CRM-M-11434-2010 (O&M) [ 1 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CRM-M-11434-2010 (O&M) Date of Decision:13.10.2011 Deep Chand ...Petitioner Versus State of Haryana ...Respondent (2) CRM-M-27272-2010 (O&M) Date of Decision:13.10.2011 Ashok and others ...Petitioners Versus State of Haryana and another ...Respondents (3) CRM-M-38420-2010 (O&M) Date of Decision:13.10.2011 Naveen and others ...Petitioners Versus State of Haryana and another ...Respondents (4) CRM-M-20821-2011 (O&M) Date of Decision:13.10.2011 Yogesh ...Petitioner Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. K.S.Nalwa, Advocate, for the petitioner in CRM-M-11434-2010 and for the complainant in CRM-M-27272-2010, CRM-M-38420-2010 & CRM-M-20821-2011. CRM-M-11434-2010 (O&M) [ 2 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: Mr. T.S.Sangha, Senior Advocate, with Mr. J.S.Lalli, Advocate, for the petitioner(s) in CRM-M-27272-2010 & CRM-M-20821-2011. Mr. Sat Narayan Yadav, Advocate, for the petitioners in CRM-M-38420-2010. Mr. Sagar Deswal, AAG, Haryana. **** Rakesh Kumar Jain, J. This order shall dispose of a bunch of 4 petitions bearing CRM-M-11434-2010 titled as `Deep Chand Vs. State of Haryana [for short “first petition”], CRM-M-27272-2010 titled as `Ashok and others Vs. State of Haryana and another' [for short “second petition”], CRM-M-38420-2010 titled as `Naveen and others Vs. State of Haryana and others' [for short “third petition”] and CRM-M-20821-2011 titled as `Yogesh Vs. State of Haryana and another' [for short “fourth petition”] as all the aforesaid petitions have arisen from FIR No.59 dated 31.07.2009, registered under Sections 302, 506, 34 IPC at Police Station Rohrai, District Rewari and Criminal Complaint No.73 dated 29.09.2009, titled as `Deep Chand Vs. Pawan and others', under Sections 302, 147, 148, 341, 506, 149 IPC pending in the Court of Sub Divisional Judicial Magistrate, Kosli, District Rewari, which has the genesis of the same occurrence. The first petition is filed by Deep Chand, who is brother of the deceased Bharat Singh, under Section 482 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] for seeking quashing of the order dated 04.01.2010 (Annexure P-9) passed by the learned Additional Sessions Judge, Rewari by which an application filed by the petitioner/complainant for postponing the trial of the State case and for expediting the proceedings in the complaint case was dismissed. The second petition is filed by the persons who are not sent up as accused in the State case but against them Criminal Complaint had been filed and they have been summoned by the Sub Divisional Judicial Magistrate, Kosli vide its order dated 07.08.2010 to face trial. Thus, it is pertaining to quashing CRM-M-11434-2010 (O&M) [ 3 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: of the complaint and the summoning order. The third petition is filed under Section 438 of the Cr.P.C. for grant of pre-arrest bail by the 4 accused who have been summoned in the complaint case. The fourth petition is filed under Section 439 of the Cr.P.C. by one accused, namely, Yogesh for grant of regular bail in the complaint case. It requires pertinent notice that the first petition was filed in this Court on 20.04.2010, second petition was filed on 14.09.2010, third petition was filed on 27.12.2010 and the fourth petition was filed on 11.07.2011. First of all, it would be relevant to refer to the facts of this case while deciding the first petition. Deep Chand, who has filed the first petition, made a complaint on the basis of which FIR No.59 dated 31.07.2009 was registered in which he had alleged that at about 6/6:30 a.m. on 31.07.2009, he alongwith his Mama Karan Singh was going to answer the call of nature on the road towards village Chilhar. At about 1/1-½ Killas away towards the Noorpur road, they heard the screams of his brother Bharat Singh who was being beaten by Pawan @ Rinku carrying a Farsi, Jaishree carrying an iron rod, Yogesh carrying Jelly, Aarti, Shashi, Ashok, Murari, Raghbir, Saroj, Nitin, Ved Parkash, Sonu, Rajesh, Naveen and Manoj were armed with lathis and dandas. Pawan @ Rinku gave a Farsi blow on the head of Bharat Singh and Yogesh gave a Jelly blow on the left leg below knee of Bharat Singh. On account of the injuries caused by them, Bharat Singh fell down on the ground and all the other accused gave him beatings with their dandas and lathis. When they raised alarm, the assailants ran away from the spot with their respective weapons. The motive of the crime was that his sister Hemlata was teased by Pawan @ Rinku on which his brother Bharat Singh had an altercation with him. He further alleged that he alongwith his uncle had taken the injured to Rewari hospital but he died on the way and was declared brought dead in the hospital. Initially, five accused, namely Pawan @ Rinku, Rajesh, Jaishree, Yogesh and Ashok were arrested. Yogesh, Jaishree and Ashok were discharged by the Sub Divisional Judicial Magistrate on 04.09.2009 under Section 169 of the Cr.P.C. The police challaned only two accused, namely, CRM-M-11434-2010 (O&M) [ 4 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: Pawan @ Rinku and Rajesh vide its report dated 20.09.2009. The petitioner/complainant filed a private complaint which is numbered as Complaint No.73 dated 29.09.2009 in which all the remaining accused referred to hereinabove have been summoned by the Sub Divisional Judicial Magistrate, Kosli vide his order dated 07.08.2010. After committal, the case was entrusted to the Court of learned Additional Sessions Judge, Rewari as Sessions Case No.16 of 04.11.2009 and thereafter on 17.12.2009, the petitioner/complainant moved an application under Sections 210 and 223 of the Cr.P.C. for postponing the recording of the witnesses in the State case till the decision of the complaint filed by him before the learned Sub Divisional Judicial Magistrate, Kosli. The said application was contested and ultimately, vide order dated 04.01.2010, it was dismissed on the ground that the proceedings in the criminal complaint is at its initial stage and the provisions of Sections 210 and 223 of the Cr.P.C. are not applicable. The petitioner then preferred the present petition in this Court in which notice of motion was issued on 21.04.2010 and as an interim measure, the learned Trial Court was directed to adjourn the case pending before it beyond the date given by this Court. Learned counsel for the petitioner has submitted that since the learned Sub Divisional Judicial Magistrate, Kosli has already summoned all the other accused vide his order dated 07.08.2010, therefore, one of his prayer made in this petition for direction to the said Court for expeditiously deciding the complaint about the summoning has become redundant. He further submits that basically the prayer for postponing the trial in the State case till the decision with regard to the summoning in the compaint case by the Sub Divisional Judicial Magistrate, Kosli has also become redundant because by virtue of initial order dated 21.04.2010 passed by this Court at the time of notice of motion, the learned Trial Court was directed to adjourn the case pending before it beyond the date fixed by this Court and as a matter of fact, the said trial remained postponed and now the order of summoning has been passed. In view thereof, the first petition is disposed of as such. CRM-M-11434-2010 (O&M) [ 5 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: Insofar as the second petition is concerned, out of 14 accused who have been summoned by the Sub Divisional Judicial Magistrate, Kosli, vide its order dated 07.08.2010, 7 accused, namely, Ashok, Raghbir, Ved Parkash, Nitin, Saroj, Shashi and Jaishree have filed this petition invoking the inherent powers of this Court under Section 482 of the Cr.P.C. for quashing of the complaint and the summoning order. It is argued by learned counsel for the petitioner that the learned Court below has summoned the petitioners mechanically without applying its mind. In this regard, he has relied upon a decision of the Supreme Court in the case of M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1998 AIR (SC) 128. He further submits that the allegation is against two persons who had caused injuries as even out of the 5 accused who were initially arrested, 3 of them were let off by the police. In reply, learned counsel for the complainat has argued that the learned Court below, while issuing summons, has recorded the following observations: “In preliminary evidence, the complainant himself appeared into the witness-box as PW4 besides examining Hemlata as PW1, Nirmala as PW2, Karan Singh as PW3, Dinesh Kumar as PW5, Sher Mohammad ASI as PW6, Om Parkash as PW7, Dr. Deepak Verma as PW8, Bhagat Singh ASI as PW9 and tendered the documents i.e. photocopy of statement of Karan Singh recorded by the police under Section 175 Cr.P.C. As Ex.C-1, photocopy of recovery memo in FIR No.59 dated 31.07.2009, P.S. Rohrai as Ex.C-2, photocopy of statement of Deep Chand as Ex.C-3, photocopy of FIR No.59 dated 31.07.2009 as Ex.C-5, photocopy of endorsement over tehrir as Ex.C-6, site plan of occurrence as Ex.C-7, attested copy of post mortem report as Ex.C-8, attested copy of x-ray report as Ex.C-9, photocopy of application for conducting post mortem of dead body as Ex.C-10, photocopy of FIR lodged CRM-M-11434-2010 (O&M) [ 6 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: by Rajesh against Deep Chand, Sourabh and Bharat as Ex.C-11, photocopy of signature of complainant Deep Chand over his statement as Mark-A. Thereafter, the complainant closed his preliminary evidence vide his separate statement dated 23.02.2010.” Learned counsel for the complainant has also referred to the decision of the Supreme Court in the case of Balraj Khanna and others v. Moti Ram, AIR 1971 Supreme Court 1389 to contend that where the Magistrate is satisfied on the basis of the material placed before him by a complainant that the prima facie case is made out, he must commit the accused for trial. He has also referred to a decision of the Supreme Court in the case of Hareram Satpathy v. Tikaram Agarwala and others, (1978) 4 Supreme Court Cases 58 in which following two questions were raised for determination: “(1) Whether, after submission of the final report by the police stating therein that there was not sufficient evidence to justify the forwarding of the respondents to him, it was open to the Sub Divisional Magistrate, Balangir to add the respondents as accused in the case and issue process against them. (2) Whether the High Court was justified in going into the merits of the case and interfering with the order of the Sub Divisional Magistrate impleading the respondents as accused and issuing process against them in exercise of its powers under Section 482 of the Code of Criminal Procedure, 1973.” It was observed that insofar as the first point is concerned, that is found to be no more res integra as it has been dealt with in the case of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167. Insofar as the second question is concerned, it was observed that the High Court was not justified to go into the merits in exercise of its revisional jurisdiction against the order of summoning passed by the Judicial Magistrate. In the aforesaid case, CRM-M-11434-2010 (O&M) [ 7 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: the brother of the deceased named certain persons who committed the murder, but the State chose to proceed against a few. Consequently, the brother of the deceased filed a compliant against the remaining accused who were summoned. That order was challenged by way of revision before the High Court where the evidence was mechanically gone into while holding that the Magistrate had committed error in summoning. The said order of the High Court was set aside by the Supreme Court. Similarly, learned counsel for the respondent/complainant has relied upon Manikandan v. Pandian and others, 1989 Supp (2) Supreme Court Cases 648 in which it has been held that the complaint case and the State case cannot be consolidated and tried together as the evidence has to be recorded separately in both the cases unless the witnesses are common and they be tried one after the another. After hearing learned counsel for the parties in respect of the second petition, I do not find any error in the order of the learned Magistrate by which he has summoned the petitioners and for that matter the reliance is placed on Hareram Satpathy's case (supra). Hence, the second petition is dismissed. In respect of the third petition filed under Section 438 of the Cr.P.C. by the accused persons who have been summoned, learned counsel for the petitioners have relied upon CRM-M-34977-2010 in which following order was passed by this Court on 29.11.2010: “Learned counsel for the petitioners has submitted that the petitioners were found innocent during investigation by the police. Thereafter, the complaint in question has been filed by the complainant. Notice of motion for 14.12.2010. List alongwith CRM-M-No.27272-2010. In the meantime, the petitioners are directed to surrender before the Sub Divisional Magistrate, Kosli and the Sub Divisional Magistrate, Kosli shall release the petitioners on interim bail subject to its satisfaction.” In view of the facts and circumstances of this case, the third petition CRM-M-11434-2010 (O&M) [ 8 ] CRM-M-27272-2010 (O&M) CRM-M-38420-2010 (O&M) CRM-M-20821-2011 (O&M) :::::: is allowed. Since the petitioners have already been granted interim bail vide order dated 03.01.2011 and have furnished their bail bonds as recorded by this Court on 19.08.2011, therefore, the order dated 03.01.2011 is hereby made absolute. The third petition shall stand disposed of accordingly. The fourth petition is for regular bail in the complaint case on behalf of Yogesh who is alleged to have caused injury to the decased with a Jelly. Since the name of the petitioner Yogesh is also mentioned in the FIR who has allegedly caused specific injury to the deceased, therefore, I do not find it to be a fit case for grant of bail. In view thereof, the fourth petition is dismissed. A copy of this order be placed on the files of other connected cases. October 13, 2011 ( Rakesh Kumar Jain ) vinod* Judge