Criminal Misc. No.M-49049 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-49049 of 2007 Date of decision: 21.3. 2009 Harpreet Pal Singh and another ......Petitioners Versus Kuldeep Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Gill , Advocate, for the petitioners. Mr.M.S.Bedi, Advocate, for the respondent. **** SABINA, J. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure seeking quashing of complaint dated 27.1.2006 (Annexure P-1) filed by the respondent as well as the summoning order dated 30.11.2006 passed by the Sub Divisional Judicial Magistrate, Batala, District Gurdaspur (Annexure P-2), vide which the petitioners have been summoned to stand trial under Sections 307, 326, 452, 323, 34 of the Indian Penal Code (“IPC” for short). Learned counsel for the petitioners has submitted that occurrence in this case had allegedly taken placed on 23.7.2004 at Criminal Misc. No.M-49049 of 2007 2 about 8.30 p.m., whereas, the complaint in question was instituted on 27.1.2006 after a long delay and hence, the same is liable to be quashed. From the averments made in the complaint, it was evident that there was a money dispute between the parties but the same already stood settled. In support of his arguments, learned counsel for the petitioner has placed reliance on M/s Pepsi Foods Ltd. v. Special Judicial Magistrate 1997(4) RCR (Criminal) 761, wherein it was eld 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 that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. No doubt that Criminal Misc. No.M-49049 of 2007 3 Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. Learned counsel has next placed reliance on Arun Jha and another v. State of Haryana and another 2006(1) RCR (criminal) 300, wherein the view taken by the Apex Court in Pepsi Foods Ltd. (supra) was followed. Learned counsel for the respondent has submitted that the complaint in question could not be set aside merely on the ground of delay. The matter was immediately reported to the police but no action was taken by the police and due to this reason the delay in instituting the complaint had occurred. There is no dispute regarding the fact that the occurrence in this case had allegedly taken place on 23.9.2004 at about 8.30 p.m. As per the complainant, he was attacked by the accused, while he had entered his house. Harpreetpal Singh was armed with pistol, whereas, Prabpal Singh, Harjinder Mohan Singh, Harjinder Singh, Satwant Singh and Sardool Singh were armed with datars and had encircled the complainant inside the gate of his house with an intention to kill him. Prabpal Singh gave two datar blows from its Criminal Misc. No.M-49049 of 2007 4 blunt side on the head of the complainant. Harjinder Singh and Harjinder Mohan Singh also gave two datar blows from the blunt side on the head of the complainant. Harjinder Mohan Singh gave another datar blow from its reverse side on the head of the complainant. The complainant fell down and Satwant Singh gave kick blow in his abdomen. Sardool Singh and Harjinder Singh gave two datar blows on the lower part of the right leg of the complainant. Harpreetpal Singh fired a shot, which hit the complainant on his right foot. When persons from the neighbourhood gathered at the spot, all the assailants fled away from the spot. It has further been pleaded by the complainant that he was taken to the Civil Hospital, Batala for treatment, where he narrated the entire occurrence to the police. His signatures were taken on some blank papers and he was assured that necessary legal action would be taken against the accused after registration of case but police failed to take any action against the accused due to political pressure and hence, the complaint in question was being filed. Vide the impugned order, learned Sub Divisional Judicial Magistrate, Batala summoned the accused to face trial under Sections 307, 326, 452, 323, 34 IPC after recording preliminary evidence. Aggrieved by the same, the petitioners have filed the present petition. The case of the petitioners is that there was huge un- Criminal Misc. No.M-49049 of 2007 5 explained delay in filing the complaint which made the complainant's case doubtful. Daily Diary Report No.934 dated 23.7.1994 was recorded to the effect that the matter was compromised between the complainant and the accused. The petitioners or their co-accused were not named in the said occurrence. The complaint had been filed by Kuldeep Singh because Rashpal Singh, father of Harpreetpal Singh-petitioner No.1 had taken an amount of Rs. 2,00,000/- as loan from the complainant in the year 2000, which he had returned along with interest in the year 2003. Kuldeep Singh, Harpeetpat Singh and other accused were closely related to each other but their relations had become strained. Kuldeep Singh had filed a suit for recovery of Rs. 1,00,000/- against Harpreetpal Singh and others through Balwinder Singh and the same was pending. The complainant had also lodged an FIR against Harpreetpal Singh and his family members that they had cheated him to the tune of Rs. 3,00,000/-. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to Criminal Misc. No.M-49049 of 2007 6 secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Criminal Misc. No.M-49049 of 2007 7 Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” In the present case the effect of delay in institution of the complaint can more appropriately be gone into and considered during trial. The complainant has furnished an explanation that the matter was reported to the police and his signatures were taken on blank papers and he was assured that action would be taken against the accused but no action was taken by the police and hence, the Criminal Misc. No.M-49049 of 2007 8 complaint in question was filed. The genuineness of this explanation can also be more appropriately gone into and considered during trial. At this stage, it would not be just and expedient to scuttle the criminal proceedings at the very threshold. As per the Medico Legal Report (Annexure P-5), Kuldeep Singh injured has suffered 11 injuries. One of the injuries is due to a fire arm. Injured was examined on 23.7.2004 at 8.45 p.m. and the occurrence had allegedly taken place at 8.30 p.m. on the said day. The fact that whether the police had not properly investigated the case as alleged by the complainant will also be considered during trial. There are disputed questions of facts involved in this case which can be only gone into during trial. Keeping in view the guidelines laid down by the Apex Court in Bhajan Lal's case (supra), no ground for quashing the complaint at this stage is made out. Learned Magistrate, after recording preliminary evidence and going through the material on record has passed the summoning order, which does not suffer from any infirmity and calls for no interference. Accordingly, this petition is dismissed. March 21, 2009 (SABINA) anita JUDGE