IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 454 of 2008 (Old No. 1375 of 1998) Dr. Rajendra Prasad Purohit S/o Shri Mahanand Purohit R/o Medical Officer, Govt. Ayurvedic Hospital, Bulekha Khal, Pauri Garhwal. ...…………. Petitioner Versus 1. State of U.P. (now State of Uttarakhand) 2. Balwant Singh S/o Gabar Singh R/o Karchhon, P.O. Regori, Tehsil Joshimath, District Chamoli. ...…………. Respondents Mr. Lokendra Dobhal, Advocate for the petitioner. Mrs. Mamta Bisht, Asstt. Govt. Advocate for respondent State. Mr. D.C.S. Rawat, Advocate for respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the proceedings of Criminal Case No. 687 of 1995; State Vs. Lalita Prasad and others, relating to offences punishable under Section 395, 429, 504, 506 of I.P.C., pending in the court of Chief Judicial Magistrate, Gopeshwar, District Chamoli. 2 2) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on behalf of the parties. 3) Brief facts of the case are that the respondent No. 2 / complainant moved an application before the Sub Divisional Magistrate, Karanprayag, stating that on 31.03.1995, when he was taking his 200 goats from Karanprayag to Semi Uuj, he was attacked by the accused, including the petitioner, in which his goats suffered injuries, as the accused pelted stones at them. It is also stated by him that his gun was also taken by accused Lalita Prasad. Said case was registered as F.I.R. / Crime No. 03 of 1995. After investigation, final report (copy Annexure –2 to this petition) was submitted on 09.10.1995, by the Investigating Officer / Supervisory Kanungo, Pokhari, with the finding that no eyewitnesses of the incident are available to support the allegations, and it is not possible to find the real story of the incident. On this final report, the Magistrate summoned the accused, including the petitioner, vide his impugned order dated 20th of June 1996. Hence, this petition was filed before the Allahabad High Court, from where it is received by this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 4) Learned counsel for the petitioner submitted that the Magistrate committed grave error of law by 3 summoning the petitioner in the case without there being any evidence against him. In this connection attention of this Court is drawn to the order dated 10.05.1996, passed by Chief Judicial Magistrate, Chamoli, in Criminal Complaint Case No. 687 of 1995. It is contended on behalf of the petitioner that the Criminal Complaint Case No. 687 of 1995 relates to the same incident in which the final report was filed. Vide order dated 10.05.1996 (copy of which is Annexure R.A. –5 to the rejoinder affidavit) the same Magistrate, after recording statement of the complainant and witnesses under Section 200 and 202 of Cr.P.C. respectively, dismissed the complaint under Section 203 of Cr.P.C. In the circumstances, it is argued that after the criminal complaint was dismissed by the Magistrate himself, and final report too has been filed by the police, summoning the accused, including the petitioner, was nothing but an abuse of process of law on the part of the court concerned. 5) Learned counsel for respondent No. 2 drew attention of this Court to the statement made by the complainant to the Investigating Officer (copy of which is filed with the counter affidavit of the State), and contended that there is sufficient material to summon the accused. 6) Having heard learned counsel for the parties and after going through the papers on record, this Court 4 finds that the Magistrate has adopted an erroneous procedure of law, and further committed error in passing the impugned order. Whenever in respect of an offence first information report is lodged, and criminal complaint is also filed, the Magistrate should have stayed the proceedings under Section 210 of Cr.P.C., relating to the criminal complaint, and only after the report of police is received on completion of investigation, he should have taken decision on the criminal complaint. After the Magistrate himself recorded statement of the complainant under Section 200 of Cr.P.C. and that of the witnesses under Section 202 of Cr.P.C., and dismissed the criminal complaint under Section 203 of Cr.P.C., it is evident that he was of the view that no offence is made out as against the accused. There after, when the final report is submitted by the police with the finding that no offence is made out against the accused, there was no occasion on the part of the Magistrate to summon the accused in such a case where the Investigating Officer, and he himself had already found that no offence is made out. The impugned order dated 20th of June 1996 shows that he has summoned the accused on the final report after observing that villagers were not expected to support the complainant. Learned counsel for the petitioner submitted that the petitioner is an Ayurvedic Doctor and he has no role in the case. 5 7) For the reasons as discussed above, this Court is of the view that the Magistrate has passed the erroneous order by summoning the accused in the above circumstances. Therefore, to prevent the abuse of process of law, the impugned proceedings are liable to be quashed. Accordingly, the petition under Section 482 of Cr.P.C. is allowed. The impugned proceedings of Criminal Case No. 687 of 1995; State Vs. Lalita Prasad and others, relating to offences punishable under Section 395, 429, 504, 506 of I.P.C., pending in the court of Chief Judicial Magistrate, Gopeshwar, District Chamoli, are hereby quashed. (Prafulla C. Pant, J.) Dt. March 25, 2010. H. Negi 6