HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Appli. (C-482) No. 1709 of 2016

Faizan -------Applicant

Versus

State of Uttarakhand and another

-----------Respondents

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Presence:-

Mr. Mohd. Safdar, learned counsel for the applicant.

Mr. Deepak Bisht, learned Deputy Advocate General, assisted by

Mr. Tarun Mohan, Brief Holder for the State.

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Hon’ble Mr. Subhash Upadhyay, J.(oral)

Present Application under Section 482 of the

Code of Criminal Procedure, 1973 has been filed challenging the impugned charge-sheet dated 12.04.2016, summoning order dated 27.07.2016 and the entire proceedings of Criminal Case No. 1183 of 2016 (Case Crime No. 129 of 2015), State vs. Faizan, under Section 420 of IPC, pending before learned Additional

Chief Judicial Magistrate, Roorkee, District Haridwar.

2. As per the averments made in the Application, an FIR was lodged by the respondent no.2 with the allegations that the applicant sold two plots being Plot No. 36 and 37 situated at Village Sisona Mustahakam Bhagwanpur, District Haridwar vide registered Sale Deed dated 25.10.2012 and 25.10.2013 and after the said sale-deeds, name of the complainant got mutated in the revenue record and thereafter complainant constructed houses over the said plot. It is further alleged that one

Ragib Hasan @ Pappu, Mannan S/o Imran, Puneet S/o Kanwar Sain and 5-6 other persons came at the said place; started to quarrel with complainant stating that the said plots belong to them; also snatched one of the sale-deed of the said plot and sold the said house to other persons. The said FIR was registered as Case Crime No. 129 of 2015, under Sections 386, 420 IPC.

3. Learned counsel for the applicant contends that on plain reading of the FIR it would reveal that no ingredients of Section 420 IPC are made out against the applicant.

4. Notices were issued to the private respondent no.2, which was served to the respondent no.2 in the year 2021, but he did not choose to put in appearance.

5. On perusal of the complaint, it is revealed that as per the contention of the respondent no.2 some friends of the complainant came to his house after construction was completed and quarreled with him by stating that the land belongs to them. Admittedly, the sale-deeds were executed in the year 2012 and 2013 by the complainant, and the same were registered before the Sub Registrar, Roorkee and the name of the applicant was also mutated in the revenue record. The complaint was lodged by the respondent no.2 in the year 2015 and there is no allegation that the land which was sold to him does not belong to the applicant or the registry of the plot was not done after payment of money, thus the ingredients of Section 420 of IPC are totally missing. The summoning order does not disclose any reason or even, prima facie, opinion of the court as to why the applicant is to be summoned under Section 420 of the IPC.

6. The Hon’ble Apex Court in the case of Pepsi Food Ltd. and another vs. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749 has held in para 28 of the judgment as hereunder:-

“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 has 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