Neutral Citation No. - 2025:AHC:140681 Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 2818 of 2025 Petitioner :- Anita Sharma Respondent :- State of U.P. and Another Counsel for Petitioner :- Adarsh Kumar Rai,Kailash Singh Yadav,Swapnesh Singh Counsel for Respondent :- G.A.,Suresh Kumar Gupta Hon'ble Ms. Nand Prabha Shukla,J. Supplementary affidavit filed today in Court is taken on record. Heard learned counsel for the petitioner, learned counsel for the respondent No. 2, learned AGA for the State and perused the record. The present petition under Article 227 of the Constitution of India has been filed seeking the following relief:- "(i) set aside the impugned order dated 17.2.2025 (Annexure No.1 to the misc. petition) passed by learned Additional District & Sessions Judge, Court No. 19, Kanpur Nagar in Criminal Revision No.672 of 2024 (Anita Sharma Vs. State of U.P. & another) as well as impugned order dated 2.12.2024 (Annexure No.2 to the misc. petition) passed by learned Chief Judicial Magistrate, Kanpur Nagar in Criminal Case No.24832 of 2016 (State Vs. Bhagwan Singh), arising out of Case Crime No. 118 of 2014, under Section 420, 406, 467, 468, 471, 504, 506 IPC, Police Station Swaroop Nagar, District Kanpur Nagar." Briefly stated the petitioner lodged an FIR bearing Case Crime No. 118 of 2014 registered under Section 420, 406, 467, 468, 471, 504, 506 IPC, Police Station Swaroop Nagar, District Kanpur Nagar against the respondent No. 2, Bhagwan Singh alleging that while respondent No. 2 namely Bhagwan Singh, was serving at Kanpur Development Authority, Kanpur Nagar, he alienated his residence No. M108/21, MIG, Barra-7, Kanpur Nagar measuring 180 Sq. Meters, which was procured through the allotment dated 23.09.2010. He alienated the residence on 25.09.2010 for Rs. 3,30,000/- regarding which an agreement to sell as well as a registered power of attorney dated 25.09.2010 was executed in her favour. The petitioner was provided with the original allotment letter and the possession. The petitioner being in possession paid various installments of the residence at the rate of 1,40,000/- and deposited them at SBI Branch Moti Jheel Kanpur Nagar under her signatures since 25.02.2010 and had paid around 11,89,500/- till then. The respondent No. 2 with a dishonest intent get the property registered in his name and trying to sell out to some third person. A scuffle took place and the FIR was lodged. After the investigation, charge-sheet was submitted against the respondent No.2 and after framing of the charges the trial is in progress. The testimony of the petitioner Anita Sharma, PW-1, has already been recorded. On 18.09.2024, petitioner moved an application under Section 311 Cr.P.C., before the Chief Judicial Magistrate, Kanpur Nagar for the summoning and examining of marginal witness Mayank Tiwari S/o Yogendra Tiwari. However, the learned Chief Judicial Magistrate, Kanpur Nagar rejected the said application vide its order dated 02.12.2024. Aggrieved by the said order, the petitioner preferred a criminal revision which was also rejected on 19.12.2024. It has been submitted by learned counsel for the petitioner that the orders impugned have been passed in a mechanical manner on erroneous grounds and without application of mind. Per contra, learned counsel for the respondent No. 2 as well as learned AGA for the State have opposed the aforesaid submissions on the ground that the trial is at the verge of conclusion and the testimony of petitioner has already been recorded. The date is fixed for recording of the statement of the accused under Section 313 Cr.P.C. It has been emphasized that there is no necessity to examine the marginal witness Mayank Tiwari as no prejudice shall be caused to the party. Upon hearing learned counsel for the parties and from the perusal of the record, it transpires that the registered power of attorney has already been proved by the petitioner as Ex. Ka-1. The agreement to sell and the unregistered sale deed have also been proved by the petitioner. In these exhibits/documents Mayank Tiwari and Nagendra Singh are the marginal witnesses. Nagendra Singh was listed as a witness in the chargesheet but the petitioner did not examine this witness; rather wants Mayank Tiwari to be examined as prosecution witness. As the petitioner has already proved all the exhibits/documents therefore, there is no necessity to examine Mayank Tiwari. Petitoner has already relinquished her right to examine Nagendra Singh who was a material witness of the alleged exhibits/documents. Now, the evidence of marginal witnes Mayank Tiwari is not crucial for arriving at the just and fair decision of the case. The Hon'ble Supreme Court has held that this power is not meant to fill gaps in the prosecution's case or to be used capriciously. There is no strong and valid reason to interfere in the matter. The petition is devoid of merit and is accordingly, dismissed. Order Date :- 11.8.2025 Aditya Tripathi Digitally signed by :- ADITYA TRIPATHI High Court of Judicature at Allahabad Digitally signed by :- ADITYA TRIPATHI High Court of Judicature at Allahabad