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2010 DIGILAW 707 (UTT)

Jitendra Kumar v. State of Uttaranchal

2010-09-22

DHARAM VEER

body2010
JUDGMENT HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the entire proceedings of Criminal Complaint No.177 of 2000 filed by the respondent no.2 pending before the J.M. Haridwar. 2. Heard learned counsel for the parties and perused the material on record. 3. In brief, the facts of the case are that the respondent no.2 lodged a complaint against the petitioners stating therein that she is the Treasury Officer and Trustee of Ganga Kutir Charitable Trust (Reg.) Haridwar and the said Trust had acquired its land on the basis of a power of attorney executed by one Sri J.M. Garg and the petitioners have no concern with the said land and even the said land is in the name of J.M. Garg. For the said land, a civil litigation No.17/94 J.M. Garg Vs. Industrial Development Corporation, is going on in which the civil court has also passed an interim injunction order in favour of J.M. Garg. Since 10.4.2000, the date when the Yoga Camp was started over the said land, the forest officers and officials started harassing the Members and Trustees of the said Trust and hence no 17.4.2000, an application was also given by Swami Ramdass Bandhu (husband of respondent no.2) in the court of CJM Haridwar u/s 156(3) Cr.P.C. but no order was passed by the court. On 17.4.2000 at 4 PM, petitioner J.K. Verma along with the other petitioners as well as other forest officials, being armed with guns, came on the property of Trust and started threatening the persons present over there to run away from there failing which they would be killed and everything would be looted. When the respondent no.2 enquired about the reason for doing so, the petitioner J.K. Verma uttered filthy abuses to her and by uttering obscene words, and directed the petitioner Prabhunath Pandey to open a fire upon the respondent no.2, however she was narrowly escaped. When Arvind, son of respondent no.2 intervened and requested the petitioners not to do so then on the instigation of petitioner J.K. Verma, the petitioner Prabhunath Pandey also opened fire upon her son, however he too was narrowly escaped. Thereafter, the petitioner J.K. Verma beaten the respondent no.2 and her son with fists and kicks and also surrounded Shivraj Shastri, Vimla, Ramrati, Nakli Singh, Agneshwar etc. Thereafter, the petitioner J.K. Verma beaten the respondent no.2 and her son with fists and kicks and also surrounded Shivraj Shastri, Vimla, Ramrati, Nakli Singh, Agneshwar etc. and the petitioners looted the articles, vehicle car etc. and took away with them in the official vehicles. The articles looted amounted to Rs.16.57 lacs. The petitioners also got Arvind and Swami Ramdass Bandhu locked behind bars. With the same averments, the complaint was lodged on 9.5.2000. Before the trial court, the statement of respondent no.2 was recorded u/s 200 Cr.P.C. while the statements of the witnesses Nakli Singh, Swami Ramdas Bandhu and Shivraj Shastri were recorded u/s 202 Cr.P.C. On the basis of this complaint and entire material available on record, the J.M. Haridwar vide order dated 29.5.2000 took cognizance and summoned the petitioners U/s 147/148/149/323/427/452/504/506 IPC. Against the said order dated 29.5.2000, the petitioners preferred a revision which was disposed of vide judgment and order dated 13.12.02 by IV FTC/Addl. Sessions Judge, Haridwar, thereby directing the revisionists/petitioners to file a protest petition before the trial court thereby raising objection as stated in the revision and the Magistrate concerned was directed to decide the issue afresh after hearing learned counsel for the parties in light of the observations made in the judgment and also as per law. Thereafter, vide order dated 4.6.2004, learned J.M. Haridwar rejected the protest petition of the petitioners. Against the said order dated 4.6.2004, the petitioners again preferred a revision which was dismissed vide judgment and order dated 16.7.2005 by the Sessions Judge, Haridwar. Assailing the entire proceedings pending before the trial court, this petition has been filed. 4. In reply to the above petition, a counter affidavit on behalf of the respondent no.2 has been filed in which the averments of the petition have categorically been denied. 5. Learned counsel for the petitioners submitted that the petitioners have wrongly been summoned by the court below inasmuch as the land in question belongs to the Forest Department and the petitioners had gone there only to take the possession over the forest land which was encroached upon the trust of the respondent no.2. I do not find any force in this argument. I do not find any force in this argument. On a bare perusal of the Annexure CA1 filed along with the counter affidavit of respondent no.2, the Survey Report of Additional District Magistrate, Haridwar, has been submitted, who on the basis of report of Tehsildar, Haridwar dated 25.5.2000, has categorically stated that the land in question does not belong to Rajaji National Park (Forest Department) Haridwar. As such this argument is not at all helpful for the petitioners and it cannot be said that the petitioners had gone to take possession over the forestland. Even before the trial court, the statement of the complainant was recorded u/s 200 Cr.P.C. while the witnesses; Nakli Singh, Swami Ramdass and Shivraj Shastri were examined u/s 202 Cr.P.C. After analyzing the entire facts and circumstances of the case and on perusal of the entire evidence adduced before it, learned J.M. Haridwar vide order dated 29.5.2000 took cognizance and summoned the petitioners to face trial u/s 147/148/149/ 323/427/452/504/506 IPC. Assailing the summoning order a revision was preferred which was disposed of by the revisional court with the direction to the trial court to decide the protest petition of the petitioners on the basis of observations made in the judgment and as per law. Thereafter, the learned Magistrate vide order dated 4.6.2004 rejected the protest petition and against the said order also, a revision was preferred which too came to be dismissed by the Sessions Judge, Haridwar vide judgment and order dated 16.7.2005. 6. On the other hand, a bare perusal of the complaint filed by the complainant/respondent no.2, the statement of the complainant and that of witnesses recorded u/s 200 and 202 Cr.P.C., who in their statements have amply corroborated the prosecution story, the offences punishable U/s 147/148/149/323/427/452/ 504/506 IPC, are prima facie made out against the petitioners on the basis of the above-said discussion and the trial court has rightly took the cognizance and accordingly, rightly summoned the petitioners to face trial. 7. Even otherwise, it is a disputed question of fact which cannot be decided without recording the evidence before the trial court. The trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. 7. Even otherwise, it is a disputed question of fact which cannot be decided without recording the evidence before the trial court. The trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint, the statement of the complainant recorded u/s 200 Cr.P.C. as well as the statements of the witnesses, namely, Nakli Singh, Swami Ramdas Bandhu and Shivraj Shastri recorded u/s 202 Cr.P.C., are taken at their face value and accepted in their entirety, I am of the view that the petitioners have rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. 8. For the reasons recorded above, there is no force in the application. The application C482 is devoid of merit and is hereby dismissed. Interim order dated 03.05.2006 is vacated.