HIGH COURT OF UTTARANCHAL, AT NAINITAL Criminal Misc. Application No.167 of 2002 1. Bhagirathi Devi W/o Shyam Singh 2. Laxman Singh S/o Shyam Singh All R/o G.I.C. Road Pandey Gaon, Near Beer Shiva Public School Pithoragarh, District Pithoragarh ……Petitioners Versus State & others ……Respondents Mrs. Pushpa Joshi, Advocate for the petitioners. Mr. B. S. Parihar, Brief Holder for the State. Mr. Rajesh Joshi, Advocate vice Mr. Neeraj Upreti, Advocate for respondent nos.2 & 3. Hon’ble J. C. S. Rawat, J. This petition under section 482 Cr.P.C. has been filed by the petitioners to quash / set aside the order dated 28.04.2001 passed by the Chief Judicial Magistrate, Pithoragarh in Criminal Case No.271 of 2000 and to discharge the petitioners from the offences punishable under sections 323, 504, 506(2) I.P.C. & 109 I.P.C. 2. In nutshell, on 14.02.2000 complainant Dan Singh Samant (respondent no.2) filed a criminal complaint before the Chief Judicial Magistrate, Pithoragarh against the petitioners alleging therein that on 11.02.2000 a matrimonial case between the parties was fixed before the District Judge, Pithoragarh and after hearing the parties the District Judge directed the parties that Smt. Chandrakala Bist – daughter of the complainant (respondent no.3) be sent to her matrimonial house. Pursuant to this, the complainant took his daughter to her matrimonial house. As soon as they reached her matrimonial house petitioner no.2- Laxman Singh also reached his house. Accused-Laxman Singh instigated his mother-Bhagirathi Devi. Consequently, Bhagirathi Devi assaulted the complainant and his daughter with ‘kicks’ and ‘fist’. Bhagirathi Devi used filthy language and hurled abuses upon them. The complainant and his daughter were also threatened by Bhagirathi Devi that if they would come there again they would be killed. After recording the statements under sections 200 & 202 Cr.P.C., the Magistrate took cognizance against both the petitioners. Thereafter, the trial proceeded as a warrant trial. The complainant adduced himself as PW1 and his daughter Smt. Chandrakala Bist as PW2 under section 244 Cr.P.C. Thereafter, learned counsel for the accused pleaded that petitioners be discharged as no prima facie case is made out from the evidence adduced by the complainant party. Thereafter, the learned Magistrate directed to frame the charge against Bhagirathi Devi under sections 323, 504, 506(2) I.P.C. and against Laxman Singh under section 109 I.P.C. vide order dated 28.01.2001. Feeling aggrieved to this, the petitioners preferred a revision before the learned Sessions Judge. Vide order dated 24.05.2002 the learned Sessions Judge dismissed the revision. 3. Feeling aggrieved by the orders of the Magistrate and the Sessions Judge, the applicants have come up before this Court. 4. I have heard learned counsel for the parties and perused the record. 5. Perusal of the record reveals that both the witnesses, namely Dan Singh Samant PW1 and Smt. Chandrakala Bist PW2-injured, have stated in their evidence that Bhagirathi Devi (petitioner no.1) assaulted them with kicks and fist. Both these witnesses have also corroborated the allegations made in the complaint. Both witnesses have stated in their evidence that injured-Smt. Chandrakala Bist was medically examined by the doctor. Dan Singh Samant PW1 was also examined by the doctor. The medical certificate was also filed before the trial court. The Magistrate has come to the conclusion that so far as case of Bhagirathi Devi is concerned there was sufficient ground for presuming that she has committed the offence triable by the court and she can be punished adequately by him. I have gone through the entire evidence. Perusal of the entire evidence filed before this Court reveals that there is sufficient evidence against Smt. Bhagirathi Devi to proceed with the case and to frame the charge. So far as the case of Laxman Singh is concerned, the prosecution has read the evidence of Dan Singh Samant PW1 and Smt. Chandrakala Bist PW2. Both witnesses have stated in their statement that Laxman Singh instigated his mother and immediately thereafter he went inside his house and concealed himself there. Smt. Chandrakala PW2 has also stated in her evidence that her mother-in-law (Smt. Bhagirathi Devi) has beaten them and she also used filthy language. There is no iota of evidence that Laxman Singh participated in the incident. Merely instigating his mother is not sufficient to frame the charge against Laxman Singh under section 109 I.P.C. It was obligatory on the part of the prosecution to state what was stated by Laxman Singh during the incident. The actual words narrated by him has not been mentioned in the evidence. Merely by stating that he instigated his mother is not sufficient to proceed with the case against him. In the case of State of Haryana Vs. Bhajan Lal 1992 SCC (Cri) 426, the Hon’ble Supreme Court has held that if there is no evidence of any fact the criminal complaint cannot be allowed to be proceeded. The Hon’ble Apex Court has held as follows:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) ………………….. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.” 6. In view of the above, I am of the view that I do not find any interference in the impugned orders against Bhagirathi Devi, whereas the case of Laxman Singh is concerned, he is liable to be discharged and the impugned orders of trial court and revisional court are liable to be quashed only against Laxman Singh. However, it is made clear that there is sufficient evidence against Bhagirathi Devi to proceed with the case and to frame the charge against her. The impugned orders dated 28.04.2001 passed by the C.J.M., Pithoragarh in Criminal Case No.271/2000 and order dated 24.05.2002 passed by the Sessions Judge, Pithoragarh in Criminal Revision No.11/2001 are modified accordingly. 7. With the above observations, the petition is disposed of finally. (J. C. S. Rawat, J.) Dated 24.03.2009 LSR