IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 110 of 2005 1. Shri Madan Mohan Gupta S/o late Chandra Prakash Gupta 2. Smt. Saroj W/o Sh. Madan Mohan Gupta 3. Alaknanda @ Abhilasha D/o Shri Madan Mohan Gupta 4. Abhishek S/o Sh. Madan Mohan Gupta All R/o Mohalla Khurbuda, Police Station Kotwali, Dehradun. 5. Shri Balesh Bawaniya S/o Satpal Singh R/o 293 / 2, Khurbuda Mohalla, Police Station Kotwali, Dehradun. 6. Sanjay S/o late Shri Sher Bahadur @ Tulla R/o Pandit Colony, Khurbuda, Police Station Kotwali, Dehradun. ...…………. Petitioners Versus 1. State of Uttaranchal / Uttarakhand 2. Special Judicial Magistrate II, Dehradun, District Dehradun. 3. Sri Santwant Kumar Jain S/o Late Kapoor Chand Jain R/o 155, Khurbura Mohalla, Block –1, Dehradun. ...…………. Respondents Along with Crl. Misc. Application (C-482) No. 607 of 2004 1. Shri Vinod Garg, S/o Shri Chunni Lal Garg 2. Smt. Nandi W/o Shri Vinod Kumar Garg R/o Cement Road, Karanpur, Police Station Dalanwala, Dehradun. 3. Shri Narendra Singh S/o Shri Ganga Ram 2 4. Shri Buddhu S/o Shri Jai Ram 5. Smt. Neha Bawaniya R/o Pandit Colony, Khurbura Mohalla, Police Station Kotwali, Dehradun. ...…………. Petitioners Versus 1. State of Uttaranchal / Uttarakhand 2. District Judge, Dehradun, Distt. Dehradun. 3. Special Judicial Magistrate II, Dehradun, District Dehradun. 3. Sri Santwant Kumar Jain S/o Late Kapoor Chand Jain R/o 155, Khurbura Mohalla, Block –1, Dehradun. ...…………. Respondents Mr. Nagesh Aggarwal, Advocate for the petitioners. Mr. B.S. Parihar, Brief Holder for the State. Mr. Deependra Patni, Advocate holding brief of Mr. Ramji Srivastava, Advocate for respondent / complainant. Hon’ble Prafulla C. Pant, J. By means of these two petitions, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioners have sought quashing of the proceedings of Criminal Complaint Case No. 570 of 2003; Santwant Kumar Jain Vs. Madan Mohan Gupta and others, relating to offences punishable under Section 147, 323, 392, 447, 506 of I.P.C. police station Kotwali, pending in the court of Special Judicial Magistrate II, Dehradun. 3 2) Heard learned counsel for the parties and perused the affidavit and counter affidavit filed on behalf of the parties. 3) Brief facts of the case are that a criminal complaint was filed by respondent / complainant Santwant Kumar Jain against the petitioners, namely Madan Mohan Gupta, Smt. Saroj, Km. Alaknanda @ Abhilasha, Abhishek, Vinod Garg, Smt. Nandi, Balesh Bawaniya, Narendra Singh, Buddhu, Sanjay and Smt. Neha Bawaniya with the allegations that the complainant purchased a house situated in Khurbura Mohalla, Dehradun, from Smt. Chandra Kala Gupta (mother of petitioner Madan Mohan Gupta). It is pleaded in the criminal complaint that because of the transfer of the property in favour of the complainant, the accused were not happy. On 05.08.2001, at about 09:00 P.M., they came to the house purchased by the complainant and started damaging the property in the house. It is also alleged that the accused gave threat to the complainant that if the house is not returned back to them the complainant will have to face dire consequences. The Magistrate appears to have recorded the statement of the complainant under Section 200 of Cr.P.C., and that of the witnesses, namely Vijendra Sharma and Ramjan under Section 202 of Cr.P.C., where after vide impugned order dated 25.08.2003, the Special Judicial Magistrate II, Dehradun, summoned all the eleven accused to stand 4 trial in respect of offences punishable under Section 147, 323, 392, 447, 506 of I.P.C. It appears that some of the accused filed criminal revision before the Sessions Judge, Dehradun, which was summarily dismissed vide order dated 06.12.2004. Hence, these petitions. 4) Learned counsel for the petitioners submitted that the petitioner Madan Mohan Gupta had instituted a suit on 16.02.2001, for cancellation of sale deed, claiming title in the property in suit. It is contended before this Court that to pressurize the petitioner Madan Mohan Gupta in said case the criminal complaint is filed against all the family members of the petitioner, which is an abuse of process of law. 5) Perusal of Annexure –2 to the petitions show that petitioner Madan Mohan Gupta had instituted Suit No. 133 of 2001 on 16.02.2001 against Kanti Jain (wife of the complainant), Ashish Kumar Jain (son of the complainant) and Chandra Kala Gupta for cancellation of the sale deed dated 16.01.2001. It is also apparent from the record that Chandra Kala Gupta executed a sale deed in favour of Kanti Devi (wife of complainant) and Ashish Kumar Jain (son of the complainant). Considering the facts and circumstances of the case, it appears that the complainant has implicated all the family members of Madan Mohan Gupta in the criminal complaint by exaggerating the facts, as all the women 5 family members are also made accused, and robbery is also alleged in the criminal complaint. In substance, dispute between the parties is a property dispute, due to which it is quite possible as stated by the complainant and the witnesses that some of the accused might have damaged the property, as alleged by the complainant. 6) Having considered submissions of learned counsel for the parties and after going through the affidavits on record, this Court is of the view that atleast as against the women accused of the family, namely Smt. Saroj, Km. Alaknanda @ Abhilasha, Smt. Nandi and Smt. Neha Bawaniya, there appears to be abuse of process of law on the part of the complainant in implicating them in the criminal proceedings due to the property dispute. Similarly, the allegations of robbery also appear to have been made in the criminal complaint and the statement of the witnesses as an embroidery to colour the episode as a grave one, which again is an abuse of process of law on the part of the complainant. However, as to the rest of the accused and relating to rest of the offences, this Court is of the view that since disputed questions of fact cannot be examined by this Court, as such, it is open for the other petitioners and in respect of other offences to plead their innocence before the trial court. 7) For the reasons as discussed above, these two petitions under Section 482 of Cr.P.C., are disposed of with the following directions: 6 i) The proceedings of Criminal Complaint Case No. 570 of 2003, Santwant Kumar Jain Vs. Madan Mohan Gupta and others, relating to offences punishable under Section 147, 323, 392, 447, 506 of I.P.C., Police Station Kotwali, so far it relates to accused petitioners, namely Smt. Saroj, Km. Alaknanda @ Abhilasha, Smt. Nandi and Smt. Neha Bawaniya, are hereby quashed. ii) As against the other petitioners, the impugned summoning order dated 25th of August 2003 in the aforesaid case, so far it relates to the offence punishable under Section 392 of I.P.C., is also quashed. iii) However, the trial may proceed in respect of the petitioners, namely Madan Mohan Gupta, Abhishek, Vinod Garg, Balesh Bawaniya, Narendra Singh, Buddhi and Sanjay in respect of offences punishable under Section 147, 323, 447, 506 of I.P.C. It is clarified that these two petitions are disposed of without prejudice to the rights of the parties, and without expressing any opinion as to the final merits of the case. It is further observed that these petitioners may raise their plea of innocence before the trial court, who can examine the same after recording the prosecution evidence. It is also observed that if these petitioners surrender 7 before the court concerned, their bail application shall be heard and disposed of, without unreasonable delay. (Prafulla C. Pant, J.) Dt. June 15, 2010. H. Negi 8