C482/450/2012 of ANIL KUMAR UNIYAL AND ANR Vs STATE OF UTTARAKHAND AND ANR

C-482 No. 450 of 2012

U.C. Dhyani, J.

Mr. Ramji Srivastava, Advocate for the applicants.

Mr. R.K. Sah, Deputy Advocate General with Mr. S.S. Adhikari, Brief Holder for the State.

None is present for the respondent no.

By means of this present petition, moved under Section 482 Cr.P.C, the applicants have sought to set aside the order dated 28.04.2012 passed by learned Chief Judicial Magistrate, Dehradun in Criminal Case No. 630 of 2012 State vs. Gauransh Uniyal under Section 97 of Cr.P.C.

Since respondent no. 2 has not turned up before this Court despite service of notice upon him, therefore, it appears that he is not interested in prosecuting the applicant.

Learned counsel for the applicants submitted that in the present case, section 97 of Cr.P.C., is not attracted, as the child, with regard to whom, custody is directed to be given to respondent no. 2, is not in any wrongful confinement, which constitutes as offence. Applicants are uncle and grand uncle of the child, with whom, child was said to be living after the arrest of his father. Respondent no. 2 is maternal grand father.

There seems to be substance in the aforesaid contention of learned counsel for the applicants.

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

It will be futile exercise to keep petition under Section C-482 Cr.P.C. pending before this Court.

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.

The petition under Section 482 of Cr.P.C. is allowed. The criminal proceedings of the summoning order order dated 28.04.2012 passed by learned Chief Judicial Magistrate, Dehradun in Criminal Case No. 630 of 2012 State vs. Gauransh Uniyal under Section 97 of Cr.P.C. is hereby set aside.

This has nothing to do with criminal proceedings under Section 304-B IPC pending against the applicants.

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 him to move for recall of this order, if he feels aggrieved with the same.

Mahinder/

(U.C. Dhyani, J.) 08.05.2017