Uttarakhand High Court
Hon'Ble Sharad Kumar Sharma vs Unknown on 2 May, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
02.05.2023 C482 No. 2122 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Rakshit Srivastava, Advocate
holding brief for Mr. Ramji Shrivastava,
Advocate for the applicant.
Mr. T.C. Agarwal, learned D.A.G.
assisted by Ms. Lata Negi and Mr. Sachin
Panwar, learned Brief Holder for the State of
Uttarakhand.
2. The learned appearing counsel for the
applicant, while giving challenge to the
proceedings of the Criminal Case No. 2913 of
2019, "State Vs. Satish Badoni and Ors.", has
attempted to argue the matter from the view
point that no offence under Section 498-A of
IPC, could be made out against the present
applicant, as she was not residing at the place
where the complainant was residing with her
husband.
3. Secondly, that no offence under Section
323 of IPC is made out against her, as there is
no allegation of any physical assault against her.
4. Thirdly, he submits that the summoning
order as passed by the Court of Additional
Chief Judicial Magistrate-Ist, Dehradun, is
without any reason.
5. He, during the course of argument has
referred to the statement recorded under Section
161 of Cr.P.C., in order to elaborate his
argument from the above perspective.
6. So far as the first argument of the
learned counsel for the applicant is concerned,
that the present applicant, cannot be said to be
involved in the commission of offence, because
she is not a resident of the place, where the
complainant was resided or where the offence
was committed, would be a question of fact to
be decided by the trial court.
7. The Court exercising its power under
Section 482 of Cr.P.C. cannot appreciate an
evidence and then arrive at a conclusion, as to
whether the offence was committed by the
present applicant or not! and whether she was
residing at the place where the offence was
committed! because this will always depend
upon the evidence to be adduced between the
parties.
8. So far as the offence under Section 323
of IPC is concerned, there is specific allegation
levelled in the FIR, that the husband of the
complainant and his mother i.e. the present
applicant, have physically assaulted her on the
two dates which has been referred to in the FIR
and the said commission of offence on the two
dates have been reiterated in the charge-sheet,
which has been submitted by the Investigating
Officer.
9. Thirdly, the argument extended by the
summoning order is without any reasoning, is
not acceptable by this Court because the Court
of Additional Chief Judicial Magistrate-Ist, had
considered the material which was placed before
it, i.e. the charge-sheet, the case diary, the police
report, the statement recorded of the witnesses,
the statements under Section 161 of Cr.P.C., and
on being satisfied with the aforesaid material
placed before it, the summoning order has been
issued.
10. The expectation of the learned counsel
for the applicant, that as if the learned trial court
while issuing the summoning has to appreciate
an evidence, prior to issuance of summoning
order is absolutely unsustainable because it's
only a prima-facie satisfaction, which has to be
recorded by the trial court necessitating the
summoning of an accused person, involved in
the commission of offence, a detailed
deliberation of the evidence is not required to be
made by the learned trial court while
summoning an accused person.
11. In that eventuality, this Court does not
find any error in the C-482 application so far as
it relates to the charge-sheet and the summoning
order, the C-482 application would stand
dismissed.
12. However, dismissal of this C-482
Application would be without prejudice to the
rights of the applicant to resort to his remedies,
as per the guidelines framed by the Hon'ble
Apex Court in the matters of Satender Kumar
Antil Vs. Central Bureau of Investigation and
another as reported in 2022 (10) SCC Pg. 51
and resort to his remedies as provided under
Para 3(e) of the said judgment.
13. Subject to the aforesaid, the C-482
application stands dismissed.
(Sharad Kumar Sharma, J.)
02.05.2023
PN/-
