Uttarakhand High Court
Suresh Yadav And Others ... vs State Of Uttarakhand And Another on 19 February, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 286 of 2021
Suresh Yadav and others ......Petitioners
Versus
State of Uttarakhand and another ....Respondents
Mr. Vikas Anand, Advocate for the petitioners.
Mr. J.S. Virk, D.A.G, assisted by Mr. Rohit Dhyani, Brief Holder, for the State.
JUDGEMENT
Hon'ble Ravindra Maithani, J. (Oral)
Challenge in the instant petition under Section 482 of the
Code of Criminal Procedure, 1973 (for short, "the Code") is to an
order dated 08.01.2021, passed in Criminal Revision No. 124 of 2019,
Suresh Yadav and others Vs. State of Uttarakhand and another, by the
court of learned IIIrd Additional District and Sessions Judge,
Rudrapur, District Udham Singh Nagar (for short, "the revision"). By
it, the order dated 26.02.2018 passed in Criminal Case No. 3535 of
2017, Alpana Vs. Suresh Yadav and others, passed by the court of
learned Civil Judge (Senior Division)/Judicial Magistrate, Rudrapur,
District Udham Singh Nagar (for short, "the case") has been affirmed.
By the order dated 26.02.2018, the petitioners have been summoned
to answer accusation under Sections 452, 323, 504 and 506 IPC.
2. It appears that the respondent no.2 filed an application
under Section 156 (3) of the Code against the petitioners, which was
treated as a complaint. According to the complaint, respondent
no.2/complainant and petitioners are neighbours. Petitioner no.1 is
running a dairy, which creates a lot of nuisance, which gives rise to
various diseases. Petitioner no.1 was requested to restrain from doing
so, but he is reluctant. On 07.02.2017 at 08:00 in the evening, when
the husband of respondent no.2 was working in the drainage to put a
mesh on it, petitioner no.1 mis-behaved with him and threatened him
to life, in case he places mesh on the drainage. Thereafter, all other
petitioners entered in the house of respondent no.2. They started
beating her husband, when respondent no.2 and her daughter tried to
save him, they were also beaten up. All the injured got themselves
medically examined. After conducting enquiry under Sections 200
and 202 of the Code, by the impugned order, passed in the case on
26.02.2018, the petitioners have been summoned, as stated
hereinbefore, challenge in the revision, has also been dismissed.
3. Learned counsel for the petitioners would submit that
petitioner nos. 6 and 7 were minor at the relevant time. Petitioner no.6
was 16 years and 2 months old and petitioner no.7 was 7 years and 8
months old. This fact was concealed by the respondent no.2, in her
complaint and in order to spoil the career of those young children all
the family members have been implicated falsely. It is also argued
that, in fact, respondent no.2 keeps domestic animals, which creates a
lot of nuisance and foul smell in the streets, which was complained by
the local residents and Police also submitted a report, due to which,
the false case has been lodged.
4. This is a petition against order summoning the accused.
At the stage of summoning, a deeper scrutiny is never expected of. To
the extent of complicity of person(s) allegedly having committed
offence, the matter is examined. A prima-facie case is to seen at this
stage. The level of satisfaction is less than what is required at the stage
of framing of charge and more less than what is expected at the time
of final judgment. But, still there should be material, which may
satisfy the Court that there is a prima-facie case.
5. In the case of Pepsi Foods Ltd. and another Vs. Special
Judicial Magistrate and others, (1998) 5 SCC 749, the Hon'ble
Supreme Court, held as hereunder:-
"28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of course. It is
not that the complainant has to bring only two witnesses to support his
allegations in the complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law applicable thereto. He
was to examine the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and would that be
sufficient for the complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence brought on record and
may even himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or otherwise
and then examine if any offence is prima facie committed by all or any of
the accused."
6. The summoning order reveals that the complaint was
supported by the complainant/respondent no.2 as well as by the
witnesses. There were medical examination reports as well, which
reveal that the respondent no.2 sustained three injuries and her
husband sustained six injuries. Based on the material available on
record, the Court held that this is a prima-facie case. There appears to
be no illegality or infirmity in the order and the court in revision has
also rightly upheld the summoning order.
7. Insofar as petitioner nos. 6 and 7 being minor is
concerned, it would have been better had the respondent no.2 revealed
their age in the complaint. But even if it is not done, the Juvenile
Justice (Care and Protection of Children) Act, 2015 (for short, "the JJ
Act") makes provision for it and Section 9 of it provides for the
procedure to be followed by the Magistrate, who has not been
empowered under the JJ Act, when a child is brought before him. This
Court has no doubt that as and when petitioner nos. 6 and 7 appear
before the court and the court forms an opinion that they are children,
the procedure provided under Section 9 of the JJ Act will be followed.
8. At this stage, learned counsel for the petitioners would
submit that directions may be issued that the bail application of the
petitioners may be decided on the same day, when it is presented.
9. The petition is dismissed.
10. However, in case the petitioners appear and apply for
bail, their bail application may be decided as expeditiously as
possible, in accordance with law.
(Ravindra Maithani, J.)
(Vacation Judge)
19.02.2021
Shubham
