IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 23/2006 Suresh & Ors. …….Petitioners Versus Civil Judge (JD)/Judicial Magistrate, Kashipur, Udham Singh Nagar & Anr. …….Respondents August 13, 2010 Hon’ble Dharam Veer, J. Heard Mr. MS Bisht, Advocate for the petitioners and Mr. Amit Bhatt, Addl. GA for the State. None appeared on behalf of respondent no. 2 despite being served personally. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioners have prayed for quashing the summoning order dated 7.7.2005 as well as the entire proceedings of Criminal Case No. 385/2005, Munni Devi v. Suresh & Ors. under Section 323, 504, 506, 452, 492 and 427 IPC pending in the Court of Civil Judge (Jr. Div)/Judicial Magistrate, Ist Class, Kashipur, Udham Singh Nagar. Facts, in brief, are that the respondent no. 2 Munni Devi filed a complainant against the petitioners/accused with the averments that she is an old lady and she was peacefully living along with her family in village Sanyasiowala, Tehsil Jaspur. Petitioners are the resident of nearby village Radhuwala, who often tried to illegally grab the land of the complainant which is in the name of her husband Shankar Lal. Petitioners/accused also tried to make a pathway through her land and SI Sayab Hussain of PS Jaspur and Lekhpal Dilshan Hussain of Jaspur were also helping the petitioners. In this regard, status quo order has also been passed by the Civil Court. It is further alleged that on 22.5.2005, the complainant had gone in the marriage of her niece and when she returned on that day at about 5.30 pm, she saw that the petitioners/accused had intruded into the house of the complainant and were trying to break the locks of courtyard. On seeing the complainant, petitioners started abusing her. They also broke the lock and threatened her to kill. Thereafter petitioners left the place. When the complainant inspected the house, then she found that lock of her room was broken and the petitioners/accused had taken along with them the gold and silver ornaments, valuable household articles, clothes and Rs. 1800-1900. It has also been alleged that the incident was seen by Parveen, Rajesh, Ramesh, Shankar Lal, Ashok and Mamta. When the complainant tried to lodge the FIR in PS Jaspur, the police refused to lodge the same. Thereafter she sent the report to SP, Udham Singh Nagar vide registered post, but no action was taken against the petitioners/accused. Therefore, she lodged the instant complaint before the Magistrate. 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 to face the trial under Section 323, 504, 506, 452, 492 and 427 IPC vide order dated 7.7.2005. Hence, the present petition has been filed by the petitioners. Learned Counsel for the petitioners argued that from the perusal of the averments made in the complaint and the evidence adduced on record, the offence under Section 323 and 492 IPC is not made out against the petitioners. I find substance in the argument of learned Counsel for the petitioners. For the sake of convenience, Section 323 IPC is reproduced as below: “323. Punishment for voluntarily causing hurt.— Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” It reveals from the perusal of the record that there is no averments whatsoever either in the complaint or in the statement of complainant or in the statements of the witnesses that the petitioners/accused voluntarily caused injury to the 2 complainant. Hence, the basic ingredients of Section 323 IPC are missing in the complaint itself and, therefore, prima facie the offence under Section 323 IPC is not made out against the petitioners. It is settled law that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the petitioners/accused to face the criminal trial would be totally unjustified leading to abuse of process of law. As regards Section 492 IPC, the same stands repealed by the Workmen’s Breach of Contract (Repealing) Act, 1925 (3 of 1925) and, hence, the learned Magistrate ought not to have summoned the petitioners under Section 492 IPC. For the reasons recorded above, the criminal trial with respect to the offence under Section 323 and 492 IPC is liable to be quashed. So far as the rest of the offences are concerned, it transpires that the same involves absolutely disputed questions of fact which cannot be decided by this Court at this stage. The trial court will decide the same 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. It is well settled that while exercising jurisdiction under Section 482 CrPC, this Court should not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint 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 to face the trial under Section 504, 506, 452 and 427 IPC as the said offences are prima facie made out against the petitioners at this stage. However, the trial court will decide the case after recording the evidence adduced before it. For the reasons recorded above, the present C482 petition is partly allowed. Proceedings against the petitioners under 3 Section 323 and 492 IPC are hereby quashed. However, proceedings under Section 504, 506, 452 and 427 IPC shall proceed against the petitioners as per law. Interim order dated 12.1.2006 stands vacated. (Dharam Veer, J.) 13.8.2010 PRABODH 4