Anil Kumar Alias Anil Kumar Varma vs State of U.P. and Another

अ- आदेश/िनदेर्श िनगर्त करते हुए / प्रस्तुत प्रकीणर् यािचका स्वीकार करते हुए अपर सत्र न्यायाधीश कोटर् संख्या-10/िवशेष न्यायाधीश (गैंगस्टर एक्ट), इटावा द्वारा पािरत प्रश्नगत िनणर्य एवं आदेश िदनांिकत 22.08.2025 अन्तगर्त दािण्डक िनगरानी संख्या-309/2023 (अिनल कुमार बनाम उत्तर प्रदेश राज्य एवं अन्य) अन्तगर्त धारा 397/399 दण्ड प्रिक्रया संिहता एवं िसटी मिजस्ट्रेट, इटावा द्वारा पािरत प्रश्नगत िनणर्य एवं आदेश िदनांिकत 09.08. 2023 अन्तगर्त धारा 133 दण्ड प्रिक्रया संिहता (राजकुमार वमार् बनाम अिनल कुमार) को न्यायिहत में िनरस्त िकया जाय।

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ब- अन्य अनुतोष जो न्यायोिचत हो, याची को प्रदान कराया जाए।

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स- प्रकीणर् यािचका सव् य याची के पक्ष में स्वीकार िकया जाए।"

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The facts of the case are that an order dated 09.8.2023 passed by the City Magistrate, Etawah directing Anil Kumar respondent therein to open the lock of the portion of his house and looking to the safety get repair of

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his part of the house done. It was further ordered that if there is any loss to anyone he shall be fully responsible for it. Notice under Section 133(1) Cr.P.C. was affirmed. A revision was preferred against the said order which stood rejected vide the judgement and order dated 09.8.2023 passed by Additional Sessions Judge, Court No. 10/Special Judge (Gangsters Act), Etawah in Criminal Revision No.309 of 2023, Anil Kumar vs. State of U.P. and another. This petition for writ under Article 227 of Constitution of India has been filed by the petitioner Anil Kumar Alias Anil Kumar Varma with the prayers as stated above.

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Submission of learned counsel for the petitioner is that the orders impugned are totally illegal and without application of mind. It is submitted that when the petitioner received notice from the City Magistrate concerned, he immediately got the said premises repaired and informed the Executive Officer, Nagar Palika Parishad, Etawah vide his letter dated 07.11.2022 in which he also enclosed six photographs for his perusal of the said work as done. It is submitted that despite the same the City Magistrate concerned passed an ex-parte order in a haste without even waiting for giving an opportunity to the petitioner for filing his objections and leading evidence. It is submitted that even the revisional court did not consider the said matter in its true perspective and dismissed the revision. Learned counsel has placed before the Court para-22 of the writ petition and has submitted that the petitioner was unwell and thus on 24.7.2023 opportunity to produce evidence was closed despite the fact that he had given information to the Executive Officer, Nagar Palika Parishad, Etawah regarding his illness but an ex-parte order has been passed by the City Magistrate concerned. It is submitted that the premises of the petitioner are now fully repaired and there is no threat to anyone.

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Per contra, learned State counsel opposed the petition and the arguments of learned counsel for the petitioner and submitted that it cannot be said that the matter proceeded before the City Magistrate exparte inasmuch as the order sheet of the said case would reveal that on 15.4.2023 Vakalatnama on behalf of the petitioner was filed in the matter and time was sought to file objections after which the matter was taken up on 10.05.2023 on which date the officer concerned was busy in the election work and thus it was adjourned and then it was listed on 7.6.2023

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on which date again it was observed by the said officer that no objection has been filed by the respondent and the matter was adjourned. It is submitted that the matter was then listed on 14.06.2023 on which date the respondent was absent from the proceedings and no objection was filed and thus the officer granted time as a last opportunity and adjourned the matter for 21.6.2023. It is submitted that then on 21.6.2023 opportunity for filing objection was closed. Subsequently on 13.7.2023 it was observed that the respondent has not produced any evidence and the matter was adjourned for 17.7.2023. Again on 17.7.2023 the respondent did not produce any evidence and thus while granting opportunity as a last time the matter was adjourned for 24.7.2023. On 24.7.2023 again the respondent did not produce any evidence and thus opportunity for producing evidence was closed and the matter was adjourned for 02.8.2023. On 02.8.2023 neither the respondent nor his advocate appeared before the City Magistrate concerned, and thus arguments ex-parte were heard and the matter was fixed for 09.8.2023 on which date the order impugned was passed. It is submitted that thus it cannot be said that the order as passed by the City Magistrate, Etawah is an ex-parte order inasmuch as ample opportunity was given to the respondent therein who is petitioner before this Court, initially for filing objection and then for leading evidence, but he failed to do so and there was no appearance on his behalf in the proceedings as neither he appeared nor did his counsel appear in the matter and thus final order was passed. It is submitted that even otherwise the order as passed is to the effect that the petitioner has been directed to get portion of his house repaired after opening the lock which is totally legal and does not call for any interference. It is submitted that the ground as taken that the petitioner was ill and thus unable to appear before the City Magistrate concerned is being pleaded for the first time before this Court and the records do not show filing of any such application(s) before the City Magistrate concerned and thus there is no illegality or irregularity in the orders impugned. It is prayed that the writ petition be dismissed.

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After having heard learned counsels for the parties and perusing the records it is evident that the City Magistrate concerned vide order dated 09.8.2023 directed the petitioner to open the lock of his portion of his

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house and get it repaired. Despite various opportunities the petitioner failed to file any objection before the City Magistrate concerned and thus opportunity was closed and then opportunity to produce evidence was given on which he also failed to produce any evidence. The matter thus proceeded and the order was passed. Vakalatnama on behalf of the petitioner was filed in the said proceedings on 15.4.2023 and time was granted for filing reply and thus it cannot be said that the case proceeded ex-parte. He was in full knowledge of the proceedings but even then neither his counsel nor he joined the proceedings at any stage. The orders impugned are well considered orders on the facts of the matter and do not call for any interference.

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