IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 361 of 2006 Kailash Chandra and others ………. Applicants Versus Sessions Judge, Almora and others. ..…. Respondents Present : Sri Abhishek Verma, Advocate holding brief of Sri Sudhir Singh, Advocate present for the applicants. Sri P.S. Bohra, Brief holder for the State/respondent Nos.1 to 2. Dated : 20th August, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this Criminal Misc. application, the prayer has been advanced to quash the entire proceedings of Criminal complaint case No.19 of 2006 titled as Bhuwan Chandra Pandey Vs. Kailash Chandra and others, including the order of cognizance thereupon dated 09.01.2006, besides the order passed by the learned Sessions Judge, Almora dated 05.04.2006 in criminal revision No.8/2006. It is pertinent to mention that learned counsel for the applicants is present while none turned up on behalf of private respondent No.3 Bhuwan Chandra Pandey, even in the revised call, despite of sufficient service upon him and even no counter affidavit has been filed. The background facts are that the applicant No.1 Kailash Chandra and the private respondent No.3 Bhuwan Chandra Pandey are the real cousin and residing at same place. They are next door neighbours to each other. Applicant No.2 is 2 the mother of Kailash Chandra while applicant Nos.3,4 and 5 respectively are the minor son and two daughters of applicant No.1. This way, all the applicants comprise a single family. Respondent no.3-Bhuwan Chandra Pandey moved an application under section 156(3) Cr.P.C. on 25.07.2003 to the court of Chief Judicial Magistrate, Almora narrating the incident of dated 06.07.2003. As per the facts stated in his application, Kailash Chandra alongwith his mother, wife, son Kishor and two daughters at about 08.00 P.M. came to his house. Bhuwan Chandra Pandey noticed that Smt. Kala Devi (wife of Kailash Chandra) threw some vermilion enveloped in a paper packet alongwith some rice in surreptitious manner. Bhuwan Chandra Pandey raised an alarm apprehending that some surreptitious mischief has been done in his house. At this, all the accused persons named above, started hurling abuses to Bhuwan Chandra Pandey and began to beat him including his family members with wooden baton. Applicant No.2 Smt. Dhanuli Devi (mother of the applicant No.1), Rekha Devi (daughter), Vidhya (daughter) and master Kishor (minor son) pelted stones towards the family of Bhuwan Chandra Pandey with the threat to implicate him in some post office case. They left the place threatening to see Bhuwan Chandra Pandey and his family sometime in future. Bhuwan Chandra Pandey went to the Patwari Headquarter and submitted his report. Patwari asked him to produce his medical along with his family members. So he got the medical done in Lamgada Hospital and handed over the same to the Patwari but latter neither lodged the report nor investigated the matter. On this application moved by Bhuwan Chandra Pandey, the Chief Judicial Magistrate, Almora was asked Patwari concern to submit the report. He, in compliance of that order, submitted the report that in the newly house of Bhuwan Chandra Pandey, some red colour rice were found in 3 surreptitious circumstances. These rice were allegedly thrown by the family of applicants in order to do some covert mischief, so in that suspicion, Bhuwan Chandra Pandey started to hurl abuses towards his neighbour Kailash Chandra. In turn, Kailash Chandra, his wife and mother also made some altercation. Only this much of fact was verified by the Patwari negating any assault committed by applicants towards Bhuwan Chandra Pandey or his family. The Patwari also ratified that there had been some litigation between two parties prior to the questioned incident and on account of enmity, Bhuwan Chandra Pandey has exaggerated the version of the incident. This report of the Patwari was forwarded to the Magistrate on 09.08.2003, whereupon the Magistrate, finding no substance on the application of Bhuwan Chandra Pandey, dismissed the same on 11.08.2003 and did not proceed with the matter any further. After dismissal of the application of Bhuwan Chandra Pandey, he remained silent and did not assail the order of dismissal before the court of revision for a long time. But almost after short of two years, he filed the complaint dated 03.06.2005 narrating the same incident of 06.07.2003. In this complaint, the facts stated were all the more in exaggerated version than in the original application moved by him before the Magistrate on 25.07.2003. He even did not disclose in the said complaint that any enquiry has been done by the Patwari on his application moved before the Magistrate. He also concealed that after hearing the learned counsel for Bhuwan Chandra Pandey, the Magistrate had dismissed the application on 11.08.2003 on the basis of the report submitted by the Patwari. Upon this complaint, learned Chief Judicial Magistrate, Almora (after lapse of two years the court manned by another Magistrate by that time), passed the impugned order of 4 cognizance dated 09.01.2006 against all the applicants as well as against Kala Devi (wife of Kailash Chandra). This order of cognizance was assailed before the Sessions Judge by way of revision and the same was dismissed simply on the ground that the remedy available to the accused persons against the order of cognizance is only by moving petition under section 482 Cr.P.C. and the order could not be challenged before learned Sessions Judge by way of revision. So the applicants have come up before this Court under section 482 Cr.P.C. by moving this petition. It has been contended on behalf of the applicants that there are so many laches which have not been considered by the Magistrate and he was mislead while passing the cognizance order. The incident was of dated 06.07.2003 which was simply regarding altercations and that too was a result of provocation made by Bhuwan Chandra Pandey and his family, just by noticing the presence of some red colour rice and vermilion within the boundaries of his house. It is pertinent to mention here that Bhuwan Chandra Pandey himself started abusing first and then in reply, family of Kailash Chandra also made some altercations. Even if the version of Bhuwan Chandra Pandey is relied for a moment that he rushed up to the Patwari in vain, then he has no explanation for the delay of three weeks in moving his application before the Magistrate. The Patwari, having received the order of the Magistrate, enquired into the incident which was found to be false. Even no medical report was handed over to the Patwari, as he asked Bhuwan Chandra Pandey to submit the report of his medical examination. Besides, when the Magistrate dismissed his application being devoid of any substance on 11.08.2003, Bhuwan Chandra Pandey neither preferred any revision against that order nor immediately filed any complaint but he remained inactive almost for two years and 5 after lapse of considerable gap of time, he filed the complaint with the same facts, although in exaggerated version on 03.06.2005 and while doing so did not disclose that his application had already been rejected by the Magistrate after receiving the report of enquiry from the Patwari concerned. Otherwise also, it does not inspire confidence that applicant No.1 alongwith his mother, wife, two named daughters and one minor son will enter in the premises of his cousin brother to beat him and his family by the wooden baton and by pelting stones. It appears that the learned Magistrate has not seriously applied his mind to the propriety of the fact and has passed the order of cognizance mechanically just on the ex parte statements deposed by complainant under section 200 Cr.P.C. and his witness under section 202 Cr.P.C. On the basis of these statements, the innocent persons cannot be allowed to suffer and surrender in the court with the risk of going to jail and face trial. In view of the above, this petition has force and deserves to be allowed. The petition is allowed. The impugned complaint No.19/2006 Bhuwan Chandra Pandey Vs. Kailash Joshi and others, alongwith order of cognizance dated 09.01.2006 as well as order of Revisional court dated 05.04.2006 are quashed. (Servesh Kumar Gupta, J.) JKJ 20.08.2011