Punjab-Haryana High Court
Surat Siingh & Others vs Smt.Tulsi Rawat on 29 August, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.M-79 of 2011 ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-79 of 2011
Date of Decision: August ,2012
Surat Siingh & Others
...Petitioners
Versus
Smt.Tulsi Rawat
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Amit Dhawan, Advocate, for the petitioners.
Ms.Upinder Kaur Bedi, Advocate, for the respondent.
***
Naresh Kumar Sanghi, J.
Prayer in this petition is for quashing of a complaint No.RBT-24/1/2005 dated 01.11.2004 titled as "Smt.Tulsi Rawat Vs. Sh.Vijay Singh and Others" under Sections 406 and 498-A, IPC pending before the learned Judicial Magistrate Ist Class, Jalandhar, and the summoning order dated 28.07.2009 whereby the petitioners were summoned to face trial for the offences punishable under Sections 406 and 498-A, IPC.
The brief facts of the case are that respondent- complainat- Smt. Tulsi Rawat filed a complaint before learned Judicial Magistrate Ist Class, Jalandhar, with the averments that her marriage was solemnized with Vijay Singh (co-accused of the petitioner) on 21.11.2000 at Jalandhar, according to Hindu customs and rites. Before and after her marriage, the petitioners and their co-accused, Vijay Singh and Ajay Singh, alledged to have maltreated the petitioner on account of demand of dowry. A complaint was also presented before the police levelling the same allegations, accordingly FIR No.186 dated 23.09.2004, Criminal Misc. No.M-79 of 2011 ..2..
under Sections 406 and 498-A, IPC was registered at Police Station, Division No.8, Jalandhar. During the course of investigation, the allegations levelled against the petitioners were found to be false by the Investigating Agency, therefore, the report under Section 173, Cr.P.C was presented for the prosecution of Vijay Singh only, the husband of the respondent- complainant. The charges were framed against Vijay Singh and after examination and cross-examination of certain witnesses, an application under Section 319, Cr.P.C was moved for the summoning of the petitioners as additional accused. The said application was rejected by the learned Judicial Magistrate Ist Class, Jalandhar, vide his order dated 01.06.2006. Not satisfied with the order of dismissal of the application, the respondent filed the Criminal Revision No.88 of 2006 before the learned Additional Sessions Judge, Jalandhar, and that too was dismissed vide order dated 19.03.2007 (Annexure P-4). Thereafter, the respondent chose to file a complaint against the petitioners in terms of Section 200, Cr.P.C.
In the complaint so filed before the learned Judicial Magistrate Ist Class, Jalandhar, the petitioners were summoned to face trial vide order dated 28.07.2009 (Annexure P5) for the commission of offences punishable under Sections 406 and 498- A, IPC. The complaint as well as the said summoning order are under challenge before this Court.
Learned counsel for the petitioners submitted that during course of investigation, the petitioners were found Criminal Misc. No.M-79 of 2011 ..3..
innocent by the Police, therefore, no report under Section 173, Cr.P.C for their prosecution was filed by the Investigating Agency. During the course of trial of the FIR case, the complainant/prosecution moved an application under Section 319, Cr.P.C for summoning of the petitioners as additional accused but finding no merit in the same, the learned Judicial Magistrate Ist Class, Jalandhar, dismissed the same on 01.06.2006. The revision petition filed by the respondent- complainant before learned Court of Session also failed, therefore, the learned Judicial Magistrate Ist Class, Jalandhar, had wrongly summoned the petitioners to face trial in a complaint case. He further submitted that while passing the impugned summoning order, the learned Judicial Magistrate Ist Class, Jalandhar, did not take into consideration the finding arrived at by the Investigating Agency in the FIR case in which the petitioners were nominated as accused.
On the other hand, learned counsel for the respondent-complainant submitted that no FIR was registered against the petitioners, therefore, there was no occasion for the learned Judicial Magistrate Ist Class, Jalandhar, to consider the findings recorded during investigation by the police in the FIR case. She further submitted that the learned summoning court had rightly ordered the summoning of the petitioners, therefore, there is no merit in the present petition and the same be dismissed.
Heard.
Criminal Misc. No.M-79 of 2011 ..4..
Perusal of the summoning order dated 28.07.2009 (Annexure P-5) passed by learned Judicial Magistrate Ist Class, Jalandhar, clearly reveals the factum of registration of the FIR against the petitioners. It also shows that the findings arrived at by the Investigating Agency were not at all considered by the learned Summoning court while passing the said order.
Even the fact that an application under Section 319, Cr.P.C was moved by the complainant-respondent for summoning of the petitioners but the same was dismissed and also the fact of dismissal of criminal revision, challenging the said order before the Court of Session, were not brought to the notice of the learned Magistrate, when he passed the impugned summoning order.
It is apposite to mention here that the summoning order was passed on 28.07.2009 while the application under Section 319, Cr.P.C was dismissed on 01.06.2006 by the learned Judicial Magistrate Ist Class, Jalandhar, and the revision petition against that order was dismissed on 19.03.2007, i.e much prior to the passing of the impugned summoning order.
Even otherwise when the FIR was registered against the petitioners and they were found innocent during the investigation then in that eventuality, the only remedy available to the complainant-respondent was by way of an application under Section 319, Cr.P.C. The said remedy was already availed by the complainant-respondent and when she failed in her attempt to launch prosecution against the petitioner then the Criminal Misc. No.M-79 of 2011 ..5..
impugned summoning order was passed. In a latest judgment reported as Jile Singh vs. State of UP & another, 2012 (1) RCR (Criminal) 583, the Hon'ble Supreme Court of India held as under:
" 9. In the present case, if the order passed by the Chief Judicial Magistrate, Mathura, in issuing summons against the appellant on the complaint filed by respondent No.2-complainant, which has been confirmed by the High Court, is allowed to stand, it would mean addition of the appellant to the array of the accused in a pending case before the Sessions Judge at a stage prior to collecting any evidence by that court. This course is absolutely impermissible in view of the law laid down by a three Judge Bench of this Court in the Case of Ranjit Singh (supra). The stage of Section 209 of the Code having reached in the case, it was not open to the Chief Judicial Magistrate, Mathura to exercise the power under Section 204(1)(b) of the Code and issue summons to the appellant. The order of the Chief Judicial Magistrate, Mathura is totally without jurisdiction. The High Court was clearly in error in not keeping in view the law laid by this Court in the case of Ranjit Singh (supra) followed by a subsequent decision in the case of Kishori Singh (supra) and in upholding the illegal order of the Chief Judicial Magistrate, Mathura."
Therefore, it is held that once the FIR was registered against the petitioners and they were found to be innocent and the charge-sheet was submitted against their co-accused only, in that eventuality, the complainant had the only remedy to move an application under Section 319, Cr.P.C for summoning the petitioners as additional accused which recourse had already Criminal Misc. No.M-79 of 2011 ..6..
been exhausted by the respondent-complainant and even the revision petition filed against the order of dismissal of the application under Section 319, Cr.P.C was dismissed.
For the reasons recorded above, the present petition is allowed. The impugned complaint qua the petitioners as well as the summoning order dated 28.07.2009 passed by learned Judicial Magistrate Ist Class, Jalandhar, are hereby quashed.
August 29,2012 (Naresh Kumar Sanghi) seema Judge