- (1.) S. I. Jafri, J. Sudhendu alias Chunnu Srivastava has filed this application under Article 226 of the Constitution of India praying that the order dated 3. 2. 90 passed by the Chief Judicial Magistrate, Gorakhpur under Section 82, Cr. PC. against the petitioner in Crime No. 149 of 1989, under Section 395 and 397,i. P. C. be quashed.
(2.) THIS order was passed on the application dated 3. 2. 90 of the Station Officer of Police Station Cantt. Gorakhpur praying for the issue of proclamation and attachment under Sections 82 and 83 Cr. P. C. This case relates to an occurrence which is said to have taken place at the house of complainant Paritosh Kumar Bagar, resident of Judges' Compound, Gorakhpur at whose house a dacoity was committed by 8 or 9 unknown dacqits at 11. 30 a. m. on 13. 5. 89 in which the dacoits made good their escape after taking away clothes, ornaments and cash. A report of the said occurrence was lodged by Paritosh Kumar Bagar at Police Station Cantt. Gorakhpur at 12. 30 p. m. the same day alleging that his property consisting of ornaments, clothes and cash were looted by unknown dacoits in his house in his presence as well as in the presence of other inmates of his house including the wife, children and servants. A case under Sections 395 and 397, I. P. C. was, consequently, registered at the police station on the aforesaid report of complainant Paritosh Kumar Bagar and investigation followed. In paragraph No. 5 of the counter-affidavit given by Sub-Inspector Sri R. B. Yadav of Police Station Cantt. Gorakhpur, it has been stated that on 22. 10. 89 Rakesh Pandey and Vinai Kumar accused were taken into custody by the Police of PS. Cantonment in connec tion with the aforesaid dacoity case and on interrogation they had disclosed the name of the applicant as one of the dacoits.
(3.) LEARNED counsel for the applicant contended that the conduct of the police in obtaining the order dated 3. 2. 90 u/s 82, Cr. P. C. from the Chief Judicial Magistrate, Gorakhpur is mala fide. It was contended that from Annexure '2'. The copy of the first information report, the address of the complainant Paritosh Kumar Bagar is mentioned as resident of Civil Lines, Judges' Compound, Police Station Cantt. Gorakhpur. LEARNED counsel further submitted that the applicant is also resident of Judges' Compound, Civil Lines, police Station Cantt. , Gorakhpur and he has been very well known to the com plainant and his family members for the lase 10 years. In paragraph No. 7 of the affidavit filed in support of the aforesaid application, it is specifically mentioned that the house of the complainant is just behind the house of the applicant and each and every member of the family of the complainant knows the applicant for the last more than 10 years. In paragraph No. 8 of the counter-affidavit filed by R. B. Yadav, Sub-Inspector of Police Station Cantt. Gorakhpur. It is only mentioned that the distance between the house of the complainant and the applicant is about four furlongs and it is not just behind as stated in the paragraph under reply. However, it was not specifically denied by the Sub-Inspector that the applicant is not known to the complainant and his family members and no affidavit was filed by the complainant in denial. It was further added by the learned counsel that in the application filed by the Sub-Inspector before the Chief Judicial Magistrate u/s 82, Cr. P. C. praying for issue of proclamation the Sub-Inspector had given the address of the applicant as the of Judges, Compound, Civil Lines, Police Station Cantt. Under the circumstance, in view of the non-specific denial by the Sub-Inspector to the effect that the applicant was not known to the complainant and his family members from before the occurrence and also in the absence of any affidavit in denial by the complainant. It will be difficult to believe that the applicant was unknown to the com plainant and his family members from before the occurrence. Learned counsel further pointed out that neither the complainant had named the applicant in the first information report nor there is any mention about the name of the applicant in the statements of the witnesses recorded by the Investigating Officer under Section 161, Cr. P. C. and this fact mentioned in the affidavit filed in support of the application has not been controverted in the counter-affidavit filed by the sub-Inspector.;