Criminal Misc. No. M-6579 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Misc. No. M-6579 of 2008 Date of Decision: 2.2.2009 Vishav Nath …Petitioner Versus Rama Nand Jindal and Others …Respondents 2. Criminal Misc. No. M-6818 of 2008 Vishav Nath …Petitioner Versus Brij Mohan Jindal …Respondent AND 3. Criminal Misc. No. M-2241 of 2008 Vishav Nath …Petitioner Versus Rama Nand Jindal and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Manmohan, Advocate for the petitioner. Mr. Sudhir Sharma, Advocate for the respondents. Criminal Misc. No. M-6579 of 2008 2 Kanwaljit Singh Ahluwalia, J. (Oral) By this common order, three petitions i.e. Criminal Misc. Nos. M-6579 of 2008 titled as “Vishav Nath v. Rama Nand Jindal and seven others”, M-6818 of 2008 titled as “Vishav Nath v. Brij Mohan Jindal”, and M-2241 of 2008 titled as “Vishav Nath v. Rama Nand Jindal and eight others” will be decided together as the same arise out of one occurrence. Petitioner Vishav Nath had lodged a case FIR No.229 dated 24.6.2003 registered at Police Station Civil Lines, Hisar, under Sections 323, 506 read with Section 34 IPC. In the FIR five persons namely Rama Nand Jindal, Brij Mohan Jindal, Sham Jindal and Rattan jindal were named as accused. Accused/respondents No.3 to 5 are sons of Rama Nand Jindal. It was stated that on 1.6.2003 in the night at about 10.30 P.M., the above named accused along with two women and eight/ten unidentified persons entered into the house of the complainant. Rama Nand Jindal and Govind Jindal had raised lalkara that the complainant be lifted and he should be thrown in Gangwa canal. Complainant was caught by the persons and ladies present on the side of the accused. Rama Nand Jindal was armed with Iron Drati which he had put on the neck of the complainant. The occurrence was witnessed by Vishav Nath, Uggar Sain and Ramesh Chand. It was stated that the complainant was given beatings and Rama Nand and Govind had snatched his gold ring and gold chain. It was further stated that the complainant was saved by his brother and his neighbourers. The accused while going from the spot left the threat that they would eliminate the complainant. The complaint was lodged by Sagar Mal, Criminal Misc. No. M-6579 of 2008 3 brother of Vishav Nath. Police investigated the FIR and found Brij Mohan Jindal to be innocent and placed him in column No.2. The FIR has not been mad part of the paper book but has been supplied by Mr. Sudhir Sharma, Advocate, appearing for the respondents. He further submitted that Daily Diary Register No. 27 was lodged by accused Govind Jindal against the complainant party on basis of which FIR regarding the same incident was registered against the complainant to the present FIR i.e. petitioner's family. Counsel for the petitioner has three fold grievances. Firstly, Brij Mohan Jindal was placed in column No.2; secondly police had not found offence of Section 395, 148 & 149 IPC against the accused party and finally two ladies namely Shakuntla, and Bimla and accused Krishan Kumar and Pritam were not challaned. For redressal of his grievance the complaint (Annexure P2) to Criminal Misc. No. M-6579 of 2008 was instituted. Complaint is titled as “Vishav Nath v. Rama Nand and eight others”. The complaint was filed under Sections 323, 395, 452, 506, 148 & 149 IPC. Preliminary evidence was led. The Court of learned Additional Chief Judicial Magistrate, Hisar, vide order dated 22.9.2005 (Annexure P7) summoned all the accused under Sections 323, 452 & 506 IPC read with Section 34 IPC. During this period, an application was filed in FIR case under Section 319 Cr.P.C. and accused Brij Mohan Jindal who was placed in column No.2 was also summoned by the trial Court i.e. the Court of learned Additional Chief Judicial Magistrate, Hisar. This led to filing of six revision petitions. It will be pertinent to mention here that one revision petition Criminal Misc. No. M-6579 of 2008 4 was filed by accused Rama Nand Jindal against exemption of personal appearance of Uggar Sain, Satya Bhama and Saroj. That revision petition was dismissed and no grievance qua the same is pending before this Court. Regarding the claim of the petitioner that the accused should be charged for the offence under Sections 395, 148 & 149 IPC, the Court while deciding six revision petitions by a common order (Annexure P1) held that accused have been rightly summoned under Sections 323, 452, 506 read with Section 34 IPC and had dismissed the revision petitions. The Court further held that Brij Mohan Jindal was found innocent during the investigation. His co-accused had been charge sheeted on 5.12.2003. Therefore, the trial Court had again summoned him vide summoning order dated 22.9.2005 along with other accused as the complaint was off-shoot of the FIR case. The trial Court further held that since accused Rama Nand Jindal, Rattan Jindal, Sham Jindal and Govind Jindal are facing trial in FIR case and Krishan Kumar, Shakuntla, Bimla and Pritam have been found innocent, they could not be summoned under Section 319 Cr.P.C. It was further held that due to pendency of criminal case arising out of the FIR, they could not also be summoned in a complaint case also. Criminal Misc .No. M-6579 of 2008 has been preferred with a prayer that all accused should be summoned and tried in a complaint filed by the petitioner under Section 395 read with Sections 148 & 149 IPC along with Sections 323, 452, 506 read with Section 34 IPC. Criminal Misc. No. M-6818 of 2008 has been filed seeking Criminal Misc. No. M-6579 of 2008 5 quashing of the order passed by the revisional Court whereby summoning of Brij Mohan Jindal under Section 319 Cr.P.C. in complaint was held to be bad. Criminal Misc. No. M-2241 of 2008 has been preferred with a prayer that accused should be summoned under Section 319 Cr.P.C. under Sections 395, 148 149 IPC. I have heard Mr. Manmohan, Advocate, appearing for the petitioner and Mr. Sudhir Sharma, Advocate, appearing for the respondents. Mr. Manmohan, Advocate, appearing for the petitioner has stated that grave error has been committed by the revisional Court in setting aside the order under Section 319 Cr.P.C. and by the Court of learned Additional Chief Judicial Magistrate for not summoning the accused under Sections 395, 148 & 149 IPC. He has further stated that at the stage of summoning, test of prima facie is to be applied and at that stage the Court cannot adjudge truth and veracity of allegations levelled. To counter these arguments, Mr. Sudhir Sharma, Advocate, appearing for the respondents has stated that in the present case, incident had taken place on 1.6.2003. FIR was lodged on 24.6.2003 and complaint was instituted on 25.9.2003. He further contends that the delay has been used for consultation and deliberations not only to inflate the number of accused but to make the offence more serious. Therefore, the version set out by the petitioner/complainant party in the FIR and the complaint should be taken with a pinch of salt and this Court should separate chaff from the grain. Criminal Misc. No. M-6579 of 2008 6 I have given my thoughtful considerations to the rival contentions. I am of the view that the Courts below have not taken the provisions of Section 210 Cr.P.C. in right earnest. Section 210 reads as under:- 210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such export cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or Criminal Misc. No. M-6579 of 2008 7 try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code”. Admittedly, occurrence in the complaint case and the FIR case are common. Therefore, both the complaint and FIR cases are to be clubbed. Once the complaint and FIR case are clubbed the necessity of invoking Section 319 Cr.P.C. will not arise. Brij Mohan Jindal has been subsequently named in the complaint. By summoning the accused, the Court has already taken a cognizance in a complaint under Section 190 Cr.P.C. So far as the second grievance as to what offence has been committed by the accused, the trial Court at any stage of the trial can amend the charge if a sufficient evidence came on the record that the accused had committed offence under Sections 395, 148 & 149 IPC. Thereafter, this prayer at this stage cannot be entertained. However, it is expressly stated that as and when evidence to this effect will come, petitioner will be at liberty to file an application for amendment of the charge. Criminal Misc. No. M-6579 of 2008 8 Mr. Sudhir Sharma, Advocate, has stated that in case the FIR No. 229 dated 24.6.2003 recorded at the instance of Sagar Mal and complaint lodged by the complainant Vishav Nath are to be clubbed then in that case version given by the respondent in FIR No. 341 dated 4.9.2003 should also be clubbed with the said FIR. This prayer of the counsel for the respondents cannot be accepted. The settled legal position is that the version given by the accused in case FIR No. 341 dated 4.9.2003 is to be tried simultaneously with the FIR and complaint case though separately. Accordingly, it is ordered that the complaint and FIR lodged by the petitioner should be clubbed under Section 210 Cr.P.C. and cross version given in FIR No. 341 dated 4.9.2003 shall be tried simultaneously but separately. The order of revisional Court whereby Shakuntla, Bimla, Krishan, Pritam and Brij Mohan Jindal were discharged in a complaint is set aside. The accused will be at liberty to file an application before the trial Court for their discharge at appropriate stage. Taking into consideration that the occurrence pertains to the year 2003, personal appearance of those accused who have been discharged by the trial Court shall be exempted subject to filing an undertaking that they shall cause appearance as and when required and the evidence recorded in their absence but in the presence of their counsel shall be binding upon them. Trial Court may also specify any other condition in the undertaking to be furnished by the petitioners. On the furnishing of undertaking, the personal appearance of petitioners shall stand exempted. Criminal Misc. No. M-6579 of 2008 9 With the observations made above, the present petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge February 2, 2009 “DK”