MISC. Application No. 820 of 2008 · Uttarakhand High Court · 2009

(cid:147)Smt. Roopwati Vs. Deendayal & others(cid:148) under Sections 452, 323 and 506 IPC. Heard learned counsel for the parties and perused the entire material available on record. Brief facts of the case are that respondent no.2-Smt. Roopwati lodged a complaint before Addl. Chief Judicial Magistrate, Kashipur stating therein that on

11.7.2008 at 10 P:M, applicants, namely, Deendayal, Guddu, Manohar Singh, Pappu, Ram Pyari and Shanti entered in her house and started abusing her and her daughter Rani. The applicants assaulted both of them with kicks and fists. On hearing the cries of respondent no.2 and her daughter, Laxmi, Naveen and some other persons, who had come in her house, came there and saved her and her daughter from the applicants. A report 2 to this effect was lodged by the respondent no.2 at the concerned police station and an application was also moved by her before S.S.P., Udham Singh Nagar through registered post but no action was taken on her application. Thereafter, a complaint was filed by her (respondent no.2) before Addl. Chief Judicial Magistrate on 24.7.2008, which was registered as Criminal Case No.1489/2008. The complainant in support of her case got herself examined u/s 200 Cr.P.C. and also got produced Laxmi, Naveen and Mayawati u/s 202 Cr.P.C. After hearing learned counsel for the parties and appreciating the material on record, learned Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar vide his order dated 29.7.2008 summoned the applicants under Sections 452, 323 and 506 IPC. Against that order, the applicants have preferred this application u/s 482 Cr.P.C. before this Court.

In the present petition, it is alleged that the complaint filed by the respondent no.2 is nothing but a counter blast of the FIR registered as Crime No.50/08 u/s 498A, 323, 504, 506 IPC and 3/4 of the Dowry Prohibition Act, 1961, lodged by Sharda, (daughter of applicant no.1 and daughter-in-law of respondent no.2) against the respondent no.2 and her entire family. A charge sheet has also been filed by the Police, P.S. Sambhal against respondent no.2 and her family members in aforesaid sections. It is further stated that Sharda, daughter of applicant no.1 has also filed an application u/s 125 Cr.P.C. against the son of respondent no.2. Copy of FIR, charge sheet and application u/s 125 Cr.P.C. are annexed as Annexure No.4 to this application. 3 In counter affidavit filed on behalf of the respondent no.2, FIR and application u/s 125 Cr.P.C. lodged by the daughter of applicant no.1, are not denied.

However, it is stated that the daughter of applicant no.1 left her matrimonial home on 8.12.2007 with her own will, as her father took her away from the in-laws house. It is further stated that on 9.12.2007, son of respondent no.2 filed an application u/s 98 of Cr.P.C. before Sub Divisional Magistrate, Kashipur for restoration of his wife, which is still pending before the S.D.M. Kashipur, a copy of which is annexed as Annexure No.1 to the counter affidavit. It is further stated in the counter affidavit that the son of respondent no.2 also filed a petition u/s 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights, which is still pending before the Family Court, District U.S. Nagar. Rejoinder affidavit has also been filed by the applicants but no fresh fact has been stated in it. Rather, the facts stated in the rejoinder affidavit have been reiterated as have been stated in the present application.

It is well settled that while exercising jurisdiction u/s 482 of the Cr.P.C., the High Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. The trial court will decide the case after recording the evidence of the complainant as well as of the applicants and also on the basis of the appreciation of the evidence as per law. The applicants will get opportunity to produce witnesses in their defence and can also cross-examine the witnesses produced by the complainant u/s 244 and 246 Cr.P.C. respectively. 4 Even otherwise, I have perused the contents of the complaint as well as the statements u/s 200 and 202 Cr.P.C. and prima facie it reveals that on 11.7.2008 at 10 P:M, applicants, namely, Deendayal, Guddu, Manohar Singh, Pappu, Ram Pyari and Shanti entered into the house of respondent no.2 and abused her and her daughter Rani.

The applicants also assaulted both of them with kicks and fists. Thus, it is clear that neither there is any abuse of process of court not there is miscarriage of justice. I am of the considered view that at this stage prima facie the offences punishable u/Ss 452, 323 and 506 IPC are made out against the applicants. Therefore, the order dated 29.7.2008 passed by the court is correct and justified which requires no interference. For the reasons recorded above, there is no force in this application. The C482 application is devoid of merits and the same is dismissed accordingly. RG (Dharam Veer, J.) 27.10.2009