Crl.Misc.No.M-28193 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-28193 of 2010 Date of Decision:- 28.11.2011 Gurcharan Singh and others ....Petitioner(s) vs. State of Punjab and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.G.S.Punia, Advocate, for the petitioners. Mr.G.S.Brar, AAG, Punjab. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in this petition is for quashing of Kalandra dated 31.12.2009 (Annexure P-1) under Section 182 IPC and the summoning order dated 16.2.2010 passed by the Judicial Magistrate, Ist Class, Amloh (Annexure P-2) on the ground that the Kalandra is not based on correct facts and it was not the petitioners who had filed the complaint but it was filed by Baljit Kaur, Block Development and Panchayat Officer before the Senior Superintendent of Police, Fatehgarh Sahib. Another ground which has been taken is that the SHO of Police Station, Amloh-respondent No.2 is not the competent Authority to file the Kalandra under Section 182 IPC as the complaint was filed to the Senior Superintendent of Police, Fatehgarh Sahib. It is the contention of the counsel for the petitioners that a Crl.Misc.No.M-28193 of 2010 -2- complaint dated 30.4.2008 (Annexure P-3 A) was sent by the Block Development and Panchayat Officer, Amloh to the Senior Superintendent of Police, Fatehgarh Sahib alleging therein encroachment upon the abadi deh land of the Panchayat which was in consolidation, earmarked as 'Path Shar- e-aam' for cremation ground, by Baldev Singh son of Kabal Singh and Kashmira Singh son of Soan Singh. Thereafter, it has further been alleged that these persons were creating hurdles in the construction of the path to the cremation ground through the Shamlat land and are causing loss to the tune of lacs of rupees to the Gram Panchayat and have collected material for making the path pucca, out of which 1000 bricks, spades/sand containers and sand etc. have been stolen by the persons, namely, Paramjeet Singh, Baldev Singh, Amrik Singh, Mandeep Singh, Surjit Singh and Balwant Singh which was causing tension in the village. This complaint was sent with a request that the case be got registered against the persons and the Panchayat material be got recovered and strict legal action be taken against them for disturbing the peaceful atmosphere. A perusal of the complaint clearly indicates that the action which has been initiated on the complaint was by the Block Development and Panchayat Officer, Amloh, and the petitioners had nothing to do with the same. The contention of the counsel for the petitioners, thus, is that the initiation of Kalandra against the petitioners is totally with a mala fide intention and contrary to the records. Action, if any, should have been initiated against the Block Development and Panchayat Officer who had filed the complaint and on submission of cancellation report by the Investigating Agency in FIR No.101 dated 3.5.2008 registered under Section 13(2) of the Punjab Village Common Lands Act, 1961 and Sections Crl.Misc.No.M-28193 of 2010 -3- 379 and 120-B IPC at Police Station Amloh was accepted by the Judicial Magistrate, Ist Class vide order dated 24.7.2009 (Annexure P-5) on the statement given by Baljeet Kaur, Block Development and Panchayat Officer, who was the complainant and had no objection to the acceptance of the cancellation report. His further contention is that in any case, proceedings under Section 182 IPC could have been initiated only by the Senior Superintendent of Police, Fatehgarh Sahib to whom the complaint was submitted. On this basis, he prays for quashing of the Kalandra (Annexure P-1). His further contention is that the summoning order passed by the Judicial Magistrate, Ist Class, Patiala dated 16.2.2010 does not show any application of mind as merely on the presentation of the same, notice has been issued to the petitioners which does not indicate any consideration by the Court. Prayer for quashing of the same is made on this basis. Counsel for the respondent could not dispute the factual assertion as put-forth by the counsel for the petitioners that the complaint dated 30.4.2008 was submitted by the Block Development and Panchayat Officer, Amloh. He also could not dispute the fact that the cancellation report has been accepted by the Judicial Magistrate, Ist Class, on the statement made by Baljeet Kaur, Block Development and Panchayat Officer, Amloh. He is unable to co-relate the involvement of the petitioners for which they have been sought to be prosecuted through the Kalandra. He could not dispute the fact that the complaint was submitted to the Senior Superintendent of Police and is apparent from the Kalandra itself that the enquiry was conducted by Sh.Rakesh Kumar, PPS, Deputy Superintendent of Police (Crime), Patiala. Crl.Misc.No.M-28193 of 2010 -4- I have heard counsel for the parties and with their assistance gone through the records of the case. Facts are not in dispute. Block Development and Panchayat Officer, Amloh addressed and sent a complaint dated 30.04.2008 (Annexure P-3 A) to the Senior Superintendent of Police, Fatehgarh Sahib. A perusal of the said complaint leaves no manner of doubt that the Block Development and Panchayat Officer, Amloh, of her own, in the given facts and circumstances of the case and on the basis of the records, had filed the same against Baldev Singh and Kashmira Singh for encroachment upon the path 'Shar-e-aam' which was kept for Abadi Deh during the consolidation proceedings and thereafter against Paramjeet Singh, Baldev Singh, Amrik Singh, Mandeep Singh, Surjit Singh and Balwant Singh for creating hurdles in the construction of the path to the cremation ground through the Shamlat land and for causing loss to the tune of lacs of rupees to the Gram Panchayat and the material collected for making the path pucca, out of which 1000 bricks, spades/sand containers and sand etc. had been stolen by these persons which was further creating tension in the village. Request was made through this complaint to register a case and get the Panchayat material recovered after taking strict legal action against the persons named above. Nowhere are the petitioners involved in the said complaint nor is there any mention that it was on their complaint that the enquiry was conducted by the Block Development and Panchayat Officer or they were in any manner involved in giving any wrong information to the official. The complaint further indicates that at the relevant time, there was no Gram Panchayat and the Administrator of the Gram Panchayat, Manna Singh Wala, was looking after the affairs of the Gram Panchayat. On the basis of Crl.Misc.No.M-28193 of 2010 -5- this complaint, FIR No.101 dated 3.5.2008 was registered at Police Station Amloh under Section 13(2) of the Punjab Village Common Lands Act, 1961 and Sections 379 and 120-B IPC. The matter was enquired into by the Deputy Superintendent of Police (Crime) Patiala and it was on the basis of the said report given that the present proceedings have been initiated by the Station House Officer, Police Station Amloh-respondent No.2 against the petitioners. The present petition deserves to be allowed on both the counts; firstly the complaint was not given by the petitioners nor is their anything reflected in the record that they had given some or any wrong information to the official which would constitute an offence under Section 182 IPC. Secondly, the present complaint under Section 182 IPC could not be filed by the SHO as the complaint dated 30.4.2008 was submitted by the Block Development and Panchayat Officer to the Senior Superintendent of Police, Fatehgarh Sahib and the enquiry was also conducted by the Deputy Superintendent of Police (Crime), Patiala and not by the Station House Officer. The complaint, therefore, could have been initiated by the Senior Superintendent of Police, Fatehgarh Sahib or at the most DSP (Crime), Patiala and not by the SHO of the Police Station, Amloh. It is also not in dispute that the cancellation report was presented on the basis of DSP's enquiry which was accepted by the Judicial Magistrate, Ist Class vide order dated 24.7.2009 on the statement given by Baljeet Kaur BDPO-complainant in Court on 15.6.2009 that she had no objection to the acceptance of the cancellation report and that she did not want to initiate any proceedings on the basis of the FIR. All this goes to show the non-involvement of the petitioners and that they have been roped in without any basis or Crl.Misc.No.M-28193 of 2010 -6- justification. Presentation of the Kalandra against the petitioners is an abuse of process of law and, therefore, cannot sustain. Even the summoning order dated 16.2.2010 (Annexure P-2) is totally a non-speaking one and does it show any application of mind by the Court as merely on the presentation of the Kalandra in Court, which was checked by the Ahlmad and found in order, notice has been issued to the petitioners. This does not fulfil the requirement of initiating criminal proceedings against a person who has to face the rigmarole of the trial apart from facing the stigma of an accused. What is least expected of a Court is application of mind and due consideration of the facts and circumstances which would prima facie suggest the commission of the offence for which a person is being summoned to face trial, which is totally absent in the present case and is not reflected in the order dated 16.2.2010 (Annexure P-2). This order, thus, also cannot sustain.` In view of the above, the present petition is allowed. Kalandra dated 31.12.2009 (Annexure P-1) under Section 182 IPC and the summoning order dated 16.2.2010 passed by the Judicial Magistrate, Ist Class, Amloh (Annexure P-2) and all consequential proceedings arising therefrom are hereby quashed. November 28, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE