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2019 DIGILAW 70 (UTT)

Kavita Kothari v. State of Uttarakhand

2019-02-13

MANOJ K.TIWARI

body2019
JUDGMENT : 1. By means of this application under Section 482 Cr.P.C., applicants have sought quashing of charge-sheet dated 10.05.2012 as well as cognizance order dated 14.12.2012 passed by learned Magistrate. The applicants have also sought quashing of entire proceedings of Criminal Case No. 2084 of 2012 pending in the Court of learned Judicial Magistrate, Rishikesh. 2. Applicant No. 1 owns certain properties in Village Haripur Kalan, Tehsil Rishikesh, District Dehradun, which she purchased by means of two separate sale deeds dated 24.01.2007 and 25.01.2007. Respondent No. 2 has also purchased an adjoining property and some dispute arose between them, which led to filing of a suit for permanent injunction by applicant No. 1, which was registered as Original Suit No. 26 of 2007 in the Court of Civil Judge (Junior Division), Rishikesh, District Dehradun. Learned Civil Judge (Junior Division), Rishikesh vide order dated 12.03.2007 granted temporary injunction in favour of applicant No. 1, thereby restraining respondent No. 2, his servants, agents etc. from interfering with the peaceful possession of applicant No. 1. 3. Learned counsel for the applicants submits that barely within four days of passing of order of temporary injunction, respondent No. 2 got an FIR lodged through his agent -Smt. Sheela Devi on 16.03.2007 against the applicants, which was registered as Case Crime No. 28 of 2007, under Sections 457, 380 and 506 of I.P.C. in Police Station Raiwala Rishikesh, District Dehradun. The Investigating Officer, after investigation, submitted closure report before learned Magistrate. Learned counsel for the applicants further submits that a protest petition has been filed by the complainant against the closure report and learned Magistrate has directed further investigation in the matter. 4. Learned counsel for the applicants further submits that thereafter respondent No. 2, along with one Sri Suraj Bhan, filed a suit for cancellation of sale deeds dated 24.01.2007 and 25.01.2007 executed in favour of applicant No. 1 by the erstwhile owner of the property. Relief of permanent injunction was also sought in the said suit, which has been registered as Original Suit No. 375 of 2007 in the court of Civil Judge (S.D.), Dehradun, which is still pending. Learned trial court passed an interim order in the said suit directing the parties to maintain status quo. 5. Relief of permanent injunction was also sought in the said suit, which has been registered as Original Suit No. 375 of 2007 in the court of Civil Judge (S.D.), Dehradun, which is still pending. Learned trial court passed an interim order in the said suit directing the parties to maintain status quo. 5. He further submits that subsequently, applicant No. 2 lodged an FIR against respondent No. 2 on 01.10.2009, which was registered as Case Crime No. 113 of 2009 under Sections 323, 504, 506, 452 & 427 of I.P.C. at Police Station Raiwala Rishikesh, District Dehradun, which resulted in submission of closure report. Learned counsel for the applicants submits that protest petition was filed against the closure report, which is still pending. 6. Learned counsel for the applicants submits that respondent No. 2 lodged criminal complaint against applicants under Sections 447, 448, 451, 380, 420, 467, 468, 469, 471, 504, 506 and 120B of I.P.C. on 20.02.2009. After recording the statement of the complainant under Section 200 of Cr.P.C. and witnesses under Section 202 of Cr.P.C., learned Chief Judicial Magistrate took cognizance and summoned the applicants under Sections 420, 468 and 469 of I.P.C. vide order dated 30.03.2010. Applicants challenged the summoning order and the proceedings pending before learned Chief Judicial Magistrate, Dehradun by filing criminal miscellaneous application No. 1151 of 2010 and a coordinate Bench of this Court stayed further proceedings of the case vide order dated 26.11.2010. The said criminal miscellaneous application under Section 482 Cr.P.C. was ultimately allowed by this Court vide judgment and order dated 27.09.2013 and the entire proceedings of Criminal Case No. 410 of 2009, under Sections 420, 468 and 471 of I.P.C. pending in the court of learned Chief Judicial Magistrate were quashed qua applicants. 7. Learned counsel for the applicants further submits that respondent No. 2 got yet another FIR lodged against the applicants through one Pankaj Sharma, which has been registered as Case Crime No. 48 of 2010, under Sections 380, 454 and 436 of I.P.C. at Police Station Raiwala Rishikesh, District Dehradun on 30.05.2010. The Investigating Officer, after investigation, submitted charge-sheet and trial is pending before Court concerned. 8. The Investigating Officer, after investigation, submitted charge-sheet and trial is pending before Court concerned. 8. Respondent No. 2 thereafter filed a non-cognizable report (in short “NCR”) in Police Station Raiwala Rishikesh, District Dehradun under Section 427 of I.P.C. on 05.01.2012 with the allegation that the applicants have violated the order of status quo passed by learned Civil Court in his favour by attempting to remove the gate from the property in question for constructing a boundary wall. Learned counsel for the applicants submits that similar allegation was made by respondent No. 2 in his complaint, which was registered as Complaint Case No. 410 of 2009 in the Court of Chief Judicial Magistrate, Dehradun. 9. The Investigating Officer, after investigation, submitted charge-sheet under Sections 427 and 181 of I.P.C. against the applicants and the learned Magistrate summoned the applicants vide order dated 14.12.2012. The charge-sheet and the summoning order dated 14.12.2012 passed by learned Magistrate have been challenged in this criminal miscellaneous application. 10. Heard learned counsel for the parties and perused the record. 11. There is no dispute that applicants and respondent No. 2 own adjoining property and due to dispute between them, civil litigation are pending in different courts. However, the manner in which successive FIRs and criminal complaints have been lodged by the parties against each other is deplorable. Such tendency to convert civil disputes into criminal ones should not be encouraged. Respondent No. 2 himself, or through his agents, registered as many as four FIRs/criminal complaints against the applicants, which leads to the irresistible conclusion that it is an abuse of process of court. Learned Magistrate has not given his thoughtful consideration to relevant aspects while taking cognizance in the matter, which is apparent from the bare perusal of the summoning order. The summoning order has been passed by learned Magistrate mechanically, without application of mind. 12. Even otherwise also, the allegation against the applicants in the NCR dated 05.01.2012, which led to filing of charge-sheet and summoning of the applicant by learned Magistrate, is that despite the order of status quo passed by learned Civil Court, applicants have attempted to remove the gate for constructing a boundary wall. The said allegation, even if taken on its face value, is not sufficient for initiating criminal proceedings against the applicants, although it may give rise to proceedings under Order 39 Rule 2-A of Code of Civil Procedure. 13. The said allegation, even if taken on its face value, is not sufficient for initiating criminal proceedings against the applicants, although it may give rise to proceedings under Order 39 Rule 2-A of Code of Civil Procedure. 13. In such view of the matter, to prevent the abuse of process of court and to secure the ends of justice, the criminal misc. application deserves to be allowed. 14. Accordingly, the criminal misc. application is allowed and the impugned summoning order dated 14.12.2012 and entire proceedings of Criminal Case No. 2084 of 2012, pending in the court of learned Judicial Magistrate, Rishikesh, District Dehradun are hereby quashed.