Punjab-Haryana High Court
Ashok Kumar Mahajan And Others vs State Of Punjab on 1 December, 2009
Author: S.S.Saron
Bench: S.S.Saron
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Misc.No.M-26063 of 2008
Date of decision : 01.12.2009
Ashok Kumar Mahajan and others
... Petitioners
Versus
State of Punjab
...Respondent
Present: Mr.M.S.Bedi, Sr. Advocate with
Mr.Avtar Singh, Advocate for the petitioners.
Mr.P.S.Sidhu, Addl. Advocate General, Punjab.
Mr.M.K.Dogra, Advocate for the complainant.
S.S.Saron, J.
Heard counsel for the parties.
The case primarily relates to settlement of accounts between the petitioners and the complainant. The petitioners seeks pre-arrest bail in a case registered against them for the offences under Sections 336, 452, 427, 323, 506 Indian Penal Code, Section 25 of the Arms Act and under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, ( no section is mentioned). The case has been registered on an application filed by Ramesh Kumar son of Karam Chand addressed to the Chairman, Punjab State Human Rights Commission. The complainant is running an electronic items shop in the name of R.K. Electronics. In terms of a settlement in 2002, the complainant till 2004 gave 260 electronic items to Mahajan Finance company of the petitioners who further sold it to their customers. The sale amount came to Rs.20,98,339/- out of which the complainant received Rs.6,75,947/- and balance of Rs.12,24,392/- still remains to be received. The complainant sent a legal notice on 5.9.2006 through his counsel for the return of his money. On 17.9.2006 the complainant went to the shop of the accused and he was abused in the name of his caste. On 18.9.2006, at about 6:45 p.m. the accused are said to have come to the shop of the complainant and abused and threatened him, Crl.Misc.No.M-26063 of 2008 2 Deepak Kumar is stated to be holding a pistol and fired at the complainant. The brothers of the complainants also reached at the spot and they were abused. Despite efforts made by the police, FIR was not registered.
Learned Senior counsel for the petitioners has submitted that the alleged occurrence relates to 18.9.2006 whereas the FIR has been lodged on 4.6.2008 i.e. after one year and nine months. In fact the main dispute it is submitted is with regard to financial dealings in which a compromise was effected. The complainant had to pay some amount to the petitioners for which he gave a cheque of Rs.5,74,000/- which was not honoured and in a complaint filed by M/s Mahajan Finance Company, the complainant side of the present case has been summoned vide order dated 30.1.2007 (Annexure P-1) by the learned Chief Judicial Magistrate, Gurdaspur for the offence under Section 138 of the Negotiable Instruments Act. The complainant side of the present case has also filed civil suits (Annexures P-2 and P-3) against the petitioners' side seeking return of cheques and other bank papers as also for rendition of accounts. Therefore, it is submitted that the entire occurrence is fabricated.
Learned State counsel, on instructions from Head Constable- Jasbir Singh submits that custody of the petitioners is not required for the purposes of investigation.
Shri M.K.Dogra, counsel for the complainant, has opposed the application seeking pre-arrest bail. It is submitted that the police is hands-in- glove with the petitioners and is not taking any action in the case nor carrying out effective investigations. It is submitted that a direction is liable to be issued to the police to investigate the case properly.
In my view, such a direction is not normally to be issued in a petition that has been filed by the petitioners seeking pre-arrest bail under Section 438 Cr.P.C. In Sakiri Vasu vs. State of U.P. and others, 2008 (1) RCR (Crl.) 392 (SC), it was observed by the Supreme Court that if after registering a Crl.Misc.No.M-26063 of 2008 3 FIR no proper investigation is held, it is open to an aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) Cr.P.C. is filed before the Area Magistrate, the said Magistrate can direct proper investigation to the made in a case where, according to the aggrieved person, no proper investigation was made. However, this Court is normally not to issue such direction for conducting the investigation and the aggrieved person in the first instance is to approach the concerned Magistrate.
In the circumstances, the complainants may, therefore, in case they are aggrieved against the inaction of the police, may approach the Area Magistrate concerned. The present case, as already noticed, has been registered one year and nine months of the incident that occurred on 18.9.2006. The dispute between the parties relates to settlement of accounts. The offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act does not mention the section under which it is made out. Therefore, it is not clear as to whether the provisions of the said Act are attracted. Moreover, the case primarily relates to business dealings for which civil suits have been filed by the complainant side. The accused have filed a criminal complainant regarding one cheque being not honoured in which summons have been issued vide order dated 30.1.2007 (Annexure P-1) by the learned Chief Judicial Magistrate, Gurdaspur. A case for the offence under Section 406 Indian Penal Code has also been registered against the complainant- Ramesh Kumar and his brothers Bishan Dass and Sunil Kumar on the complaint of Ashok Kumar (petitioner No.1). The said case is pending in the Court of Additional Chief Judicial Magistrate, Gurdaspur. The dispute between the parties was also referred to the Mediation Centre of this Court. However, despite some hearings, the parties were unable to reach at a settlement and in terms of proceedings recorded on 20.11.2009, the case has Crl.Misc.No.M-26063 of 2008 4 been sent back to this Court. May be at some future time, the parties can arrive at a settlement.
Keeping in view of the fact that the State does not require the custody of the petitioner and the dispute is primarily of business dealings, the interim bail granted to the petitioners on 20.10.2008 is made absolute. The petitioners in the event of their arrest shall be admitted to bail on their furnishing personal bonds and surety each to the satisfaction of the Investigating/Arresting Officer. The petitioners shall abide by the conditions of Section 438(2) of the Code of Criminal Procedure.
Nothing observed herein shall be construed as an expression of opinion on the merits of the case.
[ S.S.Saron ] Judge 01.12.2009 sd