JUDGMENT Shiv Shanker, J.
1. This application under Section 482 Cr.P.C. has been tiled by Sri Nath Giri against the State and six others praying to quash the order of the court of A.C.J.M. IInd Varanasi and direct to pass an order to register and investigate the case.
2. Sri Nath Giri s/o Late Sri Ram Krishna Dutt Givri filed an application under Section 156(3) Cr.P.C. against the accused Kamla Prasad Pandey, Ashutosh Pandey, Shashi Bhushan Pandey, Indra Bhushan Pandey, Madan Mohan Pandey praying to pass an order to register and investigate the case for the offence under Sections 147, 148, 149, 323, 504, 506 and 395 I.P.C. wherein it was stated that the applicant has constructed the boundary wall of his plot No. 3336 which is six biswa, 218 squire feet situated in Mauzj Bhadanee Tahsil Dehat Amanat, District Varanasi of which he is in possession. The land of the above accused is also situated adjacent with the land of the applicant. Therefore, they wanted to usurp the land of the applicant forcibly. In failure of their purpose, they demolished the above boundary wall of the land of the applicant but they could not get possession upon the said land and informant filed a civil suit No. 357 pf 2000 which is pending in the court of Civil Judge (J.D.) Varanasi. Due to this reason accused felt enmity with the informant. All the above accused reached, at the land of the informant on 31.3.2005 at about 8 A.M. and tried to make possession illegally upon the land. Alter getting such information, informant was going to the area police station to lodge the report against all the accused. They stopped the applicant at about 1.30 P.M. in the way near Dumrav Colony Assi and he was abused by them. He was also beaten by them by kicks and fists. Thereafter, his Banque Mobile was snatched by accused persons bearing No. 9839057684, Alter raising alarm several persons reached there then he was saved, thereafter, they tied away from the place of occurrence after extending threatening to him. This information was given to the area police regarding the occurrence. No action was taken. Then registered letter was also sent to SSP Varanasi. However, no action was taken against the accused then he moved an application under Section 156(3) Cr.P.C. before concerned Magistrate. Concerned Magistrate- passed an order on 26.4.05 that the application moved under Section 156(3) Cr.P.C. is treated as complaint and fixed 21.5.05 to record the statement under Section 200 Cr.P.C. Feeling aggrieved by it this application has been filed.
3. It is contended on behalf of the applicant that his Mobile was also allegedly snatched by the accused/respondent Nos. 2 to 7. Therefore, same may be recovered by the police after registration of the case. In such circumstances, it was essential that the concerned Magistrate should have been passed the order to register and investigate the case. It is further contended the looted property cannot be recovered in the complaint case. He cited the pronouncement in support of his contention Gulab Chand Upadhyaya v. State of U.P. and Ors. 2002 (44) ACC 670 (Allahabad High Court) delivered by Hon. Mr. Justice Sushil Harkauli and Ram Babu Gupta and Anr. v. State of U.P. and Ors. 2001 (43) ACC 50 (Allahabad High Court, Allahabad-Full Bench). However, learned court below committed illegality in passing the impugned order. On the other hand, it is submitted that there is no illegality in the impugned order passed by cout below. He cited the pronouncement of Hon. Supreme Court, Ram Swarup v. Mohd Javed Razack and Anr. 2005 Supreme Court Cases (Cri) 1549.
4. The impugned, order passed by the court below reveals that it was deemed by the court that the prima face cognizable offence is made out on the basis of the facts mentioned in the application under Section 156(3) Cr.P.C. According to the pronouncement of Full Bench case Ram Babu Gupta and Ors. v. State of U.P. such type of application may be treated as complaint. In Gulab Chand Upadhyaya case following guidelines have been given in the judgment:-
The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required which is of a nature that is not possible for private complainant, and which can only he done by the police upon whom State has conferred the powers essential for investigation, for example Nos. 2 and 3.
5. In the present case there is the allegation in the application that one Mobile of the informant was also snatched by the accused and same Mobile may be recovered by police after registration and investigation of the case. Learned court below has not considered this aspect in passing the impugned orders.
6. The pronouncement of Apex Court Ram Swarup v. Mohd Javed Razack and Anr. 2005 Supreme Court Cases (Crl.) 1549 is concerned, in which the facts have mentioned in para 2:-
We may notice that a complaint was filed by the respondent before the Metropolitan Magistrate complaining that when he had gone to the chambers of the appellant, he had addressed him and his father in abusive language in the presence of several persons- We need not reproduce the words used but it is clear to us on a reading of the complaint that the words used are defamatory per se, particularly, when a Vice-President of the Income Tax Appellate Tribunal is said to have addressed those words to a practicing lawyer and to the father of the complainant, who was also a member of the Income Tax Appellate Tribunal.
7. This fact reveals that no recovery was to be made, doling the course of investigation but in the present case alleged recovery is to be made. In these circumstance, facts relating to the present, case is different from the facts of the case of Apex Court. Therefore, order of the Magistrate is not perfectly justified. In these circumstances, impugned order passed by learned court below is liable to be quashed.
8. The application is hereby allowed and impugned order passed by the concerned Magistrate is set aside. The matter is sent back to the concerned Magistrate to decide the application of the applicant afresh in view of the observation made in the body of the judgment in accordance with law.