Punjab-Haryana High Court
Bhupinder Phougaat vs H.R.Kinra on 24 April, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
Crl.Misc.No.M-39328 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
Crl.Misc.No.M-39328 of 2007
Date of Decision:- 24.04.2012
Bhupinder Phougaat ....Petitioner(s)
vs.
H.R.Kinra ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Sanjay Vasisth, Advocate,
for the petitioner.
Mr.Raman B.Garg, Advocate,
amicus Curiae for the respondent,
along with respondent in person.
***
AUGUSTINE GEORGE MASIH, J.
In this petition, under Section 482 Cr.P.C., the petitioner has approached this Court praying for quashing of criminal complaint No.303/2005 dated 09.06.2005 titled as H.R.Kinra vs. Devinder Singh Phougaat and others (Annexure P-5), order dated 13.12.2005 passed by the Judicial Magistrate, Ist Class, Siwani-camp at Bhiwani (Annexure P-6) whereby he has been summoned for an offence punishable under Section 420 IPC and all consequential proceedings arising therefrom including the proceedings in Criminal Revision No.64 of 2006 (Annexure P-7) pending against the order dated 13.12.2005 preferred by the respondent before the Court of Sessions, Bhiwani on the ground that the complaint and the Crl.Misc.No.M-39328 of 2007 -2- consequential proceedings arising therefrom are an abuse of process of law.
Counsel for the petitioner contends that the impugned complaint has been preferred by the respondents without disclosing the fact that he had earlier preferred criminal complaint No.158 of 2004 against the petitioner and three others, namely, Smt.Ruby, Sh.Prem Paul, and Dr.Ravinder Kumar, which complaint was dismissed by the Judicial Magistrate, Ist Class, Siwani Camp at Bhiwani vide order dated 24.11.2004 (Annexure P-3) holding that the matter is of civil nature and unnecessarily, cloak of criminal nature has been given. The proper forum for the complainant is to file a civil suit with regard to agreement; hence no prima facie case is made out against the accused. Against the said order, respondent had preferred Criminal Revision No.101 of 2004 (Annexure P-
4) which was filed on 1.12.2004. The same was still pending when he filed another complaint i.e. Crl.Complaint No.303 of 2005 on 9.6.2005 (Annexure P-5) titled as H.R.Kinra vs. Devinder Singh Phougaat and others wherein apart from the petitioner, there are 16 other accused. This second complaint is impugned through this petition on the ground that the petitioner did not disclose the factum of filing of the earlier complaint, dismissal thereof and the pendency of the revision petition against the said dismissal order. For concealment of facts, the second complaint is not maintainable and deserves to be quashed on this ground. Reliance has been placed by the petitioner on the judgment of this Court passed in Baldev Singh Vs. State of Punjab and another, 2006 (1) RCR (Criminal) 119. Principle of double jeopardy has also been invoked by the counsel for the petitioner to contend that on this ground also, second complaint is not Crl.Misc.No.M-39328 of 2007 -3- maintainable. His contention is that the present complaint is a misuse of process of law and the same is not maintainable for the reason that the dispute is purely civil in nature where an effort has been made by the respondent to cloak it as a criminal case, alleging commission of offences by the accused in the complaint which is not sustainable in the light of the judgment of the Supreme Court in the case of G.Sagar Suri vs. State of U.P., 2000 (1) RCR (Criminal) 707, where while elaborating the powers of the High Court under Section 482 Cr.P.C., one of the grounds is that if a matter which is essentially of civil nature and has been given a cloak of criminal offence, the same can be quashed. Counsel has further urged that during the pendency of the present petition, criminal revision preferred by the petitioner against the order dismissing the first complaint dated 24.1.2004 stands dismissed by the Additional Sessions Judge-I, Bhiwani, vide order dated 20.7.2009 (Annexure P-8). On this basis, he presses that the dispute is purely of civil nature and, therefore, the present petition deserves to be allowed by quashing the criminal complaint No.303 of 2005 along with all consequential proceedings arising therefrom including the order summoning the petitioner dated 13.12.2005 (Annexure P-6) and the revision petition pending before the Sessions Judge (Annexure P-7).
On the other hand, learned amicus curiae as also the respondent in person have vehemently argued that two complaints are totally distinct and different from each other. Although petitioner is an accused, both in the first complaint as well as in the second complaint, the first complaint was preferred against the Management of Gyan Dhwaj School whereas the second complaint is against the Society managing the affairs of the School. Crl.Misc.No.M-39328 of 2007 -4- The first complaint was filed on the basis of an agreement and non- compliance of the same whereas the subsequent complaint is based upon the facts and documents which have come to light after the filing of the first complaint which has changed the total complexion of the case and, therefore, the filing of the second complaint by the petitioner creates no bar for proceeding with this complaint because of the petitioner filing an earlier complaint.
Counsel for the respondent has submitted that merely because an earlier complaint has been filed by the respondents and has been dismissed by the Magistrate does not bar the entertainment of second complaint where new facts had come to light and could not have been brought to the notice of the Court in the previous proceedings, as in the present case. In support of this contention, reliance has been placed upon a judgment of the Supreme Court in the case of Mahesh Chand vs. B.Janardhan Reddy and another, 2003 (1) RCR (Criminal) 420. He, on his basis, contends that the principle of double jeopardy would not be attracted. He further contends that where the facts and circumstances of a particular case disclose a civil liability as also indicate commission of offence, both the proceedings can continue simultaneously. In support of this contention, reliance has been placed upon a judgment of the Supreme Court in the case of B.Suresh Yadav vs. Sharifa Bee and another, 2007 (4) RCR (Criminal) 870.
Counsel further contends that the learned Judicial Magistrate, Ist Class, on the basis of the preliminary evidence led by the respondent- complainant had found a prima facie case against the petitioner to be made Crl.Misc.No.M-39328 of 2007 -5- out and accordingly has summoned him to face trial for an offence punishable under Section 420 IPC. He contends that while exercising powers under Section 482 IPC, the Court must refrain itself from interfering in such summoning orders which are based upon the evidence led by the complainant before the trial Court. Reliance has been placed, in support of this, upon a judgment of the Supreme Court in the case of Maninder Kaur vs. Rajinder Singh, 1992 (suppl.)(2), Supreme Court Cases 25. He, on this basis, contends that the present petition is devoid of any merit and deserves to be dismissed.
I have heard counsel for the parties and the respondent in person and have gone through the records of the case.
The principle as laid down by this Court in Baldev Singh's case (supra) with regard to concealment of facts from the Court cannot be disputed as a litigant is expected to approach the Court of law by disclosing all relevant facts. This is essential for the reason that the Court must know a clear picture before proceeding to initiate a process, much-less a criminal process, against a party. However, what is further required to be seen is whether non-disclosure of the dismissal of the earlier complaint or the pendency of the revision petition against the order of dismissal of the complaint would be of such a nature as would cause prejudice to the party. If the nature of the complaint, the particulars, the facts and the reasons are quite distinguishable or distinct, the same cannot be made the basis for dismissing a subsequent complaint which may be termed as a second complaint. This principle has been recognized by the Supreme Court in Mahesh Chand's case (supra) wherein while dealing with the principle of Crl.Misc.No.M-39328 of 2007 -6- double jeopardy with reference to the maintainability of a second complaint, it has been held that one of the circumstances do not bar such a complaint or can be hit by the principle of double jeopardy where new facts have come to light or which could not with reasonable diligence been brought on record in the previous proceedings but have been adduced in the second complaint.
The present would be a case of such a nature. No doubt, respondent has earlier filed a complaint against the petitioner and three others which, as is apparent from the complaint, was preferred against the management of the School. This complaint was filed on 2.11.2004 while the second complaint was filed on 3.6.2005. Perusal of this complaint would show that it is against the Society managing the affairs of the School. The nature of the offences alleged to have been committed based upon the facts are more or less different from the one which are alleged to have been committed in the first complaint. Except for the petitioner, no other accused is common. The allegations are also different against the accused and certain subsequent events which have taken place as also the documents which have seen the light of the day after the filing of the first complaint, have been made the basis for alleging that the offences have been committed and have been made out against the accused. Thus, there is a substantial difference between the first complaint and the second complaint and, therefore, the principle of double jeopardy or the bar to the filing of the subsequent complaint would not be applicable to the case in hand.
The contention which has been raised by the counsel for the petitioner that the present dispute is purely a dispute of civil nature cannot, Crl.Misc.No.M-39328 of 2007 -7- at this stage, be accepted in the light of the allegations in the complaint and the order dated 13.12.2005 passed by the Judicial Magistrate, Ist Class, Siwani-Camp at Bhiwani (Annexure P-6) from which a prima facie case for initiating criminal proceedings against the petitioner is spelt out. This Court refrains itself to comment upon the order dated 13.12.2005 as a whole or in detail for the reason that criminal revision against the said order is pending before the Sessions Judge-I, Bhiwani, lest any of the parties including the petitioner and respondents are prejudiced by the observations made by this Court.
The judgment passed by the Supreme Court in G.Sagar Suri's case (supra), would not be applicable to the facts of the present case as that was a case where a criminal complaint under Section 138 of the Negotiable Instruments Act, had already been pending when criminal complaint under Section 406, 420 IPC was preferred which was found to be an abuse of process of law.
In view of the above, finding no merit in the present petition, the same stands dismissed.
April 24th , 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE