Punjab-Haryana High Court
Parveen Sharma vs Charan Singh And Another on 30 August, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Revision No. 1307 of 2012 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Revision No. 1307 of 2012 (O&M)
Date of Decision: August 30, 2013
Parveen Sharma
---Petitioner
versus
Charan Singh and another
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr.Sanjeev Gupta, Advocate
for the petitioner
Mr.Tejinder Pal Singh, Advocate,
for respondent No.1
Mr. Neeraj Sharma, Asstt. Advocate General, Punjab
for respondent-State.
***
REKHA MITTAL, J.
The present petition has been directed against order dated 26.3.2012 passed by the Additional Chief Judicial Magistrate, Sangrur whereby the petitioner has been summoned to face trial for offence under Sections 302/34/201/217/218/120-B IPC along with Rajwinder Singh @ Raju, Maninder Singh SPO, Constable Sajjan Singh and Pritam Singh ASI.
Counsel for the petitioner contends that with regard to occurrence statedly happened in May 1995 pertaining to death of Gurmeet Singh son of complainant Charan Singh, FIR No. 227 dated 9.9.1999 under Sections 302/34 IPC was registered at Police Station Sangrur. After investigation, cancellation report was prepared, submitted before the Court of Chief Judicial Magistrate, Sangrur and the same was accepted by the Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -2- Court after providing an opportunity of hearing to complainant Charan Singh vide order dated 27.5.2004. The complainant filed a detailed protest petition expressing grievance against the cancellation report but the Court refused to accept the pleas raised by the complainant. The complainant filed a revision petition i.e. Criminal Revision No. 170 of 2006 challenging order passed on May 27, 2004 but the same was dismissed by this Court on 24.8.2009. The application filed by the complainant for recalling order dated 24.8.2009 was dismissed by this Court vide order dated 17.9.2009 passed in CRM No. 45929 of 2009. It is submitted that as the Judicial Magistrate accepted the cancellation report after considering the protest petition filed by the complainant and the order passed by the Chief Judicial Magistrate was affirmed in revision by this Court, permitting the complainant to file a private complaint and calling upon the accused to face trial, is illegal being violative of provisions of Section 300 of the Code of Criminal Procedure, 1973 (for short "the Code"). In support of his contention, he has placed reliance upon judgments of the Hon'ble Supreme Court of India in Major General A.S.Gauraya vs. S.N.Thakur 1988(1) R.C.R.(Criminal) 3, T.T.Antony vs. State of Kerala 2001(3) R.C.R. (Criminal) 436 and judgments of this Court in Narinder Singh and others vs. State of Punjab 1985(2)RCR 152, Supinder Singh vs. Provident Fund Inspector 1997 (4) R.C.R.(Criminal) 449.
Counsel for respondent No. 1, on the contrary, would argue that while accepting the cancellation report by the Chief Judicial Magistrate, Sangrur, the right of the complainant to file a complaint was reserved and the petitioner or the other accused did not assail the findings of the Chief Judicial Magistrate, Sangrur reserving a right with the complainant to file a Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -3- complaint. It is further argued that the revision petition preferred by the complainant was not decided on merits as the same was dismissed for want of prosecution and therefore, there was no occasion with this Court to examine correctness or otherwise of order dated 27.5.2004 either in regard to acceptance of cancellation report or giving a right to the complainant to file a private complaint. It is further submitted that as the accused were never put to trial on the basis of FIR No. 227 dated 9.9.1999, no such plea is otherwise tenable that proceedings of the private complaint and summoning order would amount to double jeopardy attracting the bar created under Section 300 of the Code. The last submission made by counsel is that the judgments relied upon by counsel for the petitioner do not deal with the present controversy and they have been rendered by the Hon'ble Courts in view of the peculiar facts and circumstances before the Courts concerned.
I have heard counsel for the parties and perused the case file. Indisputably, a cancellation report was submitted by the prosecution after investigation of FIR No. 227 dated 9.9.1999. After giving notice to the complainant, who filed objections against the cancellation report and giving him an opportunity of hearing, the cancellation report was accepted by the Chief Judicial Magistrate, Sangrur vide order dated 27.5.2004 (Annexure P-4). However, the Chief Judicial Magistrate while accepting the cancellation report, reserved a right that the complainant can file a criminal complaint, if he is so advised.
There is no dispute that the persons suspected to be accused in FIR No. 227 dated 9.9.1999 did not challenge the order of the Chief Judicial Magistrate, Sangrur giving a right to the complainant to file a private complaint. The dismissal of the revision petition filed by the complainant Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -4- rather affirmed the finding recorded by the learned Magistrate. As the complainant was given the right to file a private complaint while accepting the cancellation report, it is difficult to accept the contention of the petitioner that the private complaint filed by Charan Singh could not be maintained. The contention of counsel for the petitioner that the present proceedings initiated by Charan Singh and passing of summoning order by the Court of Magistrate is hit by the provisions of Section 300 of the Code, is not tenable for the simple reason that the petitioner was not put to trial in the criminal case lodged vide the aforesaid FIR. The judgments referred by counsel for the petitioner have got no bearing on the facts of the case in hand, which have been rendered by the Hon'ble Courts in view of particular controversy raised in those cases.
Another important aspect of the case which invites attention of this Court is that the complainant filed criminal complaint and clearly disclosed before the Court with regard to lodging of FIR, the submission of cancellation report, dismissal of his revision petition etc. The complainant exhibited on record certified copies of order accepting the cancellation report and orders passed by this Court in the revision proceedings. Nevertheless, the Additional Chief Judicial Magistrate, Sangrur while passing the summoning order neither considered much less adverted to the earlier proceedings with regard to cancellation report and acceptance thereof.
An extract from the summoning order passed on 26.3.2012 by the Additional Chief Judicial Magistrate, Sangrur, is quoted hereinbelow:-
"In view of the allegations made in the complaint and evidence led by the complainant, I am of the view that there are Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -5- sufficient grounds to proceed against the accused under Sections 302/34/201/217/218/120-B of the Indian Penal Code. Accordingly, all the accused be summoned for 7.5.2012 on filing PF/RC and copy of complaint."
Now the question arises whether the summoning order impugned in the petition can stand the test of judicial scrutiny?
In Chandra Deo Singh vs. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430, a land mark judgment of the Hon'ble Supreme Court of India, may be the first one of its kind dealing with the purpose, procedure, scope and object of the preliminary enquiry it has held in paras 7 and 8 to the following effect:-
"7.Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed or what is going on. But since the very question for consideration being whether he should be called upon to face an accusation nor he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so, it would follow from this, therefore, that it would not be open to Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -6- Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No. 1 that the very object of the provisions of Ch.XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of any enquiry made either by himself or by a Magistrate Subordinate to him. A privilege conferred by these provisions can according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of Section 202, Criminal Procedure Code is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused persons, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -7- basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of respondent No. 1 but from the fact that they were persons who were alleged to have been the associates of respondent No. 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for respondent No. 1. This interference is irresistible and we hold that on this ground, the enquiry made by the inquiring Magistrate is vitiated. In this connection, observations of this Court Vadilal Panchal vs. Dattatraya Dulaji (1961) 1 SCR at p.9 may be usefully be quoted:
"The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -8- process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial.
8......... No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complaint."
A perusal of what has been held by the Hon'ble Supreme Court of India makes it evident that the object of the enquiry is to ascertain truth or falsehood of the complaint but the Magistrate holding the enquiry has to do this with reference to the intrinsic quality of the statements made during enquiry.
In the case in hand, the Judicial Magistrate knowing fully well that after completion of investigation in the case, a cancellation report was submitted which was accepted by the Court after getting objections from the complainant and the order of acceptance of cancellation report was affirmed by this Court, did not bother to examine those proceedings in order to judge Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -9- the intrinsic quality of statements of witnesses produced during preliminary enquiry.
In Kuldeep Raj Mahajan vs. Hukam Chand, 2008 (1) RCR 370 this Court examined an issue with regard to the obligation of the Court passing summoning order in a private complaint, it was held as quoted hereinbelow:-
"In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order dated 1.9.2000 (Annexure P-
18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration the cancellation/investigation report of the police.
Perusal of impugned summoning order (Annexure P-2) reveals that there is no reference at all to the investigation report/cancellation report of the police in the summoning order. Without considering the investigation report/cancellation report of the police, the impugned summoning order could not have been legally passed by the learned Magistrate............." The Judicial Magistrate, for the reasons best known ignored the documents produced on record and passed a sketchy order to hold that there are sufficient grounds to proceed against the accused particularly in the circumstances that five persons were ordered to be summoned for a heinous offence of murder under Section 302 IPC. As the Judicial Magistrate did not consider the cancellation report as well as the detailed order passed by the Court accepting the said cancellation report, the summoning order passed on 26.3.2012 cannot be allowed to sustain. Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1307 of 2012 (O&M) -10-
In view of what has been discussed hereinabove, the petition is allowed. The impugned order dated 26.3.2012 is set aside and the matter is remitted to the Court of Additional Chief Judicial Magistrate, Sangrur for decision afresh in accordance with law.
(REKHA MITTAL) JUDGE August 30, 2013 PARAMJIT Saini Paramjit Kaur 2013.09.09 16:09 I attest to the accuracy and integrity of this document Chandigarh