Allahabad High Court
Anand Kumar Mishra And 2 Others vs State Of U.P. And Another on 30 August, 2018
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 50 Case :- CRIMINAL APPEAL No. - 4813 of 2018 Appellant :- Anand Kumar Mishra And 2 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Mayank,Amit Daga Counsel for Respondent :- G.A. Hon'ble Harsh Kumar,J.
The appeal has been filed under section 14-A(1) of S.C./S.T. Act against the summoning order dated 17.7.2018 passed by Special Judge, S.C./S.T. Act/Additional Sessions Judge, Court No.2, Chitrakoot in Criminal Complaint Case No.31 of 2018, "Nanki Devi Vs. Anand and others", Case Crime No.326 of 2016, under sections 323, 504, IPC and Section 3(1) Dha S.C./S.T. Act (Prevention of Atrocities) Act, 1989, P.S. Rajapur, District Chitrakoot.
Heard learned counsel for the appellants, learned AGA for the State and perused the record.
Learned counsel for the appellants contends that the entire proceedings under the complaint case are absolutely false, concocted and malafide; that the Manager of Kedarnath Ramswaroop Mahavidhyala, Khatwara, Chitrakoot moved an application to A.D.M., Chitrakoot on 3.9.2016; that on land plot no.272 area 1.2260 hectare of the Vidhyalaya in village Khatwara, Chandan (the husband of respondent no.2) is unauthorizedly raising constructions of house and due to such constructions, the students are facing obstructions in passing to and from the college and the Institution is suffering, so the constructions be removed; that upon this application, it was ordered by the authorities on 6.9.2016 that after demarcation, the dispute be solved; that after passing of such orders on 6.9.2016, the respondent no.2 lodged a false F.I.R. on 10.9.2016 regarding the alleged incident dated 7.9.2016; that no incident as mentioned in the F.I.R. did ever take place and the appellants neither abused the respondent no.2 with caste name nor committed marpeet with her nor caused any injury to her; that upon investigation, the Investigating Officer found no substance in the F.I.R. and submitted final report; that against the final report, the respondent no.2 filed protest petition upon which vide order dated 18.5.2018, the learned Magistrate rejected the final report and treated the protest petition, as complaint fixing 1.6.2018 for recording the statement of complainant under section 200 Cr.P.C.; that learned Magistrate after recording the statements of complainant and witnesses under sections 200 and 202 Cr.P.C. has passed the impugned order taking cognizance and issued process against the appellants for the offences under sections 323, 504 IPC and Section 3(1) Dha S.C./S.T. Act; that alleged constructions by respondent no.2 or by her husband are unauthorized and have been raised on plot no.272, as have also been found by Civil Court Amin in his report submitted by him in Civil Suit No.265 of 2016 (Kedarnath Vs. Chandan and others) at Annexure No.17; that the impugned order of cognizance is wrong and incorrect and is liable to be set aside.
Per contra, learned AGA submitted that the constructions raised by respondent no.2 way back in 2010-11 are valid and on land plot no.273, which was given to her on lease by Government upon which she is living after raising constructions of a house since 2010-11; that on 7.9.2016, the appellants, who are influential and quarrelsome persons arrived at the house in question when her family members were on fields and abused the respondent no.2 with caste name, committed marpeet with her and torn her clothes, regarding which she submitted a written report very next day on 8.9.2016 for lodging of F.I.R., which was registered on 10.9.2016; that there is no inordinate delay in lodging of F.I.R.; that there is injury report on record with regard to the injuries caused to the respondent no.2; that Civil Suit No.265 of 2016 has been filed subsequently on 7.11.2016, which is clear from the copy of plaint at Annexure No.16; that the subsequent report of Civil Court Amin has no evidenciary value and mere mention therein that the constructions situate in plot no.272, has no value because Istly the map prepared by Civil Court Amin is in contradiction to the plaint map, where a gate has been shown, which has not been found by the Amin and IIndly, Amin has not prepared any survey map and mention of allegations by people on the spot about plot number, is not admissible in evidence; that in any case, the plot number can be decided only by way of execution of survey commission from two fixed points and by mere allegations of plot number by any person, has no worth; that the Investigating Officer did not make fair investigation and submitted final report under undue influence of accused-appellants, so the poor lady respondent no.2 had to move protest petition; that on submission of final report and moving of protest petition, the Magistrate under provisions of law may (i) accept the final report, or (ii) order for further investigation, or (iii) rejecting the final report accept the protest petition and take cognizance under section 190 (1) (b) Cr.P.C. straight way on the basis of material on case diary, or (iv) treat the protest petition, as complaint and follow the procedure laid down in Chapter XV of Cr.P.C.; that the learned trial court has not committed any error in rejecting the final report and treating the protest petition, as complaint vide order dated 18.5.2018, which is not under challenge; that after recording the statements of complainant and her witnesses under sections 200 and 202 Cr.P.C., learned trial court has rightly taken cognizance of offences under sections 323, 504 IPC and 3 (1) (Dha), S.C./S.T. Act and there is no illegality in the impugned order; that the appeal has been filed with malafide intentions and wrong allegations to delay the disposal and deprive the poor respondent no.2 from justice and is liable to be dismissed.
Upon hearing parties counsel and perusal of record, I find that the learned trial court made no illegality or incorrectness in its order dated 18.5.2018 rejecting the final report and treating protest petition as complaint. After treating complaint case, the Court is required to follow the procedure laid down in Chapter XV of Code of Criminal Procedure and after taking the statements of complainant and witnesses under sections 200 and 202 Cr.P.C. if finds that there is no prima facie evidence of the offence, shall reject the complaint under the provisions of section 203 Cr.P.C. and if finds sufficient evidence of offence, shall take cognizance of the matter and issue process against the accused under section 204 Cr.P.C. Perusal of impugned order shows that learned Special Judge after recording the statements of complainant and witnesses under sections 200 and 202 Cr.P.C. and considering the material on record upon finding prima facie sufficient evidence of the offences in the incident in question and has taken cognizance and issued process against the appellants. There appears no illegality or incorrectness in the impugned order.
In view of discussions made above, I find that learned counsel for the appellants has failed to show any illegality, irregularity or incorrectness in the impugned order. The appeal is devoid of merits and is liable to be dismissed.
The appeal is dismissed accordingly.
Order Date :- 30.8.2018 Tamang