is submitted by learned counsel for revisionists that revisionists are innocent persons and have been falsely implicated in this case. There was serious dispute between opposite party no.2 and his brother namely, Kripa Shanker Singh with regard to ancestral property and several litigations are going on between them. The revisionists are witnesses of charge-sheet submitted in pursuance of FIR registered as Case Crime No. 342 of 2015 lodged against opposite party No.2 and his son. The present complaint has been filed by the complainant against revisionists on wrong allegations only to create pressure upon the revisionists, as the revisionists are prosecution witnesses in criminal case filed against opposite party no.2. It is further submitted that the suit filed by brother of opposite party no.2 for cancellation of will deed is still pending for consideration. In Misc. Appeal filed by brother of opposite party no.2 there was an order of status quo in respect of suit property. Kripa Shaker Singh, brother of opposite party no.2 is in possession over the said property.

7. It is further submitted that two witnesses were produced by the complainant in support of his case but there are serious contradictions in their statements and they have failed to