Prem Ballabh Sati and Others vs State of Uttaranchal and Smt. Hema Devi

Prafulla C. Pant, J.—This is application MCRC No. 363 of 2010, moved on behalf of the petitioners/applicants for recalling of order dated 15.09.2008, passed by this Court in Criminal Miscellaneous Application (C482) No. 386 of 2004.

Heard, and perused the affidavit and counter affidavit filed in support of the recall application.

Learned Counsel for the petitioners/applicants submitted that the order dated 15.09.2008, was passed by this Court due to inadvertence, as no such statement, for not pressing the application was made by the counsel for the petitioners.

Having considered submission of learned Counsel for the petitioners and after going through the papers on record, the recall is made on the condition that the counsel of the parties shall argue on the merits in the petition moved u/s 482 of Cr.P.C., today itself. Accordingly, the application MCRC No. 363 of 2010, stands allowed with above condition. Criminal Miscellaneous Application (C482) No. 386 of 2004 is restored to its original number.

Also, heard on the criminal miscellaneous application (C482) No. 386 of 2004.

Learned Counsel for the petitioners/applicants read out the contents , of the criminal complaint case No. 874 of 2003 filed by the respondent No. 2 Hema Devi against the petitioners before Judicial Magistrate, Kotdwar (copy Annexure-1 to the petition). It is pleaded that admittedly there is a land dispute between the parties. It is contended that it is hard to believe that on 03.09.2003, as stated by the complainant, petitioners together entered in her house and committed robbery, as alleged in the criminal complaint.

In reply to this, learned Counsel for the respondent No. 2/complainant submitted that the petitioners are influential persons and the complainant is a poor lady. It is further submitted on behalf of the complainant that the petitioners want to grab the land of the complainant. As to the offences punishable u/s 323, 504, 506, 395 and 452 I.P.C., it is stated that even if, there is no injury report of the person of the complainant, merely for that reason it cannot be said that alleged offences are not made out.

However, as to the offences punishable u/s 452, 395 I.P.C., this Court is of the view that there appears to be exaggeration of the facts on the part of the complainant, and there is little evidence to support commission of these two offences by the petitioners, on the record on the basis of which they could have been summoned.

For the reasons as discussed above and considering the facts and circumstances of the case, this Court finds that in a case of simple ''marpeet'' and threat to the complainant, it is abuse of process of law on the part of the complainant to get summoned accused in the graver offences like Section 452, 395 I.P.C., without there being sufficient material for that. Therefore, the petition u/s 482 of Cr.P.C., is disposed of with the following directions:

The impugned criminal complaint No. 874 of 2003 Hema Devi v. Prem Ballabh Sati and Ors. is not interfered with so far as it relates to the offences punishable u/s 323, 504, 506 I.P.C. However, so far as the impugned summoning order dated 17.11.2003, relating to offences punishable u/s 452, 395 I.P.C., is concerned, the same is quashed.