Punjab-Haryana High Court
Baljeet Singh vs Sunil Devi & Ors on 5 September, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-24888 of 2014 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-24888 of 2014
DATE OF DECISION: 05.09.2014
Baljeet Singh ..........Petitioner
Versus
Sunil Devi and others ..........Respondents
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. V.S. Punia, Advocate
for the petitioner.
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DAYA CHAUDHARY, J.
Crl. Misc. No. 27407 of 2014 This application has been filed for placing on record Annexures P-3 to P-5.
Application is allowed and Annexures P-3 to P-5 are taken on record.
Crl. Misc. No. M-24888 of 2014 The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 20.12.2013 passed by Additional Sessions Judge, Bhiwani, vide which, order dated 14.8.2012 passed by Judicial Magistrate Ist Class, Charkhi Dadri summoning respondents No.1 and 2 was set aside.
Briefly, the facts of the case are that petitioner-complainant filed a complaint before JMIC, Charkhi Dadri alleging therein that on 17.7.2011 at 10.00 pm, when he was sleeping in his room, some persons knocked the door of his room and when he opened the door, he found Kuldeep, Sajjan Singh, Sombir, Smt. Sunil and Smt. Shanti along with 6/7 POOJA SHARMA 2014.09.17 10:32 Crl. Misc. No. M-24888 of 2014 (2) other persons with covered faces, who entered his room. Said persons gave slaps and fists blows to the petitioner and asked him to hand over the money received by him after selling the land. The petitioner stated that from the said money, loan amount has been repaid and now he has no money with him. On which, Kuldeep, Sajjan Singh, Sombir, Smt. Sunil and Smt. Shanti started searching his box and other 6-7 persons who were armed with the weapons asked him to stand in the corner of the room failing which he will be killed. An amount of ` 4700/- which was kept in the box and a golden ring weighing about half tola was taken forcibly out of the box and also lifted two kgs desi ghee, which was also kept there. The petitioner was also threatened to sign some documents, which they were keeping, failing which he was threatened to kill and his signatures were obtained on blank papers stating that those papers will be used for the purpose of cases pending before the Court. On hearing the noise, mother of the petitioner, namely, Smt. Lachhma, Ram Avtar and Sunita arrived on the spot and tried to rescue him. Accused persons also gave slaps and fist blows to the mother of the petitioner and then tied the petitioner and his mother with the string. All the said persons left the place in a jeep which was parked at a distance of about one acre. On the basis of said complaint, summoning order dated 14.8.2012 was passed by JMIC, Charkhi Dadri.
Aforesaid order dated 14.8.2012 was challenged by accused Smt. Sunil Devi and Sombir before Additional Sessions Judge, Bhiwani, by way of filing revision petition, which was allowed on 20.12.2013 qua to them. The order passed by Additional Sessions Judge, Bhiwani is subject matter of challenge in the present petition.
Learned counsel for the petitioner contends that well reasoned summoning order passed by the trial Court on 14.8.2012 has been set POOJA SHARMA 2014.09.17 10:32 Crl. Misc. No. M-24888 of 2014 (3) aside without taking into consideration the specific allegations against the accused persons. Learned counsel further contends that summoning order was passed by taking into consideration the preliminary evidence and a prima facie case for commission of offence punishable under Section 341,342,384,427,452,458 and 506 IPC was made out. Learned counsel also contends that the order has been set aside without taking cognizance of Section 202 Cr.P.C. It is also the contention of learned counsel that a finding has been recorded that due to strained relations between petitioner and respondent No.1, the complaint was filed by the petitioner to harass the respondents and at the time of passing order of summoning of the accused persons only a prima facie case is to be seen and merits are not to be discussed.
Heard the arguments advanced by learned counsel for the petitioner and have also gone through the orders passed by the trial Court as well as by the revisional Court.
Order dated 14.8.2012 passed by JMIC, Charkhi Dadri is reproduced as under:-
"From the perusal of the statements of the witness examined by the complainant in his preliminary evidence and the documents relied upon by the complainant, this Court is of the considered opinion that a prima facie case for the commission of an offence punishable under Section 341,342,384,427,452, 458 and 506 IPC is made out against all the accused. I order accordingly. Let all the accused be summoned under Section 341,342,384,427,458 and 506 IPC, on the filing copies of complaint etc. for 28.9.2012."
The aforementioned order passed by the trial Court was set aside by Additional Sessions Judge, Bhiwani on the ground that old POOJA SHARMA 2014.09.17 10:32 Crl. Misc. No. M-24888 of 2014 (4) litigation was pending between the parties. There were strained relations between Baljeet Singh (petitioner) and Sunil as divorce petition was filed by Baljeet against his wife Sunil (respondent No.1), which was dismissed. Against the said decision, an appeal was filed by Baljeet before the High Court and the same was also dismissed. It has also been mentioned in the order passed by revisional Court that as per allegations in the complaint, beatings were given to the complainant and his mother but there is no medical examination on record in support thereof. On the basis of statement of the complainant and the facts on record, the revisional Court came to the conclusion that the allegations against respondents No.1 and 2 were false.
The order passed by the revisional Court has been challenged by complainant-petitioner on the ground that specific allegations were there against respondents No.1 and 2 and at the time of summoning only a prima facie case is to be seen but this aspect has not been considered by the revisonal Court.
Undoubtedly, the Magistrate has to satisfy himself prior to taking cognizance of the allegations by inquiry either himself/herself or direct an investigation by the police officer or by some other person as he/she thinks fit. In the present case, the summoning order has been passed without giving any finding whatsoever. Although a preliminary evidence has been recorded for issuance of process of summoning the accused but no medical record of the injuries was there to show that any injury was caused to the complainant. Due to previous litigation between the parties, there were strained relations between them and on perusal of statements of CWs, the allegations appears to be false.
As per provisions of Section 202 Cr.P.C., it is mandatory for the Magistrate to postpone the issue of process against the accused persons POOJA SHARMA 2014.09.17 10:32 Crl. Misc. No. M-24888 of 2014 (5) or either inquire into the allegations made in the complaint by himself or to direct an investigation to be made by the police officer for the purpose of deciding whether the allegations are correct or not but no such report as required under Section 202 Cr.P.C. has been called for. Section 202 Cr.P.C. is reproduced as under:-
"202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a POOJA SHARMA 2014.09.17 10:32 Crl. Misc. No. M-24888 of 2014 (6) person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant."
Litigation in the form of Section 125 Cr.P.C. as well as under
Section 13 of the Hindu Marriage Act was also pending there between petitioner-Baljeet and respondent No.1-Sunita which has been dismissed upto this Court. Subsequently this complaint was filed by the petitioner just to harass the respondents, who are residents of State of Rajasthan and mandatory compliance of Section 202 Cr.P.C has also not been complied with, which clearly shows that order of summoning passed by the Magistrate is beyond jurisdiction.
The Magistrate was bound to hold enquiry before issuing process. However, the revisional Court would not have any power to interfere or substitute its own discretion over that of a Magistrate, in case the power had been exercised judicially. Whether a prima facie case is made out from the evidence recorded or not. In this case, no enquiry was conducted and mandatory provision has been violated and order of Magistrate was rightly set aside. Neither any finding was recorded nor prima facie case for summoning was made out as allegations of giving beatings were there but no medical evidence was there and old litigation was there and complaint filed was just a counter blast of that litigation and to falsely implicate the respondents.
In view of the facts mentioned above, there is no merit in the contentions raised by learned counsel for the petitioner and petition being devoid of any merit is hereby dismissed.
September 05, 2014 (DAYA CHAUDHARY)
pooja JUDGE
POOJA SHARMA
2014.09.17 10:32
Crl. Misc. No. M-24888 of 2014 (7)
POOJA SHARMA
2014.09.17 10:32