IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.779 OF 2008 (U/s 482 of Cr.P.C.) Imam Baksh …………Applicant Versus Lakhan Singh …………Respondent Dated: October 4, 2010 HON. DHARAM VEER, J. Heard Mrs. Pushpa Joshi and Mr. G.C. Lakhchaura, learned counsel for the applicant and Mrs. Indu Sharma, learned counsel for the respondent. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of summoning order dated 21.4.2008 as well as the entire proceeding of criminal case no.339 of 2008, Lakhan Singh v. Suryapal and others, relating to offences punishable under Sections 323, 452, 504 of The Indian Penal Code, 1860 (for short, IPC) and one punishable under 3 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act). Brief facts of the case are that the respondent Lakhan Singh filed a complaint against the applicant and others on 23.2.2008 in the court of A.C.J.M., Kashipur stating therein that he is the owner of Khasra No.227 total measuring area 0.687 Hectare, situated at Village Gulargoji, Tehsil Jaspur, District Udham Singh Nagar. It is alleged in the complaint that the co-accused Shamsheed, Rafeeq and Mehraj Ali were bearing enmity with the complainant and they are trying to take over possession of his land. It is further alleged that on 14.1.2008 at about 5 PM these above-named three persons along with the applicant Imam Baksh, Lekhpal, Village Gulargoji, co-accused Suryapal, 2 Halka Lekhpal of Village Rajpur and others came in his field and started measuring his field. When he opposed the act of accused persons, they hurled abuses on him and committed marpeet. It is further stated that on 30.1.2008 he came to know from a police constable that an FIR has been lodged against him by the Lekhpal and subsequently he obtained the bail from the court. It is further alleged that on 3.2.2008 the applicant and other accused persons forcibly entered into his house and pressurized him to deliver the possession of the land to them. With the same averments, respondent Lakhan Singh filed a complaint against the applicant and others in the court. In support of the complaint, the complainant got himself examined u/s 200 Cr.P.C. and u/s 202 Cr.P.C. Hariom was got examined. After hearing learned counsel for the complainant and perusing the material available, learned Additional Chief Judicial Magistrate, Kashipur, vide his order dated 21.4.2008, summoned the applicant Imam Baksh and others. Against the said summoning order dated 21.4.2008, the applicant has preferred this application u/s 482 Cr.P.C. before this Court. Learned counsel for the applicant argued that the provisions of the SC/ST Act are not attracted in this case as in the entire complaint, it was nowhere mentioned that the applicant was not the member of Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimated with intent to humiliate the respondent within public view, hence the offence punishable under Section 3 of SC/ST Act is not made out. I find force in this argument. On a bare perusal of the complaint itself, there is no mention whatsoever that the applicant was not the member of Scheduled Caste or a Scheduled Tribe community and he intentionally insulted or intimated with intent to humiliate respondent within public view. It is settled law that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue 3 and to compel the applicant to face the criminal trial under Section 3 of SC/ST Act would be totally unjustified leading to abuse of process of law. Reliance is placed upon a Hon’ble Supreme Court verdict in the case of Gorige Pentaiah Vs. State of Andhra Pradesh & others reported in (2009) 1 SCC (Cri.) 446. Learned counsel for the applicant further submitted that the applicant Imam Baksh is Halka Lekhpal of Village Gulargoji and on the alleged date of incident i.e. 14.1.2008 he was discharging his official duties and he had come at the place of occurrence on the request of survey amin Shukat Hussain. It is contended that the present criminal complaint is a counter blast to the FIR lodged by Shukat Hussain, Survey Amim on 16.1.2008 against the respondent and others in which the applicant was a witness. I find force in the argument put forth by learned counsel for the applicant. As per the order of S.D.M., Jaspur one Survey Amin Shukat Hussain was directed for settlement of boundary disputes (demarcation) on 19.5.2007 and that Shukat Hussain requested the applicant to be remain present at Village Kishanpur for settlement of boundary dispute of Khasra No.389/3 situated at Village Kishanpur which was not the area of the applicant but as the settlement of boundary dispute was being conducted in the border of his area therefore he was present there on 14.1.2008. On that day, when the revenue officers were busy in the work of settlement of boundary dispute (demarcation) over the land in Village Kishanpur, the respondent Lakhan Singh and co-accused Suresh Singh and Hariom came there and tried to interrupt the government work and snatched the measuring chain from the officers and misbehaved with them and also threatened them. A first information report in this regard was lodged by Survey Amin Shukat Hussain against the respondent and others on 16.1.2008, in which after investigation, charge sheet has 4 been filed against the respondent and others and cognizance has also been taken by the Magistrate against them. Thus, it is clear that being aggrieved by the FIR dated 16.1.2008 lodged against him by Shukat Hussain, as a counter blast, the respondent filed this complaint against the applicant and others, which is nothing but an abuse of process of law on the part of complainant. Learned counsel for the applicant further argued that on the basis of the facts and circumstances of the case the impugned summoning order dated 21.4.2008 is not correct and justified as per law. I find force in this argument also. From the complaint itself, it reveals that the first incident as alleged was taken place on 14.1.2008 while the second incident was taken place on 3.2.2008, but from the impugned summoning order it is not clear that on the basis of which incident, the petitioner is summoned by the trial court. Further, the delay in filing the present complaint has not been explained by the complainant by giving a sufficient cause. From the above facts and circumstances of case it transpires that on 14.1.2008 the applicant Imam Baksh, Halka Lekhpal of Village Gulargoji was present on the place of occurrence at the request of demarcation amin Shukat Hussain just to help him in the demarcation proceedings on the order of S.D.M/Assistant Collector. On 14.1.2008, while the applicant along with revenue officers was discharging his official duties, the respondent and his companions came and obstructed them in the government work and snatched the measuring chain from the officers and misbehaved with them and also threatened them. An FIR in this regard was lodged by Survey Amin Shukat Hussain on 16.1.2008 against the respondent and his companions in which after completion of investigation charge sheet was filed against the respondent and others and in the charge sheet the 5 applicant was cited as a witness. Thus, it is clear that the present applicant has falsely been implicated in the alleged case because he is cited as a witness of the said incident and just to harass him and as a counter blast the present FIR has been lodged against the applicant which is an abuse of process of law. Having gone through the contents of the criminal complaint filed by the complainant, the statement of complainant recorded under Section 200 of Cr.P.C., and that of witness, namely Hariom, recorded under Section 202 of Cr.P.C. and the impugned summoning order dated 21.4.2008, whereby the petitioner is summoned, this Court finds that the impugned proceedings are nothing but abuse of process of law on the part of the complainant /respondent. Therefore, the petition under Section 482 of Cr.P.C. stands allowed. The proceedings of criminal case No. 339 of 2008, Lakhan Singh v. Suryapal and others, relating to offences punishable under Section 323, 452, 504 of I.P.C. and Section 3 of the Act, including the summoning order dated 21.4.2008 passed therein, by the Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, are hereby quashed as against the present applicant Imam Baksh only. Interim order dated 2.12.2008 stands vacated. (Dharam Veer, J.) 4.10.2010 RG