- (1.) SHIV Shanker, J. This application under Section 482 Cr. P. C. has been filed by Sri Nath Giri against the State and six others praying to quash the order of the Court of ACJM 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 Giri 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 IPC 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 of 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. After 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 Dumray 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. After raising alarm several persons reached there then he was saved, thereafter, they fled 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 26-4-2005 that the application moved under Section 156 (3) Cr. P. C. is treated as complaint and fixed 21-5-2005 to record the statement under Section 2002 Cr. P. C. Feeling aggrieved by it this application has been filed. 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 (1) JIC 853 (All) : 2002 (44) ACC 670 (Allahabad High Court), delivered by Hon'ble Mr. Justice Sushil Harkauli and Ram Babu Gupta and Anr. v. State of U. P. and Ors. , 2001 (2) JIC 231 (All) (FB) : 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 Court below. He cited the pronouncement of Hon'ble Supreme Court, Ram Swarup v. Mohd. Javed Razack and Anr. , 2005 (2) JIC 991 (SC) : 2005 Supreme Court Cases (Cri) 1549. The impugned order passed by the Court below reveals that it was deemed by the Court that the prima facie 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 the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example Nos. 1, 2 and 3. "
(3.) 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. The pronouncement of apex Court Ram Swarup v. Mohd. Javed Razack and Anr. , 2005 (2) JIC 991 (SC) : 2005 Supreme Court Cases (Crl.) 1549, is concerned, in which the facts have mentioned in para 22: "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. ";