Crl. Misc. No. M-19902 of 2008 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-19902 of 2008 (O&M) Date of Decision: April 6, 2011 Bholu Ram @ Himmat and others ........................................ Petitioners Versus Chet Ram and another ...................................................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. A.P.S. Deol, Sr. Advocate with Mr. Daldeep Singh, Advocate for the petitioners. Mr. N.K.Sanghi, Advocate for respondent No.1. Mr. P.S.Virk, DAG, Haryana, for respondent No.2. ... RITU BAHRI, J. (Oral) This petition under Section 482 of the Code of Criminal Procedure is for quashing the complaint dated 20.9.2004 (Annexure P-8) and summoning order dated 1.12.2005 (Annexure P-9) and order dated 19.7.2008 (Annexure P-10) passed by the Additional Sessions Judge, Rewari. Brief facts of the case are that Balbir Singh, petitioner No.3, Crl. Misc. No. M-19902 of 2008 (O&M) [ 2 ] was elected as Sarpanch of Gram Panchayat Kishanpur in the year 2000 for the term of 5 years i.e. till the year 2005. Bholu and Rajesh Kumar (petitioners No. 1 and 2) are sons of Balbir Singh. Chet Ram (respondent No.1) is a co-villager and claims to be a Chamar (Harijan community). During the term of Sarpanch-Balbir Singh, work of construction of drains was being carried out in the streets of the village. When the work of construction reached near the house of Chet Ram, it could not be carried out since there was encroachment on the public street. It was a `Gair Mumkin Rasta' bearing khasra Nos. 42 and 95. As per the inquiry report dated 30.6.2004 there was unauthorised encroachment by 2-1/2 feet each by Chet Ram on the public street. After the inquiry report was submitted, the Halqa Patwari carried out the demarcation proceedings and came to the conclusion that 2-1/2 x 2-1/2 feet i.e. total 6 Sq. yards was found to be encroached for a distance of 8 feet towards East-West, 8 feet towards North-South by Chet Ram son of Ramji Lal resident of Kishanpur. The demarcation report and site-plan dated 5.9.2004 are annexed as Annexures P2 and P3. On 9.8.2004, the Tehsildar again visited the village on the complaint of Panne Lal son of Ramji Lal brother of Chet Ram with regard to damage caused to the houses of Panne Lal and Chet Ram. There was an attempt made by Panne Lal along with Lehri son of Chander and Mohinder son of Shish Ram, both residents of village Ranoli to browbeat Balbir Singh Sarpanch for carrying out his official duty of constructing pacca drains in the village. They opened assault upon the Sarpanch by giving him fisty cuffs as a result of which 4 upper central teeth of Balbir Singh got dislocated. This was reported by Balbir Singh Sarpanch to the police and a Crl. Misc. No. M-19902 of 2008 (O&M) [ 3 ] case bearing FIR No. 132 dated 16.8.2004 under Sections 325, 323, 34 IPC was registered at Police Station Bawal against Panne Lal son of Ramji Lal as well as Lehri and Mohinder. On 11.8.2004, Chet Ram lodged a counter complaint dated 11.8.2004 (Annexure P-5) against S.H.O. Police Station Bawal and his two sons for threatening him and also for calling him “Dhedh”. After investigation, the police found that Panne Lal had picked up quarrel with Sarpanch with the help of his associates Lehri and Mohinder. During this occurrence, Balbir Singh Sarpanch received injuries and a case was registered against three persons at Police Station Bawal. The motive behind this occurrence was constructing of pacca drains to drain out water but Chet Ram and Panne Lal were not allowing to construct the drains. After considering the complaint lodged by Chet Ram, a report was submitted by Hari Kishan SI/SHO, Police Station Bawal dated 23.9.2004 (Annexure P-6) holding that no cognizable offence was made out against Balbir Singh and his sons. The second complaint made by Chet Ram was found to be baseless and no truth was found in the allegations with regard to giving threats or causing damage to his house etc. as per inquiry report dated 17.11.2004 (Annexure P-7). Thereafter, on 20.9.2004 Chet Ram instituted a private complaint under Section 3 of the SC/ST (Prevention of Atrocities) Act, 1989 as well as under Sections 323, 432, 506 IPC in the court of JMIC Rewari against the petitioners. Vide order dated 1.12.2005 the petitioners were summoned to face trial by the ACJM, Rewari (Anenxure P-9). This order was challenged by the petitioners by way of revision which was Crl. Misc. No. M-19902 of 2008 (O&M) [ 4 ] dismissed vide order dated 19.7.2008 (Annexure P-10). Proceedings under Section 7 of the Village Common Land Act have been initiated for eviction of Chet Ram-complainant from the unauthorized encroachment upon Khasra Nos. 42 and 95 which vests in Gram Panchayat being `Gair Mumkin Rasta' in the revenue record. These proceedings are pending before ACIG, Rewari, initiated vide complaint dated 31.5.2007 filed by S.E.P.O. Bawal. Mr. A.P.S.Deol, learned senior counsel for the petitioners has sought quashing of the complaint dated 20.9.2004 on the ground that it is a counter-blast to FIR No. 132 dated 16.8.2004 under Sections 325, 323, 34 IPC registered at Police Station Bawal. In the earlier complaint filed by the complainant dated 11.8.2004 (Annexure P-5) it was alleged that Balbir Singh, Sarpanch, had insulted the complainants by using filthy abuses along with his sons Bholu and Rajesh. The complainant belonging to a small community was apprehending threats. During investigation in this complaint all the allegations were found false. The complainants Chet Ram and Panne Lal were obstructing the work of Panchayat to construct pucca drain to drain the water out. The second complaint instituted on 20.9.2004 (Annexure P8) on the same incident and allegations is an abuse of process of court. The Revisional Authority by dismissing the revision vide order dated 19.7.2008 has totally ignored this aspect. After going through the order dated 19.7.2008 it is found that the petitioner has not made any reference to the order dated 23.9.2004 (Annexure P6) before the Revisional Authority. It is undisputed that on 9.8.2004 a scuffle had taken place and the Tehsildar had visited the village on the complaint of Pannel Lal son of Ramji Lal, brother of Chet Ram. There was a scuffle between the complainant and petitioner Balbir Singh, Sarpanch, as a result of which four Crl. Misc. No. M-19902 of 2008 (O&M) [ 5 ] upper central teeth of Balbir Singh got dislocated. An FIR No. 132 dated 16.8.2004 under Sections 325, 323, 34 IPC was registered at Police Station Bawal against Pannel Lal son of Ramji Lal as well as Lehri and Mohinder. The petitioner Balbir Singh was present there with Bholu and Rajesh Kumar. In the statements recorded by the complainant, Rajesh gave a lathi blow on the shoulder of Panne Lal. Bholu gave a lathi blow on the back of Mohinder. In this way they all caused injuries with lathis, slaps and blows to the complainant, Lehri, Mohinder and Panne Lal and they were rescued by Rampal and Charan Singh. The statements given by the complainant along with Panne Lal, Lehri, Charan Singh, Rampal and Mohinder are sufficient to proceed against the accused under Section 3(x) of SC/ST Act and Section 323/432/506/34 IPC. The Revisional Order dated 19.7.2008 does not suffer from any infirmity. Learned counsel for the petitioners has referred to Section 210 Cr. P.C. and has argued that the procedure as laid down under this Section has not been followed. Both the FIR No. 132 dated 16.8.2004 under Sections 325, 323, 34 IPC registered at Police Station Bawal and the present complaint under Section 3 of the SC/ST Act are outcome of the same incident. The Magistrate should have stayed the proceedings in the complaint and called for the report from the police for conducting the investigation in the FIR, as per the Supreme Court judgment in Dilawar Singh v. State of Delhi (2008) 3 Supreme Court Cases (Cri) 330. The petitioner cannot take any benefit of this judgment in view of the present facts. The Supreme Court has observed as under:- “The provisions of Section 210 Cr.P.C. are mandatory in nature. It may be true that non-complaince with the provisions Crl. Misc. No. M-19902 of 2008 (O&M) [ 6 ] of Sectin 210 Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr.P.C, unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non-production of the records from the police.” In the present case, the incident took place on 9.8.2004. The FIR was registered by Balbir Singh on 16.8.2004. The present private complaint has been filed on 20.9.2004 and the petitioners have been summoned to face the trial vide order dated 1.12.2005. Till date, the petitioners have not objected to the procedure adopted by the Magistrate for non-compliance of the provisions of Section 210 Cr.P.C. The revision petition against the order dated 1.12.2005 was dismissed on 19.7.2008. No prejudice will be caused to the petitioner at this stage to seek quashing of the complaint on the ground that the Magistrate has not followed the procedure as contemplated under Section 210 Cr.P.C. As per the Supreme Court judgment, the aim of the provisions of Section 210 Cr.P.C. is to safeguard the interest of the accused from unnecessary harassment. Non- compliance of the provisions of Section 210 Cr.P.C. is not fatal to the prosecution. The petitioners have been summoned to face the trial without giving any reasons and application of mind and the order is not sustainable as held by the Supreme Court in M/s Pepsi Foods Ltd. v. Special Judicial Crl. Misc. No. M-19902 of 2008 (O&M) [ 7 ] Magistrate 1997 (4) RCR 761. As per the judgment of the Supreme Court, the order of the Magistrate summoning the accused should reflect application of mind. Mere examination of the witnesses by complainant is not sufficient. In the present case, it is not disputed that a scuffle had taken place on 9.8.2004 where both the parties had injured each other. There is a tussle between the Panchayat and complainant Chet Ram on construction of the drain in the village. The statement made by the complainant and other before the trial Court corroborated with the incident which took place on 9.8.2004. The order summoning the petitioners does not suffer from non application of mind. The ratio of the judgment of the Supreme Court in Pepsi Foods Ltd. (supra) is not applicable to the facts of the present case. Counsel for the petitioner has placed reliance on the judgment of State of Haryana and others v. Ch. Bhajan Lal & Others AIR 1992 SC 604 to contend that the present complaint is liable to be quashed in view of the parameters laid down by the Supreme Court. Prior to the filing of the present complaint, the complainant had made an application (Annexure R1) dated 8.8.2004 to the Additional District Commissioner whereby he had complained that due to digging of pit by the Sarpanch the wall of his house had fallen and water had accumulated around 3 feet in the last 3-4 days. The complainant's house was in danger. The way to his house was blocked and there was no water outlet. Another application was made on 10.8.2004 to the additional Deputy Commissioner, Rewari, to the same account. The complainant Chet Ram had sent an application dated 19.7.2004 to the Chairman, National Scheduled Caste Commission, New Delhi, regarding demolition of the front wall of the house. After this application was sent to the Chairman, the Sarpanch along with his sons abused the complainant and Crl. Misc. No. M-19902 of 2008 (O&M) [ 8 ] his family members. The complainant alleges that he has suffered a loss to the tune of `50,000/- when his house wall fell. A civil suit filed by the complainant Chet Ram for damages has been decreed vide judgment and decree dated 27.7.2010. As per the complainant Chet Ram the alleged demarcation report dated 24.6.2004 has not been made available to the complainant as it is reported that the demarcation report is not deposited in the register of the record room. The complainant/respondent has not been made available the demarcation report dated 5.9.2004 along with the site plan. He has been informed by the concerned Record Keeper of DC office on 25.10.2005 that the said demarcation reports are not deposited in the Record Room. Applications were made for the demarcation reports on 5.9.2004 and 28.6.2004 pertaining to Khasra Nos. 42 and 95 along with spot memo and site plan. But these have not been supplied so far. All the above facts go to prove that there has been a dispute regarding the construction of drain and encroachment in Khasra Nos. 42 and 95 which has caused tension and quarrel between the complainant and petitioners. The FIR has been registered by Balbir Singh, Sarpanch, against the complainant-Chet Ram (respondent No.2) in which they are facing trial. The present complaint under Section 3 of the SC & ST Act is the outcome of the same incident and does not fall in any of the seven categories set out by the Supreme Court Bhajan Lal's case (supra) which could lead to quashing of the complaint under Section 482 Cr.P.C. Mr. N.K.Sanghi, counsel for respondent No.1, on the other hand has placed reliance on the Supreme Court judgment in Shivjee Singh v. Nagendra Tiwary and others 2010 (3) R.C.R. (Criminal) 466 to contend that the Magistrate was bound to see the prima facie evidence against the Crl. Misc. No. M-19902 of 2008 (O&M) [ 9 ] petitioners before summoning them and the pleas taken by the petitioners can be taken at the time of defence. The matter on merits be left to be decided by an appropriate forum at appropriate stage. After hearing the counsel for the parties, no ground is made out to quash the complaint as the pleas taken are available to them in defence as laid down by the Supreme Court in Shivjee Singh v. Nagendra Tiwary and others 2010 (3) R.C.R. (Criminal) 466. Dismissed. 6.4.2011 ( RITU BAHRI ) Rupi JUDGE