1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 52245-M of 2007 Date of Decision: 23.9.2009 *** Ram Dia & Ors. .. Petitioners Vs. State of Haryana & Anr. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Narender Hooda, Advocate for the petitioners. Mr. S.S. Mor, Sr. DAG Haryana. Mr. Ashwani Bakshi, Advocate for the respondent No.2. *** ARVIND KUMAR, J. Through the instant petition filed under Section 482 Cr.P.C. the petitioners are seeking quashing of complaint dated 12.9.2003 as also order dated 24.1.2007 passed by the revisional Court. The facts of the case are that respondent No.2 got instituted a criminal complaint against the petitioners in the Court of learned Judicial Magistrate Ist Class, Rohtak alleging therein that on 19.5.2003 he along with his uncle Raj Singh, after attending the Court of Deputy Commissioner, were returning on their scooter. When they reached near the old SDM office then all the accused came there on scooter and stopped their vehicle. Surender assaulted him with knife while petitioner Ramdia and Bijender gave fists and leg blows to him. It was also been alleged in the complaint that Ramdia put red chilly powder in the eyes of complainant and roped him to Rs.14000/- which were lying in his pocket. On raising noise by the complainant his uncle Raj Singh came there and all the accused ran away from the spot. It is further the case of the complainant that he was medicolegally examined by the Doctor and his statement was recorded by 2 the police incompletely and took no action against the culprits. In preliminary evidence the complainant got examined PW2 Sham Sunder who proved FIR Ex.P1, Dr. Vimal Sharma as PW3 and proved the MLR Ex.P2 and examined himself as PW1. On appraisal of the preliminary evidence led by the complainant, the learned Magistrate vide order dated 17.12.2005 observed that no such occurrence as alleged had taken place and finding no sufficient ground to summon the accused-petitioners, dismissed the complaint of the complainant. Aggrieved therefrom, the complainant preferred a revision petition before the learned Addl. Sessions Judge, Rohtak, who by dint of the impugned order dated 24.1.2007 allowed the same and set aside the order passed by the learned trial Magistrate. The learned Revisional Court while relying upon the cases of Ashok Kumar Gulati Vs. Satpal Singh Process Server and Anr, Criminal Court Judgment (Supplementary) Vol. 15 page 477 rendered by this Court and that of Hon'ble Supreme Court in the case of Anil Saran Vs. State of Bihar, Criminal Court Judgments (Supplementary) Vol. 15, page 303 observed that at the stage of issuing process the Magistrate was not required to hold regular trial and has to prima facie see the allegations making out an offence or not and accordingly finding prima facie case against the petitioners under Sections 324, 392, 34 IPC, the learned trial Magistrate was directed to proceed further with the case in accordance with law. Hence, the instant petition. In the reply filed on behalf of the State, it has been admitted that FIR No. 258 dated 19.5.2003 was registered against the petitioners under Section 324, 34 IPC, P.S. Civil Lines, Rohtak on the basis of statement made by respondent No.2-complainant, but the allegations leveled therein were found false and accordingly cancellation report was submitted, which was duly accepted by the Court. Respondent No.2-complainant in the reply though not disputed the factual aspect of the matter, but it has been averred that since the investigating agency did not conduct the investigation in a fair and impartial manner, the complainant was forced to file the impugned complaint wherein the petitioners have rightly been ordered to be summoned by the learned 3 Revisional Court, after setting aside the order dismissing the complaint, rendered by the learned Magistrate. Hence, dismissal of the petition has been prayed for. I have heard learned counsel for the parties and have also gone through the paper book carefully. There is no dispute to the fact that at the time of issuance of process the Court is not required to delve deep into the allegations as if it is adjudicating the matter on merits, as held by the Hon'ble Supreme Court as well as this Court in the cases of Anil Saran and Ashok Kumar Gulati (supra), but at the same time it can also not be forgotten that summoning of an accused in a criminal offence is a serious matter and criminal law cannot be set into motion as a matter of routine. The order summoning a person as an accused must reflect that the Court has applied its mind and has examined the nature of allegations made in the complaint and the evidence, both oral as well as documentary. The Court cannot sit as a silent spectator and has to first undertook the test of prima facie case against a person against whom the offence is complained of. In the instant case, as evident from the paper book the version of the complainant was found untrue by the investigating agency, during the course of investigation carried out in case FIR No. 258 dated 19.5.2003, lodged by the complainant-respondent No.2 in respect of the same very occurrence, which is the subject matter of the impugned complaint. The cancellation report was prepared in the matter and submitted to the Court. The complainant opted not to contest the same since he did not appear before the Court despite due notice of the cancellation report, for the reasons best known to him, as is evident from Annexure R-1, which was accepted by the learned Chief Judicial Magistrate vide order dated 21.12.2004. The said very order has not been questioned by the complainant till date. That apart, the version propounded by the complainant in which the alleged occurrence took place do not find favour of the learned Magistrate in the light of the facts that the only alleged eye witness accompanying with the complainant i.e. Raj Singh was not produced before the Court. The tenor and manner in which the alleged occurrence had taken place was disbelieved on account of the fact that no medical evident was produced to show that chilly powder was thrown in the eyes of the complainant, as alleged in the complaint. The injuries on his 4 person were found to be superficial, which, in the opinion of the medical expert, were possible by a friendly hand. Besides, non mentioning the number of scooter on which the accused persons allegedly came to the spot; non presence of Raj Singh at the time when complainant was medically examined and non production of any evidence with regard to coming of complainant along with his uncle at Rohtak were the vital factors which rightly led the learned Magistrate to conclude that no such incident had occurred on 19.5.2003, as alleged by the complainant. Therefore, in the considered opinion of this Court, the learned Magistrate has rightly refused to issue process against the petitioners while dismissing the complaint. In the light of above discussion, the order passed by the learned Revisional Court dated 24.1.2007 is not sustainable and is accordingly set aside. Order dated 17.12.2005 passed by the learned Magistrate is affirmed and the impugned complaint as also the consequent proceedings taken therein are quashed. Petition stands allowed accordingly. (ARVIND KUMAR) JUDGE September 23,2009 Jiten