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2017 Supreme(UK) 220

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Lok Pal Singh, J.
Kiran Pandhi & Ors. – Petitioners
Versus
State of Uttarakhand & Ors. – Respondents
Criminal Writ Petition No.924 of 2017 With Stay application CLMA No.6588 of 2017 Recall Application CLMA No.7476 of 2017
Decided On : 11-07-2017

Advocates Appeared:
For the Petitioners:Mr. Arvind Vasisth, Senior Advocate assisted by Mr. Hemant Singh, Advocate
For the Respondents:Mr. Raman Kumar Sah, Deputy Advocate General with Mr. V.S. Pal, A.G.A., Mrs. Pushpa Joshi, Senior Advocate assisted by Mr. Karan Anand, Advocate

Headnote:

(A) Civil Procedure Code, 1908, Order XXIII, Rule 1 – Second Writ Petition – Maintainability of – Since the first writ petition was finally disposed of by order dated 19.05.2017 – Therefore, recall application on the behest of the writ petitioners, not legally maintainable – While hearing on the recall application, the Coordinate Bench observed that this application had no substance – Therefore, any observation made by the Coordinate Bench in regard to filing of second writ petition had no implication. (Paras 11 to 18)

(B) Abuse of Process of Court – In the facts and circumstances of the case, found that on the request of the petitioners that they will surrender before the Magistrate concerned, stay from arrest for a period of three weeks was granted to the petitioners – But they did not honor the Court’s order and by engaging another counsel, moved recall application for recall of order dated 19.05.2017 – This was absolutely abuse of process of Court. (Paras 15 to 20)

¼v½ nhokuh izfØ;k lafgrk] 1908] vkns'k XXIII, fu;e 1 & f}rh; fjV ;kfpdk & iks"k.kh;rk pw¡fd izFke fjV ;kfpdk dks varr% fnukad 19-5-2017 ds vkns'k }kjk fujkÑr fd;k x;k Fkk & blfy, fjV ;kphdÙkkZvksa dh vkKk ls izR;kg~oku vkosnu] Os/kkfud rkSj ij iks"k.kh; ugha & izR;kg~oku vkosnu i= lquok;h ij leUo; cSap }kjk ik;k x;k fd vkosnu esa lRo ugha Fkk & bl izdkj f}rh; fjV ;kfpdk ntZ djus ds laca/k esa leUo; cSap }kjk fd, x, fdlh Hkh I;Zos{k.k dk dksbZ fufgrkFkZ ughaA ¼izLrj 11 ls 18½
¼c½ U;k;ky; dh izfØ;k ls nqO;Zogkj & okn ds rF;ksa o ifjfLFkfr;ksa esa ik;k x;k fd ;kphdÙkkZ dh izkFkZuk ij fd os lacaf/kr eftLVªsV ds le{k vkReleiZ.k dj nsaxs] mUgsa fxj¶rkj djus esa rhu lIrkg dh jksd iznku djh x;h Fkh & ijUrq muds }kjk U;k;ky; ds vkns'k dk ikyu ugha fd;k x;k] vkSj mUgksaus nwljs vf/koDrk dks fu;qDr dj izR;kg~oku vkosnu fd;k] fnukad 19-5-2017 ds vkns'k ds izR;kg~oku ds fy, & tks fd fuf'pr :i ls U;k;ky; dh izfØ;k dk vieku gSA ¼izLrj 15 ls 20½

JUDGMENT :

1. Facts necessary for adjudication of the case are that on 14.02.2017 respondent no.3 lodged an F.I.R. at Police Station Rajpur, Dehradun for the offence punishable under Section 302 of IPC against the petitioners and one other, alleging therein that his daughter Anchal Pandhi has been murdered by her husband Rahul Pandhi, mother-in-law Kiran Pandhi and sisters-in-law Rachna Pandhi and Indrani Pandhi in the morning at her residence at Pacific Hill View Apartment. In the F.I.R., it was also stated that there were several injury marks on the body of the deceased which shows that the deceased was brutally murdered. On the basis of F.I.R., Case Crime No.23 of 2017 u/s 302 of IPC was registered. After lodging of the F.I.R., the I.O. visited the spot and conducted inquest on the dead body of deceased in the presence of following witnesses and panchayatdars:

1. Rahul Pandhi

2. Rachna Pandhi

3. Anil Kohli

4. Balbir Singh

5. Pankaj Tyagi

2. These above-named witnesses put their signatures in the inquest report and at the time of inquest, all the panchs opined about the death of the deceased as under:

^^jk; iapku %& ge iapksa dh ekStwnxh esa izFke n`’V;k esa xyk ?kksVus ls e`R;q gksuk izrhr gksrk gS o gesa eglwl gksrk gS fd xyk nckdj ekjk x;kA izIrlj dkj.k tkuus ds fy, iksLVekVe djkuk vko”;d gSA**

3. In the inquest report, the I.O. also mentioned the description of the spot, which is reproduced hereunder:

^^fujh{k.k ?kVukLFky %& ?kVukLFky&iSflfQd fgYl esa flat No. D-104 dk gSA e`rdk dk “ko ia[ks ls pqUuh ij Qank Mkydj yVdk gSA ukius ij dejs dh Nr dh Å¡pkbZyxHkx 10 fQV gS] ia[kk Nr ls ,d QhV uhps gSA ia[ksa ls ¼tgk¡ ij pqUuh ca/kh gS½ ,oa tgka ij “ko ds xys esa Qank yVdk gSA yxHkx pqUuh lk<+s rhu QqV gS] “ko ds iSj tehu ij Vp dj jgs gSa] “ko ds ikl ,d ckYVh j[kh gS tks mYVh gS] ckYVh dh nwjh nhokj ls rhu QhV gS ,oa “ko ds yVdrs iSjksa ls ckYVh dh nwjh Ms<+ QhV ¼1-5½ gSA½**

4. Post-mortem on the dead body of the deceased was conducted on 14.02.2017. As per the post mortem report, cause of death was ascertained as ‘asphyxia due to anti-mortem hanging.

5. At this juncture, it would be relevant to mention that earlier Writ Petition No.766 of 2017 was filed by the petitioners for the same reliefs, which came up for hearing before the Coordinate Bench of this Court on 19.05.2017 and following order was passed:

“Mr. J.S. Virk, Advocate for the petitioners.

Mr. V.S. Pal, A.G.A. with Mr. Prem Kaushal, Brief Holder for the respondent State.

Ms. Pushpa Joshi, Sr. Advocate assisted by Mr. Karan Anand, Advocate for the private respondent.

An FIR has been lodged against four accused persons, including the petitioners, for the offence punishable under Section 302 IPC.

Learned counsel for the petitioners confined his prayer only to the extent that the court below be directed to decide the bail applications of the petitioners at an early date, subject to their surrender. Learned counsel for the petitioners also prayed that some time be given to the petitioners to enable them to surrender before the Magistrate concerned.

Considering the facts of the case, as also the grounds taken up in the criminal writ petition, the innocuous prayer made by learned counsel for the petitioners is worth accepting.

Petitioners are granted three weeks’ time from today to surrender before learned Magistrate, where after they will be dealt with by the court concerned as per law. No coercive measures shall be adopted against the petitioners for a period of three weeks, provided they cooperate with the investigating agency.

It is further provided that if the petitioners surrender before learned Magistrate within the stipulated time and seek bail, their bail applications shall be decided in accordance with law, as expeditiously as possible and without unreasonable delay.

With the directions as above, the criminal writ petition stands disposed of.

[Stay application no. 5481 of 2017 also stands disposed of.]”

6. After passing of the final order on 19.05.2017, a recall application was moved b





































































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