C482/481/2006 of RAM VILAS YADAV Vs SESSION JUDGE UTTARKASHI and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Restoration Application No. 75 of 2011Delay Condonation Application in Restoration

Application No. 147 of 2011

Criminal Misc. Application (C482) No. 481 of 2006

Ram Vilas YadavS/o Shri Loknath YadavR/o Village Parwan Post Daulatnagar (Sadat)District Gazipur, Uttar Pradesh

…..…Petitioner

Versus

1.Sessions Judge, Uttarkashi2.Judicial Magistrate, Uttarkashi Chunchiyan,S/o Shri Rama R/o Village Neuri, Patti Khatal Tehsil Barhkot, District Uttarkashi4.Jai Prakash S/o Mahananad R/o Village Neuri, Patti Khatal Tehsil Barhkot, District Uttarkashi5.State of Uttarakhand2.Judicial Magistrate, Uttarkashi Chunchiyan,S/o Shri Rama R/o Village Neuri, Patti Khatal Tehsil Barhkot, District Uttarkashi4.Jai Prakash S/o Mahananad R/o Village Neuri, Patti Khatal Tehsil Barhkot, District Uttarkashi5.State of Uttarakhand

……….Respondents

Shri S.K. Agarwal, Senior Advocate, assisted by Shri Sudhir Singh, Advocate, present for the petitioner.Shri T.C. Agarwal, A.G.A., present for the State.

Hon'ble Prafulla C. Pant, J.

This is delay condonation application no. 147

of 2011, for condonation of delay in filing the

restoration application (MCRC) no. 75 of 2011

2.Heard.

3.The delay condonation application is allowed. Delay is condoned.

4.Also heard on restoration application and perused the affidavit accompanying the application. The absence on 21.07.2010, is sufficiently explained. On said date criminal miscellaneous application no. (C482) no. 481 of 2006, was dismissed for non prosecution. In view of principle of law laid down in Madhumilan Syntex Ltd. vs. Union of India, 2007 AIR SCW 1971, as the ground for absence sufficiently explained in restoration application no. 75 of 2011, the application is allowed. The petition no. 481 of 2006, under section 482 of Cr.P.C., is restored to its original number on the condition that the petitioner shall argue on the petition today.

5.After restoration of the criminal miscellaneous application (C482) no. 481 of 2006, the matter were heard on merits.

6.Brief facts of the case are that complainant/respondent no. 3 Chunchiyan has alleged that land in question belonged to him but the same was shown in the name of respondent no.4 Jai Prakash on the records and said person (respondent no. 4 Jai Prakash) was given possession of the property. It is alleged by the complainant (respondent no.3) that there was forgery in the record.

7.Learned counsel for the petitioner submitted that petitioner was Assistant Collector in District Uttarakashi in the year 1993-94, and the dispute between respondent no.3 and respondent no.4 is purely of civil nature and the petitioner has nothing to do with the same. It is also pointed out that respondent no. 3 earlier filed suit under section 229B of U.P. Zamindari Abolition and land Reform Act, against Jai Prakash but lost the same where after he preferred an appeal. Apart from this, it is pointed out that on the complaint of respondent no.3 in the year 1996, investigation was made and final report was submitted.

through the papers on record and the impugned orders, this Court finds that the proceedings sought to be challenged are nothing but abuse of process of law. Even the mandatory requirement of section 197 of Cr.P.C., is not complied with.

9.Therefore, the petition under section 482 of Cr.P.C., is allowed. The impugned order dated 29.03.2005, passed by Judicial Magistrate/Civil Judge (Jr.Div.), Uttarkashi and order dated 28.03.2006, passed by Sessions Judge, Uttarkashi, in criminal revision no. 13 of 2005, are hereby set-aside and the proceedings of criminal complaint case no. 1224 of 2004, Chunchiyan vs. Jai Prakash relating to offences punishable under section 420, 471, 467 IPC, pending in the court of Judicial Magistrate, Uttarkashi, are hereby quashed.

(Prafulla C. Pant, J.)Parul 25.02.2011