Punjab-Haryana High Court
Tara Chand And Others vs Prem Chand on 6 September, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No. M-1209 of 2012 ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. M-1209 of 2012
Date of Decision: September 06,2012
Tara Chand and Others
....Petitioners
Versus
Prem Chand
....Respondent
CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI
Present: Mr.Anmol Rattan Singh Sidhu, Senior Advocate with
Mr.Narender Pal Bhardwaj, Advocate,
for the petitioners.
Mr.Deepak Jain, Advocate, for the respondent.
......
Naresh Kumar Sanghi, J.
Prayer in the present petition filed under Section 482, Cr.P.C is for quashing of the judgment dated 21.12.2011 (Annexure P-1) passed by the learned Additional Sessions Judge, Mansa, in the Criminal Revision No.09 dated 04.08.2010 wherein the order dated 22.05.2010 passed by the learned Judicial Magistrate Ist Class, Budhladha, was challenged.
The brief facts of the case are that respondent/complainant-Prem Chand filed a complaint before the learned Judicial Magistrate Ist Class, Budladha, against the petitioners for their summoning and trial alleging the commission of the offences punishable under Sections 307, 354, 452, 506 read with Section 34, IPC and Section 25 of the Arms Act. The respondent/complainant averred in the complaint that about nine Criminal Misc. No. M-1209 of 2012 ..2..
years ago, the petitioners/accused had fraudulently purchased his house from his father, Brij Lal and turned out the respondent/ complainant from the said house. Thereafter, the respondent/ complainant started wandering from one place to another. In the year 2004, the complainant took a house on rent at Bareta. The petitioners/accused had apprehension that the respondent/ complainant might take possession of the house sold by his father to them, therefore, they wanted to turn out the respondent/complainant from the said house and alienate it. The respondent/ complainant moved several complaints to the authorities but no action was taken against the petitioners. Petitioner no.4, Angoori Devi, tried to kill the respondent/ complainant by administering poison to him. On 19.02.2007, the respondent/complainant after closing his General Store went to his house and at about 9.00 p.m started taking dinner with his family members. A electric bulb was on in the courtyard of his house. In the meantime, the petitioners armed with sticks, hockeys and pistol entered into the house of the respondent/complainant. Tara Chand (petitioner No.1) asked Davinder Kumar (petitioner No.2) to fire a shot at complainant to kill him but the shot so fired missed the target and hit on the wall after crossing nearby area of his left ear. The respondent/complainant in order to save himself tried to go to the roof of the house but in the meantime, Davinder Kumar (petitioner no.2) fired yet another shot at him but the respondent/complainant saved himself by hiding behind the wall Criminal Misc. No. M-1209 of 2012 ..3..
of the staircase. Ajay Kumar (petitioner no.3) caught hold of the wife of the respondent/ complainant from her hairs and torn her clothes. Angoori Devi (petitioner no.4) gave beatings to the children of the respondent/complainant. On hearing hue and cry, many persons including Dev Raj reached at the spot and on seeing them, the petitioners/accused decamped from there along with their respective weapons. While leaving the spot, petitioner No.1 threatened the respondent/complainant that on that day he had been spared but in future they would kill him. The respondent/complainant approached the police but no action was taken, therefore, the complaint was filed.
The respondent/complainant in support of the allegations contained in the complaint produced the preliminary evidence and after hearing the respondent/complainant learned Judicial Magistrate Ist Class, Budladha, ordered the summoning of petitioner nos.1 to 3, Tara Chand, Devinder Kumar and Ajay Kumar, for the offences punishable under Sections 323, 451, 506 read with Section 34, IPC. However, dismissed the complaint qua Angoori Devi (petitioner No.4).
The respondent/complainant challenged the order dated 22.05.2010 passed by learned Judicial Magistrate Ist Class, Budladha, before learned Additional Sessions Judge, Mansa, who accepted the revision petition and ordered the summoning of the petitioners for the offences punishable under Sections 307, 354, 452, 506 read with Section 34, IPC and Section 25 of the Arms Act in addition to the offences punishable under Sections 323, Criminal Misc. No. M-1209 of 2012 ..4..
451, 506 read with Section 34, IPC for which petitioner Nos.1 to 3 had already summoned by learned Judicial Magistrate Ist Class, Budladha. The operative part of the order passed by learned Additional Sessions Judge, Mansa, is reproduced below:-
"15. In view of aforesaid case laws and discussion and reasons given above, this court is of the considered view that learned trial Court has failed to appreciate the aforesaid facts. So learned trial Court fell into great error while passing impugned order which resulted into miscarriage of justice to the revisionist against the accused under Sections 307, 354, 452, 506,34 IPC read with Section 25, 54, 59 of the Arms Act besides the other offences for which the accused were already summoned. Therefore, revision filed by the revisionist is accepted and respondents/accused are ordered to be summoned under Sections 307, 354, 452, 506, 34, IPC read with Section 25, 54, 59 of the Arms Act along with other offences under Section 451, 323, 506 read with Section 34 of Indian Penal Code. The parties are directed through their counsel to appear before the learned Committing court on 16.01.2012 for further proceedings in accordance with law. Lower court record along with copy of this judgment be sent back and the revision file be consigned to the record room."
Learned counsel for the petitioners has confined his arguments to the extent that the learned Additional Sessions Judge, Mansa, while exercising the powers enshrined in Section 398, Cr.P.C was not empowered to direct the learned Judicial Magistrate Ist Class, Budladha, for summoning of the petitioners for the offences punishable under Sections 307, 354, 452, 506 Criminal Misc. No. M-1209 of 2012 ..5..
read with Section 34, IPC, and Section 25 of the Arms Act. Learned Additional Sessions Judge, Mansa, if not satisfied with the order passed by learned Judicial Magistrate Ist Class, Budladha, in that eventuality, he could direct the learned Judicial Magistrate Ist Class for further inquiry only.
Learned counsel for the respondent/complainant has very fairly not controverted the legal issue raised by learned counsel for the petitioners. However, he submits that in view of the legal defect in the judgment passed by learned Additional Sessions Judge, Mansa, the matter be remitted to the learned Judicial Magistrate Ist Class, Budladha, for further inquiry and thereafter to pass a fresh order in accordance with law.
Though the learned counsel for the respondent has conceded the infirmity in the order passed by the learned Additional Sessions Judge, Mansa, but to justify the acceptance of the present petition while setting aside the judgment passed by learned Additional Sessions Judge, Mansa, it is deemed appropriate to discuss the legal proposition concerning the issue.
To comprehend the controversy involved herein effectively, it is desirable to reproduce Section 398, Cr.P.C, which reads as under:-
"398, Power to order inquiry: In examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into Criminal Misc. No. M-1209 of 2012 ..6..
any complaint which has been dismissed under section 203 or sub-section (4) of Section 204 or into the case of any person accused of an offence who has been discharged.
Provided that no court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made."
Perusal of the above provision clearly reveals that while exercising the powers under Section 397, Cr.P.C, the court of Additional Sessions Judge, Mansa, could direct the Judicial Magistrate Ist Class to make further inquiry into the complaint which had been dismissed under Section 203, Cr.P.C qua petitioner no.4 and for the offences punishable under Sections 307, 354, 452, 506 read with Section 34, IPC and Section 25 of the Arms Act qua petitioner Nos.1 to 3. In support of the above finding, the reference can be made to Jai Parkash Pathak vs. Surendera Gendely, (Chhattisgarh) 2009(1) Crimes 380; Prabhu Lal vs. State, 1978 Criminal Law Reporter 370 and Lalji Bai Singh vs. Asal Chand, (1978) KARNATAKA Law Journal, 329.
In view of the settled proposition as well as the submissions made by the learned counsel for the complainant/respondent, the present petition is allowed. The judgment dated 21.12.2011 (Annexure P-1) passed by the learned Additional Sessions Judge, Mansa, as well as the consequential proceedings arising thereform are hereby quashed Criminal Misc. No. M-1209 of 2012 ..7..
qua the directions issued for the summoning of the petitioners for the offences punishable under Sections 307, 354, 452, 506 read with Section 34, IPC and Section 25 of the Arms Act. The matter is remitted to the board of learned Judicial Magistrate Ist Class, Budladha, to further inquire into the complaint and pass the fresh summoning order qua petitioner Nos. 1 to 3 for the offences punishable under Sections 307, 354, 452, 506 read with 34, IPC and Section 25 of the Arms Act in accordance with law. The Judicial Magistrate Ist Class shall also further inquire into the role of petitioner No.4 and pass such order as deemed fit on the basis of the material available on record.
It is apt to mention here that during the course of arguments, it was brought to the notice of this Court that in compliance with the order dated 21.12.2011 (Annexure P-1), the learned Judicial Magistrate Ist Class, Budladha, summoned the petitioners for the offences punishable under Sections 307, 354, 452, 506 read with Section 34, IPC and Section 25 of the Arms Act and on their appearance, the case was committed to the Court of Additional Sessions Judge, Mansa, for trial and after commitment even the charges were framed against the petitioners. It is the settled law that if the basic order is erroneous then the subsequent proceedings arising on the basis of such order cannot be termed to be legal and as such, the consequential proceedings arising from the order dated 21.11.2011 (Annexure P-1) are also liable to be set aside.
Petitioner Nos.1 to 3, namely, Tara Chand, Devinder Criminal Misc. No. M-1209 of 2012 ..8..
Kumar and Ajay Kumar, and the respondent/complailnant, Prem Chand, are directed to appear before the learned Judicial Magistrate Ist Class, Budhlada, on 01.10.2012 for further proceedings in the matter. Learned Additional Sessions Judge, Mansa, before whom the trial is pending, is directed to remit the records of the case to the court of learned Judicial Magistrate Ist Class, Budhlada, well before the date, on which the concerned persons have been ordered to appear there.
September 06, 2012 (Naresh Kumar Sanghi) Seema Judge Criminal Misc. No. M-1209 of 2012 ..9..