IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Cr.MMO No.156 of 2011. Judgment reserved on :3.11.2011. Date of decision: 4.11.2011 _______________________________________________________ Naseeb Chand Punchhi & Ors. ….. Petitioners. Versus Ramesh Chand Banta …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Petitioners : Mr. Neeraj Maniktala, Advocate. For the Respondent : Mr. Rajeev Sood, Advocate. Kuldip Singh, J This petition has been directed against the order dated 23.6.2011 passed by learned Judicial Magistrate Ist Class, Joginder Nagar in Private Complaint No.7-II/11 whereby the learned Magistrate has summoned the petitioners for offence punishable under Section 500 IPC. 2. It has been stated in the petition that on 30.3.2010, a letter filed as Public Interest Litigation and signed by 180 persons of village Samlot was sent to the Hon’ble the Chief Justice of Himachal Pradesh. In the letter details like encroachments on the public road on khasra No.129 and the Government land and Nullah on Khasra No.460, cutting of trees were given. The photographs, revenue record etc. were also sent to the High Court. ----------------------------------------- Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 3. The Registrar General of the High Court vide letter dated 15.3.2011 directed the Deputy Commissioner, Mandi to look into the matter in accordance with law under intimation to the petitioners as well as the Registry. It appears that some information has been received by the High Court and some reports are still awaited. It has been stated that the revenue record is being manipulated by the revenue authorities below and a report highly misleading is being sent to the High Court. The matter is still pending in the High Court. 4. It has been stated that petitioners all through had been pressurized to withdraw the Public Interest Litigation. In the backdrop of the aforesaid facts, a false private complaint has been filed against the petitioners so as to pressurize them to withdraw the Public Interest Litigation. The Court below has summoned the petitioners vide impugned order which has been assailed by the petitioners on the grounds that the criminal proceeding is malafide and has been maliciously instituted with an ulterior motive to wreck vengeance on the petitioners as the petitioners are signatories to the Public Interest Litigation before the High Court. 5. The criminal proceedings initiated against the petitioners are highly vexatious and meant to harass the petitioners. The process of the law has been abused. The Court below has ignored the facts while issuing the process to the petitioners. 6. The Court below has ignored the fact that the incident narrated in the complaint was dated 19.9.2010 and took six months for the respondent to file complaint before the Court below on …3… 11.3.2011. The complaint is counterblast to the pending Public Interest Litigation before the High Court. 7. The Court below has ignored the material on record before issuing process against the petitioners. The Court has exceeded its jurisdiction. The Court below has lost sight of the fact that the innocent persons should not be subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. There is miscarriage of justice when the Court below had issued process to the petitioners. The petitioners ultimately prayed that the order dated 23.6.2011 may be quashed and set aside. 8. I have heard the learned counsel for the parties and have also gone through the record. The petitioners have placed on record a copy of complaint Annexure P-10 which has been filed by respondent against the petitioners. The petitioners have also placed on record copies of statements of witnesses which the respondent has led by way of preliminary evidence. The learned Magistrate has issued process to the petitioners under Section 500 IPC only. The learned counsel for the petitioners at the time of hearing of the petition has stated that the High Court on judicial side has not passed any order in the Public Interest Litigation referred in the petition. He has submitted that on the representation of 180 persons referred to in the petition the High Court has called information, reports from different authorities. In view of this stand of learned counsel for the petitioners it can be safely concluded that till now, no Public Interest Litigation on judicial side is pending in this Court reference of which has been given in the petition. …4… 9. I have gone through the complaint filed by respondent. The para-2 of the complaint is as follows:- “That the accused bear ill will nurses, grudge against the complainant for reason best known to them. In order to achieve the object of their inimical relation with the complainant, the accused on 19.09.2010 at about 3.30 P.M. while passing through common path near the house and shop of complainant shouted ( Tu Chor Hai, Ye Dakuon Ka Ghar Hai, Baimani or Badmashi iska Kaam Hai, Loko Dekho isne sarkari raste per Avedh kabja Kiya Hai). This was one with a motive to lower down the prestige of the complainant in the estimation of Public. The accused persons were pretty well knowing that allegations raised by them are false to their knowledge but it will harm the reputation of the complainant before the general public as many persons gathered at the sight of occurrence and many persons were passing as it is National High Way.” 10. The respondent appeared as CW-1 and has stated that on 19.9.2010 at about 3.30 P.M. Naseeb Chand Punchhi, Arun Punchhi and Umesh were passing alongside his house and shop. They in conspiracy with each other said that he is thief, dacoit, dishonest, vagabond and blood sucker of the poor. Many persons gathered there. He was defamed. The allegations were false. The accused are still continuing with the allegations. CW-2 Kishori Lal and CW-3 Rikhu Ram have corroborated the statement of CW-1 on material particulars. The learned counsel for the petitioner has stated that there is overwriting over the time stated in the statement of CW-2. He has submitted that on 19.9.2010 it was Sunday and therefore, there is no question of opening of shop of respondent. The …5… overwriting over time in the statement of CW-2 is not material. It has not been alleged overwriting has been done later on and statement has been tampered. The allegation of the respondent is that offending imputations were spoken by petitioners when they crossed the shop. Therefore, it is immaterial that on 19.9.2010 it was Sunday. Moreover, it is too early to say that under no circumstance shop of the respondent could be opened on Sunday. 11. The learned counsel for the petitioners has relied State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru (2003) 6 SCC 641 wherein it has been held that inherent power is not to be resorted to if there is a specific provision in the Code for redress of grievance of the aggrieved party. State v. Navjot Sandhu alias Afshan Guru is of no help to the petitioners; rather this judgment goes against the petitioners in asmuch as the petitioners have alternative remedy to challenge the summoning order by way of revision. The petitioners have filed the present petition under Section 482 Cr.P.C. and have not filed revision under Section 397 Cr.P.C. 12. In R. Kalyani v. Janak C.Mehta and others (2009) 1 SCC 516 relied by learned counsel for the petitioners it has been held that If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. In view of allegations made in the complaint and preliminary evidence in the present case, it cannot be said that …6… the learned Magistrate has erred in issuing process against the petitioners under Section 500 IPC. 13. The learned counsel for the petitioners has relied Punjab National Bank and others v. Surendra Prasad Sinha AIR 1992 SC 1815 wherein the Supreme Court has held that it would be the responsibility and duty of the Magistrate to find whether the concerned accused were legally responsible for the offences charged for, before issuing the process. The complaint on the basis of which the process was issued was filed as vendetta to harass the persons needlessly, the complaint was quashed. 14. On facts Punjab National Bank supra is not applicable. From the complaint and preliminary evidence it cannot be said that case has been filed to harass the petitioners. The learned counsel for the petitioner has stated that Public Interest Litigation referred to in the petition has not yet been taken by the High Court on judicial side. In para-12(a) of the petition it has been stated that Public Interest Litigation does not name anybody as the wrongdoer. It has been alleged that Public Interest Litigation letter has been signed by 180 persons. There is no allegation that respondent has filed similar complaints against all such signatories of letter. Therefore, it cannot be said that complaint has been filed by the petitioners as counterblast to the Public Interest Litigation referred in the petition. 15. The learned counsel for the petitioners has also relied R.P. Kapur v. State of Punjab , AIR 1960 SC 866 on the point that High Court has power to quash the criminal proceedings at an interlocutory stage. There is no dispute to this legal proposition. …7… The petitioners have failed to make out a case that the learned Magistrate has erred in issuing the process to the petitioners under Section 500 IPC. There is no merit in the petition. 16. The result of above discussion, the petition fails and is accordingly dismissed. The pending application is also disposed of. November 4, 2011 (Kuldip Singh), (sks) Judge.