IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION (C-482) No. 405 Of 2006 Gurbachan Singh S/o Shri Mohan Singh R/o Baghora Police Station Sitarganj District Udham Singh Nagar ………………..Applicant Versus 1. State of Uttaranchal through Secretary Home Affairs, Dehradun. 2. Shri Mahendra, S/o Jawahar Lal, R/o Village Baghora, P.S. Sitarganj, District Udham Singh Nagar 3. Shri J.S Bhandari, Deputy Superintendent of police Khatima District Udham Singh Nagar (Investigating Officer) …..…………Respondents The petitioner is present in person (along with the counsel of Shri R.S.Sammal) Shri T.C.Aggarwal A.G.A along with Shri B.S.Parihar, Brief Holder, present for the State. None present for the complainant Hon’ble Prafulla C. Pant, J. By means of this petition, moved under section 482 of Code of Criminal Procedure, 1973, (for short of 2 Cr.P.C), the petitioner has sought quashing of the proceedings of Criminal Case No. 350 of 2006 State vs. Gurbachan Singh, relating to offences punishable under section 323, 326, 504, 506 I.P.C., and one punishable under section 3 (I) (x) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989, police station Sitarganj, pending in the court of Judicial Magistrate, Khatima. (2) Heard the petitioner in person and learned counsel for the State. No one turned up on behalf of the complainant. (3) Brief facts of the case are that a First Information Report (copy annexure-2) was lodged by respondent no.2 Mahendra against the petitioner Gurbachan Singh and two others, alleging that on 01.02.2006 the petitioner along with three persons came to the house of his brother Sardar Jarnail Singh and committed “MARPEET” with the complainant, who was the servant of Jarnail Singh. It is further alleged that in the incident the complainant suffered injuries and his one tooth got broken. The complainant 3 has further pleaded in the report that he is member of Scheduled Caste. On the basis of said report the police registered crime no. 114 of 2006 relating to offence punishable under section 323, 326, 504, 506 I.P.C and one punishable under section 3 (i) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989. After investigation charge sheet appear to have filed against the petitioner for its trial in respect of offence punishable under section 323, 326, 504, 506 I.P.C and one punishable under section 3 (i) (x) of S.C & S.T (Prevention of Atrocities) Act 1989. Hence this petition. (4) The petitioner drew attention of this court to section 326 I.P.C., and submitted that said section got attracted only when the grievous hurt is caused by the shooting stabbing, cutting or other instruments which if used may cause death or with fire, or such other substance. In the present case copy of the statement of complainant recorded under section 161 Cr.P.C (annexure C A1 filed with the counter affidavit) shows that the complainant has stated that he was beaten with kicks and fists and his tooth got broken. In the 4 circumstance having gone through the medical evidence and the other evidence on record this court finds that the grievous hurt said to have been suffered to the complainant was not caused by any deadly weapon. As such there appears substance in the submission made by the petitioner that offence punishable under section 326 I.P.C is not made out, but on its basis it can not be said that the entire impugned proceedings are liable to be quashed, as the petitioner may be found guilty by the trial court of the offence punishable under section 323, 325 I.P.C after recording of the evidence. (5) Petitioner Gurbachan Singh further submitted that his brother Jarnail Singh, with whom he does not have cordial relations , has used his servant Mahendra, (complainant/respondent no.2), who was the member of Scheduled Caste to give colour of a graver offence. Whether Gurbachan Singh has used his servant, for said purpose, is a question of fact which can be examined by the trial court, after recording evidence of the witnesses. It is not proper on the part of this court to hold the petitioner innocent at this stage on the basis of 5 half baked evidence before it. (6) For the reasons as discussed above, this petition, under section 482 Cr.P.C., is dismissed with the observation that if the petitioner Gurbachan Singh surrenders before the court concerned, his bail application shall be heard and disposed of without unreasonable delay. Interim order dated 12.06.2006 stands vacated. Registry is directed to inform the court concerned. (Prafulla C. Pant, J.) Dt.20.8.2010 N.P