Uttarakhand High Court
Smt. Sarvesh vs State Of Uttarakhand And Others on 13 November, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No.786 of 2024
13 November, 2024
Smt. Sarvesh --Petitioner
Versus
State of Uttarakhand and others --Respondents
Presence:-
Mr. Deepak Sharma, Advocate for the petitioner through V.C.
Mr. G.S. Sandhu, learned Additional Advocate General along with
Mrs. Mamta Joshi, learned Brief Holder for the State.
Hon'ble Vivek Bharti Sharma, J.(Oral)
This C528 petition is filed for quashing the
impugned judgment and order dated 01.06.2024 passed
by the learned 1st Additional District & Sessions Judge,
Haridwar (Annexure No.9 to the petition) in Criminal
Appeal No.35 of 2023, 'Smt. Sarvesh Vs. State of
Uttarakhand and others', as well as the impugned
judgment and order dated 20.02.2023 (Annexure No.6 to
the petition) passed by 2nd Judicial Magistrate, Haridwar
(wrongly written as 3rd Judicial Magistrate in the petition)
in Misc. Case No.02 of 2021, 'Smt. Sarvesh Vs. Pritam
and others', under Section 12 of Protection of Women
from Domestic Violence Act, 2005.
2. Brief facts of the case are that the
petitioner/complainant filed a Misc. Case No.02 of 2021,
'Smt. Sarvesh Vs. Pritam and others' under Section 12 of
the Protection of Women from Domestic Violence Act,
2005 before the Court of learned 2nd Judicial Magistrate,
Haridwar for right to residence in her matrimonial house
along with interim relief application, which was
dismissed vide order dated 20.02.2023 (Annexure No.6 to
the petition).
3. Being aggrieved by the said order, the
petitioner/complainant preferred Criminal Appeal No.35
of 2023, 'Smt. Sarvesh Vs. State of Uttarakhand and
others' before the learned 1st Additional District &
Sessions Judge, Haridwar which was also dismissed vide
order dated 01.06.2024 (Annexure No.9 to the petition).
4. Counsel for the petitioner/complainant would
submit that the Appellate Court illegally and arbitrarily
dismissed the appeal without application of mind; that, it
has been wrongly stated by the respondents before the
Courts below that 5 bigha agricultural land and a house
at Sherpur near Nagla Khurja has been given to the
petitioner/ complainant in the ancestral property; that,
the impugned judgments and orders passed by both the
Courts below are wholly arbitrary and whimsical.
5. Counsel for the State drawn the attention of
this Court to paragraph no.9 of the order dated
20.02.2023 passed by the Trial Court wherein the Trial
Court in its finding observed that the
petitioner/complainant has already been given her share
of property and the miscellaneous case was filed by the
petitioner/complainant just after rejection of her case
regarding land dispute, hence, it seems to be a property
dispute.
6. Counsel for the State would submit that vide
its judgment dated 01.06.2024 (Annexure No.9 to the
petition) the Appellate Court also affirmed order dated
20.02.2023 passed by the Trial Court; that, the appellate
Court also observed in its finding while affirming order
dated 20.02.2023 that the petitioner/complainant has
already been given her share of property by respondent
nos.2 and 3 and nowhere this fact has been denied by
the petitioner /complainant rather she has concealed it
in her application, therefore, the petitioner/complainant
has no ground to claim any interim maintenance and
right to reside in the impugned property. Counsel for the
State would further submit that grounds taken in
petition are frivolous and an attempt to mislead the
process of law, therefore, this petition may be dismissed.
7. Perused the record in the light of submissions
made hereinabove.
8. The ground taken by counsel for the petitioner
that the respondents have wrongly stated before the Trial
Court that 5 bigha agricultural land and a house at
Sherpur near Nagla Khurja has been given to the
petitioner/complainant in the ancestral property was
also available with the petitioner/complainant in the
earlier round of litigation, which has ended with the
rejection of C482 No.785/2018 by the Co-ordinate Bench
of this Court vide its order dated 17.12.2020 (Annexure
No.4 to the petition) after compromise between the
parties. Again this ground was available in this round of
litigation before the Trial Court and the Appellate Court
but the petitioner/complainant did not take this plea
earlier rather concealed this fact and now in this C482
petition before the High Court this plea has been raised
for the first time, which cannot be allowed at this stage.
This seems to be an attempt to mislead the courts by not
disclosing the material facts fairly and truly.
9. Even the copy of the plaint filed by the
petitioner/complainant as Annexure No.5 is neither the
certified copy nor photocopy of the certified copy and
seems as if it has been received by photostating the
judicial file. On query of the Court, counsel for the
petitioner/complainant could not explain how come the
petitioner/complainant got this copy which is filed as
Annexure No.5. Last but not the least, this C528 petition
has been filed after more than five months of the order
passed by the Appellate Court, which also shows that
this petition has been filed just to delay the process of
law.
10. In the considered opinion of this Court, the
impugned orders passed by both the Courts below are
well reasoned and this Court does not find any perversity
or illegality in the order passed by the Trial Court as well
as by the Appellate Court affirming the order of the Trial
Court.
11. Having considered the submissions and after
going through the record available on file, this Court is of
the considered view that it is not a fit case, in which, the
High Court should invoke its inherent jurisdiction under
Section 528 of BNSS, which otherwise neither smacks
any malice nor is contrary to the provisions contained
under the Code of Criminal Procedure.
12. In view of the above, this Court is not inclined
to interfere in the impugned order. Accordingly, present
C528 petition lacks merits and the same is hereby
dismissed in limine.
(Vivek Bharti Sharma, J.)
13.11.2024
SS Digitally signed by SUKHBANT SINGH
SUKHBANT SINGH
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5, postalCode=263001, st=UTTARAKHAND,
serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BEBD2B7D72C42261361AED3317
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Date: 2024.11.22 10:36:05 +05'30'
