Smt. Rama Goel and Others vs State of Uttarakhand and Another

Servesh Kumar Gupta, J.—By means of this petition, the prayer has been made to quash the proceedings of Criminal Complaint Case No. 378/2006, Smt. Harshbala Uniyal v. Smt. Rama Goel & 2 Others, as well as the order of cognizance dated 15.9.2006 passed by the Special Judicial Magistrate, Tehri Garhwal in the said case. At the outset, it is pertinent to mention that Smt. Harshbala Uniyal, private respondent no. 2, has been served sufficiently, but none has turned up on her behalf neither she has taken any pain to file the counter affidavit. So, this Court extended hearing to learned Counsel for the applicants and learned Brief Holder for the State.

It transpires that complainant Smt. Harshbala Uniyal is the next-door neighbour of applicants petitioners. Applicants no. 1 & 2 are wife-husband and applicant no. 3 is their son. Smt. Harshbala Uniyal launched the Criminal Complaint Case No. 378/2006 against the applicants with the averments that she enjoys some empty space, which is adjacent to her house. She has also raised a boundary wall and covered that empty space. But the accused applicants want to grab the said empty space. So, they have inculcated enmity against the complainant. It has also been averred that prior to filing the present complaint, she had filed another against these applicants, but the said complaint case ended into compromise when the applicants tendered an undertaking before the court restraining themselves from any intimidation or abuse towards the complainant Smt. Harshbala Uniyal. In that compromise, all the applicants also undertook not to create any disturbance in that empty place which is surrounded by four walls including a boundary gate.

Smt. Harshbala Uniyal has also averred that on 28.8.2006 at about 8 am, applicants Smt. Rama Goel and Mahendra Goel entered into the courtyard of her house and destroyed the flowers, herbs and other plants situated there. When the complainant intervened, both the applicants assaulted and abused her. She has further averred that ten days before this incident, accused applicant no. 3 Varun Goel had also entered her house and thereafter abused and threatened to kill her.

After filing the aforesaid complaint, Smt. Harshbala Uniyal examined herself u/s 200 CrPC on 30.8.2006. u/s 202 CrPC, two witnesses were examined on her behalf, namely, Smt. Kusum on 30.8.2006 and Mr. Suman Painuly on 4.9.2006. The learned Magistrate, relying on the statements of complainant and her witnesses, passed the impugned order of cognizance dated 15.9.2006 and summoned the accused applicants to stand trial for the offences punishable u/s 427, 504 & 506 IPC, where against the accused applicants have come up before this Court.

Having heard learned Counsel for the applicants and learned Brief Holder for the State, the significant aspect to be noted here is that the averments made in the complaint by Smt. Harshbala Uniyal are quite unsubstantial and prima facie appear to be farce inasmuch as she has averred that her previous complaint ended into compromise upon tendering an undertaking by the applicants not to create any further intimidation or any kind of disturbance. It is quite contrary to the materials available on record as Annexure 7 to the petition reveals that previous Complaint Case No. 923/2003, between the same parties, was, in fact, dismissed by the Magistrate u/s 245 CrPC on account of repeated absence of the complainant and her Counsel. Moreover, she herself had taken a number of adjournments in the said complaint for producing her witnesses u/s 244 CrPC. In the circumstances, the learned Magistrate ultimately dismissed her complaint in non-prosecution, and as such, the complainant has wrongly mentioned in the present impugned complaint that her previous complaint resulted into compromise.

Moreover, Smt. Harshbala Uniyal has not stated in the impugned complaint that as to on what basis she has occupied this empty space and also dared to raise boundary wall and a gate thereupon. It appears that she has made unauthorized encroachment upon this land.

Petitioners have filed Annexure No. 6 with the petition, which discloses that applicant no. 3 was under training from 10.7.2006 till 14.11.2006 in the Indian Military Academy, Dehradun as Gentleman Cadet No. D/38202 and during this period he continuously remained present in the Academy. But Smt. Harshbala Uniyal has also made him an accused in the complaint. It is nothing, but just an outcome of jealousy on the part of Smt. Harshbala Uniyal and it appears that she wants to create persistent duress in the minds of the applicants by way of filing these false and frivolous complaints against them. My view also finds support from the fact that her two witnesses examined u/s 202 CrPC are husband and wife and are residents of remote village. They are also the close relatives of Smt. Harshbala Uniyal. But strangely enough, they were present in the house of the complainant on the alleged date of incident.

For the reasons recorded above, I find force in this petition and it is liable to be allowed. Consequently, petition is allowed. Impugned order of cognizance dated 15.9.2006 as well as the entire proceedings of Criminal Complaint Case No. 378/2006, Smt. Harshbala Uniyal v. Smt. Rama Goel & 2 Others, are hereby quashed. Inform the court below accordingly. It is quite apparent from the facts and circumstances of the case that the complainant Smt. Harshbala Uniyal is trying to abuse the process of court by indulging herself into filing frivolous complaints against the applicants. She deserves the severest rebuke for this act. Hence, this Court imposes penalty of rupees ten thousand upon Smt. Harshbala Uniyal, which shall be liable to be recovered as arrears of land revenue and shall be deposited in the State Government Treasury. Accordingly, send a copy of this judgment and order to the Collector, District Tehri Garhwal for its compliance.