456 1 4 IN THE HIGH COURT OF PUNJAB AND HARYAN1 AT CHANlGARH 1 CrlMisc NoM15120 of 2007 4 DATE OF DECISION June 22011 Hari Pal 0 Ram Pal and others Petltloners versus The State of Haryana and another 2espondents CORAM HONBLE MRS JUSTICE DAYA CHAUDHARY Present MrJSBedi Advocate for the petitioners MrGaurav Verma Assistant Advocate General Haryane 0 MrRHooda Advocate for respondent No2 40 I C5 DAYA CHAUDHARYJ I The present petition has been filed for Z quashing of criminal complaint No60 of 2006 dated 29112006 as well as summoningorder dated 7l2006 I vide which the petitioners have been summoned under t ee Sections 34236636837634 IPC Z Notice of motion was issued on 932007 0 Learned counsel for the petitioners submits A7 Z that the complaint filed by the complainant was a 1 counter blast of the litigation between the parties and the complaint lS mlsuse of process of Court just to harass the petitioners Learned counsel for the petitioners further submits that a thorough inquiry was conducted on the allegations as mentioned in the complaint and it was found in the inqulry that Manju RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 457 2 r 91 was a legally wedded wife of petitioner Nol and question of kidnapping and rape does nota rise While passing the summoningorder findings of the inquiry officer were not considered and nothing was mentioned as to how the findings of the inquiry report were not correct Nothing was mentioned with regard to reasoning as to how the trial Court was not m rL agreeing with the finding given ln the inquiry 0 Learned counsel for the petitioners also submits that 0 learned JMIC has failed to take cognizance of the I a9 fact that earlier also a similar complaint was also I r filed which was referred to police under Section Z 1C 15631 CrPC for investigation and registration of the 2 1 casee The police had investigated the matter 14 I thoroughly and it was found that it was not a case of r Z kidnapping or rape and cancellation report was presented before the Court which was accepted even QO after filing of the protest petition by the mw Z complainant Learned counsel for the petitioner also Il submits that once a report was accepted and it was proved to the entire satisfaction of the Court that no such incident as alleged 111 the complaint ever took place yet the petitioners have been wrongly summoned and committed the petitioners for Sessions Court trial in a complaint case filed on the basis of RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 458 3 false allegationSe Learned counsel for the petitioners further submits that on 3112006 learned JMIC committed the case to the Sessions Court as sections 366376 IPC are triable by the learned Sessions Judge and the petitioners appeared before learned Additional Sessions Judge Panipat who were further directed to appear on 29112006 before 1 L learned Sessions Judge Karnal which falls within the 0 jurisdiction of Sessions Judge Karnal who further O entrusted the case to learned Additional Sessions I t5 Judge Panipat No inquiry under Section 202 CrPC I was conducted before issuance of sumnoning order Z which is mandatory Learned counsel further submits that the summoning order can be passed only when 4 prima face it is proved to the entire satisfaction of the Court that the offences are committed which are Z triable by Sessions Court Petitioner Nol got Qo married with Manju alongwith married brother of em Z petitioner No1 with sister of Manju In the present 0 case two cancellation police reports were there and lt was not a case of kidnapping and rape Even the Court took an opinion On the application moved by petitioner Nol that a false affidavit had been filed by Manju and Ram Narain Learned counsel for the petitioners also submits that initially marriage of RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 459 4 6 ManJu was solemnized with petitioner Nol and at that time the other sister of Manju was also marriedith brother of petitioner No1 SubsequentlY on the cV basis of compromiseeffected on 1542002 the dispute between the parties was resolved and the factum of earlier marriage was affirmede Learned counsel appearing for respondent 1 No2 submits that petitioner Nol committed rape upon 0 Manjuduring her illegal confinement from 152002 0 to 182002 and she was released on moving al I C5 application under Sections 93197 CrPC and search warrant was issued by the Court at Sonepat on Z 22002 and Manju was produced before the Court on 182002 The statement of Manju was recorded and I subsequently the said complaint was filed against the r accused persons on the basis of which the present Z summoning order was passed Learned counsel for CO 4 respondent No2 further submits that wife of wa Z respondent No2 never performed marriage with Om petitioner Nol as age of Manju was less than 15 years on 251999 and the question of marriage does not arlSSe Learned counsel for respondent No2 further submits that there was no legal marriage between petitioner Nol and Manju and the marriage with respondent No2 was legal and she is still RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 460 5 r A living 111 the house of respondent No2 as Learned counsel also submits that at the time of 15 91 no evidence is to be discussed and only a prima facie evidence is to be seen Summoningorder has been passed by learned JMIC Panipat after being satisfied that prima facie a case lS made out against the petitioners L In the present case complainantrespondent 0 No2 filed a complaint before JMIC Panipat under 0 Sections 34236636837634 IPC on 272002 It was I C5 mentioned in the complaint that marriage of the I c complainant was solemnized with Manju on 102001 Z and she was legally wedded wife of the complainant 2 1 After marrlage on 152002 the petltloners kidnapped Manju by putting in a jeep and brought to Z their village Lohari Smt Rajo mother of Manju tried her best to rescue the daughter but she could f not succeed Manju was kept 111 illegal confinement ln 7 Z the house of petitioner Nol and she was compelled to 0 perform marriage with Hari Pal alias Ram Pal Manju remained in illegal confinement from 15A2002 to 182002 and during that periodp petitioner Nol committed rape upon Manju against her wishes Complainant as well as parents of Manju made efforts to release her from illegal custody but they failed V RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 461 6 S4 and ultimately the petition under Sections 93197 was moved by the complainant before JMIC Sonepat and warrants of search were issued on 1742002 Manju was taken out of house of petitioner Nol and she was produced before JMIC on 182002 The petitioners were found to have committed offence punishable under Sections 363365376 IPC The complainant also filed m C a complaint in the Court which was sent to Police 0 Station Mohanal District Sonepat for investigation 0 and registration of the casee An FIR No103 dated I C5 2152002 under Sections 36636837634 IPC was I registered After inquiry cancellation report was Z recommended and no action was taken against the r present petitioners On the basis of said complaint I summoning order was passed on 712006 The t complaint as well as the summoning order has been Z challenged on the ground that petitioner No1 was ao married to Manju much earlier on 251999 and no 7 Z offence under Sections 363366376 IPC is made out Qm Petitioner Nos2 to 7 are related to petitioner Nol and they have falsely been implicated The argument of learned counsel for the petitioners 1S that summoningorder has been passed without taking into consideration the finding given lIl the lnquiry conducted by police and the RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 462 7 r3 cancellation report and no statement was recorded learned JMIC with regard to not being dissatisfied with the finding given by the police or how the learned Magistrate found a prima facie case against the petitioners as there was nothing on record on the basis of which prima facie opinion was formed by the learned Magistrate m Now the question for consideration by this 0 Court is whether for summoning of the petitioners 0 there was sufficient materiallevidence for forming an I C5 oplnlOn by the learned Magistrate with regard to I allegations mentioned ln the complaint or not Z It is also clear from the facts that in the 2 f application moved by the complainant under Sections I 93197 CrPC even he did not mention the names of the Co petitioners and in the statement of Manju recorded by Z Magistrate the factum of kidnapping was not m mentionede A suit for permanent injunction was also 7 Z filed before Civil Judge Senior Divisionl Panipat Qm on 142009 just before filing of the complaint but there was no mention with regard to alleged occurrence of rape l rl both the cancellation reports which were approved by the higher police officers A finding was recorded that Manju was legally wedded RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 463 8 C wife of petitioner Nol and question of and rape did not arise Even in the FIR No99 dated 132002 registered against the petitioners by the mother of Manj it was admitted that Manju was wife of petitioner Nol and due to some differences Manju was sent to respondent No2 after performing marriage with hime It appears from the facts discussed above 1m 0 that earlier Manju was married to petitioner Nol and 0 subsequently marrlage was solemnized with 0 complainantespondent No2 at the instance of her I C5 parents All these facts which were necessary before I issuing of summoningorder were not considered by the Z learned Magistrate as nothing 1S mentioned in the summoning order with regard to his satisfaction or I disagreement with the inquiry conducted by the police Summoning order has been passed ln a Z mechanical manner which cannot be sustained Q0 This view has been supported by the judgment em Z of this Court in Arun Jha and another v State of fl Haryana and another 2006 RCR Criminall 300 wherein it has been held that the Magistrate while sumnoning the accused is required to show application of his mind and the law applicable thereto The trial Court should be more cautious before issuing the process against the persons and it RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 464 9 1 1S for the Court to satisfy itself about genuineness of the complainant and actual happening of the alleged occurrencee Time and again this Court as well as the Honble Apex Court has cautioned that the Magistrate should not pass the summoning order mechanically only on the basis of some statements of the alleged witnesses This view has 0 been supported by the Honble Apex Court 111 Mls Pepsi 0 Foods Ltd V Special Judicial Magistrate 1997 41 RCR 0 Crl1 7611SC1 wherein it has been observed that X 0 sumnoning of an accused is a serious matter in a I criminal case Criminal law cannot be set into Z motion as a matter of course It is not that the complainant has to bring only some of the witnesses to support his allegations 111 the complaint The t Magistrate while issuing process must reflect to show Z that he has applied his mind to the facts of the case OO and law applicable thereto Not only this but he 7 Z has to examine that the nature of allegations made r ln the complaint and the evidence both oral as well as the documentary lIl support thereof The Magistrate 1S not only a silent spectator at the time of recording of the preliminary evidence before summoning of the accusede Magistrate has to carefully scrutinize the evidence brought on record RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 465 10 i C 1 and may even himself put questions to the and his witnesses to elicit answers to find out the truthfulness of the allegations In the present case the summoning order has been passed ln a mechanical manner without considering the investigation conducted by the police and other facts available on the file 1 In view of the facts and the legal position rs 0 explained aS above the present petition is allowed 0 and the impugned complaint as well as summoningorder I 45 and subsequent proceedings are set aside I Z June 22011 DAYA CHAUDHARYI KD JUDGE 2 I C0 Z Il t WA Z tl 1 1 RADHIKA 2015.01.13 15: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document