IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 108 of 2003 Mahendra Singh Adhikari … Applicant Vs State of Uttaranchal & others … Respondents AND Criminal Misc. Application No. 426 of 2005 Mahendra Singh Adhikari … Applicant Vs State of Uttaranchal & others … Respondents Sri Chetan Joshi, learned counsel for the applicant Sri S.S.Adhikari, learned counsel for the respondent Nos. 1 and 3 Hon’ble B.C. Kandpal, ACJ These petitions are being filed by the petitioner arising out of First Information Report dated 19.06.1999 in Case Crime No. 5 of 1999 filed by the Excise Inspector – Krishna Dayal. Therefore, both these petitions are being heard together and decided by this common judgment. For the sake of convenience, I am narrating the facts of Criminal Misc. Application No. 108 of 2003. 2. By way of this petition under Section 482 Cr.P.C., the petitioner has prayed for quashing the proceedings of Criminal Case No. 368 of 2001, arising out of Case Crime No. 5 of 1999, under Section 307 of I.P.C. pending in the court of Judicial Magistrate, Ranikhet. 3. By way of petition No. 426 of 2005, the petition has prayed for quashing the proceedings of Case No. 166 of 2000 under Section 60/63 of Excise Act pending in the court of Judicial Magistrate/Civil Judge (J.D.), Ranikhet as well as 2 quashing the summoning order dated 11.04.2000 passed against the applicant. 4. Brief facts of the case are that a First Information Report was lodged by Excise Inspector on 19th June, 1999 against Deepak Sishodia, Ehazi Jariyari and Mahendra Singh Adhikari with the allegation that when the excise team tried to intercept these persons, who were going on the truck, they fired at the raiding party which could not be hit anyone. Anyhow these persons fled away in the jungle in order to make their escape good. During the investigation, the petitioner before this Court – Mahindra Singh Adhikari was put up for identification but he could not be identified by any of the witnesses. The witnesses in the identification parade were Krishna Dayal – Excise Inspector, Bijendra Singh Jeena (constable) and Pan Singh Taragi (excise constable), who were in the raiding party. The revenue police, after completion of investigation submitted the final report under Section 169 of Cr.P.C. against the present applicant – Mahendra Singh Adhikari vide report dated 20.09.1999 (contained as Annexure No. 3 to the petition). The identification parade is also annexed as annexure No. 2 to this petition. The matter was thereafter transferred to the police agency for further investigation who submitted the chargesheet against the petitioner and in the counter affidavit filed by the police, it has been stated that in fact, there was no need of holding any identification parade, as the accused persons were known to the witnesses prior to the incident. 5. Heard Sri Chetan Joshi, learned counsel for the petitioner, Sri S.S. Adhikari, learned A.G.A. for the State/respondents and perused the record. 3 6. It is admitted fact once the petitioner was put up for identification by the investigation agency and he could not be identified either by the complainant who lodged the First Information Report or by any other person of the raiding party and thereafter a final report was submitted by the Naib Tehsildar under Section 169 of Cr.P.C. The matter however was transferred to the police agency for further investigation and the police, as per the counter affidavit filed by State/respondent, it has recorded the statement of the witnesses and thereafter submitted the chargesheet, but the stand taken by the police in the counter affidavit is that the accused was known to the witnesses prior to the incident. Therefore, there was no justification for holding the identification parade. This plea taken by the police agency appears to be very absurd for the reason that in case, the witnesses were known to the accused or the accused was known to the witnesses and there was no reason to hold any identification parade, but once the identification parade was arranged and the accused was put up for identification before the witnesses whom were actually known to him prior to this incident and even then they could not identify the accused then the entire story of the prosecution comes within the ambit of doubt. As I have already expressed my opinion about that the witnesses produced in the identification parade are very material and important witnesses i.e. complainant and the members of the raiding party. The Investigating agency, therefore, had no alternative in the aforesaid circumstances to submit the final report under Section 169 Cr.P.C. and I think that has rightly been done by the investigating agency, but the subsequent investigation by the police against the petitioner appears to be doubtful for the simple reason that the witnesses in the statement again named the accused persons, but concealed this fact that they could not identify him in the 4 identification parade. Further from the perusal of the First Information Report, it is quite clear that the case under Section 307 of I.P.C. is not made out in any manner, as the story made out against the accused person in order to bring him within the ambit of the offence under Section 307 of I.P.C. also appears to be cock bull story. In case, the allegation contained in the First Information Report lodged by the complainant; if given its face value and taken to be correct in its entirety, even then do not disclose any offence under Section 307 of I.P.C., the same would be a futile exercise and it would amount to abuse of process of court. 7. For the reasons stated above, I am of the view that the proceedings pending before the court below in both the petitions are liable to be quashed. 8. Accordingly, the petitions are allowed. The proceedings pending before the court below in case No. 166 of 2000 under Section 60/63 of Excuse Act as well as Criminal Case No. 368 of 2001 under Section 307 of I.P.C. pending in the court of Judicial Magistrate/Civil Judge (J.D.), Ranikhet are hereby quashed. 9. Let the copy of this judgment be placed in C482 No. 426 of 2005. (B.C. Kandpal, ACJ) 23.09.2009 ASWAL