C482/902/2011 of KM. PINKI KULASHRI Vs STATE OF UTTARAKHAND AND ANR

C-482 No. 902 of 2011U.C. Dhyani, J.

None

Mr. Kurban Ali, Advocate for the petitioner.

Mr. Pramod Tewari and Mr. Ganga Singh Negi, Brief Holders for the State.

No representation for the respondent no. 2.

By means of this present petition, moved under Section 482 of Code of Criminal Procedure, 1973, the petitioner has sought quashing of the proceedings of the impugned summoning order dated 29.07.2011, in Criminal Complaint Case No. 584 of 2011, for the offences punishable under Sections 109, 120B & 494 of I.P.C., pending in the Court of Addl. Chief Judicial Magistrate, Kotdwar.

Notice was issued to respondent no. 2. None has turned up on behalf of respondent no. 2. It appears that the complainant is not interested in prosecuting the accused/applicants.

Learned counsel for the petitioner submitted that petitioner was an unmarried girl regarding whom it is alleged that Sunil who was already had spouse, got married to her. Attention of this Court is drawn to the provision contained in Section 494 of I.P.C., and it is pleaded that as against the present petitioner, even if the allegation in the complaint are taken to be true, offence is not made out, as the party, who can be prosecuted in respect of the offence (under Section 494 of I.P.C.) must be married.

There seems to be substance in the contention of learned counsel for the petitioner. It will be futile exercise to keep petition under Section C-482 Cr.P.C. pending.

The Court can intervene in exercise of jurisdiction under Section 482 Cr.P.C., to prevent the abuse of process of law, as has been held by Hon’ble Apex Court in Rajiv

Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330, Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCC (Crl) 986 and Inder Mohan Gosami and another vs. State of Uttarakhand and others, (2008) 1 SCC (Crl) 259.

When the foundation of criminal offence is not laid against the present applicant, the Court can intervene in exercise of jurisdiction under Section 482 Cr.P.C.

The petition under Section 482 of Cr.P.C. is, therefore, allowed. The criminal proceedings of the impugned summoning order dated 29.07.2011, in Criminal Complaint Case No. 584 of 2011, for the offences punishable under Sections 109, 120B & 494 of I.P.C., pending in the Court of Addl. Chief Judicial Magistrate, Kotdwar are hereby quashed and set aside.

Since, present application under Section 482 Cr.P.C. is being decided in the absence of the respondent no.2, therefore, liberty is granted to her to move for recall of this order, if she feels aggrieved with the same.

Balwant

(U.C. Dhyani, J.)

03.05.2017