IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr MMO No. 85 of 2007 Date of decision: 29.05.2008 Agya Pal Puri & Ors. …. Petitioners Versus D.P. Malhotra & Anr. …. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the petitioners: Mr. Ajay Kumar, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate, for respondent No. 1 Mr. J.S. Guleria, Law Officer, for respondent No. 2. V.K.Ahuja, J. (Oral): This judgment shall dispose of the petition filed by the petitioners under Section 482 Cr.P.C. for quashing and setting aside the summoning order passed by the learned Chief Judicial Magistrate on 20.10.2006 in Cr. Complaint No. 173/1 of 2006 titled as D.P. Malhotra Vs. Agya Pal Puri and others. Briefly stated the facts of the case are that a complaint was filed before the learned trial Court by respondent No.1 as against the petitioners and others Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 under various sections. The learned trial Court after recording preliminary evidence of respondent No. 1 summoned the petitioners under Sections 420, 467, 468, 471, 500 and 120-B I.P.C. The said summoning order was challenged by the petitioner before the learned Sessions Judge, Chamba in a revision petition filed by them and the learned Sessions Judge vide his order dated 27.6.2007 dismissed the revision petition filed by the petitioners. The petitioners have accordingly filed the present petition. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that the allegations made by respondent No.1 in the complaint are general in nature, the complainant has not alleged or substantiated from his preliminary evidence what cheating was done by the petitioners or which documents were forged by the petitioners and the learned trial Court in a mechanical manner issued the process as against the petitioners, which order is liable to be quashed. It was further submitted by the learned counsel for the petitioners that this is a private dispute in between two factions in regard to management of Bhartiya Public 3 School at Chamba and according to the assertions made by the petitioners, respondent No.1 has alleged that he is the Chairman of the said school, while the petitioners are holding different position in the Executive Committee etc. and some dispute arose in between two factions. Some news items also appeared in the newspaper and accordingly, a complaint was filed by respondent No.1 Chairman of the said school making some allegations as against the petitioners. The learned counsel for the petitioners to substantiate his point that the criminal process cannot be used to settle the score with other party and the evidence has to be clearly scrutinized as to whether the case is made out for summoning of the petitioner or not, accordingly placed reliance on the following two decisions:- The decision in Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others, (1996) 6 Supreme Court Cases 263, shows that it was observed by the Hon’ble Apex Court as under:- “Complaint must disclose all necessary facts constituting the offence alleged before taking cognizance of the offence. Complaint alleging that appellant in an interview published in a magazine made statements outraging religious feeling of Marwari community and alleging that the members 4 of that community were not a class belonging to India, having no faith and love towards India and being traitors and enemies of India. It was held that the allegations do not disclose offence under Section 500 and hence Magistrate not justified in issuing process against the appellant.“ The decision in Punjab National Bank and others Vs. Surendra Prasad Sinha, AIR 1992 Supreme Court 1815, was relied upon. The observations made in Para-5 are relevant and are being reproduced below:- “Judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly.” On the other hand, learned counsel for respondent No.1 had submitted that the scope under Section 482 Cr.P.C. is limited. The propriety or the legality of the order is to be seen and the complainant is yet to examine his witnesses to prove the nature of cheating or the documents forged and, therefore, the petitioners will be at liberty to cross-examine the witnesses in pre-charge 5 evidence which is to be produced before the learned trial Court. In support of his submissions, learned counsel for respondent No. 1 had relied upon an unreported decision of this Court in Jayeshkumar & Ors. Vs. The State of H.P. & Anr., Cr.MMO No. 7 of 2008, decided on 17.3.2008 by this Court. A perusal of the facts of the case shows that the petitioners were summoned for offences under Sections 18(a)(i) and 17-A of the Drugs and Cosmetics Act, 1940. It was held by this Court that the points raised by the petitioners can be considered by the trial Court during the trial or at the notice stage and as such, there is no occasion for the Court to exercise the extra ordinary jurisdiction vested in it since the facts are yet to be proved and the petitioners can invoke their right to challenge the order before the learned trial Court during the stage of accusations being put to them. Observations were made by this Court keeping in view the facts of that case and are not relevant for the present discussion as laying down the law. In the present case, the complaint has to be considered as to whether a prima facie case was made out or not for summoning of the petitioners under various sections mentioned above. In case the complainant does not disclose any alleged offences having been committed by 6 the petitioners, they cannot be asked to wait for the evidence to be led particularly when the allegations of cheating or forgery etc. have been made and it has to be seen as to whether the allegations made were sufficient or not for summoning of the petitioners for the various sections mentioned above. Coming to the private complaint filed by the complainant, I have gone through the said complaint in detail. The main occurrence alleged against the petitioners are that the complainant was informed by his office that accused No. 1 to 5, namely, the present petitioners were sitting in the office of the Chairman of the school and when the complainant/respondent No.1 came there he found petitioner No.1 sitting on his seat, which was vacated by him. While leaving the office, the petitioners allegedly gave a threat to remove the complainant from the office. It cannot be disputed that the petitioner was allegedly holding the office of Chairman of Bhartiya Public School, Chamba and petitioners No. 1 to 5 were holding various posts of Executive Committee Members etc. of Bhartiya Public School, Chamba management and accordingly, in case they had gone to the office of Chairman, in any connection, it cannot be presumed that their entry was illegal. Moreover, once 7 they had gone there for whatever purpose not alleged by the complainant, they are not alleged to have committed any offence except that they were sitting in his room and petitioner No.1 was allegedly occupying the Chairman’s seat which was vacated by him when the respondent No.1 appeared in his office. Thereafter, general allegations have been made in the complaint and reference have been made to some news items and whether these were correct or not other petitioners have been summoned, namely, accused No. 6 to 10 and they are facing trial also which allegations are not to be considered by this Court since no petition has been filed by them. However, insofar as the present petitioners are concerned, it has been alleged that they had committed fraud, forgery and defamed the school in the eyes of general public and accordingly, all these allegations against the petitioners were made. A careful perusal of the complaint filed by the complainant shows that there are no specific assertions made in regard to what fraud was committed by the petitioners, what forgery was committed by the petitioners and what news items specifically were given by the petitioners No. 1 to 5, which had defamed the complainant in the eyes of public. In case there is some 8 dispute in regard to the post of Chairman or that other factions, namely, the accused party alleges that they have held a meeting and have removed the Chairman or took some steps , all these disputes are of civil nature and it is for the complainant to file a civil suit and claim the appropriate relief alleging that the said meeting was unauthorized or that they were not competent to take any decision or change the management. The allegations made are general in nature and in my opinion, there is no such legal evidence that the case be tried by the learned trial Court. This Court is only considering the documents filed by the complainant and the evidence led by the complainant and not any documents placed by the present petitioners which were liable to be considered by the learned trial Court during the hearing only. This Court after considering the complaint made by the complainant and the preliminary evidence recorded by the learned trial Court is of the opinion that no case was made out for summoning the petitioners under various sections and since it is just an abuse of process of the Court that the petitioners are being tried by the learned trial Court and accordingly, it is a fit case where the Court should exercise its power of quashing the order passed by the learned trial Court summoning the petitioners. 9 In view of the above discussion, the petition filed by the petitioners is allowed and the impugned order summoning the petitioners under various sections is quashed and set aside. A copy of the judgment alongwith record be sent to the Court concerned, for proceeding with the case further as against the other accused persons. In view of the final disposal of the main petition, all the pending Cr. Misc. Applications, if any, shall stand disposed of and stay order dated 4.10.2007 passed in Cr.MP No. 462 of 2007, shall also stand vacated. May 29, 2008 ( V.K. Ahuja ) (BSS) Judge 10