Crl. Revision No. 976 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 976 of 2008 Date of decision: February 28, 2011 Vinod Kumar ...Petitioner Versus State of Haryana and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. N.S. Shekhawat, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana, for respondent No.1. Mr. Mahabir Singh Sindhu, Advocate, for respondents No. 2 to 4. GURDEV SINGH, J. (Oral) This revision under Section 401 of of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been preferred by Vinod Kumar-petitioner/complainant, against the order dated 17.4.2008 passed by the Additional Sessions Judge, Rewari, vide which he accepted the revision preferred by respondents No. 2 to 4/accused, against the order dated 5.6.2007 passed by the Sub Divisional Judicial Magistrate, Kosli, vide which these accused were summoned to stand their trial for the offences under Sections 323, 452, 506 read with Section 34 IPC in the complaint filed against them by the petitioner. The said complaint was filed under Sections 307, 323, 452, Crl. Revision No. 976 of 2008 2 506, 147 and 149 IPC. The complainant narrated therein that his marriage was performed with Sarita/accused in the month of May, 2000 and on account of matrimonial discord, they had been living separate from each other for the last more than two and a half years. On 24.4.2002, all the accused criminally intimidated him by giving threats during the working hours in Government Model Senior Secondary School, Wazirabad, District Gurgaon, and was saved by his co-teachers. He himself and the villagers reported the matter to the police and DDR No. 8 was registered on that very day in Police Post, Shushant Lok, Gurgaon. On 14.6.2003 at about 1 p.m. all the accused, accompanied by unidentified women, came to his house in two motor cars and Sarita and one of the unidentified woman pressed his neck in order to kill him and also scratched his face. When his sister Rekha tried to save him, she was given beatings by unidentified woman and she also scratched her face and gave fist blows on her chest. All these accused were instigated by Mahabir Singh, who was armed with a pistol and he threatened to shoot him dead and fired at Surender Singh and Ved Parkash, who had come to the spot to save him. On hearing the noise the other villagers also collected at the spot. On receiving the message, the police also came there and collected the pellets from the spot and took Anita and Sarita to the Police Station. However, as the accused had influence over the police, so it suggested to enter into a compromise. On the next day, he moved a complaint before the police, on the basis of which DDR No. 13 was recorded in Police Post, Nahar. He himself and his sister Rekha were medically examined in PHC, Nahar. However, on account of the relation of the accused with the higher police officials, no action was taken on his complaint and rather false FIR No. 81 dated 16.6.2003 was registered Crl. Revision No. 976 of 2008 3 against him and his family members under Sections 498A, 323, 506 and 342 IPC. Inspite of his repeated visits to the police post and other police officials, no action was taken on his report and, therefore, he filed the complaint in which the above said summoning order was passed and which was set aside by the Additional Sessions Judge, in the revision petition preferred by the accused. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the petitioner that the impugned order suffers from illegality. The two questions posed by the Additional Sessions Judge, cannot be said to be law point so as to make a justification, in case of decision thereof in favour of the accused, to set aside the well reasoned summoning order. The question, whether Mahavir Singh was present at the spot or not could have been decided on the basis of evidence to be produced by that accused, as the plea of alibi once taken by the accused is to be proved by him by leading evidence in support thereof. There was no question of invoking the provisions of Section 210 of the Code by the Magistrate as the report, which was made by the complainant to the police, was not accepted and cancellation report had already been submitted and calandera was presented under Section 182 (2) of the Code. Therefore, the order so passed by the Additional Sessions Judge is liable to be set aside. On the other hand, it has been submitted by the learned counsel for the accused that regarding this very occurrence, Anita accused lodged FIR No. 81 dated 16.6.2003 and after investigation challan was presented in the court against the present petitioner/complainant and others and after regular trial, they have been convicted and sentenced. That FIR was got Crl. Revision No. 976 of 2008 4 lodged regarding the same occurrence and the matter once decided cannot be re-opened and that itself is a ground for dismissing the present revision. It was stated by the complainant in para 7 of the complaint that the police instead of taking action against the accused lodged false FIR No. 81 dated 16.6.2003 against him and his family members under Sections 498A, 323, 506 and 342 IPC. The Magistrate was bound to go through the contents of the complaint before passing the summoning order and thus it is to be held that it was made to appear to the Magistrate that the investigation regarding the same occurrence was in progress when the complaint was filed. Therefore, he was supposed to stay the proceedings in the complaint and to call for the report of the Investigating Officer. That omission on the part of the Magistrate amounts to commission of an illegality. Had he called for such a report, it must have come to his notice that either the police investigation was in progress regarding the same occurrence or challan has already been presented before the court. The same was required to be done in order to avoid two parallel trials regarding the same occurrence. Learned counsel for the accused has placed on record photo copy of the judgment dated 10.4.2010 passed by the Additional Chief Judicial Magistrate, Rewari. A perusal thereof shows that after regular trial in the case arising out of FIR No. 81 dated 16.6.2003, the complainant and his co-accused have already been convicted and sentenced. After the decision of that case, there is no question of re-opening the matter in the complaint so filed by the complainant which relates to the same occurrence. The order passed by the Additional Sessions Judge may not be strictly valid in the legal sense but in view of the decision of the said case, this revision is to be dismissed as that will amount to forcing the court to re-open the case Crl. Revision No. 976 of 2008 5 in respect of the same occurrence which already stands decided. Revision is dismissed accordingly. February 28, 2011 (GURDEV SINGH ) prem JUDGE