C482/409/2005 of PAUL DENIL and ORS Vs STATE and ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Restoration Application No. 855 of 2010

Delay Condonation Application No. 1102 of 2010

Urgency application No. 920 of 2011

Criminal Misc. Application (C482) No. 409 of 2005

1.Paul Denial, S/o Buta Maseeh2.Thomas Maseeh, S/o Buta Maseeh2.Thomas Maseeh, S/o Buta Maseeh

3.Vinay Maseeh, S/o Thomas Maseeh

4.Vishal Maseeh, S/o Thomas Maseeh

All R/o Christian Colony, Nausar

P.S. Khatima, District Udham Singh NagarDistrict Udham Singh Nagar

…..…Petitioners

Versus

1.State of Uttaranchal (Uttarakhand)Through Secretary Home affairsThrough Secretary Home affairs

2.Shri Ramesh Bhartiya

S/o Shri Babu Ram R/o Dhyan Mandir Sungarhi R/o Dhyan Mandir Sungarhi

District Pilibhit, (U.P.)

3.Station Officer

Police Station Kathgodam, District Nainital

Through Seior Superintendent of Police

District Nainital

……….Respondents

Shri Atul Bhatt, Advocate, present for the petitioners.Shri B.S. Parihar, Brief Holder, present for the State.

Hon'ble Prafulla C. Pant, J.

This is delay condonation application no. 1102 of 2010, for condonation of delay in moving

the restoration application (MCRC) no. 855 of 2010, for restoration of criminal miscellaneous application (C482) No. 409 of 2005, which was dismissed for non-prosecution on 05.05.2010.

2.Notices were issued to the respondent no.2 on delay condonation application and restoration application which was served sufficiently but no one has turned up to oppose the applications. In the affidavit filed with the delay condonation application delay is sufficiently explained.

3.of 2010, is allowed. Delay is condoned.

The delay condonation application no. 1102

4.Also heard on restoration application no. 855 of 2010. In the affidavit filed with the restoration application absence on the date fixed (05.05.2010), is sufficiently being explained.

Therefore, in view of the principle of law laid

down Madhumilan Syntex Ltd. vs. Union of India, 2007 AIR SCW 1971, the restoration application is allowed on the condition that the

petition under section 482 of Cr.P.C., shall be heard on merits today.

6.409 of 2005, stands restored.

The petition under section 482 of Cr.P.C., no.

7.Heard on the petition under section 482 Cr.P.C., on merits.

8.Learned counsel for the petitioners submitted that the petitioners namely Paul Denial, Thomas Maseeh, Vinay Maseeh, and Vishal Maseeh are facing the trial relating to offences punishable under section 302, 201 IPC (arisen out of crime no. 482 of 2003, P.S. Haldwani). They have not challenged their trial in respect of said offences. The grievance of the petitioners is only in respect of offence punishable under section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is pleaded on behalf of the petitioners that neither any FIR was lodged in respect of said offence nor the ingredients of said offence are made out. In the circumstances, it is argued that petitioners cannot be compelled to face trial in respect of the offence

without there being any evidence constituting the ingredients of the offence punishable under the aforesaid Act. Having gone through the papers on record and after considering the submissions of learned counsel for the petitioners and learned counsel for the State, this Court finds that trial of the petitioners in respect of offence punishable under section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is abuse of process of law, as the ingredients of said offence are not made out.

9.Accordingly, the petition under section 482 of Cr.P.C., is disposed of with the direction that the petitioner's trial so far as it relates to offence punishable under section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is hereby quashed. However, it is made clear that the petitioners Paul Denial, Thomas Maseeh, and Vinay Maseeh shall face the trial in respect of remaining of the offences punishable under section 302 and 201 IPC. As far as petitioner no.4 Vishal Maseeh is concerned, he appears to have already been acquitted on 12.10.2010 (in Sessions

Trial No. 46 of 2004) from the said charge. Registry is directed to inform the court concerned. (Urgency application no. 920 of 2011, also stands disposed of).

Parul

(Prafulla C. Pant,J)

28.02.2011