Brijesh And Another vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

There is an office report dated 13.03.2014 that the notices issued by this Court on 12.02.2014 in the present 482 application has been served on the complainant/respondent no.2, through his brother Mr. Vinit Kumar, who is shown to have received the notices as sent by the Court as would be apparent by the letter of C.J.M. Haridwar dated 07.03.2014 and as would be apparent from the endorsement made in the folio dated 13.03.2014, hence it would be deemed that the respondent no.2 has been served with the notices and despite of service of notice he has not put in appearance nor has chosen to file any counter affidavit till now to deny the pleadings of the C-482 application.

In the present C-482 application, the challenge which has been given by the applicants is to the proceedings arising from Case Crime No.187 of 2008 registered against them under Sections 452, 323, 504, 324, 506 and 380 IPC, which was initiated on the basis of the complaint which was lodged by Mr. Lalit Kumar S/o Salekh Chand, on 26.10.2008, wherein, in the FIR thus registered for the commission of the said offence is against Mr. Brijesh, who happens to be the nephew of Salekh Chand and applicant no.2- Mr. Vinod Kumar, who is the other son of Salekh Chand i.e. the brother of the complainant, who had been shown as to be an accused person in the FIR as registered by the other son (Mr. Lalit Kumar) of Mr. Salekh Chand. As per the FIR, the allegations which are levelled against the accused/applicants fall to be for the offences which were falling within the provisions of offences contained under Sections 452, 323, 504, 324, 506 and 380 IPC registered at P.S. Bhadrabad District Haridwar.

The argument of learned counsel for the applicants is that the registration of the FIR on 26.10.2008 was nothing but a counter blast to an earlier civil proceeding registered as Original Suit No.216 of 2006, which was initiated on 13.07.2006 inter se between the same set of parties claiming a relief therein in the suit for cancellation of the sale deed dated 01.10.2005. Since we are not concerned with the said suit at this stage with the said dispute, no further reference is required to be made to it.

The argument of the applicants' counsel is that on the same set of allegations levelled in the FIR registered as a consequence of it, an order was passed under Section 156(3) Cr.P.C., it only attributes to certain verbal altercations which has taken place amongst the family members which has resulted into the registration of the FIR. When the complaint case was registered in pursuance to the order passed under Section 156(3) Cr.P.C., the investigation was conducted and the Investigating Officer on 24.12.2008 had submitted a final report in relation to Case Crime No.187 of 2008. The said Final Report was objected by respondent no.2, the complainant by filing a protest petition and despite of the same, the learned Court of Judicial Magistrate-Ist had rejected the final report and had passed the summoning order dated 26.03.2012 and bailable warrant has been issued against the applicants in Criminal Case No.76 of 2012, Lalit vs. Brijesh, which was registered under Sections 323, 324, 452, 504, 506 and 380 IPC and P.S. Bhadrabad, District Haridwar. The summoning order dated 26.03.2012, was put to challenge by the applicants in Criminal Revision No.170 of 2012, Brijesh and others vs. State of Uttarakhand and another, the same had been affirmed by the Revisional Court too by dismissing the revision by an order dated 09.01.2014 as passed by the Additional Sessions Judge, Haridwar.

It is against these two orders that the present C-482 application has been filed on the grounds that:- (1). Though, apparently, the record shows that there is a prior Civil Suit pending amongst the parties for cancellation of sale deed, (2). it shows that earlier a final report has been submitted, but since later on, while allowing of the protest petition, the final report was withdrawn and the proceedings have been initiated as Criminal Case No.76 of 2012, Brijesh and others vs. State of Uttarakhand and another, and bailable warrant has been issued in which the Court had issued the impugned summoning order dated 26.03.2012 as against the accused persons. While issuing the summoning order, the Court of Special Judicial Magistrate-Ist had considered the propriety of the FIR and also on considering the documents on record found that the incident narrated in the FIR was also not denied but rather it stood established. Consequently, the Trial Court held that the offence under section 324 in the light of the directions issued under the application 156(3) and circumstances narrated as made out against the accused persons. The Magistrate recorded a finding that as per the doctor's report, cut injuries were found on the body of the complainant hence held that at least apparently offence under Section 324, is made out against the applicants. He further reported that the S.I. Mr. Suresh Pal (Investigation Officer) had completely changed the complexion of the complaint, the court found that the report of S.I. Mr. Suresh Pal (Investigation Officer) is absolutely false and cognizance order with bailable warrant was issued against the accused/applicants. Even the Revisional Court in its judgment dated 09.01.2014, while questioning the order dated 26.03.2012, rendered in Criminal Case No.76 of 2012, the Revisional Court a finding that the Investigation Officer has deliberately sent the final report on 09.01.2009 at the wrong basis. The revisionist case was that in those cases where the final report submitted by the Investigating Officer when it is rejected, the Judicial Magistrate has to register the case as a complaint case and not as a regular case in view of Section 190(1)(b). The Revisional Court has rightly not accepted the argument because the Hon'ble Apex Court in various judgments had propounded that its always the discretion and wisdom which the Magistrate can exercise its power for registering the case as a regular case. Thus the Revisional Court held that the finding of Magistrate was based on the malicious report and wrongful consideration of the statement by the Investigating Officer that the final report was submitted. Hence, while upholding the order of Magistrate, the Revisional Court held that the order was absolutely valid. And has dismissed the revision by a reasonable and reasoned order on considering the contention of the revisionist, which cannot be faulted while testing it under the powers conferred to this Court under Section 482 of Cr.P.C.:- (1). Being conscious of the fact that earlier there was a final report submitted by the Investigating Officer, (2). Being conscious of the fact that it is a dispute between the cousin brothers who happen to be the member of the same family and (3). Considering that there was earlier a final report submitted but still the action of the Court proceeding to issue the summons on 26.03.2012, it ought to have considered the impact of the final report dated 24.12.2008, submitted by the Investigating Officer.

Under the aforesaid backdrop, this Court is of the view that as against the summoning order dated 26.03.2012, which has been subsequently affirmed by the judgment dated 09.01.2014, prima facie, the court has found the offences under Sections 452, 323, 324, 506 and 380 of IPC to have been made out against the applicants.

Be that as it may, in case, if the applicant's who are cousin brothers of respondent no.3, if they move an appropriate application before the court below for grant of bail, the Trial Court would consider the effect of earlier proceedings, the effect of the registration of the final report, the effect of being belonged to the same clan of family and consider the bail application and pass an appropriate order on the same day, if the applicant surrenders and moves the bail application.

Accordingly, the present C-482 application stands dismissed, subject to the above liberty.