Crl.Misc. No.M-36606 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-36606 of 2009 Date of Decision:July 30, 2010 Ravinder Pal Singh and others ...........Petitioners Versus Mukesh and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.M. Singh, Advocate for for the petitioner. Mr.T.S.Sangha, Senior Advocate with Mr. J.S.Lalli, Advocate for the respondents ** Sabina, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure ( for short `Cr.P.C. ) seeking quashing of complaint No. 41 dated 19.7.2008 titled as `Mukesh vs. Ravinder Pal Singh and others' under Sections 307, 323,452,506, 148,149 of the Indian Penal Code (`for short `IPC') and under Sections 25, 27 of the Arms Act at Police Station City Palwal ( reference FIR No.121 dated 24.3.2008 Police Station City Palwal), Tehsil and District Palwal (Anneuxre P1) along with summoning order dated 11.12.2008 (Anneuxre P2) passed by the Sub Divisional Judicial Magistrate and all the subsequent proceedings arising thereto. Learned counsel for the petitioners has submitted that the Crl.Misc. No.M-36606 of 2009 2 impugned summoning order has been passed by the trial Court without taking in consideration the cancellation report submitted by the Investigating Agency in the FIR registered against the petitioners. In support of his arguments, he has relied on Kuldip Raj Mahajan vs. Hukam Chand 2008(1)RCR (Criminal) 370. Para 10 of the said judgment reads as under:- “In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order dated 1.9.2000 (Annexure P18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration the cancellation/investigation report of the police. Perusal of impugned summoning order (Annexure P2) reveals that there is no reference at all to the investigation report/cancellation report of the police in the summoning order. Without considering the investigation report/cancellation report of the police, the impugned summoning order could not have been legally passed by the learned Magistrate. The respondent, despite knowledge, concealed the cancellation report of the police from the learned Magistrate. This is another indicator of mala fide on the part of the respondent.” Learned counsel for the respondents, on the other hand, has submitted that, initially, FIR was registered against the petitioners and in the said case, the cancellation report was submitted by the Investigating Agency. During the said period, respondent No.1 had already filed a complaint and has led his preliminary evidence in support of his complaint. Crl.Misc. No.M-36606 of 2009 3 In these circumstances, respondent No.1 had stated that he has no objection, if the cancellation report was consigned to the record. The facts of the case as noticed by the learned Magistrate, in para 1 of the impugned summoning order, read as under:- “The present is the order about summoning aspect of the accused persons. From the pleadings and the evidence of the complainant, it is apparent that the accused party laced with pistol, lathies, sword had forcibly entered into the complainant's property with an intention to kill him to death. The complainant suffered bullet injuries on his right hand fired by accused Ravinder. On hearing his hue and cry Partap son of Mohan Lal, Pala son of Lakkhi Singh, Amit son of Prem and Chhotey son of Lakkhi reached the spot. The accused persons also caused injuries to them. Accused Randip gave lathi blow on the waist of the complainant. He was medico legally examined on 24.3.2008. FIR was lodged, but no proper investigation was conducted on the basis of said FIR. Later the complainant was re-examined by a board at PGIMS, Rohtak on 11.6.2009. C still fails to conclude investigation with respect to FIR No.121 dated 24.3.2008 lodged by the complainant against the accused, rather had acted upon the cross-complaint of the accused persons bearing FIR No.120 dated 23.3.2008, in which the complainant and his family members were arrested. Accordingly, the present complaint was filed” In support of the complaint, respondent No.1-complainant led his preliminary evidence and examined as many as 11 witnesses. Admittedly, FIR No. 121 dated 24.3.2008 was registered against the Crl.Misc. No.M-36606 of 2009 4 petitioners. After investigation, the cancellation report was prepared by the Investigating Agency. On 25.8.2009, the following order was passed by the Sub Divisional Judicial Magistrate:- “Today complainant has made statement before this court that he had filed a private complaint regarding this case in the court, which has already been committed by the court of SDJM, Palwal, which is now pending in the learned court of Sessions. So, he has no objection if present cancellation report is consigned to the record room. Statement recorded separately. In view of the statement made by the complainant, the present cancellation report be consigned to the concerned quarter. Announced sd/- Dated 25.8.2009 Sub Divisional Judicial Magistrate Palwal 25.8.2009” Thus, the complainant had made a statement that the cancellation report be consigned to record as the private complaint filed by respondent No.1 had already been committed by Court of Sub Divisional Judicial Magistrate Palwal and the trial was pending before the Court of Sessions. Learned Magistrate, while passing the summoning order, has observed that in totality of the circumstances and specially in view of the fact that a cross case has been registered by the police against respondent No. 1-complainant and the FIR of the present complainant against accused- petitioners despite being registered, had been cancelled, the statements of Crl.Misc. No.M-36606 of 2009 5 all the 11 witnesses were sufficient prima facie evidence for summoning all the accused. Thus, at the time of issuance of summoning order, the fact that the FIR lodged by respondent No.1 had been sought to be cancelled was duly noticed by the Magistrate. The Magistrate has been prima facie satisfied with the preliminary evidence led by respondent No.1 in support of his complaint. Since the trial was pending before the Court of Sessions, the complainant submitted that the cancellation report submitted by the Investigating Agency be filed. In these circumstances, the judgment relied upon by the learned counsel for the petitioners fails to advance the case of the petitioners as the same is based on different facts. No ground for interference by this Court is made out. Dismissed. (Sabina) Judge July 30, 2010 arya