IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 738/2006 Maheshanand & Ors. …….Petitioners Versus State of Uttaranchal & Anr. …….Respondents July 28, 2010 Hon’ble Dharam Veer, J. Heard Mr. TA Khan, Advocate for the petitioners and Mr. Amit Bhatt, Addl. GA for the State/respondents. This petition under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC) has been filed for quashing the summoning order dated 28.7.2006 passed by the Civil Judge (Jr. Div.)/Judicial Magistrate, Haldwani, District Nainital in Criminal Case No. 1040/2006, State v. Maheshanand & Others under Section 147/436 IPC. Facts, in brief, are that on 15.1.2006 at 8.10 pm, an FIR was lodged by SI Mahesh Pal Singh in PS Kathgodam under Section 147/436 IPC with the averments that one Mr. Chandan Kumar was murdered, in which Girish Khati and Deepak Bisht were named as accused in the FIR which was lodged with regard to the said murder case. On 15.1.2006, when SI Mahesh Pal Singh along with other police personnel were busy in locating the accused Girish Khati and Deepak Bisht for their arrest, then at 3.30 pm, they received information that 30-35 ladies were agitating in front of the house of Girish Khati for his arrest. House of Girish Khati was also set on fire by them. The said police team reached there and controlled the fire and the mob was disbursed. The household articles of Bharat Bhatt, who was the tenant of Girish Khati also burnt in the said fire and the house also got damaged. With these averments, an FIR was lodged against the 30-35 unknown ladies stating that had the police party not reached in time at the place of occurrence, some big incident might have took place. Thereafter on 27.3.2006, Prahlad Singh father of Girish Khati lodged a complaint under Section 156(3) CrPC against the petitioners and other co- accused before the Magistrate alleging that a mob of 40-50 people including men and women attacked his house on 15.1.2006 at about 3 pm and at that time he was present on the roof of the house. The petitioners and the other co-accused were also present in the said mob. The complainant assigned specific roles to the petitioners and other co-accused in the said incident. The said complaint was sent to the police station concerned for investigation and a report was asked. Since the FIR about the said incident was already lodged and investigation was in progress, therefore, the facts mentioned in the complaint were also taken into account by the police and statements of complainant and his wife Bhagwati Devi were recorded under Section 161 CrPC. In their statements, the complainant and his wife stated the names of the accused petitioners and other co- accused. The I.O. after the investigation filed the chargesheet against the petitioners and the other co-accused, on the basis of which learned Judicial Magistrate has taken the cognizance of the offence against the petitioners and the other co-accused vide order dated 28.7.2006. Learned Counsel for the petitioners submitted that the petitioners have been falsely implicated in this case. I do not find any force in this argument due to the reason that from the perusal of the contents of FIR and statements of the witnesses recorded under Section 161 CrPC and other evidence collected by the I.O., a prima facie case is made out against the petitioners under the aforesaid sections. 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 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 in the FIR and the evidence 2 collected by the Investigating Officer and the statements of witnesses recorded by the I.O. during the course of investigation are taken at their face value and accepted in their entirety, I am of the view that the petitioners have rightly been summoned. 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 hereby dismissed. Interim order dated 21.9.2006 stands vacated. (Dharam Veer, J.) 28.7.2010 PRABODH 3