Punjab-Haryana High Court
Sukhraj Kaur vs State Of Punjab And Another on 10 August, 2010
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
Crl. Misc. No. M-22449 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Misc. No. M-22449 of 2010
Date of Decision: August 10, 2010
Sukhraj Kaur
.....Petitioner
Vs.
State of Punjab and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.B.S.Jaswal, Advocate
for the petitioner.
-.-
M.M.S. BEDI, J. (ORAL)
Petitioner is the sister of husband of complainant Mandeep Kaur. The case has been registered by Mandeep Kaur under Section 498A IPC against her husband Dharminder Singh that she was allegedly turned out of her matrimonial house. The name of the petitioner was mentioned in Column No.2 of the report under Section 173 (2) Cr.P.C. but on the basis of the statement of Mandeep Kaur as PW 1 and the report of Nirmala Devi, Incharge Women Cell, Majitha, the petitioner has been summoned as an Crl. Misc. No. M-22449 of 2010 [2] additional accused under Section 319 Cr.P.C. alongwith other members of Dharminder Singh.
Through the instant petition, the petitioner seeks the quashing of FIR qua the petitioner besides seeking quashing of order dated July 13, 2010 summoning her as an additional accused in the exercise of powers under Section 319 Cr.P.C.
I am prima facie satisfied that the trial Court without following the parameters laid down in Micheal Machedo Vs. CBI and another, 2000 (2) RCR (Crl.) 75, has exercised the power under Section 319 Cr.P.C. to summon the petitioner casually. The order summoning the petitioner could have been challenged by her by filing a revision petition as the legality and propriety of the said order can very well be determined by the revisional Court exercising powers under Sections 397 and 399 Cr.P.C.
When questioned as to why revision petition could not have been filed against the order summoning the petitioner as an additional accused, counsel for the petitioner cited Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra and another, 2009 (1) RCR (Crl.) 677, wherein it has been observed by the Apex Court that a petition under Section 482 Cr.P.C. for quashing of summoning order cannot be dismissed only on the premise that an alternative remedy under Section 397 Cr.P.C. is available to accused. It has further been held in the said judgment that where High Court comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court and that the ends of justice require that proceedings should be quashed, it would not hesitate to Crl. Misc. No. M-22449 of 2010 [3] do so. Reliance has also been placed on the judgment in Adalat Prasad Vs. Rooplal Jindal and others, (2004) 7 SCC 338, laying down that the High Court can exercise the powers under Section 482 Cr.P.C.
I have gone through the judgment of Dhariwal Tobaco's case (supra) and Adalat Prasad's case (supra) and I am of the opinion that in Adalat Prasad's case (supra), the Apex Court had over-ruled the observations in K.M. Mathew Vs. State of Kerala, (1992) 1 SCC 217, holding that it is not open for a summoning Court to recall an erroneous order of issuance of process and that the said order can be challenged in the High Court in exercise of powers under Section 482 Cr.P.C. So far as the maintainability of revision petition against the summoning order is concerned, in para 17 of the judgment, the Apex Court had specifically observed that it was not necessary for the said Court to go into the question whether order issuing a process amounts to an interim order or not for the purpose of exercise of revisional jurisdiction.
I am of the view that no absolute bar has been created for challenging the legality and propriety of an order summoning an accused in exercise of powers under Section 319 Cr.P.C. or issuing process in a private compliant. As per Section 483 Cr.P.C. it is the duty of the High Court to exercise continuous superintendence over Courts of Judicial Magistrates subordinate to it and ensure that there is an expeditious and proper disposal of case by such Magistrate.
In view of the above circumstances, I am of the opinion that the order of summoning the petitioner as an additional accused under Section Crl. Misc. No. M-22449 of 2010 [4] 319 Cr.P.C. can be challenged by the petitioner by filing a revision petition before the Sessions Court. Instead of approaching the said Court, the petitioner has rushed to the High Court by invoking the powers under Section 482 Cr.P.C.
This petition is disposed of in limine with liberty to the petitioner to challenge the order summoning the petitioner under Section 319 Cr.P.C. by filing a revision petition. It is ordered that in case the said revision petition is filed within a period of one month from today, the same will be entertained. However, operation of the order dated July 13, 2010 will remain inoperative qua the petitioner for next one month to enable the petitioner to file revision petition.
August 10, 2010 (M.M.S.BEDI) sanjay JUDGE