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Chandrama Mishra And Others v. State And Another - CRIMINAL REVISION No. 1446 of 1987  RD-AH 5788 (2 April 2007)
Criminal Revision No. 1446 of 1987
Chandrama Mishra and others Vs. State of U.P. and others.
Hon'ble V.D.Chaturvedi, J.
This Criminal Revision has been filed against the judgment and order dated 25.8.87 passed by XIth Addl. Sessions Judge, Varanasi in Criminal Revision No. 256 of 1986 whereby he allowed the revision setting aside the order dated 16.5.1987 passed by the Special Judicial Magistrate, Varanasi in Criminal Case No. 453 of 1986.
None of the three counsels for the revisionists is present even on the revision of the list, nor any counsel for the respondent is present except the learned A.G.A.
I have heard the learned A.G.A. and perused the record.
The facts are briefly that one Smt. Ram Wanti Devi filed a complaint against the present revisionists and others that they had managed a fake and fictitious sale deed of the land of the complainant Ram Wanti in favour of 5 accused persons (mentioned at serial no. 6 to 10 of the complaint) by producing any fraudulent lady in place of the complainant. After recording the statement of Smt. Ram Wanti and her witnesses the accused persons were summoned for offence under section 466, 467, 468, 471/ 34, 109 I.P.C., P.S.Cantt. Varanasi and thereafter Ram Wanti died on 31.3.87. After her death one Nitya Nand (opposite party No.2) moved an application in the trial court, requesting to implead him as legal representatives of the complainant which was rejected by the trial court terming it as baseless. It was against the said order that Nitya Nand Misra filed a Revision No. 256 of 1987 which was allowed by the impugned judgment dated 25.8.87. By the impugned judgment, the Addl. Sessions Judge, has permitted Nitya Nand Mishra (opposite party No.2) to conduct the case and prosecute the accused, hence this revision.
There is no provision in the Criminal Procedure Code to implead any person in place of complainant after the complainant's death. The permission to prosecute and conduct the case may be granted only under section 302 Cr.P.C. The conditions enumerated in section 302 Cr.P.C. are not present in the case in hand hence Section 302 Cr.P.C. is inapplicable. The impugned judgment is, therefore, erroneous.
The Criminal Court in absence of any verdict of the civil court erred in holding that a registered Will was executed in favour of Nitya Nand Misra by Smt. Ram Wanti. Statement of such effect given in the judgment by a criminal court was unwanted and uncalled for.
It is noteworthy that opposite party No.2 is not the witness mentioned by the complainant Ram Wanti in her complaint.
The case No. 453 of 1986 (pending in the court below) relates to cognizable offences, therefore, the trial court has no power to dismiss it under section 249 of the Cr.P.C.
With the observations made above the revision is allowed as above. The copy of this order be sent to the court below within 3 weeks.
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