Punjab-Haryana High Court
Sanjay Ahirwal & Anr vs State Of Haryana & Anr on 9 October, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-17362 of 2014 (O&M)
Date of decision: 09.10.2014.
Sanjay Ahirwal and another ..Petitioners
Versus
State of Haryana and another ..Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. J.K. Dass, Sr. Advocate with
Mr. Sarojanand Jha, Advocate
for the petitioners.
Mr. Pradeep Virk, D.A.G., Haryana
for respondent No.1 - State.
Mr. Akshay Jindal, Advocate
for respondent No.2.
Daya Chaudhary, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C. for setting aside the judgment dated 25.04.2014 passed by learned Additional Sessions Judge, Karnal in Criminal Revision No.14 of 2014 and also for quashing of summoning order dated 21.11.2013 passed by Chief Judicial Magistrate, Karnal as well as complaint dated 21.02.2006.
Briefly, the facts of the case are that complainant-Brij Sharma, filed a complaint under Sections 500 and 501 IPC before Chief Judicial Magistrate, Karnal, alleging that the accused has defamed his image in the eyes of Public and Society at large. A news NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 2 item was flashed on NDTV news channel from 6.30 AM to 11.30 PM and it was stated that the complainant is responsible for the murder. Certain other allegations were also alleged against the complainant that he terrorized the accused and their family members and after that, they were constrained to disallow their children to go to the school. The allegations contained in para No.4 of the complaint are reproduced as under: -
" That Jugal Kishore son of Ram Pakash was a great gambler of the area. He was arrested by the police in more than twenty criminal cases. In two of these cases under Sec., 13 of the Gambling Act he was convicted. He used to stake huge amount in gambling. On day, dead body of Jugal Kishore with multiple injuries was found on the road in front of Kalandhari Gate, Karnal. It was spotted by passerby. They informed his family members who informed the police, immediately. A criminal case was registered but the police failed to crack the mystery. On 15.5.2001, Satish, accused No.6 and brothr of the deceased made a statement while lodging the First Information Report that complainant Brij Sharma, Anand Parkash, Parkashveen Sharma and one more person were NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 3 responsible for this murder. It was alleged that he was eliminated by them due to political rivalry. The matter was investigated by Shri Gulzar Singh, Inspector, CIA Staff, Karnal and Shri Om Parkash, Inspector, Police Station, City, Karnal. During the investigation it was found that there was no eye witness account. It also came in investigation that accused Satnam Singh son of Jagar Singh hatched a conspiracy and hired some criminal elements from U.P. on payment of Rs. 50,000/-
alongwith Mahboob, Pawan, Kamil and Murasali residents of village Jhinjhana, District Muzaffar Nagar murdered Jugal Kishore.
Satnam Singh was arrested by the police on 16.5.2001. During interrogation, he made a disclosure telling truth. On his statement remaining accused persons were arrested and it became clear that Jugal Kishore was actually killed because of money which Satnam Singh owed to him, but failed to pay the same that amount was lost by Sarnam Singh in gambling.
Prosecution and proceedings against the complainant were dropped and a case under Section 182 of the Indian Penal Code was NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 4 registered against accused Satish Sharma.
Then, he approached Hon'ble High Court.
Hon'ble High Court ordered investigation of the case by Inspector General (Law and Order).
He investigated the case as per directions of Hon'ble High Court and submitted his report on 13.9.2002 to the effect that Brij Sharma Anand Parkash and Parkashveer had no connection with the murder of Jugal Kishore. His murder was actually committed by Satnam, Azad, Mahboob and Pawana etc. Challan against them was filed in the court in which charge was framed against them."
On the basis of the said complaint and after recording statement of complainant and other witnesses, the summoning order was passed on 13.03.2007.
Initially the petitioners filed Criminal Misc. No.12944-M of 2008 for quashing of complaint and summoning order but said petition was dismissed as withdrawn with liberty to file revision petition with appropriate Court. Thereafter, petitioners filed revision petition against summoning order dated 13.03.2007 before learned Additional Sessions Judge, Karnal, which was also dismissed on 09.06.2009. Thereafter, again petitioners filed Criminal Misc. No. M-27784 of 2009 for setting aside the order dated 09.06.2009 passed by learned Additional Sessions Judge, Karnal. In that case, notice of motion was NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 5 issued and the petitioners were permitted to appear before the trial Court and interim order was continued vide order dated 13.03.2007. The order dated 09.06.2009 passed by learned Additional Sessions Judge, Karnal as well as order dated 13.03.2007 were set aside and case was remanded back to learned Magistrate, Karnal to pass appropriate orders after complying with the amended provisions of Section 202(1) Cr.P.C. An inquiry was conducted and a report was also submitted in compliance of order passed by this Court on 03.05.2011. After considering the report under Section 202(1) Cr.P.C., again summoning order was passed against the accused persons for offence under Sections 500 and 501 IPC stating that Police report is not binding. Again that order of summoning was challenged by way of filing revision petition but the same was also dismissed on 25.04.2014.
Now the present petition has been filed to challenge the order passed by learned Magistrate as well as learned Revisional Court by raising various grounds.
Learned counsel for the petitioners submits that earlier the complaint and summoning order was set-aside and case was remanded back to the learned Magistrate to comply the amended provisions of Section 202(1) Cr.P.C., but the same have not been complied with. Learned counsel for the petitioners further submits that the impugned order is same as passed earlier and even there is no change in paragraphs and words. Learned counsel also submits that as per order passed by Revisional Court, it has been mentioned that NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 6 no reasons are required to be given, only the satisfaction of the Court is to be seen. Learned counsel also submits that the learned Revisional Court has failed to appreciate that the learned Magistrate was having legal obligations to apply its mind independently to the Police report including the material collected during investigation and in case, the Summoning Court is not convinced with the report, then reasons should have been mentioned as to why the Court was not satisfied with the investigation. Learned counsel for the petitioners also submits that the summoning order has been passed without compliance of the directions issued by this Court and only on the basis of pre-summoning evidence and by relying upon the judgment of Hon'ble the Apex Court in case of Dr. Mrs. Nupur Talwar and another vs. CBI, Delhi, (2012) 2 SCC 188 it was held that no reasons are required to be given for not agreeing with the Police investigation at the stage of pre-cognizance. Learned counsel also submits that no offence is made out on the basis of news item shown on the TV channel. Simply it was reported that respondent No.2 was accused of murder of one Jugal Kishore Sharma, the brother of accused No.6, that information was only matter of record as he was accused in FIR case relating to murder of Jugal Kishore Sharma pending before this Court at that time. Moreover, this news item was published/telecasted in various newspapers and TV channels as well. There was nothing in the news item to show that the intention of the petitioners was to defame respondent No.2. Learned counsel for the petitioner has also relied upon judgments of Hon'ble the Supreme Court in Maksud NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 7 Saiyed vs. State of Gujarat and others, (2008) 5 SCC 668, Vasanti Dubey vs. State of Madhya Pardesh, (2012) 2 SCC 731, Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749, Thermax Limited and others vs. K.M. Johny and others, (2011) 13 SCC 412, Udai Shankar Awasthi vs. State of Uttar Pradesh and another, (2013) 2 SCC 435 as well as judgments of this Court in Dr. Jasminder Kaur and another vs. Raj Karan Singh Boparai, MANU/PH/3239/2013, Ashwini Kumar vs. Subhash Goyal, 2013 (3) RCR (Criminal) 779 and judgments of Delhi High Court in Gurdeep Singh Sudan & Ors. vs. State (Govt. of NCT of Delhi) & Anr., MANU/DE/2071/2013, Harpal Singh Arora and Ors. vs. State and Anr., MANU/DE/0719/2008 and judgment of Madras High Court in Sanjay Pinto 2. Radhika Iyer vs. A. Kamaraj, 2012 (2) CTC 352 in support of his contentions.
Learned counsel for respondent No.2 submits that inquiry under Section 202(1) Cr.P.C. is not mandatory at the stage of pre- charge evidence and that evidence is sufficient for passing of summoning order after getting inquiry. It is for the Magistrate to apply his mind and it is not necessary to give the finding in so many words. In case, prima-facie, an offence is made out against the accused persons, summoning order is passed. Learned Magistrate was having options. Learned counsel for respondent No.2 submits that at the stage of summoning, the Court is not to see prima-facie allegations by taking support from preliminary evidence but to see that on the basis of those allegations and preliminary evidence, the offence is made out NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 8 or not. After seeing the Police report also, the Summoning Court is to make out its mind whether on the basis of allegations in the complaint and after seeing the Police report, prima-facie offence is made out or not. Detailed order is not required to be passed at the stage of summoning. Learned counsel for respondent No.2 has also relied upon judgments of Hon'ble the Supreme Court in M/s India Cart Pvt. Ltd. vs. State of Karnataka, 1989(1) RCR (Criminal) 395, Dr. Mrs. Nupur Talwar vs. C.B.I., Delhi and another, 2012(4) RCR (Criminal) 326, Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, 1995 (3) RCR (Criminal) 700, Dharmatma Singh vs. Harminder Singh and others, 2011(3) RCR (Criminal) 38, Minu Kumari and anr. vs. State of Bihar and ors., 2006(3) RCR (Criminal) 271 and judgment of Madras High Court in Rajaram Singh vs. Raghuveer Singh, 1996 (2) RCR (Criminal) 120 in support of his contentions.
Heard arguments of learned counsel for the petitioners as well as learned counsel for respondent No.2 and have also perused the impugned order, complaint, summoning order as well as order passed by the Revisional Court.
Before examining the contentions of learned counsel for the petitioners, it is necessary to refer some of the provisions provided under Chapter XII, XIV, XV and XVI of the Criminal Procedure Code. Section 155 in Chapter XII pertains to information to the police regarding non-cognizable cases and Sub-Section (2) lays down that no Police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 9 case for trial. Section 156(1) confers power on an officer incharge of a police station to investigate any cognizable case without the order of a Magistrate. Section 156(3) authorises a Magistrate, empowered under Section 190 of the Code to order the Police to make an investigation as provided for in Section 156(1) of the Code. Section 169 of the Code prescribes the procedure to be followed by an officer incharge of a Police station if it appears to him upon investigation of a case that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 of the Code prescribes the procedure to be followed by the officer incharge of a Police station if it appears to him upon investigation that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. As per provisions of Section 173(1) of the Code, a Police Officer is to complete the investigation without unnecessary delay. Section 173(2) of the Code lays down that as soon as the investigation is completed the officer incharge of a Police station should forward to a Magistrate empowered to take cognizance of an offence on a Police report stating the various particulars mentioned in that Sub-Section.
Section 200 to 203 deals with "Complaints to Magistrate". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complaint and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon the complaint, if he thinks fit, postpone the issue of process against the accused or to inquire into the case himself or NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 10 direct investigation to be made by a Police officer or any such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, after considering the statements of the complainant and other witnesses, in case there is no sufficient ground for proceeding.
Section 204 empowers a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in his opinion the cognizable offence is there or sufficient ground for proceeding is there.
It is clear from the said provisions that on receipt of a complaint, a Magistrate has several options as he may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses. After recording such statements, in case there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203 of the Code. In case, there is sufficient ground for proceeding, he may issue process under Section 204 of the Code. It is for the Magistrate that he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the Police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. In case, in his opinion there is sufficient ground for proceeding or dismiss the complaint or there is no sufficient ground for proceeding. Another option to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 11 200 or Section 202, he may order an investigation to be made by the Police under such circumstances. The Police will have to investigate the matter and submit a report under Section 173(2) of the Code. On receiving the Police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate is not bound by the opinion of the Police Officer as to whether an offence has been made out or not. Even he can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case.
At the stage of taking cognizance of the offence, the Court is only to see whether prima facie, there are reasons for issuance of process or whether the ingredients of the offence are fulfilled. The discretion has been provided under the Code and opinion of the Investigating Officer is not binding.
In the present case, the Magistrate after going through the statements of complainant and other witnesses found that there were sufficient ground to proceed against the accused persons for commission of offence punishable under Section 500 and 501 IPC and accused were summoned vide order dated 13.03.2007. Thereafter, the order of summoning was challenged by way of filing Criminal Misc. No. 12944-M of 2008 before this Court, which was dismissed as withdrawn to avail the alternative remedy vide order dated 21.05.2008. Then revision was filed under Section 397 Cr.P.C. before District and Sessions Judge, Karnal to challenge the NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 12 summoning order dated 13.03.2007 but the same was dismissed on 09.06.2009. Thereafter again the order passed by Revisional Court was challenged by way of filing Criminal Misc. No. M-27784 of 2009, and the order of summoning was set-aside and case was remanded back to the Magistrate to pass appropriate order after complying with the provisions of Section 202(1) Cr.P.C. In pursuance of directions issued by this Court, the Magistrate directed SHO, Madhuban under Section 202(2) Cr.P.C. to inquire into the case and submit the report. SHO, Madhuban, Police Station Karnal after examining the complainant and its witnesses as well as accused submitted its report stating that no case of defamation against the accused was made out on the basis of evidence collected during investigation. After having report from Police, again summoning order dated 21.11.2013 was passed to summon the petitioners and other accused for offences under Sections 500 and 501 IPC on the ground that sufficient grounds are there to summon the accused. Again the summoning order was challenged before the Revisional Court but the same was dismissed.
No doubt the Magistrate is not to agree with the report submitted by the Police and in case sufficient reasons are there for summoning of the accused, even after disagreeing with the Police report, the accused can be summoned.
The orders of summoning dated 13.03.2007 as well as 21.11.2013 are not only same but there is no difference of lines and words. The order of summoning passed subsequently is exactly the same, which was passed on 13.03.2007. It shows that the Magistrate NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 13 has not applied the mind while passing the subsequent summoning order. The power of the Magistrate is not disputed but the application of mind is required. Learned Additional Sessions Judge, Karnal, while dismissing revision petition filed by the petitioners has held that the preliminary evidence was available before the trial Court and at the stage of summoning of an accused, only prima-facie allegations are to be seen.
Summoning of an accused in a criminal case is a serious matter. It has been held in various judgments that the criminal law cannot be set into motion as a matter of course. Only after taking into consideration the statements of complainant and some other witnesses to support the allegations in the complaint, the summoning order is to be passed. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and case law applicable thereto. He has not only to examine the nature of the allegations made in the compliant but should consider evidence both oral and documentary in support thereof and in case, there are sufficient reasons for summoning then only accused should be summoned. The Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning of accused but he is to scrutinise the evidence brought on record and even certain questions can be put to the complainant and his witnesses to find out the truth of the allegations thereof and in case a prima-facie offence is made out then only he should go ahead.
This view has been held by Hon'ble the Supreme Court in NEETU RANI 2014.10.17 12:26 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-17362 of 2014 (O&M) 14 Pepsi Foods Limited's case (supra).
In view of facts and law position as discussed above and without expressing any view on the merits of the case, it would be appropriate that learned Magistrate shall pass a speaking and well reasoned order. In case, Magistrate finds any disagreement with the view taken by the Police, then the order must reflect a brief reasoning for taking a different view as it is with judicial discretion of a Magistrate either to accept the report of the Police or reject the same as the same is not binding but order passed by the Magistrate must show that there is proper application of judicial mind by the Magistrate.
Hence, the matter is remanded back to the Judicial Magistrate Ist Class, Karnal to pass a fresh speaking and reasoned order after taking into consideration the Police report. Parties are directed to appear before the Magistrate on 04.11.2014.
However, it is made clear that nothing said hereinabove shall tantamount to expressing of any opinion on the merits of the case.
The Magistrate will be at liberty to take an independent view in the matter without being influenced by any of the observation made hereinabove.
With the abovesaid directions, the present petition is disposed of.
09.10.2014 (DAYA CHAUDHARY)
neetu JUDGE
NEETU RANI
2014.10.17 12:26
I attest to the accuracy and
authenticity of this document
Chandigarh