IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 752/2006 Abdul Gaffar & Ors. …….Petitioners Versus State of Uttaranchal & Ors. …….Respondents July 28, 2010 Hon’ble Dharam Veer, J. Heard Mr. Anil Dabral, Advocate for the petitioners, Mr. Amit Bhatt, Addl. GA for the State and Mohd. Safdar, Advocate for the respondent no. 3. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioners have prayed for quashing the entire proceedings of Case No. 872/2004 Jamil Ahmad v. Abdul Sattar & Ors. under Section 379, 406, 504, 506 IPC pending in the Court of Judicial Magistrate, Roorkee. Facts, in brief, are that the respondent no. 3 Jamil Ahamad filed a complaint case before the Judicial Magistrate, Roorkee alleging therein that the petitioners who are the relatives of his elder brother came to their house on 3.6.2004 in a Ambassador car and stayed there in the night. In the morning the family members of the complainant found themselves to be ill and the petitioners were not there and by using some intoxicant they looted jewellery worth Rs. 50,000/- and cash amount of Rs. 18,000/- and also some other valuable articles. Since the matter was between the relatives, hence the complainant along with some other people gone to the house of the petitioners for getting back the looted items and cash, but the petitioners did not return anything to the respondent no. 3 and also abused and threatened him stating that it is their profession. The police did not lodge the FIR on the report of the complainant. Therefore, the complainant filed this complaint before the Magistrate. Learned trial court after recording the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC, came to the conclusion that a prima facie case under Section 379, 406, 504, 506 IPC is made out against the petitioners and accordingly summoned them vide order dated 4.8.2004. When the petitioners did not turn up, non-bailable warrants were issued against the petitioners vide order dated 15.2.2005. Thereafter the petitioners moved an application on 18.3.2005 stating that they are innocent and the impugned proceedings were not against them and the accused are some other persons. On this application, the learned Magistrate recalled the non-bailable warrants on 5.4.2005 and directed the police to verify the claim made by the petitioners and the real facts about it. It was reported by the police vide report dated 17.4.2005 that the petitioners are the original accused who have been named in the complaint and they often change their names and commit the crime and a number of cases are registered against them. Thereafter on 8.5.2006, learned Magistrate again issued the non-bailable warrants against the petitioners. Hence, this petition has been filed before this Court. Learned Counsel for the petitioners argued that petitioners have been falsely implicated in this case. I do not find any force in the argument of learned Counsel for the petitioners due to the reasons that averments made in the complaint are corroborated by the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC and other documentary evidence produced by the complainant. Having considered the arguments advanced by learned counsel for the petitioners; perusal of complaint, summoning order dated 4.8.2004, order dated 8.5.2006 whereby the non- bailable warrants have been issued against the petitioners, statements recorded under Section 200 and 202 CrPC and other papers available on record, I am of the view that a prima facie case under the aforesaid Sections is made out against the petitioners. Even otherwise, the dispute involves factual question which cannot be decided by this Court. The dispute can be decided only after adducing the oral and the documentary evidence by the parties before the trial court. It 2 cannot be decided by this Court only on the basis of papers filed on the record. Even otherwise, 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. If the allegations made and the evidence oral as well as documentary produced against the accused and the statements of witnesses 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 and since they often commit the crime by changing their name and identity, therefore, proceedings against them have been rightly initiated. 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. The petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. Interim order dated 15.11.2006 stands vacated. (Dharam Veer, J.) 28.7.2010 PRABODH 3