IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 847/2005 Devendra Sharma & Ors. …….Petitioners Versus State of Uttaranchal & Anr. …….Respondents July 15, 2010 Hon’ble Dharam Veer, J. Heard Mr. Arvind Vashistha, Advocate holding brief of Smt. Monika Pant, Advocate for the petitioners, Mr. Amit Bhatt, Addl. GA for the State and Mr. Sanjeev Singh, Advocate for the respondent no. 2. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the entire proceedings of Criminal Case No. 589/2005 Ram Awatar Dutta v. Devendra Sharma & Ors. under Section 323, 452, 504, 506 IPC pending before the Judicial Magistrate, Haridwar and the summoning order dated 22.10.2005 passed in the said case against the petitioners. Facts, in brief, are that the respondent no. 2 Ram Awatar Dutta filed a complaint against the petitioners before the Magistrate stating therein that petitioner no. 1 Devendra Sharma had cheated him of money by showing him a plot of which he was not the owner. On 31.8.2005 when the complainant demanded his money back from him, petitioner no. 1 Devendra Sharma became angry and at about 9 pm on that day, he along with other petitioners/accused intruded into the house of the complainant and threatened him for life and also committed marpit with him. The complainant identified them in the electric light. The said incident was also witnessed by Shyam Awatar and Asha Devi, who saved the complainant from the petitioners. The complainant received injuries in the said incident. Thereafter the complainant after getting himself medically examined went to the police station to lodge the FIR, but his report was not lodged by the police. Therefore, he filed this complaint before the Magistrate. The complainant/respondent no. 2 also received fracture injury in the said incident. 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 is made out against the petitioners/accused and accordingly summoned them vide order dated 22.10.2005. 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. Learned Counsel for the petitioners also argued that respondent no. 2 had filed an application under Section 156(3) CrPC before the CJM, Haridwar on 22.11.2005 alleging the same facts already alleged in the aforesaid complaint and, therefore, the impugned summoning order dated 22.10.2005 is bad in the eye of law. I do not find any force in this argument of learned Counsel for the petitioners as the said application under Section 156(3) CrPC was filed on 22.11.2005 i.e. after passing the summoning order dated 22.10.2005. The CJM had sought a report from the police on the 156(3) application and the police after making the investigation submitted the report dated 7.12.2005 and thereafter the said application under Section 156(3) CrPC was rejected by the CJM on 12.12.2005 with the observation that the dispute between the parties is of civil nature. The revisional court also affirmed the aforesaid order of CJM. Apparently, this application was rejected in routine course as the dispute was civil in nature. Hence, order of the CJM as well as of revisional court do not in any way adversely affect the impugned summoning order dated 22.10.2005 as the summoning order is based on proper appreciation of evidence and on the basis of the statement recorded under Section 200 and 202 CrPC and the medical report of the respondent no. 2. 2 Having considered the arguments advanced by learned counsel for the petitioners; perusal of complaint, impugned order dated 22.10.2005, statements recorded under Section 200 and 202 CrPC, injury report of the respondent no. 2 and other papers available on record, I am of the view that a prima facie case against the petitioners is made out against 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 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. 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 30.11.2005 stands vacated. (Dharam Veer, J.) 15.7.2010 PRABODH 3