Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 286 (UTT)

SADHAN VISHWAS v. STATE OF UTTARAKHAND

2019-04-15

N.S.DHANIK

body2019
JUDGMENT Hon'ble N.S. Dhanik, J. This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred to quash the summoning order dated 5.6.2013 passed by the Judicial Magistrate, Udham Singh Nagar in Criminal Case No. 72/2013, Pratap Ray v. Sadhan Vishwas & Others, under Sections 323, 504, 506 IPC. 2. Facts, in brief, are that the complainant/respondent no. 2 Pratap Ray lodged a complaint on 4.2.2013 with the averments that his marriage was solemnized with Ganga Ray (real sister of the accused applicants) on 15.12.2010 and it was a love marriage in which no gift or dowry was given. After about six months of the marriage, matrimonial discord occurred between the couple and when the complainant asked the members of his in-laws family to persuade his wife, then in place of persuading her, they started threatening him. At 6 o'clock in the evening of 10.11.2011, brothers-in-law (accused applicants herein) of the complainant/respondent no. 2 allegedly intruded into his house and hurled filthy language on the complainant and attacked him as well as his parents with intention to kill them and threatened to falsely implicate them in the dowry case. Complainant also alleged that similar incident happened at 8 o'clock in the evening of 21.1.2013. When the complainant tried to lodge the FIR, it was not registered in the police station. Thereafter he lodged this complaint in the Court of 1st Additional Judicial Magistrate, Rudrapur. 3. Statement of the complainant was recorded under Section 202 CrPC and statements of the witnesses CW1 Rakesh Ray and CW2 Heera Lal were recorded under Section 202 CrPC and thereafter the learned Magistrate took cognizance of the offences and, vide the impugned order, summoned the accused applicants to face the trial. Feeling aggrieved, the accused applicants have preferred this C482 petition. 4. Having heard learned Counsel for the parties and on perusal of the materials available on the record, it transpires that prior to lodging of the impugned complaint, Smt. Ganga Ray (sister of the accused applicants and wife of the complainant) had instituted a complaint case on 17.2.2012 against her husband/respondent no. 2 and in-laws under Sections 323, 498A IPC and 3/4 of the Dowry Prohibition Act and in this complainant case, after recording the statements under Section 200 and 202 CrPC, learned Judicial Magistrate, Udham Singh Singh, vide order dated 9.8.2012, summoned the accused persons (i.e. present complainant/respondent no. 2 and in-laws under Sections 323, 498A IPC and 3/4 of the Dowry Prohibition Act and in this complainant case, after recording the statements under Section 200 and 202 CrPC, learned Judicial Magistrate, Udham Singh Singh, vide order dated 9.8.2012, summoned the accused persons (i.e. present complainant/respondent no. 2 and his parents) to face the trial under the said sections. It also appears from the record that Smt. Ganga Ray had also instituted a case under the Domestic Violence Act against her husband and in-laws. 5. Learned Counsel for the accused applicants argued that in the counterblast of the aforementioned criminal complaint cases, the respondent no. 2 has filed the impugned complaint. He argued that the complainant have not filed any medical paper in support of his allegation of assault. Learned Counsel argued that the impugned complaint is nothing but mere pressure tactics of the complainant and hence, it is gross abuse of the process of law on the part of the respondent no. 2/complainant. Learned Counsel for the accused applicants further argued that the witnesses produced under Section 202 CrPC are the relatives of the complainant inasmuch as CW1 is the father of the complainant and CW1 Rakesh Ray is also a relative of the complainant and hence they are interested witnesses and their statements have no relevancy. Learned Counsel also argued that the impugned summoning order has been passed in a cursory manner and without appreciating the material facts and hence, the impugned order is liable to be quashed. 6. Learned Counsel for the complainant/respondent no. 2 argued that accused applicants ought to have availed alternative remedy of filing revision before the Sessions Judge against the impugned order. It is relevant to mention here that the present C482 petition was filed in September 2013, but no counter affidavit could be filed till date. 7. Having considered the rival submissions and materials on record, I find force in the contention of learned Counsel for the applicants that the impugned complaint has been instituted as a counterblast to the criminal cases filed by Smt. Ganga Ray. Statements of the witnesses recorded under Section 202 CrPC do not inspire confidence. Moreover, same allegations were levelled against six more accused persons (besides the present three accused applicants), but on the basis of the same set of statements, the Trial Court itself did not summon these six accused persons. 8. Statements of the witnesses recorded under Section 202 CrPC do not inspire confidence. Moreover, same allegations were levelled against six more accused persons (besides the present three accused applicants), but on the basis of the same set of statements, the Trial Court itself did not summon these six accused persons. 8. Hon'ble Apex Court in Prashant Bharti v. State of NCT of Delhi, (2013) 9 SCC 293 , has observed that in order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 CrPC, the High Court should analyze (i) whether the material relied upon by the accused is sound, reasonable and indubitable; (ii) whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint; (iii) whether the material relied upon by the accused cannot be justifiably refuted by the prosecution/complainant; and (iv) whether the trial would result in an abuse of process of the court and hence, would not serve the ends of justice? If the answer to all these questions is in affirmative, the Court should quash the proceedings by exercising its power under Section 482 CrPC. 9. Considering overall facts and circumstances of the case in hand, as discussed hereinabove, I am of the opinion that a prima facie case is not made out against the accused applicants and that continuance of the criminal proceedings will be a futile exercise and it would not lead to meet the ends of justice. Hence, in the given facts and circumstances of the case, this Court has absolutely no doubt that even if the impugned criminal proceeding against the accused applicant is permitted to continue, the ultimate consequence of the trial shall be the acquittal or dismissal of the indictment of the accused applicants. 10. Consequently, the present C482 petition is allowed. Summoning order dated 5.6.2013 passed by the Judicial Magistrate, Rudrapur, Udham Singh Nagar and the entire proceedings of the Criminal Case No. 72/2013, Pratap Ray v. Sadhan Vishwas & Others, under Sections 323, 504, 506 IPC are hereby quashed. Inform the Court concerned accordingly.