Punjab-Haryana High Court
Balwinder Kaur And Others vs State Of Punjab And Others on 20 August, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. No. M-28845 of 2012 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M-28845 of 2012(O&M)
Date of Decision: August 20th , 2013
Balwinder Kaur and others
---Petitioners
versus
State of Punjab and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. Haran Bhardwaj, Advocate
for the petitioners
Mr. Neeraj Sharma, Asstt. Advocate General, Punjab
for respondent-State.
Mr. Madan Lal Saini, Advocate,
for respondent No.2
***
REKHA MITTAL, J.
The petitioners have filed the present petition under Section 482 of the Code of Criminal Procedure (for brevity "the Code") seeking quashing of orders dated 2.6.2009 (Annexure P-7) and dated 1.8.2011 (Annexure P-8) whereby cancellation report dated 26.2.2008 is not accepted and the petitioners have been summoned to face trial under Sections 420, 467, 468, 471, 120-B IPC, respectively.
Counsel for the petitioners submits that Bahadur Singh, Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -2- petitioner is running a shop of commission agenty under the name and style of "Kisan Trader" at Dana Mandi Chamkaur Sahib. Balwinder Kaur, his wife, is a home maker and Hardeep Singh, petitioner No. 2 is his son aged 22 years, pursuing education. Respondent No. 3 lodged FIR No. 17 dated 6.9.2006 for offence under Sections 420/467/468/471/120-B IPC registered at Police Station, City Rupnagar against the petitioners on the allegations that Bahadur Singh and others had taken Rs, 5 Lakhs from him on a false promise to send him to Italy. The accused failed to honour their commitment and refused to refund the amount of Rs, 5 Lakhs, received at different intervals as he made payment of Rs. 2 Lakhs at the house of Bahadur Singh, Rs. 1 Lakh in August 2001, Rs. 80,000/- in October 2004 and Rs. 1,20,000/- in October 2005. It is further submitted that Gurdev Singh lodged a false FIR against the petitioners as Gurmail Singh, brother of Gurdev Singh had a dispute with Bahadur Singh in regard to payment of interest on an amount of Rs. 1,00,000/- given by Gurmail Singh to Bahadur Singh as 'amanat' and Bahadur Singh had returned the principle amount with interest of Rs. 50,000/- but Gurmail Singh, an employee in the Court, had been asking for more amount.
Counsel for the petitioners argues that in view of request made by petitioner Bahadur Singh, a detailed enquiry was conducted by the Superintendent of Police holding that the allegations contained in the FIR are false and the case is required to be cancelled. The enquiry report was approved by the Director General of Police, Punjab Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -3- and the Senior Superintendent of Police, Rupnagar was directed to take further action on the enquiry report. The Investigating agency submitted cancellation report dated 22.5.2007, which was not accepted by the trial Court and the police was directed to conduct further investigation, vide order dated 3.1.2007. In compliance with the order passed by the trial Court, further investigation was conducted in the matter and no incriminating material was brought forth during further investigation and ultimately, cancellation report dated 26.2.2008 was submitted before the trial Court. It is further argued that the trial Court issued a notice to the complainant and he filed a protest petition. The trial Court without assigning any reason but merely taking into consideration that the complainant has not given his consent to the cancellation report, took cognizance of the offence and later passed order issuing process to the petitioners for facing trial under Sections 420, 467, 468, 471 and 120-B IPC. It is argued with vehemence that the orders passed by the learned trial Court, cannot stand the test of judicial scrutiny and are liable to be set aside. In support of his contention, he has referred to the judgment of the Hon'ble Apex Court in Nupur Talwar vs. Central Bureau of Investigation and another 2012(3) R.C.R. (Criminal) 595. He has further relied upon judgments of this Court in Prithvi Raj Sehgal vs. State of Punjab and others 2007 (3) R.C.R.(Criminal) 438, Gian Parkash Sharma vs. Central Bureau of Investigation, Chandigarh 2004 (3) R.C.R. (Criminal) 842, judgment of Delhi High Court in Rani Soni @ Joginder Kaur Soni and others Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -4- vs. State 2012(1) R.C.R. (Criminal)346 and a judgment of the Himachal Pradesh High Court in Gian Parkash vs. State of H.P. 2011 (1) R.C.R.(Criminal) 360.
Counsel for the contesting respondent, on the other hand, contends that the plea taken by the petitioners that there was some dispute between petitioner Bahadur Singh and Gurmail Singh, brother of the complainant, with regard to payment of interest is false but otherwise a disputed question of fact, which can be decided only during trial. It is further submitted that there is no requirement of law that the Magistrate is obliged to record reasons to take cognizance of offence, in exercise of power under Section 190(1)(b) of the Code. It is argued that even otherwise the learned trial Magistrate did not take cognizance on the basis of material available on record, collected during investigation, rather the trial Court took recourse to procedure under Sections 200 and 202 of the Code, recorded the statements of the witnesses, conducted an enquiry into the matter and thereafter finding a prima facie case, issued process under Section 204 of the Code. The last submission made by counsel is that the petitioners, in place of availing appropriate remedy of filing a revision petition challenging the summoning order before the Court of Sessions, has invoked extra ordinary jurisdiction of this Court under Section 482 of the Code. He has relied upon a judgment of the Hon'ble Supreme Court in Om Kr. Dhankar vs. State of Haryana and another 2012(2) RCR (Criminal) 209 to support his contention that a revision petition under Section 397 Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -5- of the Code is maintainable against an order summoning accused in a private complaint as an order directing issuance of process is not purely interlocutory and the same has been held to be intermediate or quasi-final.
I have heard counsel for the parties and perused the records. A perusal of pleadings and consideration of submissions made by respective counsel, there remains no dispute about factual controversy involved in the present case. Gurdev Singh got registered FIR No.17 dated 6.9.2006 for offence under Sections 420/467/468/471/120-B IPC at Police Station, City Rupnagar. Bahadur Singh submitted a request for conducting an enquiry into the matter. The Superintendent of Police, Punjab, Chandigarh, conducted an enquiry and submitted report dated 17.3.2007 (Annexure P-2) in favour of the petitioners. A cancellation report was prepared and was submitted before the trial Court. The trial Court did not accept the cancellation report and directed the police to conduct further investigation, vide order dated 3.1.2007 (neither produced nor challenged in the petition). Subsequent thereto, further investigation was conducted in the matter and cancellation report dated 26.2.2008 (Annexure P-5) was submitted. The trial Court provided an opportunity of hearing to complainant Gurdev Singh, who submitted his protest petition (Annexure P-6). The trial Court vide order dated 2.6.2009 treated the protest petition as a private complaint.
The main grievance of the petitioners is that as the trial Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -6- Court has not assigned any reason for not accepting the cancellation report, rather took cognizance of the offence, therefore, order dated 2.6.2009 and subsequent proceedings conducted by the trial Court are illegal and liable to be quashed.
Counsel for the petitioners has failed to point out any provision which requires that the Magistrate is required to record reasons for rejecting the cancellation report. However, it appears appropriate that if the Magistrate takes cognizance of the offence, the trial Court would record reason for taking cognizance of the offence in exercise of power under Section 190(1)(b) of the Code. In Nupur Talwars's case (supra), relied upon by counsel for the petitioners, it has been held that it is appropriate though not imperative for the Magistrate to record reasons for differing with the cancellation report. In this view of the matter, I do not find any merit in the contentions of the petitioners that the trial Magistrate has committed an illegality as it failed to record reasons to differ with the cancellation report. I would hasten to add that in the instant case, the trial Court has not taken cognizance in exercise of power under Section 190(1)(b) of the Code on the basis of material available in the cancellation report rather the trial Court has treated the protest petition, as a private complaint and proceeded to act under Sections 200 and 202 of the Code.
In M/s India Carat Private Limited vs. State of Karnataka and another (1089) 2 SCC 132, the Hon'ble Supreme Court of India examined the issue with regard to the criterion which needs to be kept Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -7- in mind by a Magistrate issuing process, which has been repeatedly delineated by the Hon'ble Supreme Court and for the first time examined in the case of Chandra Deo vs. Prokash Chandra Bose alias Chabi Bose and another AIR 1963 SC 1430 wherein the Hon'ble Supreme Court has held as under:-
"(16)The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second Saini Paramjit Kaur respondent and order the issue of summons to him.2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -8-
(17) The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a compliant before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram v. Kishore Singh, (1977) 4 SCC 459, that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with."
In Jagdish Ram vs. State of Rajasthan and another (2004) 4 SCC 432, the Hon'ble Supreme Court has held as under:-
"The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a wellwritten order. The order not only refers to the witnesses recorded by the Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -9- Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
The other judgments cited by counsel for the petitioners have no bearing on the facts of the present case.
As in the case, the Magistrate did not take cognizance of the offence on the basis of facts emerging from the investigation, the Magistrate was not required to record its reasons to differ with the Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -10- cancellation report. The Magistrate acted under Sections 200 and 202 of the Code, examined as many as 9 witnesses including the complainant and thereafter recorded a finding that there is a prima facie case and sufficient ground exists for proceeding in the matter. The detailed order passed by the trial Court in issuing the process after recording evidence in compliance with provisions of Sections 200 and 202 of the Code, does not suffer from any legal infirmity much illegality.
This brings the Court to the second question 'whether the summoning order issuing process on merits is liable to be set aside'. The trial Magistrate has summoned the petitioners to face trial under Sections 420, 467, 468, 471 and 120-B IPC. A perusal of the allegations contained in the FIR and the protest petition, would reveal that there is no allegation against the petitioners of committing forgery or using a forged document as genuine in any proceedings. The trial Magistrate without examining the ingredients of offence under Sections 467, 468, 471 IPC, has summoned the accused for those offences, without application of mind. In view of the allegations in the complaint, no prima facie case is made out for offence under Sections 467, 468 and 471 IPC. As a result, the order passed by the trial Court, summoning the petitioners for these offences is illegal and accordingly set aside.
Bahadur Singh, his wife Balwinder Kaur and son Hardeep Singh have been summoned for committing fraud, in conspiracy with Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -11- each other. A perusal of the allegations of the complainant and the evidence adduced would reveal that Hardeep Singh, petitioner, was not present with other petitioners at the time when the alleged dishonest representation was made by Bahadur Singh and Balwinder Kaur for sending the complainant to Italy, on payment of Rs. 6 lakhs. It is not the plea of the complainant that Hardeep Singh was present with Bahadur Singh when initial payment of Rs. 2 Lakhs was made. As per allegations, Hardeep Singh was present with Bahadur Singh when an amount of Rs. 1,20,000/- was statedly paid to Bahadur Singh and Hardeep Singh. Keeping in view evidence on record, no prima facie case is made out against Hardeep Singh for committing offence under Section 420 IPC, either independently or in conspiracy with his parents. The order passed by the trial Court issuing process to Hardeep Singh is accordingly set aside and the proceedings against him are dropped.
However, there is no error much less illegality committed by the trial Court in taking cognizance of offence under Sections 420 and 120-B IPC against Bahadur Singh and Balwinder Kaur.
In view of what has been discussed hereinabove, the petition is partly allowed. The criminal complaint/protest petition and proceedings emanating therefrom are quashed qua Hardeep Singh. The order summoning petitioners Balwinder Kaur and Bahadur Singh for offence under Sections 467, 468 and 471 IPC is set aside.
Any opinion expressed by this Court would not cause any Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-28845 of 2012 -12- prejudice in adjudicating the matter in controversy on merits, by the trial Court.
(REKHA MITTAL) JUDGE August 20th , 2013 PARAMJIT Saini Paramjit Kaur 2013.08.30 14:48 I attest to the accuracy and integrity of this document Chandigarh