The court dismissed a writ petition challenging an appellate order that set aside a City Magistrate's direction restraining a petitioner from operating a generator. Finding no illegality or jurisdictional error, the court held the appeal courts' view plausible.
Writ petition dismissed; stay order, if any, stands vacated.
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Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 2498 of 2006
Petitioner :- Brij Kishore Mittal & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Raj Kumar Counsel for Respondent :- Govt. Advocate,Amit Daga,Dr. Pradeep Kumar Mishra,S.S. Shukla,Sameer Jain
Hon'ble Aniruddha Singh,J.
1-None is present on behalf of the petitioners even in the revised list/call. Sri Amit Daga, learned counsel is present for opposite party no.3
2-Heard Sri Amit Daga, learned counsel for opposite party no.3, learned A.G.A. for the State and perused the record and the writ petition is being decided on merits.
3-This writ petition has been preferred by the petitioner nos. 1 to 5 challenging the order dated 28.1.2006 passed by Additional Sessions Judge/Special Judge (C.B.I.) Anti Corruption Act, U.P. (East), Ghaziabad in Criminal Appeal No.95 of 2005 filed by opposite party no.3 whereby the appeal was admitted and the impugned order of City Magistrate, Ghaziabad dated 28.7.2005 was quashed.
4-In brief, the facts of the case are that one application dated 7.12.2000 was moved by the respondent no.3 alleging therein that the petitioner no.1 be restrained from operating generator as the same creates noise and pollution. The aforesaid application came into existence as Case No. 39 of 2001 before the respondent no.2, the City Magistrate, Ghaziabad. Upon completion of the spot inspection, a report dated 24.01.2001 was submitted by the U.P. Pollution Control Board with the recommendation that the matter may be proceeded under Section 133. Cr.P.C. Some affidavits were filed by the petitioners in the proceedings under Section 133Cr.P.C. to the
effect that there is no pollution. Later on, in the aforesaid proceeding an order dated 23.8.2002 was passed by the City Magistrate, Ghaziabad whereby the petitioners were restrained from operating generator as the generator creates pollution in the atmosphere. Thereafter, respondent no.3 on 17.10.2002 filed an application before the respondent no.2 stating therein that the wrong affidavits were filed by the petitioners. On the application dated 17.10.2002, the respondent no.2 registered a criminal case No. 3 of 2002 against the petitioners. Vide order dated 28.03.2002, the respondent no.2 has dismissed the criminal case. Aggrieved by the order dated 28.03.2002, the respondent no.3 filed a Criminal Appeal No.15 of 2003 before the Sessions Judge, Ghaziabad. Vide order dated 05.05.2004, the Sessions Judge, Ghaziabad remanded the matter to the respondent no.2 with a direction to decide the matter afresh after taking evidence. The respondent no.2 vide order dated 28.07.2005 again rejected the application on account of the fact that affidavits were filed after report dated 10.04.2001 of the U.P. Pollution Control Board. Aggrieved by the order dated 28.07.2005, the respondent no.3 again preferred a Criminal Appeal No. 95 of 2005 before the Sessions Judge, Ghaziabad. Vide order dated 28.01.2006, the aforesaid appeal was allowed by the Sessions Judge, Ghaziabad and set aside the order dated 28.07.2005 passed by the City Magistrate, Ghaziabad. Hence this writ petition.
5-From perusal of the record and the order of the City Magistrate, Ghaziabad dated 26.7.2005 and the appellate order dated 28.1.2006, it was clearly found by the courts below that there is no evidence to initiate the proceeding under Section 340 Cr.P.C. as false affidavits and documents were filed by the petitioners before the court concerned.
6-The courts below has given concurrent findings of fact and the view taken by the courts below is plausible view. Hence, no interference is called for.
7-Power of initiation of proceeding under Section 340 Cr.P.C. is existed before the court concerned where so called forged documents have been filed and that court has clearly stated that forged documents have not been filed before the court concerned and the appellate court has also upheld the findings recorded the City Magistrate and found that there is no need of initiation of proceeding under Section 340 Cr.P.C.
8-This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present writ petition is bereft of merit and is hereby dismissed.
9-The writ petition is dismissed. Stay order, if any, stands vacated.
10-Office is directed to send the copy of this order to the court concerned to proceed in accordance with law.
Order Date :- 26.10.2018 OP
2 issues framed by the court
Whether the impugned appellate order quashing the City Magistrate's direction requires writ court intervention.
Whether the lower courts' findings that there was no evidence to initiate proceedings under Section 340 Cr.P.C. are legally sustainable.
Brij Kishore Mittal & Others
State of U.P.
Aniruddha Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
