Heard applicant (in person), learned A.G.A., Mr. Aniruddh Kr. Singh and perused the record.
2. The application has filed by the applicant for quashing the impugned order dated 05.04.2018, passed by Chief Judicial Magistrate, Lucknow in Criminal Misc. Case No. 3632 of 2017 (Osama Aziz vs. Station House Officer, Chowk and Others).
3. Learned counsel for the applicant submitted that on 15.10.2017 at about 2:00 p.m. Mohammad Farhan @ Bunty S/o Mohammad Siddiqui assaulted the applicant and his mother because he had been arrayed as a party in Criminal Misc. Case No. 8031 of 2016 under Section 482 Cr.P.C. by petitioner.
4. The applicant submitted that the complaint was made to Police Control Room on Dial 100 and S.P. (West) on his cellphone. He further submitted that Mohammad Farhan @ Bunty reached to the Police Station Chowk and Sub-Inspector Viresh Kumar, Police Station Chowk, District Lucknow tried to pressurize the deponent for settlement, but the applicant rejected the proposal and requested to register the F.I.R. on his given complaint.
5. The applicant further submitted that the Sub-Inspector Viresh Kumar, Police Station Chowk, District Lucknow also asked Mohammad Farhan to move an application against the applicant. When the applicant and his mother was not being sent for medical examination by the police, then the applicant made a call to S.P. (West) at 3:05 p.m. and informed that neither he nor his mother was being medically examined by the police personnels. After some time Inspector, Chowk came to the Police Station and instantly started scolding them by using filthy languages, then the applicant and his mother stood and prayed that they do not want to make any complaint and let them go.
6. The applicant further submitted that the applicant had been brutally assaulted inside the Police Station Chowk by Inspector Chowk and his associates then his mother made a call to Police Control Room Dial 100 at around 3:20 p.m again.
7. The applicant has further submitted that Mohammad Farhan came alongwith about thirty people and on his behest, the police officials started making pressure on the applicant. The applicant further submitted that the he was in fainted condition, therefore, he does not know about his medical, thereafter he was produced before the Magistrate alongwith Mohammad Farhan, thereafter the applicant was released on Personal Bond. He further submitted that application under Section 156(3) Cr.P.C. was moved before the Chief Judicial Magistrate, Lucknow for lodging F.I.R. against police personnels which was registered as Misc. Case No.3632 of 2017 (Osama Aziz vs. Station House Officer, Chowk and others) but without considering the facts and circumstances of the case, the prayer for lodging the F.I.R. against the Inspector, Chowk, S.I. Viresh Kumar and their associates was rejected vide order dated 05.04.2018.
8. The applicant further submitted that the impugned order has been passed without application of mind. As he pointed out that the applicant argued the case in person in court below but in the impugned order, the learned Magistrate mentioned that the learned counsel for the applicant was heard. He further submitted that the mother of applicant did not appear on 04.11.2017 before anyone, denying all the allegation, he further submitted that it is admitted by S.I. Viresh Kumar that the scuffle was taken place between the applicant and Mohammad Farhan only in context of old case and further submitted that impugned order is illegal.
9. Learned A.G.A. opposed the argument of the applicant and submitted that there is no illegality in the impugned order and he further submitted that after taking cognizance on the application of applicant, it was registered as Criminal Misc. Case No. 3632 of 2017 (Osama Aziz vs. Station House Officer, Chowk and others) with the direction to the Circle Officer to conduct an inquiry in relation to the content mentioned in the application and submit a report in accordance with the law laid down by the Hon'ble Supreme Court in the case of Priyanka Srivastava and another vs. State of U.P. and others, (2015) 6 SCC 287. In pursuance of the application a fact finding inquiry was conducted by the Deputy Superintendent of Police/Circle Officer, Police Station Chowk, District Lucknow and the report dated 04.01.2018 was placed on record before the Court below but the applicant has conceded the same because it is a detailed report.
10. Learned A.G.A further submitted that the aforesaid report of the Circle Officer is discussed by the Chief Judicial Magistrate, Lucknow in the impugned order but the applicant has not denied in the pleadings about the contents of the report discussed in the order and he further submitted that during the course of inquiry, the Circle Officer recorded the statements of number of persons and mentioned that on 15.10.2017 quarrel was taken place between applicant and Mohammad Farhan @ Bunty, on the information police team went on the spot and the applicant as well as Farhan were taken into custody and they were challaned under Section 151/107/116 Cr.P.C., thereafter mother of applicant came to the Police Station for his Pairvi. In such circumstances, it shows that the applicant has not come with a clean hand. Hence, the present application is liable to be rejected.
11. Learned A.G.A. also drew attention of the Court of Para 8 of the counter affidavit dated 25.03.2019, in which it is categorically mentioned that the mother of applicant came to the Police Station and informed that the treatment of applicant for his mental illness was going on under the supervision of Dr. S.C. Tiwari in Medical College Lucknow. She also informed that most of the time applicant's behavior is harsh towards his neighbors and family members. He further submitted that the applicant was medically examined on 15.10.2017 and simple injury over his body was found and also informed that earlier applicant's real maternal uncle also lodged an F.I.R. against the applicant, which was registered as Case Crime No. 461 of 2014 under Section 323/504/506 I.P.C., Police Station Chowk, District Lucknow in which the charge sheet No. 163 of 2014 dated 15.11.2014 is already filed by S.I. Shardendu Pandey in the court below, therefore, the application has no force and he further submitted that the applicant has not filed any rejoinder affidavit.
12. Learned A.G.A. also drew attention of the Court on the array of parties as opposite party No.6 and 9 in the application read as under-
(i). Other Sub Inspectors present inside the P.S. Chowk between 2:00 PM to 4:30 PM on 15.10.2017, District Lucknow (opposite party No.6), (ii). Arun Mishra, constable, P.S. Chowk, District Lucknow (opposite party No.7), (iii). Sunil, Head Constable, P.S. Chowk, District Lucknow (opposite party No.8), (iv). Three other Constables and the Driver all of P.S. Chowk, Lucknow who alongwith opposite party No.7 & 8 obstructed the Medical of the petitioner at Balrampur Hospital, Lucknow when he was referred to Surgery at 5:00 PM, (opposite party No.9, In Person).
13. Learned A.G.A. also submitted that on the written complaint of Mohammad Farhan and applicant two N.C.R.s bearing No. 0079 of 2017 under Section 323 and 504 of I.P.C. dated 15.10.2017 at 4:40 p.m. and N.C.R. No. 0080 of 2017 under Section 323 and 504 of I.P.C. dated 15.10.2017 at 4:45 p.m. were lodged at Police Station Chowk, District Lucknow against each other. It is evident from the N.C.R. bearing No. 0080 of 2017 under Section 323 and 504 of I.P.C. lodged on the written complaint of the applicant that on 15.10.2017 Farhan, Ankur alongwith other associates came to the house of applicant at 2:00 p.m. and started abusing and forcibly bring him out of his own house, then started beating him by saying that why he arrayed him as a party in the High Court and told that he will be crushed, when mother of applicant came for his rescue then she was also dragged and beaten infront of others. The accused person Farhan @ Bunty wanted to crush the head of the applicant but on the objection of the surrounding persons they left the applicant in injured condition and also alleged that Shardendu Pandey, S.I. filed the charge sheet after investigation in Case Crime No.461A of 2014. It is also evident from the F.I.R. lodged by Mohammad Farhan against the applicant which is available at page 41 of the application registered as N.C.R. No. 0079 of 2017 under Section 323/504 I.P.C., Police Station Chowk, District Lucknow in which it is contended by Mohammad Farhan that he was standing alongwith his wife. In the meantime, applicant came and started abusing when he requested not to abuse then the applicant started skirmish, therefore it was requested that, this F.I.R. be registered and necessary action may be taken against the applicant. It is also found from the record that on 15.10.2017 the applicant moved an application which is available on record at page 30. The contents of the application of applicant dated 15.10.2017 is read as under page 30-
lsok esa] Fkkuk izHkkjh] Fkkuk pkSd] y[kuÅA Jheku] fuosnu gS fd vkslkek vt+ht+ iq= Lo0 vt+ht+ vgen fuoklh [email protected] dVjk vkcw rjkc Fkkuk pkSd dk jgus okyk gwWA vkt fnukad 15-10-2017 dks Farhan mQ+Z cuVh] vadqj o muds lkFkh yxHkx 2%00 cts eq>s xkyh nsrs gq, ?kj ls cgj fudkyk vkSj ,d jk; gksdj cqjh rjg ekjus yxsA dgus yxs rwus eq>s gkbdksVZ esa ikVhZ D;ksa cuk;kA rq>s ;gha dqpy nwaxkA esjh ekW eq>s cpkus vkbZ rks eq> lesr esjh ekW dks Hkh ykrksa&ykrksa ekjkA eSa v/kejk lk gks x;k ysfdu fQj Hkh cuVh us xqEek mBkdj lj dqpyuk pkgk tks fdlh izdkj yksxksa us jksdkA esjk vkils lfou; fuosnu gS fd D;ksafd esjk bykt djkus ds ctk, pkSdh bapktZ Jh ohjh'k dqekj lkgc Qjgku mQZ+ cuVh dks f'kdk;r djus ds fy, dgus yxs vkSj Hkwrdky esa Hkh eq0v0l0 461A/2014 esa mi fujh{kd 'kkjnsUnq i.Ms esjs iwjs ifjokj dh ft+Unxh rckg dj pqds vf/kdj ds nwj mi;ksx ls blfy;s vxj eqefdu gks esjk iw.kZ esfMdy djkdj o eqdnek ntZ dj Q+jgku o muds lkfFk;ksa ds f[k+ykQ+ v{kj 'kCn n.MukRed dkjokbZ djus dh d`ik djsaA esjk vHkh esfMdy ugha gqvkA esjh izkFkfedh ntZ djus dh d`ik djsaA vkidk vkHkkjh (Illegible) Signature vkslkek vth+t+ fnukad%15-10-2017 Mob: 9451396714
14. Learned A.G.A. further submitted that the applicant was released on personal bond but he has not made any complaint to the senior officers about the misbehavior of the police personnels and he filed the complaint and he also not made any efforts for investigation of his N.C.R. bearing No.0080 of 2017, therefore, there is no illegality in the impugned order.
15. After considering the argument of learned counsel for the applicant and learned A.G.A. and going through the record it is evident from the office report that the notice could not be served on the opposite party No. 11, 12 and 13, as no such persons of said names were found. The Criminal Misc. Application No. 25862 of 2019 was moved by the applicant and mentioned in Para 3 that as per office report service upon opposite party No.11, 12 and 13 is not completed, as no such persons were found and he requested that this matter may be decided as it is beyond the capacity of the petitioner for taking any other fresh efforts for the service of show cause notice upon the opposite party No.11, 12 and 13.
16. On the basis of application of the applicant dated 15.10.2017 (supra) N.C.R. bearing No. 0080 of 2017 under Section 323/504 I.P.C., Police Station Chowk, District Lucknow was registered against the Mohammad Farhan on 15.10.2017 at 4:45 p.m. and before this, one N.C.R. was registered on the written complaint of Mohammad Farhan bearing No.0079 of 2017 under Section 323/504 of I.P.C., Police Station Chowk, District Lucknow against the applicant. It is also evident from annexures No.5A and 5B appended with the application that the S.I. Viresh Kumar proceeded against the applicant as well as Mohammad Farhan under Section 151, 107 and 116 Cr.P.C. It is undisputed that they were released by the Magistrate concerned after taking the personal bond. It is also evident from the complaint appended as annexure No.2 which was moved before the Chief Judicial Magistrate, Lucknow that the applicant has not disclosed that any N.C.R. was registered about the incident which was taken place on 15.10.2017, as the applicant has not placed the report of the Circle Officer deliberately, which was available in the lower court record. It is also found by the Court that the present application is also filed in the most casual manner in violation of the provisions of High Court Rules as the opposite party No. 6 and 9 have been arrayed without giving their name and address,7 he had also not filed the rejoinder affidavit against the counter affidavit.
17. Considering the above mentioned facts and circumstances of the case, the application fails and is accordingly dismissed.