SAIFULLAH Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the orders- dated 6.5.2005 and 24.10.2005 as well as for quashing the proceedings of Criminal Case No.1637 of 2004, Azhar Mohd. Vs. Saifullah & others U/s 323/452/506 IPC pending before the Special Judicial Magistrate First, Dehradun.

(2.) Heard learned counsel for the parties and perused the material on record.

(3.) In brief, the facts of the case are that on 16.5.1998 at 10:15 PM, Mazhar Mohammad, father of respondent no.2 got lodged an FIR with the allegations that on 13.5.1998 at about 10:30 PM, the petitioners entered inside his house in the state of intoxication and they abused the complainant Mazhar Mohammad and also threatened him to kill, in case Mazhar Mohammad does not vacate the house immediately. Due to this terror/shock, Mazhar Mohammad fell down on the earth and the petitioners, considering him dead, fled away from the spot. Thereafter, the matter was investigated and the I.O. after completing the investigation, submitted final report in favour of the petitioners before the court concerned on 30.6.1998. After that Mazhar Mohammad preferred a protest petition on which on 10.1.2002, learned CJM, Dehradun allowed that protest petition and directed for registration of the case as a complaint case and to record the statements of the complainant and witnesses u/s 200 and 202 Cr.P.C. In the meantime, complainant Mazhar Mohammad expired on 31.10.2002 and thereafter, on 3.3.2004, an application was moved by respondent no.2 seeking amendment in the complaint thereby substituting his name in place of his father. In between the case was transferred and renumbered as Criminal Case No.1637 of 2004, Azhar Mohammad Vs. Saifullah & others in the court of Special Judicial Magistrate Ist, Dehradun, who vide order dated 6.5.2005 allowed the amendment application of respondent no.2 and permitted him to be substituted in place of complainant Mazhar Mohammad in the complainant. Thereafter, the respondent no.2 got examined himself before the trial court u/s 200 Cr.P.C. and his witnesses Afroz Parveen and Km. Nishat Afzah were examined u/s 202 Cr.P.C. before the trial court. Thereafter, the learned Magistrate after analyzing the entire facts and circumstances of the case, proceeded to summon the petitioners u/s 452/323/506 IPC vide order dated 24.10.2005. Feeling aggrieved, the petitioners have filed this application.