Punjab-Haryana High Court
Smt. Nirmala And Others vs Smt. Bhateri on 10 March, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Misc. No. M-33608 of 2008 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Misc. No. M-33608 of 2008
Date of Decision: 18.3.2009
Smt. Nirmala and Others
...Petitioners
Versus
Smt. Bhateri
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. N.R. Dahiya, Advocate
for the petitioners.
Mr. Surender Lamba, Advocate
for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint (Annexure P2) pending in the Court of the Judicial Magistrate Ist Class, Charkhi Dadri and the summoning order (Annexure P3) whereby accused/petitioners have been summoned under Sections 147, 323, 452 read with Section 149 IPC.
Counsel for the petitioners has raised various contentions. One of the arguments raised before this Court is that a complaint was also submitted to the police and the police found that no offence under Sections 323 & 452 IPC is made out and, therefore, they had submitted a kalandera under Sections 107/151 Cr.P.C.
Counsel for the petitioners rely upon a Single Bench judgment Criminal Misc. No. M-33608 of 2008 2 of this Court rendered in Surinder Kaur v. Rajinder Singh 1993 Criminal Court Judgments 729 (P&H) to say that once petitioner has faced proceedings under Section 107/151 Cr.P.C. he cannot be tried for the offences for which he has been summoned by the trial Court. Counsel submits that this will amount to double jeopardy and no cognizance can be taken because of bar under Section 300 Cr.P.C. read with Article 20(3) of the Constitution of India. This contention cannot be accepted as it is well settled law that proceedings under Section 107/151 Cr.P.C. are not punitive in nature but are preventive. They are initiated only to allay apprehension of breach of peace. Surinder Kaur's judgment (supra) was the judgment on the facts of that case.
Counsel for the petitioners further submits that as laid in S.I. Rooplal and Another v. Lt. Governor through Chief Secretary, Delhi and Others AIR 2000 Supreme Court 594, precedent demanded that the trial Court after issuance of the summoning order should have accepted the application of petitioner for discharge. The summoning Court has no such power. It has been held in Adalat Prasad v. Rooplal Jindal 2004(4) Recent Criminal Reports 1 that after the summoning order has been passed the order could only be set aside under Section 482 Cr.P.C. or by the revisional Court.
It has been further stated that there were number of cases pending between the parties and, therefore, a compromise has been arrived between the parties. The compromise has been annexed with the petition as Annexure P8. A perusal of the alleged compromise show that this compromise has been addressed to the Incharge Police Post Criminal Misc. No. M-33608 of 2008 3 Adampur. The letter has been signed by the parties in presence of the police officials.
Any document addressed to the Incharge, Police Post Adampur, cannot be said to be executed according to free will.
Counsel for the respondent has stated that compromise was not signed b y Smt. Bhateri, complainant.
Counsel for the petitioners has further submitted that in the present case offence under Section 452 IPC is not attracted as the parties were co-sharer and were residing in a joint undivided house. Whether the parties were living in the joint undivided house or not is question of fact, which is a subject matter of evidence which can only be proved before the trial Court by leading evidence.
Counsel for the petitioners further states that the petitioners are Government servants and they are facing the proceedings for the last 18 years. Therefore, taking the right of speedy trial into consideration, the present proceedings should be quashed.
In the present case, earlier application was filed by the accused for discharge. Thereafter, this Court has been approached. It is well settled law that any time which has been consumed, by any party for approaching various authorities cannot be considered for the benefit of that party.
Any observation made in this order will not foreclose the Petitioner from raising all arguments before the trial Court at appropriate stage.
Taking into consideration long pendency of the complaint, trial Court is directed to conclude the trial within one year from the receipt of Criminal Misc. No. M-33608 of 2008 4 certified copy of this order.
Counsel for the petitioners states that petitioners No.1 and 2 are ladies, therefore, their personal appearance before the trial Court be exempted.
I find merit in this submission of counsel for the petitioners. Accordingly, personal appearance of the petitioners is exempted before the trial Court subject to filing an undertaking that they shall cause appearance as and when required and the evidence recorded in their absence but in the presence of their counsel shall be binding upon them. Trial Court may also specify any other condition in the undertaking to be furnished by the petitioners. On the furnishing of undertaking, the personal appearance of petitioners shall stand exempted.
With the observations made above, the present petition is disposed off.
(Kanwaljit Singh Ahluwalia) Judge March 18, 2009 "DK"