Sudesh Kumar Thapa and Another vs Judicial Magistrate and Another

B.C. Kandpal, J.—By way of this petition, u/s 482 Cr.P.C. the petitioner has prayed for quashing the entire proceeding of complaint case No. 172/2003 Kavita Thapa v. Sudesh Kumar and Anr. u/s 498A and 506 I.P.C. pending in the court of Judicial Magistrate Dehradun and the summoning order dated 25.1.2005 passed in the case.

Brief facts of the case are that the complainant moved an application against the with the allegations that she was married with applicant No. 1 on 19.10.1997 according to Hindu rites and both of them lived together at matrimonial home No. 498I, Village Dhandhi, P.O. Garhi Cantt as husband and wife. The husband is serving in Army. Some times later the attitude of husband became cruel towards the wife. He started ill-treating her for not bringing dowry in the marriage. At this she informed her parents and they gave Rs. 15,000/- to the husband. The applicant No. 1 did not want to keep the respondent No. 2, with him, hence request was made for necessary action against the petitioners. The learned Magistrate took the statement of complainant and her witnesses on the complaint u/s 200 and 202 Cr.P.C. respectively and after fining a prima facie case summon the accused persons to face trial u/s 498A and 506 I.P.C. vide summoning order dated 25.1.2005. Feeling aggrieved the petition u/s 482 Cr.P.C. has been preferred.

Heard learned Counsel for parties and perused the record.

Learned Counsel for the petitioner has submitted that summoning order of applicants is illegal. The learned Magistrate passed the order without application of mind and the same is liable to be dismissed.

At this stage I do not find any force in the above submission. The learned Magistrate has passed the summoning order after perusal of statements u/s 200 and 202 Cr.P.C. and entire material available on record. I am of the view that there is no flagrant injustice and abuse of process of court in this case. The evidence is still incomplete and hazy. This Court while exercising the jurisdiction u/s 482 Cr.P.C. is not supposed to act as a trial Judge. The averments made in the petition are the disputed question of fact, which can be assessed and judged by the trial court. I am not supposed to embark upon an enquiry with regard to the credibility of the evidence at this stage. Any judgment rendered by me would amount to premature judgment. The applicant shall have an opportunity to place the evidence in his defence before the trial court where the matter shall be finally adjudicated after considering the entire evidence. I do not find any merit in this petition, at this stage.

Accordingly, the petition is dismissed. The interim stay, dated 8-4-2005, stands vacated.