Swatantra Kumar vs State Of Uttarakhand & Another

Lok Pal Singh, J

By means of this petition, moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the charge sheet dated 02.03.2010, cognizance order dated 21.05.2010 passed by Additional Chief Judicial Magistrate 3rd Dehadun as well as entire proceedings of criminal case no. 5970 of 2010, State vs. Swatantra Kumar & ors., relating to offences punishable under sections 341, 342, 357, 504 and 506 IPC pending in the court of Additional Chief Judicial Magistrate 3rd Dehradun.

Affidavit of service has been filed by the learned counsel for the petitioner stating therein that in compliance of Court's order dated 28.06.2019 petitioner tried to serve respondent no. 2 through the counsel representing her before the court below but the counsel appearing in the court below declined to accept the same as he is not in contact with respondent no. 2. Notices were issued to respondent no. 2 time and again but no one is turned up on her behalf. It appears that respondent no. 2 is avoiding service. Thus, service is held sufficient upon respondent no. 2.

Brief facts, of the case, are that respondent no. 2 filed an Original Suit No. 186 of 2005, Smt. Ritu M. Pistritto vs. Shri Swatantra Kumar before the court below seeking injunction in respect of alleged drive in/passage, entrance gate etc. in the property in dispute against the petitioner, against which petitioner has filed its written statement coupled with counter claim under Order 8 Rule-6A of CPC. Vide order dated 10.05.2005, the trial court granted ex-parte injunction in favour of respondent no. 2. The interim injunction order was put to challenge before the court of District Judge, Dehradun in Civil Misc. Application No. 144 of 2006 whereby vide order dated 22.12.2008 direction was issued to the trial court to decide the suit within three months. It is stated that respondent no. 2 kept on misusing the interim injunction order and kept on disobeying the directions of the District Judge and damage the right side of the pillar of the entrance gate and attempted to make a new entrance in the land of the petitioner. Subsequent, thereto, just to create pressure on the petitioner respondent no. 2 moved an application under section 156 (3) Cr.P.C., seeking direction to lodge FIR against the petitioner. On the application of respondent no. 2, ACJM 3rd Dehradun directed SHO concerned to lodge an FIR, and case crime no. 75 of 2009 under sections 341, 342, 352, 357, 427, 457, 504 and 506 IPC was registered. Petitioner approached to this Court against the FIR and got interim order in his favour. The I.O. after investigation submitted charge sheet against the petitioner under sections 341, 342, 451, 504 and 506 IPC.

The trial court appears to have summoned the petitioners in respect of aforesaid offences vide summoning order dated 21.05.2010.

It is the contention of the learned counsel for the petitioner that the first information report has been lodged on false and wrong facts. It is further contended that petitioner has never remove any construction as well as gate or broken the pathway as alleged by the informant rather respondent no. 2 is trying to grab the property of the petitioner. It is further contended that civil suit, between the parties, is pending consideration before the court below qua the title of the property in dispute.

Heard learned counsel for the parties and perused the entire material available on record.

Perusal of the FIR would reveal that dispute between the parties is purely civil in nature and FIR has been lodged during the pendency of civil suit filed by the complainant. The matter which essentially involves dispute of civil nature should not be allowed to become subject matter of criminal proceedings. This Court is of the view that learned Magistrate has failed to exercise its jurisdiction and took cognizance against the petitioners. Thus, the impugned summoning order is liable to be set aside.

In view of the above, charge sheet dated 2.03.2010, cognizance order dated 21.05.2010 passed by Additional Chief Judicial Magistrate 3rd Dehadun as well as entire proceedings of criminal case no. 5970 of 2010, State vs. Swatantra Kumar & ors., relating to offence punishable under sections 341, 342, 357, 504 and 506 IPC pending in the court of Additional Chief Judicial Magistrate 3rd Dehradun are hereby quashed. Consequently, C-482 petition is allowed.