In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.73812 of 2006 and Criminal Misc. No.700-MA of 2006 ..... Date of decision:15.7.2008 Suraj Pal Singh ...Applicant v. State of Haryana and another ...Respondents Coram: Hon'ble Mr. Justice S.S. Saron Hon'ble Mr. Justice Mohinder Pal Present: Mr. Arvind Singh, Advocate for the applicant. Mr. Kartar Singh, Assistant Advocate General, Haryana for the respondent-State. Mr. Raman Sharma, Advocate for respondent No.2. ...... S.S. Saron, J. (Oral) Cr.M. No.73812/2006: Heard learned counsel for the parties. The criminal miscellaneous application has been filed by the appellant-applicant Suraj Pal Singh seeking condonation of delay of 82 days in filing the appeal. Reply to the application has been filed by respondent No.2. According to the applicant the limitation to file the appeal Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [2] against the impugned order dated 25.5.2006 was to expire on 24.7.2006. The applicant engaged a counsel in the High Court for the purpose of filing the appeal on 23.7.2006 under a mistaken belief. According to the learned counsel the mistake occurred in calculating the period of limitation. The appeal itself was filed on 25.7.2006 and, therefore, there has occurred a delay of 82 days in filing the appeal. According to the respondents, the delay in filing the appeal is not liable to be condoned, inasmuch as, there is no plausible explanation given for seeking condonation of the delay in filing the appeal. After giving our thoughtful consideration to the matter and perusing the record it may be noticed that where technical consideration and merit or cause of substantial justice are pitted against each other, the cause of merit and substantial justice is to prevail for no party can seek a vested right in injustice to be done because of a non-deliberate act of delay in filing of appeal. A litigant does not stand to benefit by resorting to delay. Even otherwise there is no presumption that delay is occasioned deliberately. In the circumstances, the delay in filing the appeal is condoned. The criminal miscellaneous application stands allowed. Cr.M.No.700-MA/2006: This criminal miscellaneous application has been filed by the complainant Suraj Pal Singh seeking leave to appeal against the impugned order dated 25.5.2006 (Annexure-P.8) passed by the learned Additional Sessions Judge, Karnal whereby the respondent No.2, who had been summoned for the offence punishable under Sections 376 and 506 Indian Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [3] Penal Code (`IPC' – for short) by the learned Judicial Magistrate Ist Class, Karnal vide order dated 18.5.2005, has been discharged. Mr. Arvind Singh, Advocate, learned counsel appearing for the applicant has contended that the wife of the prosecutrix was subjected to rape by respondent No.2. It is submitted that keeping in view the serious nature of allegations, the learned Judicial Magistrate Ist Class, Karnal vide his order dated 18.5.2005 had rightly summoned respondent No.2. However, the learned Additional Sessions Judge vide her order dated 25.5.2006 has gravely erred in discharging him by accepting the revision petition of respondent No.2. It is submitted that allegations of rape of the wife of the applicant are serious in nature and no lady would make false allegations and accusations which would reflect and have a bearing on her reputation. Therefore, it is submitted that the impugned order dated 25.5.2006 passed by the learned Additional Sessions Judge, Karnal is liable to be set aside and that of the learned Judicial Magistrate Ist Class, Karnal liable to be restored. As such, leave to appeal may be granted to the applicant so as to assail the impugned order. In response, Mr. Raman Sharma, Advocate, learned counsel appearing for respondent No.2 has contended that the case had been foisted on respondent No.2 and in fact the same is absolutely false and devoid of any merit. It is submitted that respondent No.2 was an Inspector in the CBI and at that time he was investigating a criminal case that had been registered against the applicant by the C.B.I., New Delhi on 9.10.2002 on a written complaint of Shri Atanu Purkayastha, Director (Police), Ministry of Home Affairs vide letter dated 15.5.2002. It is submitted that the applicant, who is Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [4] a State Police Officer, had filed a civil suit in the Court of Civil Judge (Junior Division) Kurukshetra against the Union of India which was pending. In the said case he on his own got a counsel to appear on behalf of the Union of India and on the strength of the same he obtained an ex parte order in his favour. Therefore, the criminal complaint, it is submitted, has thereafter been foisted by the applicant on respondent No.2, who is an Investigating Officer of the CBI in the said case. In any case, it is submitted that from a perusal of the record even no case whatsoever is made out against respondent No.2. We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance have perused the record. It may be noticed that the applicant filed a criminal complaint dated 25.10.2004 (Annexure-P.3) in the Court of learned Chief Judicial Magistrate at Karnal on the allegations that respondent No.2, who was Inspector, CRPF and was on deputation with the CBI, Dalhousie Road, New Delhi committed offences under Sections 376, 452, 506 and 323 IPC. It is alleged that the complainant (applicant) was away from his house to Chandigarh from 6.8.2004 to 8.8.2004 (late evening). On 7.8.2004 at about 9.30 p.m., respondent No.2 came to the residence of the complainant at Karnal on the pretext of investigation of case RC No.12/2002. The wife of the complainant opened the door and made respondent No.2 to sit on a sofa- set in the drawing room. Respondent No.2 was informed that her husband (complainant) was out of station and that he could come on some other day. Respondent No.2, however, sat on another sofa where the wife of the complainant was sitting and threatened her with a revolver that he was Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [5] carrying. He dragged the wife of the complainant on the carpet which was spread in the drawing room and forcibly committed rape on her without her consent and against her will. After rape, he threatened with the revolver that he would kill her in case she reported the incident to anyone. The complainant came back at about 8.00 p.m. on 8.8.2004 and his wife narrated the entire incident to him which was shocking, painful, alarming and shameful for the wife. In this regard the complainant had made several complaints. However, no action was taken. The wife of the complainant appeared as CW-1 in the pre- summoning evidence and her deposition dated 15.1.2005 (Annexure-P.4) is on record. A perusal of the said statement shows that she had narrated the occurrence as has been alleged in the complaint dated 25.10.2004 (Annexure-P.3). However, in the said statement dated 15.1.2005 (Annexure-P.4) it is also stated by the wife of the complainant that she had doubted the intention of respondent No.2 and started running from there but he (respondent No.2) plunged on her and in this way she was hit by the table and she fell down. Then respondent No.2 kept the revolver on her ear side and gave her two-three slaps and threatened to kill her and raped her without her will and while going again showed her the revolver. It may be noticed that admittedly there is no medical examination of the wife of the complainant who is alleged to have been raped. The medical evidence of the wife of the complainant admittedly would have shown regarding her being injured on account of the fact that she was hit by the table and had fallen down and also as regards the allegation of rape. The complainant himself was a Police Officer in the Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [6] Haryana Police and, therefore, it was expected of him to get the matter gone into with regard to the allegations that had been made. It may also be noticed that the allegations are also that the wife of the complainant was slapped two-three times. This fact in all probability could have been established by the medical examination of the wife of the complainant. The learned Additional Sessions Judge, Karnal in her impugned order dated 25.5.2006 has observed that there was nothing on record to explain as to why the prosecutrix did not get herself medico-legally examined on the day of the occurrence or at least on the following day when her husband admittedly had returned to their house. The medico-legal examination, it was observed, of rape victim is a material piece of evidence. During the course of hearing, learned counsel for the applicant has not been able to give any plausible reply or explanation as to why the medical examination of the wife of the applicant was not got done. It may also be noticed that learned counsel appearing for respondent No.2 has submitted that the complainant intentionally gave the date of incident as 7.8.2004 and time at 9.30 p.m. because on that day it was a Saturday which was a holiday in CBI office. The complaint that has been made by the applicant, it is submitted, was also enquired into by the CBI as well as by the local police at Karnal but they found it to be false, especially in view of the fact that on 7.8.2004, the respondent No.2 was physically present in his office at Dalhousie Road, New Delhi and was investigating another case. Therefore, it is a matter of fact that the applicant himself was facing investigation with regard to manipulating the appearance of some Advocate on behalf of the Union of India in a civil suit filed by him against Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [7] the Union of India and pending before the Court of learned Civil Judge (Junior Division), Kurukshetra. Thereafter, on the allegations of rape being committed on his wife he got initiated the impugned proceeding against respondent No.2. In Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, AIR 1998 SC 128 it was observed by the Hon'ble Supreme Court that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. In the present case, the fact that the applicant is facing investigation in which challan has also been filed as is stated by the learned counsel for respondent No.2 and also on the mere bald assertion of the wife of the complainant that she has been subjected to rape and without there being any medical evidence on record to substantiate the said allegation, it is difficult to hold that the allegations as made in the complaint would ultimately be sustained. In the circumstances, the order of the learned Additional Sessions Judge, Karnal discharging respondent No.2 in the criminal complaint against him, in the facts and circumstances is just and Cr. M. No.73812/2006 and Cr. M. No.700-MA of 2006 [8] reasonable and calls for no interference. For the foregoing reasons, there is no merit in the application seeking leave to appeal and the same is accordingly declined. (S.S. Saron) Judge July 15, 2008. (Mohinder Pal) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No