IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.82 of 2008. Judgment reserved on: 06.11.2008. Date of Decision: November 18 , 2008. _________________________________________________________ Jai Prakash Bhati and others. …….. Petitioners. Versus Dr. Satish Malhotra. …….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Petitioners : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. Sanjeev Kuthiala, Advocate. _______________________________________________________ Surinder Singh, J. The accused-petitioners have felt aggrieved by the order dated 23.5.2007, passed by the learned Chief Judicial Magistrate, Mandi, summoning them, under Sections 147, 307, 451, 341, 323 and 506 of the Indian Penal Code, as the accused in the private complaint filed by the respondent. The said orders were challenged by filing a criminal revision petition No.13 of 2007 before the learned Sessions Judge, which was dismissed on 4.7.2008. Now, the present petition has been filed under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of the India for quashing and Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - setting aside the orders passed by the courts below, on the ground that the material on record does not disclose prima facie the commission of alleged offences and it would mean only to mock trial in view of the allegations made by the respondent in his complaint made to the police earlier. Heard the learned counsel for the parties and examined the records of the courts below in detail. The respondent (complainant) is a doctor by profession. He was running a clinic at Mandi and also a private hospital at Kullu. The petitioner Jai Prakash Bhatia raised a huge structure in village Gutkar for running a hotel, but later he approached the complainant to lease it out for his hospital. A lease deed was also executed and a Private Limited Company was constituted. The complainant along with Jai Prakash Bhatia and Om Prakash Bhatia besides others became its Directors. The said company took loan of Rupees one crore. It is alleged that petitioner Jai Prakash Bhatia was managing the accounts and he misappropriated the money. The respondent herein was appointed as a Managing Director for five years by the Board of Directors. On 9.9.2005, when he assumed his duties the accused petitioner Jai Prakash snatched the power of attorney from him, and threatened him to kill. He put hurdles in the working of the hospital and used filthy language. On his return to his residence at Mandi, the - 3 - complainant contacted the Superintendent of Police telephonically. He advised him to report the matter in the police station. On 10.9.2005, he filed a written complaint in the police Station. It is alleged that the police did not take any action. On 13.9.2005 at about 11 a.m., the accused petitioner Jai Prakash Bhatia alongwith a Chartered Accountant came to his hospital at Gutkar and allegedly threatened him and also broke the account C.D. Thereafter, on 29.9.2005, the complainant came to know about the stoppage of water supply in his hospital by the accused aforesaid. This fact was also reported to the SHO, Police station Balh. It is further alleged that on 4.10.2008 at 11 a.m. when the complainant was sitting in his office room of the hospital, accused petitioners entered inside with an intention to kill him and threw him forcibly on the ground and took over the control of the office. The accused persons, namely, Jai Prakash Bhatia, Om Prakash Bhatia, Manish Bhatia along with other petitioners dealt with fist and kick blows. He was throttled and a punch was also given to him, which resulted into the breaking of one portion of his tooth. The said accused, after taking the letter pad and other judicial papers forced the complainant to sign the same, for which he refused. On this, the accused persons Jai Prakash Bhatia, Manish Bhatia and Kushal - 4 - Sen again started beating him. It is alleged that the petitioner Jai Prakash and Om Prakash physically lifted him and attempted to throw him out of the window and threatened that if he would refuse to sign the papers, he would be killed. Thereafter both the accused named above threw him on the floor of the office. When he requested for water, Manish Bhatia spilled the water on him and Kushal Sen accused threatened him with the dire consequences. The other accused Chandan Bhatia along with two unknown persons kept on sitting throughout when he was being given beatings, at the door of the office and accused Santosh alias Mhasa threatened the complainant not to disclose this fact to anyone, while accused Biri Singh and Mahinderoo along with 7-8 persons kept on standing outside his office preventing other persons entering in his office-room. As per the case of the complainant, he could free himself from the grip of accused Santosh and ran to the third floor, entered in to the doctors’ room and bolted the door from inside. He saw the police vehicle from the window, he came down running the down-stairs and contracted them. Except the accused Jai Prakash Bhatia and Manish Bhatia, all other accused persons had run away under the very nose of police. He also made the allegations against the police for not registering the case with respect to the alleged occurrence. - 5 - The learned trial court recorded the preliminary evidence and after considering the matter, the following order was passed on 23.6.2007:- “23.5.2007 Present: Complainant in person with counsel Sh. D.C. Guleria, Adv. From preliminary evidence adduced by the complainant in which he has examined himself as CW-1, CW-2 Mohahar Lal, CW-3 Narish Kumar, CW-4 Bhupendir Singh, CW-5 R.C. Malhotra, CW-6 Dr. Divender Sharma, M.O. C.H.C. Ratti, CW-7 Dr. Sunil Thakur, M.O. Zonal Hospital Mandi, coupled with the allegations as contained in the complaint, I am satisfied that there are sufficient grounds to proceed against all the accused persons under Section 147, 307, 451, 341, 323 and 506 IPC read with Section 149 IPC. Let all the accused persons i.e. accused Nos.1 to 9 be summoned for 30-6-2007 on existing PF copies of complaint and list of witnesses. Sd/- (K.K.Sharma) Chief Judicial Magistrate,Mandi, District Mandi (H.P.)” The aforesaid order was assailed in revision before the learned Sessions Judge. He did not find any legal basis - 6 - and reasons to differ with the conclusion arrived at by the learned trial court. Shri M.S. Guleria, learned counsel for the accused- petitioners has vehemently argued that the learned trial court has wrongly summoned the petitioners under Sections 307, 147 and 149 of the Indian Penal Code which are not prima-facie made out. He also referred to the previous complaint given to the police for registering the case and contended that the summoning order of the petitioners as the accused is devoid of any merit and the learned Sessions Judge has also traveled beyond the controversy and decided the matter in slip-shod manner. Contra, Shri Sanjeev Kuthiala, learned counsel for the respondent has supported the impugned order, passed by the courts below and forcefully argued that prima-facie there were sufficient and reasonable grounds to summon the petitioners as accused, for the offences aforesaid and no interference is called for therein. I have given my thoughtful consideration to the rival contentions of the parties and have examined the records carefully. It is evident from the record that on the complaint of respondent FIR No.257/05 was registered on 4.10.2005 in police station Balh. According to him, the police did nothing, as such he filed the private complaint in the trial court on 28.9.06 After recording the preliminary evidence, - 7 - vide order dated 3.11.06, trial court called for the record of the police case alongwith the medico legal certificate, X- rays and other documents. Thereafter the statements of Dr. Devinder Sharma and Dr. Snuil Thakur were recorded and the arguments on the preliminary evidence were heard, thereafter the impugned order was passed on 23.5.2007. As a matter of fact, a Magistrate takes the cognizance of the offence as per provision of Section 190 of the Code of Criminal Procedure, which reads as under:- “190. Cognizance of offences by Magistrates- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.” All the three clauses (a) to (c) of sub-section (1) of said section pertains to the cognizance of offence by the Magistrate under the said section and are not mutually exclusive. The Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others [AIR 1976 Supreme Court 1947] held that the scope of inquiry under Section 202 of the Code of Criminal Procedure is extremely limited to the - 8 - ascertainment of truth or falsehood of the allegations made therein or for deciding the question purely from the point of view of the complainant without at an adverting to any defence that the accused may have. In other words, at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support thereof. He is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. The High court can only interfere with the matter, if the learned Magistrate has exercised his judicial discretion beyond the record and contrary to law, where the offence(s) is/are not made out even by drawing a presumption. It is a settled law that when the complaint did not disclose any case or offence against the accused at all, then an order of summoning the accused is liable to be quashed. In this case, prima-facie on the perusal of the complaint, as also the preliminary evidence, which has been led to substantiate the complaint and from the police record placed before the trial court the offences under Sections 147, 149 and 307 of the Indian Penal Code are not at all made out against the accused petitioners, hence, their summoning for the said offences is wrong and illegal, therefore to this extent the impugned order is quashed, whereas there are sufficient grounds for summoning the accused petitioners under Section 451, - 9 - 341, 323 and 506 of the Indian Penal Code, as such, the petition is partly allowed and the order of summoning the accused petitioners under Sections 147, 149 and 307 of the Indian Penal Code is hereby set-aside. The parties are hereby directed to be present before the learned trial court on 18.12.2008. The learned trial court would proceed with matter, in accordance with law and shall make every endeavour to dispose of the matter at the earliest. The matter stands disposed of. November 18, 2008. (Surinder Singh) ( Pds ) Judge.