Punjab-Haryana High Court
Dr. Jasminder Kaur And Another vs Raj Karan Singh Boparai on 3 October, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Misc. No.M-20260 of 2008
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Date of decision:3.10.2013
Dr. Jasminder Kaur and another
...Petitioners
v.
Raj Karan Singh Boparai
...Respondent
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Coram: Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Vikram Chaudhri, Advocate for the petitioners.
Mr. Vikas Singh, Advocate for the respondent.
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Inderjit Singh, J.
This criminal miscellaneous petition has been filed by Dr. Jasminder Kaur and Sukhleen Singh-petitioners under Section 482 Cr.P.C. against respondent-Raj Karan Singh Boparai for quashing of the complaint pending in the Court of Judicial Magistrate Ist Class, Batala and all other consequential proceedings arising therefrom including the order dated 7.5.2008 whereby the petitioners were summoned to face trial under Sections 379, 323, 452, 506, 427, 336 and 34 IPC as continuation of the same would tantamount to gross abuse of the process of law resulting in a grave miscarriage of justice.
The main case of the petitioners is that petitioner No.1 is a qualified M.B.B.S. Doctor and working as Medical Officer at ESI Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [2] Hospital, Amritsar since 1989. Her son petitioner No.2 Sukhleen Singh has passed 10+2 (Medical) examination from a reputed school in Amritsar. Harnam Singh Boparai had three sons, namely, Dr. Jagbir Singh, Raj Karan Singh (present respondent), Jaskaran Singh and one daughter Jasminder Kaur (petitioner No.1). Dr. Jagbir Singh died in 2002 and his wife, who is permanently settled in Amrica, had remarried even during the life time of Dr. Jagbir Singh. Their son Sandeep Singh had been living with his mother. In the year 1990, petitioner No.1 Jasminder Kaur lost her husband in a car accident. Petitioner No.2 was just five months old at that time. Father of petitioner No.1, namely, S. Harnam Singh has never been looked after by his sons, namely, Jaskaran Singh and Raj Karan Singh (complainant-respondent) as also by the grand-son Sandeep Singh and he was looked after and served by Jasminder Kaur petitioner No.1. Harnam Singh firstly executed Will dated 24.3.2005 bequeathing his immovable and movable assets in favour of his grandson Sandeep Singh, another grandson Gurleen Singh (son of Raj Karan Singh) and his maternal grandson Sukhleen Singh (son of Jasminder Kaur petitioner No.1) and Jaskaran Singh. The gesture of Harnam Singh did not bring any change in the attitude of his sons and on the contrary, the greed for more property and money of his sons prompted them to take recourse to frivolous, false and vexatious litigation involving petitioner No.1, her son petitioner No.2 and their father S. Harnam Singh. Faced with these peculiar and unfortunate circumstances, he cancelled the Will dated 24.3.2005 and public notice to this effect was also published in Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [3] "Daily Tribune" regarding the disinheritance of his sons Raj Karan Singh and Jaskaran Singh and grandsons from his estate. Thereafter, Harnam Singh executed another registered Will dated 25.1.2008 bequeathing his entire estate in favour of Jasminder Kaur petitioner No.1. It is also stated that respondent/complainant has always been harassing petitioners as well as their old parents and forcing, compelling and pressurizing his father to transfer the entire property in favour of the brothers and deprive petitioner No.1 of any inheritance. On 14.9.2000, the complainant created a nuisance in the night time at the house of petitioner No.1 and upon the complaint being lodged to the Police, he had tendered a written apology to the S.H.O., Police Station Civil Lines, Amritsar. On 23.6.2007, father of petitioner No.1 and the complainant made a complaint to Senior Superintendent of Police, Batala highlighting a grave threat to his life as well as to the life of the petitioners. Another complaint was made by Harnam Singh on 4.12.2007 to Senior Superintendent of Police, Amritsar. Civil Suits have also been filed by the respondent against the petitioners, which has been mentioned in the petition.
In the petition, it is stated that the learned Magistrate after recording preliminary evidence and without proceeding under Section 202 (1) Cr.P.C. and without holding any inquiry passed the summoning order. The complainant claims himself to the resident of Khatib and Chief Engineer at Khalsa College, Amritsar. Both the averments are incorrect. The petitioners are residents of Amritsar. It is also stated that in the reply, the respondent-complainant stated that neither the complaint nor the order Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [4] are liable to be quashed. It is also stated that the brief history of the case are the irrelevant facts. These are rather not relevant for the decision of this petition. It is also stated that preliminary evidence was recorded, which is in the nature of inquiry by the trial Court. After recording the preliminary evidence, the summoning order was passed which is correct and as per law. Further averments are mainly denied.
At the time of arguments, learned counsel for the petitioners contended that the complaint is false and is an abuse of the process of Court. When civil litigation is already pending between the parties why a widow along with a minor son will go to the complainant and how they can give beating to the complainant. It is alleged in the complaint that three-four unidentified persons came, one of them was having DBBL gun and fired in the air but no names have been mentioned of these persons. The version given by the complainant-respondent in the complaint is unnatural. There is no document on the record to show that the occurrence was reported to the Police. There is also no medical evidence showing any injury to the complainant. Therefore, oral version is not supported by any medical evidence or any document. Learned counsel for the petitioners further argued that there is nothing to show as to who were the unidentified persons. It looks unnatural that so many persons with arms and weapons entered the house only for the purpose of giving beating and no serious injury was given. Learned counsel for the petitioners further argued that in view of the non-compliance of the provisions under Section 202 Cr.P.C., the summoning order is liable to be Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [5] quashed. It is argued by the learned counsel for the petitioners that amended provisions under Section 20(1) Cr.P.C. are mandatory in nature.
On the other hand, learned counsel for the respondent- complainant argued that the trial Court is to decide the matter on the basis of evidence. He also argued that on the basis of preliminary evidence , the summoning order has been correctly passed. The learned Magistrate has passed the order on the basis of preliminary evidence which amounts to inquiry under Section 202 (1) Cr.P.C. Learned counsel for the respondent- complainant also argued that the version of the complainant cannot be held as unnatural or improbable.
I have gone through the evidence on record minutely and carefully and have also heard learned counsel for the petitioners and learned counsel for the respondent.
From the evidence on record, I find that Annexure-P.1 is the copy of the first Will executed by Harnam Singh in favour of four persons. Annexure-P.2 is cancellation deed dated 9.3.2007. Annexure-P.3 is public notice published in the "Daily Tribune" on 18/19.7.2007 in which the present complainant along with other son of Harnam Singh and his wife were disinherited. Annexure-P.4 is the apology letter written to the S.H.O. on 14.9.2000 by Raj Karan Singh. Annexure-P.5 is the letter written by Harnam Singh on 23.6.2007 to the Senior Superintendent of Police regarding threat to his life from his disinherited sons. Annexure-P.6 is another letter written by Harnam Singh on 4.12.2007. Annexure-P.7 is copy of the complaint in the present case. Annexure-P.8 is the summoning Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [6] order. Annexure-P.9 is the information given under the R.T.I. Act on 25.7.2008 that there is no person on the roll of the College working as Chief Engineer. In view of these documents and averments made in the petition, it is clear that civil litigation was already pending between the parties on the day of alleged occurrence. In the complaint, only two accused have been named, who are the present petitioners. The complainant says that the present petitioners along with three-four unidentified persons, one of them armed with DBL gun, entered his house. Firstly, no name has been mentioned regarding those persons nor any description etc. has been given. The occurrence took place on 7.4.2008 and the complaint was filed on 15.4.2008. There is no document on record to show that the matter was reported to the Police. There is no medical evidence on the record to support and corroborate the version of the respondent-complainant that any injury or beating was given to him. The version given by the complainant in the complaint also looks unnatural and improbable. A widow along with minor son and three-four persons why will go to the house of the complainant when civil litigation is already pending and she inherited the whole property. She is not the aggrieved party to go to the house of the complainant and give beating to him. Otherwise also, if five-six persons have gone to the house of the complainant to give beating, then it is also unnatural that no serious injury was given to him. There is no document on record to support and corroborate the complainants' version. A perusal of the record shows that already complaints were made to the Police against the respondent- Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh
Cr. Misc. No.M-20260 of 2008 [7] complainant apprehending threat to the life of Harnam Singh and the present petitioners etc. Further, I find that it is admitted fact that no inquiry under Section 202 (1) Cr.P.C. has been made in the present case. In the complaint, the respondent-complainant has given his address of Batala, District Gurdaspur. The complaint was also filed at Batala. The respondents-petitioners were shown as a resident of Amritsar. Section 202 (1) Cr.P.C. provides 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, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction), 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 Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [8] the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) and (3) xx xx xx xx xx"
Learned counsel for the petitioners placed reliance on the judgment of this Court in Savera Sidhu v. Harleen Sidhu and another, 2011 (2) RCR (Cr.) 442 (P&H), wherein it is held that where the accused resides outside the jurisdiction of the Magistrate where the complaint is filed, the inquiry under Section 202(1) Cr.P.C. is mandatory. In this case in para 12 of the judgment passed by this Court in Criminal Misc. No.7689 of 2009, Savera Sidhu v. Harleen Sidhu and another, it has been held that "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 said case, the law laid down in the case of S.K. Bhowmik v. S.K. Arora, reported as 2007 (4) RCR (Cr.) 650 in para 12 was also discussed, which is as follows:
"This Section (200 Cr.P.C.) provides for examination of the complainants and the witnesses present, if any, by a Magistrate while taking cognizance. Section 202 Cr.P.C. is contained in Chapter XV, which deals with the provisions relating to the steps which a Magistrate has to take while and Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [9] after taking cognizance of any offence on a complaint. Once the Magistrate takes cognizance of offence, then he has to follow the procedure prescribed under Section 202(1) Cr.P.C. Examination of the complainant and witnesses, if any, under Section 200 Cr.P.C. is done while or for taking cognizance. The Magistrate can then either hold enquiry or direct investigation to be made either by police officer or any other person. This is to help the Magistrate to decide if there is sufficient ground for him to proceed further. This seems to be emerging from the wording of Section 202 Cr.P.C. Thus, after taking cognizance, the stage of issuing a process would come, which under Section 202 Cr.P.C. can be postponed by the Magistrate if he thinks fit to hold an enquiry or direct an investigation to see if there are sufficient grounds for proceeding or not. This enquiry or investigation now is made obligatory/mandatory in a case where accused is residing at a place beyond the area in which he exercises jurisdiction. In other words, it would mean that such enquiry/investigation is mandatory even when he has taken cognizance after examining the complainant or his witnesses under Section 200 Cr.P.C. The examination of the complainant and witnesses as envisaged under Section 200 Cr.P.C. cannot be equated or be a substitute for the enquiry/investigation required under Section 202 Cr.P.C., prior to amendment, it Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [10] was in the discretion of the Magistrate to hold enquiry or have the case investigated under Section 202 Cr.P.C., which now is made mandatory in the case of person residing at a place beyond the area of his jurisdiction. The nature of this enquiry or investigation continues to be the same as was prior to coming into force of the amendment in question."
Therefore, in view of the law laid down, on which reliance has been placed by learned counsel for the petitioners, I find that the examination of the complainant and eye witness alone under Section 200 Cr.P.C. cannot be held as the enquiry as prescribed under Section 202 (1) Cr.P.C. Admittedly, in the present case, no enquiry as prescribed under Section 202 (1) Cr.P.C. has been made by the Court and non-compliance of the provisions of Section 202 (1) Cr.P.C., which are mandatory in nature, the summoning order cannot be passed where the respondents are residing outside the jurisdiction of the Court where the complaint was filed.
On this point, learned counsel for the petitioners also placed reliance on the judgment of the Supreme Court in National Bank of Oman v. Barakara Abdul Aziz and another, (2013) 2 SCC 488. He further placed reliance on the judgment in M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997 (4) R.C.R. (Cr.) 761. In para 26 of the judgment, the Hon'ble Supreme Court has held as under:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [11] two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
Learned counsel for the petitioners also placed reliance on the judgment of the Supreme Court in Udai Shankar Awasthi v. State of U.P. And another, 2013 (2) R.C.R. (Cr.) 503 (SC), in which it is held that question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold. Moreover, the issue of limitation must be Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [12] examined in light of the gravity of the charge in question.
On the other hand, learned counsel for the respondent placed reliance on the judgment in M/s Bharat Trading Company and others v. State of Haryana and another, 2012 (2) R.C.R. (Cr.) 134. I have gone through this judgment. The law laid down in this judgment is not applicable in the present case having distinguished facts.
Learned counsel for the respondent further placed reliance on the judgment of this Court in Amandeep Singh v. Balwinder Singh, (Criminal Misc. No.M-39010 of 2011, decided on 23.12.2011). I have gone through this judgment. This citation is not under Section 202 (1) Cr.P.C., therefore, having distinguished facts will not apply in the present case.
From the above discussion, I find that the complaint filed by complainant Raj Karan Singh Boparai, who is respondent in the present petition, is mala fide to put pressure upon the present petitioners and is clearly misuse/abuse of the process of the Court. Before passing the summoning order, the learned Judicial Magistrate has not complied with the mandatory provisions of Section 202 (1) Cr.P.C. As this complaint has been filed with mala fide intention to put pressure upon the petitioners and is misuse of the process of the Court, therefore, there is no need to remand this case for fresh decision after holding the enquiry.
In view of the above, I find merit in the present petition and the same is allowed. The criminal complaint as well as the summoning order dated 7.5.2008 passed by the learned Judicial Magistrate Ist Class, Batala and all other subsequent and consequential proceedings arising Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-20260 of 2008 [13] therefrom shall stand quashed.
October 3, 2013. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2013.11.06 11:17 I attest to the accuracy and integrity of this document Chandigarh