Punjab-Haryana High Court
Om Parkash Sood And Another vs Subhash Chander on 27 August, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-33169 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM M-33169 of 2009
Date of Decision: August 27 , 2012
Om Parkash Sood and another
... Petitioners
Versus
Subhash Chander
... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. Munish Gupta, Advocate,
for the petitioner.
Mr. J.B.S. Gill, Advocate,
for the respondent.
Paramjeet Singh, J.
The instant petition has been filed for quashing the complaint No. 25 dated 30.03.2007 (Annexure P/2) titled as "Subhash Chander vs. Aman Sood and another", pending in the Court of learned Chief Judicial Magistrate, Hoshiarpur, under Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "SC&ST Act") and Sections 323/500 of the Indian Penal Code along with summoning order dated 04.04.2009 (Annexure P/3) and the subsequent proceedings arising therefrom.
Brief facts of the case, as alleged in the complaint, are that respondent filed a complaint alleging that he belongs to Ad- dharmi community which is a Scheduled Caste and the respondent is running STD, PCO near Prabhat Chowk, Hoshiarpur. Petitioner No.2 is his friend and petitioner no.1 is father of petitioner no.2. Both the petitioners know that the respondent-complainant belongs to CRM M-33169 of 2009 2 Scheduled Caste category and is Ad-dharmi by caste. The petitioners are Sood by Caste and are running a Sanitary Shop under the name and style of Sood Sanitary Phagwara Road, Hoshiarpur. On 12.07.2005, complainant - respondent has purchased some Sanitary Goods from the shop of the petitioners. The respondent on 19.07.2005 accompanied by a plumber, namely, Naranjan Singh @ Boby son of Darshan Singh went to the shop for returning of unused Sanitary Goods. Petitioner no.2 was standing in front of his shop the complainant-respondent requested him to return the goods. He replied goods once sold cannot be returned. The respondent - complainant again requested that it was promised that unused goods will be taken back. At this, petitioner no.2 is alleged to have used against the respondent the words "Kutaya Chamara Jana Hai Ka Nai". On hearing this, petitioner no.1 came out of the shop and gave two shoes blows on the head of the respondent and said that "Kutaya Chamara" we do not take back goods which are returned by Chamars. On this, people gathered on the road and respondent felt humiliated. In para no.6 of the complaint, it is mentioned that incident had occurred at the shop. The respondent had earlier lodged an FIR No.210 dated 06.09.2005, under Section 3 & 4 of the SC&ST Act against the petitioners, but the police has not presented any challan. As such, the offence under the SC&ST Act committed by the petitioners.
The respondent examined himself and Naranjan Singh in preliminary evidence as CWs. Thereafter, petitioners have been summoned under Sections 3 and 4 of the SC&ST Act read with Section 323 IPC vide summoning order dated 04.04.2009 (Annexure CRM M-33169 of 2009 3 P/3). Hence, this petition.
After notice, respondent was afforded adequate opportunities to file reply to the petition, but for the reasons best known to him, he has not filed any reply.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners vehemently argued that on the same set of allegations, investigation is already undergoing in the FIR No.210 dated 06.09.2005. Without waiting for the outcome of the investigation, learned Chief Judicial Magistrate has chosen to proceed in the private complaint and issued summons to the petitioners without following the mandate of Section 210 of Code of Criminal Procedure (hereinafter referred to as the "Cr.P.C."). As per this provision, if it prima facie appears to the Magistrate during the course of inquiry or trial being held by him, that an investigation by the police is in progress in relation to the same set of facts/on the subject matter of inquiry/trial, then Magistrate shall stay the proceedings of such inquiry or trial and call for the report on the matter from the police authorities conducting the investigation in the FIR. To substantiate his contention, learned counsel for the petitioners has relied upon judgments of this Court in the matter of Kuldip Raj Mahajan vs. Hukam Chand, 2008(1) R.C.R. (Criminal) 370 and Savera Sidhu vs. Harleen Sidhu and another, 2011(2) R.C.R. (Criminal) 442.
Learned counsel for the petitioners further argued that there is a considerable delay even in lodging the FIR and the complaint. The alleged incident is dated 12.07.2005, FIR was CRM M-33169 of 2009 4 registered on 06.09.2005 and complaint was filed on 26.03.2007. On the ground of delay the present complaint and summoning order are required to be quashed.
Learned counsel for the petitioners further contended that the alleged incident has happened at the shop of the petitioners as per the averments of the respondent himself and it is not mentioned in the complaint that the alleged offensive words were spoken in public. As such the complaint and the summoning order are not sustainable. The offence under the SC&ST Act is only made out if such offensive words are spoken within the public view. Learned counsel for the petitioners further contended that the summoning order is a non-speaking order, no reference in the preliminary evidence recorded has been made in the order to come to a conclusion that the offence is made out under the provisions referred in the complaint. The order of the learned Chief Judicial Magistrate is without application of mind and is non-speaking and cryptic.
Learned counsel for the respondent vehemently denied the contentions of the learned counsel for the petitioners and and submitted that from the reading of the complaint, as well as, statements of CW1 and CW2 recorded as preliminary evidence, a case is clearly made out under the SC&ST Act, as well as, under the IPC. The order of the learned Chief Judicial Magistrate is self speaking and does not call for any interference.
I have considered the rival contentions of the learned counsel for the parties. Admittedly, in para 5 of the complaint, it is admitted that for the same allegations, the respondent has lodged an FIR which is still stated to be under investigation and yet challan has CRM M-33169 of 2009 5 not been presented. Merely on the basis of apprehension, respondent has rushed to file the impugned complaint. Once this fact came to the knowledge of the learned Chief Judicial Magistrate during the course of inquiry/trial then he was required to proceed in accordance with the mandate of Section 210 of Cr.P.C. Section 210 Cr.P.C. mandates that before passing summoning order, it is incumbent upon the learned Magistrate to stay the proceedings and call for the report from the Investigating Officer/concerned Police authorities. This Court in Savera Sidhu's case (supra) has considered the Kuldip Raj Mahajan's case (supra) and has held as follows:-
"12. The Single Bench of this Court in the case of Kuldip Raj Mahajan v. Hukam Chand, reported as 2008(1) R.C.R.(Criminal) 370 quashed the summoning process where the cancellation report was not taken into consideration by holding as under :-
"10. In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order date 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 respondent, despite knowledge, concealed the cancellation report of the police from the learned Magistrate. This is another indicator of mala fide on the part of the respondent.
13. Learned counsel for the respondent emphasized that disputed questions of fact cannot be adjudicated upon in the instant petition under Section 482 of the Code. Reliance in support of this contention has been placed on judgment in the case of T. Banamber Patra and others v. Vinod Kumar Sethi and another, reported as 2007(1) Law Herald (P&H) 54 and also on an unreported order dated 12.1.2006 of this Court in Crl.CRM M-33169 of 2009 6
Misc. No. 2052-M of 2006 titled as Ranjit Singh and others v. Sharda Devi. There cannot be any quarrel with this legal proposition. Disputed questions of fact cannot be gone into in a petition under Section 482 of the Code. However, this Court cannot be a helpless spectator when it is made out that the criminal prosecution is mala fide and an abuse of the process of the Court. In fact, this Court has inherent power and corresponding duty to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case, the impugned complaint in result of mala fide as the respondent was nursing grudge against the petitioner as discussed herein above. The witnesses cited by the respondent were also aggrieved against the petitioner. The alleged incidents dated 9/10.9.1999 were not mentioned in letter dated 10.9.1999 (Annexure R-4) sent by the respondent. There was long and unexplained delay in reporting the matter to the police. After investigation by Gazetted Officer, the FIR lodged in the same matter was found to be false and cancellation report was submitted by the police. The respondent, despite being aware of the cancellation report, concealed the same from the learned Magistrate. The impugned summoning order has also been passed without considering or even referring to the cancellation report. Keeping in view all these circumstances, it is a fit case in which this Court has to exercise its inherent powers under Section 482 of the Code by quashing the impugned complaint and summoning order so as to prevent the abuse of process of court and to secure the ends of justice. In addition to it, the alleged offences are also not made out from the allegations in the impugned complaint."
13. In the present case, admittedly, the factum of the investigation was in the knowledge of the Magistrate. Thus, on account of the fact that the investigation was pending in the FIR on the same facts much before even the evidence was recorded, it was incumbent to stay the proceedings and to await or call for the report of the police."
Admittedly, in the present case also, the factum of the pendency of FIR and investigation in the FIR was in the knowledge of learned Chief Judicial Magistrate. Since the investigation was pending in the FIR on the same set of facts, it was the duty of the learned CRM M-33169 of 2009 7 Magistrate to follow the mandate of Section 210 Cr.P.C. and he should have stayed the proceedings in complaint case and should have called for the police report in the FIR case and it clearly indicates that non-application of mind by the learned Chief Judicial Magistrate. As such, the process issued by the learned Chief Judicial Magistrate in the complaint case is not sustainable.
The perusal of the summoning order shows that the order has been passed without considering the relevant evidence on record. The summoning order is non-speaking and result of non-application of mind. After reproducing the complaint, learned Chief Judicial Magistrate passed the impugned summoning order and had not made any effort to discuss what evidence has come before him. The operative part of the order reads as under:-
"4. After going through the allegations contained in the complaint an evidence lying on the file, there are sufficient grounds to proceed against the accused for the offence punishable under Sec. 3 & 4 of SC/ST (Prevention of Atrocities) Act and Sec. 323 of IPC. They are accordingly ordered to be summoned to face trial for above said offence on filing PF, copies of complaint and list of witnesses for 11.7.2009."
From the above, it is clear that the summoning order is non-speaking, cryptic and is the result of non-application of mind, coupled with the non following of mandate of Section 210 Cr.P.C. and, thus is not sustainable.
The reading of the complaint makes it clear that it is not stated in the complaint (Annexure P/2) that accused was not a member of SC&ST and he intentionally insulted or intimidated with intend to humiliate the respondent in a place within public view. The basic ingredients of the offence are missing in this complaint. Section CRM M-33169 of 2009 8 3(1)(x) of the SC& ST Act reads as under:
"3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :-
xxx xxxx xxx
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."
In the instant case, the allegation of the respondent in the entire complaint is that on 12.7.2005, the petitioners abused him in the name of his caste at the shop. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant - respondent ought to have alleged that the accused-petitioners were not members of the Scheduled Caste or a Scheduled Tribe and the respondent was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the petitioners to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. Identical view was taken by the Hon'ble Apex Court in the case of Gorige Pentaiah vs. State of A.P. & others, 2008(4) RCR (Criminal) 171.
In the present case, there is no legal evidence from which it may transpire that petitioners have committed the offence under Section 323 IPC, no reference to the statements of the CWs has been made in the impugned order in this regard. Even the respondent has not filed any reply to contradict the averments made in the petition, to substantiate the allegations mentioned in the complaint coupled with any legal evidence of CWs brought before the Court.
Admittedly, the incident is of 12.06.2005, FIR was lodged CRM M-33169 of 2009 9 on 06.09.2005 and the impugned complaint was filed on 26.03.2007. On this ground also, the complaint and the summoning order are not sustainable as the delay has remained unexplained.
In view of the above discussions, present petition is allowed. The impugned complaint dated 26/30.03.2007 (Annexure P/2), as well as, summoning order dated 04.04.2009 (Annexure P/3) and the subsequent proceedings arising therefrom stand quashed.
August 27, 2012 [Paramjeet Singh] vkd Judge