Court No. - 49
Case :- APPLICATION U/S 482 No. - 9821 of 2021 Applicant :- Umesh Jogai And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Udai Chandani Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Sri Udai Chandani, learned counsel for the applicants and learned AGA for the State.
2. Applicants are aggrieved of order dated 06.03.2020 passed by learned Additional Chief Judicial Magistrate, Court No.3, Varanasi in Complaint Case No.1076 of 2017 (Jonaki Bhattacharya vs. Umesh Jogai & Another), whereby learned Magistrate has taken cognizance on a private complaint and has issued summons to summon the present applicants.
3. Learned counsel for the applicants submits that in exercise of the authority vested in the Magistrate under Section 202 Cr.P.C., he had ordered for a police investigation. In the investigation report, annexure no.12, Mukesh Kumar Tiwari, SI, had submitted that complainant's house number is B3/159. Present applicants are resident of house no. B3/150 Shivala, in which there is a Hanuman Temple existing. Present applicants are engaged in the vocation of making wooden mementos and gift items. The said property is in the name of Neelam Tiwari wife of Umesh Jogai, who is reported to be a Sevadar engaged in the up keep of the temple.
4. It has come on record that behind house no. B3/150 and in front of house no. B3/151, which is reported to be that of the father of the complainant, there is a gully for exit on west and north and in that gully, present applicants have installed a big generator.
5. Statement of Umesh Jogai was recorded by the SI and in that statement he mentioned that gully is neither a Government property and is in fact part of his house and in that regard, a civil suit is pending bearing No.595 of 2016 (Devata Hanumanji vs. Nagar Nigam and Others).
6. Thereafter, SI has mentioned in his report that complainant is not producing any written order. Thereafter, it is mentioned that complainant has not produced any documents, the charges of threatening etc. in the enquiry could not be verified. Thereafter to support this finding, it is mentioned in para 7 that none of the independent witnesses are available to corroborate or deny the statements given by the complainant. Complainant has not produced any medical report.
7. Reading this report of SI, it is submitted that learned Magistrate has erred in not considering this report and issuing summoning orders, which is violation of the provisions contained in Section 203 Cr.P.C.
8. Learned AGA submits that impugned order has been passed on the basis of the statements recorded by the Magistrate under Section 202 Cr.P.C.
9. Sri Udai Chandani, learned counsel for the applicants is unable to point out from record that any order was passed directing the police to conduct any investigation in pursuance of which SI had submitted report dated 25.09.2019, inasmuch as, even in the report, annexure no.12, there is no mention of date of the order which was issued in favour of SI to conduct any investigation. In the subject so also in the body of the report, there is no mention of the order passed by the learned court directing the SI to conduct investigation as is mandated under the provisions of Section 202 Cr.P.C.
10. In view of such facts that Sri Udai Chandani, learned counsel for the applicants has failed to bring on record any order of the Magistrate directing the concerned police officials to investigate the matter and, therefore, the plea of not considering the report by the Magistrate appears to be not based on material available on record.
11. Secondly, plea of mala fide has been taken by the applicants whereas a prima facie reading of the report furnished by Mukesh Kumar Tiwari, SI, appears to be biased inasmuch as when the present applicants' claim is that the land on which they have installed their generator belongs to them, then it was for the present applicants to establish their title and Mukesh Kumar Tiwari, SI seeking documentary evidence in regard to the ownership of the land or its use from the complainant, prima facie reveals that the statement made by the complainant in regard to the clout enjoyed by the present applicants cannot be disputed on face of it.
12. Moreover, the stay order on which lot of reliance is placed by Sri Udai Chandani, learned counsel for the applicants, admittedly is in a matter between Devata Hanumanji vs. Nagar Nigam. Applicants have not brought on record any document to demonstrate that house no. B3/150 Shivala or the gully is a property belonging to Devata Hanumanji and not to an individual/community. Therefore, pendency of that suit will also not give any advantage to the applicants.
13. Thus, neither the plea of mala fide nor that of non consideration of the police report is made out from the documents available on record, application fails and is dismissed.
13. Let copy of this order be sent to the concerned court of learned Additional Chief Judicial Magistrate, Court No.3, Varanasi by the Registry, within three days from today.
Order Date :- 29.7.2021 Ravi/-
Digitally signed by Justice Vivek Agarwal Date: 2021.08.02 10:41:29 IST Reason: Document Owner Location: High Court of Judicature at Allahabad