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2023 DIGILAW 283 (UTT)

Baldev Singh v. State of Uttarakhand

2023-05-01

SHARAD KUMAR SHARMA

body2023
JUDGMENT : The applicants are five in number. Applicant Nos. 1, 2 3 & 5 are represented by Mr. Harshpal Sekhon, Advocate. Applicant No. 4 is represented by Mr. Lalit Sharma, Advocate. 2. The C482 Application arises out of the Criminal Case No. 2806 of 2020, State Vs. Baldev Singh and others, whereby the applicants have been summoned to be tried for the offences under Sections 147, 498A, 323, 504 and 506 of IPC, which was registered before the Court of Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar, for trying the present applicants for the aforesaid offences. 3. The argument of the learned counsel for the applicant Nos. 1, 2, 3 & 5 Mr. Harshpal Sekhon, is that there had been an earlier complaint, which was registered by respondent No. 2, before the Police Authorities on 04.11.2019, allegedly on the same set of allegations pertaining to demand of dowry. But, if the complaint itself is taken into consideration, it is not exclusively confined to a demand of dowry, but also with regard to a claim in relation to an immovable property, which has been referred to therein, where the claim has been raised with regard to the respective shares which were claimed by the complainant. 4. There was yet another complaint filed by respondent No. 2, on 15.11.2019 with regard to the alleged atrocities exercised by the applicants and with regard to the forceful interference being made over the land which is allegedly to be in the possession of the complainant. 5. In fact, the shelter taken to this complaint was as if to derive an argument that the present FIR happens to be a subsequent FIR, after registration of the complaint. His argument is not acceptable for the reason being that if the rejoinder affidavit filed by the applicants is taken into consideration, the police authorities, while reacting on the complaint dated 04.11.2019 and 15.11.2019, had ultimately observed that after conducting an inquiry that the dispute, in fact, pertains to an immovable property and it is rather a family dispute in which no interference could be called for by the police authorities and the inference would be, that as per the report submitted by the In-charge, Inspector Khatima, the parties were supposed to have their recourses resorted to as available to them in accordance with law. 6. 6. Meaning thereby, as a consequence of the order dated 17.11.2019, no cognizance was taken on the report dated 04.11.2019 and 15.11.2019, it cannot be termed as to be a first complaint which was allegedly submitted by respondent No. 2, on which any reaction was made by the police authorities. 7. If the FIR, on which the cognizance have been taken is concerned i.e. FIR No. 108 dated 28.05.2020, it was registered for the offences under Section 452, 323, 504, 506, 406, 427 and 498-A of IPC, on which cognizance have been taken and ultimately a summoning order has been issued against the present applicants in Criminal Case No. 2806 of 2020, State Vs. Baldev Singh and others, by an order dated 10.08.2021, this Court is of the view, that the attempt made by the applicant to colour the FIR, as if it is a subsequent FIR i.e. subsequent to the complaint referred to hereinabove, filed by respondent No. 2, in fact, is belied for the reason being, that the complaints submitted by respondent No. 2 has been rather laid to rest by the police authorities as back as on 07.11.2019. 8. Closure to proceed on the complaint submitted by respondent No. 2, will not be a closure of an opportunity of the applicants to register an FIR, which in fact is the basic genesis of drawing of the present criminal proceedings, where a criminal inquiry is put to motion. Intermingling the issue, on the ground that the FIR is as an afterthought, and subsequent to the decision taken by the police authorities on the complaint filed by the respondent No. 2, is not acceptable by this Court, because the subsequent registration of the FIR and that too after a much prolonged period on 28.05.2020, apparently there cannot be any doubt as such as of now with regard to the allegation because that is still to be tried by the learned trial Court on its own merit. 9. On the contrary, the argument extended by the learned counsel for the respondent No. 4, that she is not residing in the family of applicant Nos. 1, 2, 3 and as such, she cannot be attributed to be indulged in commission of offence, which has been complained of. 9. On the contrary, the argument extended by the learned counsel for the respondent No. 4, that she is not residing in the family of applicant Nos. 1, 2, 3 and as such, she cannot be attributed to be indulged in commission of offence, which has been complained of. This Court is of the view, that the extent to which the applicant No. 4 is involved in commission of offence, as to whether she is residing at the place of residence! where the complainant respondent No. 2 was residing is a question of fact, which could only be decided by the learned trial Court on an appreciation of evidence, it cannot be a subject matter, which could be gone into in C482 proceedings, which are exclusively depended upon the fact, that when under the given set of circumstances, the criminal proceedings is drawn if it is proved to be an abuse of process then only the Court is required to venture into its jurisdiction under Section 482 of the Code of Criminal Procedure. 10. Since that being not the case at hand, the C482 Application is hereby dismissed, since it lacks merit.