Criminal Misc. No.6600 of 2008
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Criminal Misc.No.1622-M of 2008.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Misc.No.6600 of 2008 in
Criminal Misc.No.1622-M of 2008.
Date of decision:18.11.2008.
Manjit Singh and others.
...Petitioners.
Versus
State of Punjab and another.
...Respondents.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. M. S. Bedi, Advocate for respondent
No.2/applicant.
Mr. Vipin Mahajan Advocate for the petitioners.
...
K. C. Puri, J.
Order.
Through the instant application, Kartar Singh,
respondent No.2/applicant seeks recall of order dated 22.1.2008
passed by this Court whereby the complaint case was withdrawn
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from the Court of Additional Chief Judicial Magistrate, Gurdaspur
and transferred to Gram Panchayat Dehriwal Daroga, District
Gurdaspur for trial while keeping in view the provisions of
Section 44 of the Punjab Panchayati Raj Act, 1994.
The applicant has averred that no notice was issued and
on 4.2.2008, he came to know about the passing of the aforesaid
order from the Court of Additional Chief Judicial Magistrate,
Gurdaspur. He prays for recall of the said order on the grounds that
the complaint in question is a cross version of the First Information
Report No.146 dated 7.10.2006, under Sections 326, 324, 323, 34
IPC, Police Station Dehriwal in which he and his son Manjinder
Singh have been falsely implicated. There were injuries on his
person and that of his son Manjinder Singh which were noted in
the column of police action by the police. Since the police failed to
take any action against the persons named in the cross version,
therefore, the applicant had no other alternative except to file the
complainant, Annexure P-3 on which summoning order, Annexure
P-7, had been passed. The date,time and area of occurrence is the
same. It will only be determined on the conclusion of trial as to
which of the occurrences is correct. The cross case is to be decided
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by the same Court so as to avoid divergent views. The petitioners
by concealing important facts has obtained order dated 22.1.2008.
It has further been averred by the applicant that the
petitioners have been summoned under Sections 323, 379, 34 IPC.
As per Section 44 of the Punjab Panchayati Raj Act, 1994 and
Schedule II, Gram Panchayat can only try an offence under Section
379 IPC where the value of the property does not exceed Rs.250/-.
In the present case, it was specifically mentioned in the
complainant, Annexure P-3, that a gold chain was snatched from
the applicant by petitioners Surjit Singh and Sucha Singh. The
value of the gold chain could not be less than Rs.250/-. Therefore,
on this ground alone, the complaint case could not be withdrawn
from the Court of Additional Chief Judicial Magistrate, Gurdaspur.
The applicant further alleged that the police has planted
a false case against the applicant and his son under Section 326
IPC. The case being of version and cross version has, thus, to be
tried by the same Court. Since the case under Section 326 IPC
against the applicant and his son is pending in the Court of
Additional Chief Judicial Magistrate, Gurdaspur, therefore, the
complaint case, Annexure P-3, has also to be tried and decided by
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the same Court so as to secure the ends of justice.
The learned counsel for the applicant has argued on the
lines of his pleadings and has submitted that the complaint case
being a cross case of FIR No.146 dated 7.10.l2006, is to be tried by
the same Court along with the complaint under Sections 323,379,
34 IPC. It is further contended that no notice was issued to the
complainant/applicant before passing the impugned order which is
against the spirit of Section 210 Cr.P.C. The property stolen was
more than Rs.250/- and as such the Gram Panchayat has no
jurisdiction to try the complaint.
In reply to the above noted submission, the learned
counsel for the petitioners has submitted that the Criminal Court
has no jurisdiction to review its order. To support this contention,
he has relied upon authorities in cases Hari Singh Mann
v.Hrbhajan Singh Bajwa and others, JT 2000 (Suippl.2) SC 394
and Sunita Jain v. Pawan Kumar Jain and others, JT 2008(2)
SC 19. It is further contended that Section 482 Cr.P.C cannot be
invoked for recalling the order as there is no specific provision in
the Cr.P.C.
In reply to the above noted submissions, it is submitted
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that in both the authorities, relied upon by the counsel for the
petitioners, no case for interference by invoking the provisions of
Section 482 Cr.P.C was made out. In authority in case Hari Singh
Mann (supra), the Supreme Court gave direction to the police
authorities to make preliminary enquiry. So, in that case, no case
for invoking Section 482 Cr.P.C for recalling the order was made
out. However, in the present case, the impugned order was passed
against the spirit of law. The Gram Panchayat can only try case
under Section 379 IPC if the value of property involved is less than
Rs.250/-.The value of golden chain, in all probability, shall be
more than Rs.250/- and as such the panchayat has no jurisdiction
and, on that count, the impugned order is liable to be recalled. It is
further contended that the complaint case being a cross version of a
criminal case under Section 326 IPC vide FIR No.146 has to be
tried by the same Court.
I have carefully considered the said submissions and
have gone through the record of the case.
The provisions of Section 482 Cr.P.C are meant to
avoid abuse of process of law. So far as authority in case Hari
Singh Mann, (supra) is concerned, in that case, the Hon’ble High
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Court has issued direction to the police authorities to make
preliminary enquiry. In compliance to the said direction, the police
made enquiry and the opposite party filed Criminal Miscellaneous
Petition vide which the earlier direction issued to the authorities
was withdrawn. The order withdrawing the previous direction was
not meant to check the mis-carriage of justice. So, in these
circumstances,the Hon’ble Apex Court has held that the Court
should not have invoked the provisions of Section 482 Cr.P.C. In
the present case, the complaint case has been ordered to be sent to
the Gram Panchayat, in view of Section 44 of the Punjab
Panchayati Raj Act, 1994. The petitioners have not brought to the
notice of the Court that the value of the golden chain can be more
than Rs.250/-. According to Section 44 of the said Act, the Gram
Panchayat has only jurisdiction to try the case under Section 379
IPC if the value of stolen property is less than Rs.250/-. The value
of golden chain, in all probability, would be more than Rs.250/-.
So, the Gram Panchayat has no jurisdiction to try the said case.
Therefore, through the impugned order, the Gram Panchayat has
been entrusted with the case over which it has no power.
Otherwise,while passing the impugned order, it was not
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specifically brought to the notice of the Court that a criminal case
under Section 326 IPC was pending and according to the
provisions of the Code of Criminal Procedure, cross case has to be
tried by the same Court which is trying the criminal case. During
the course of arguments, it was not disputed that the complaint
transferred to the Gram Panchayat was a cross case of FIR No.146,
referred to above. So, in these circumstances, if the impugned
order is not recalled by invoking the provisions of Section 482 then
there will be violation of provisions of Section 210 Cr.C.P in
deciding the cross case together with the main case and the Gram
Panchayat will not be able to try this case as it is not invested with
the power of dealing with such a case in which the value of the
property stolen is more than Rs.250/-. So, to avoid that analogy, it
is a fit case to exercise power under Section 482 Cr.P.C. Authority
in case Sunita Jain (supra),is distinguishable as in that case, a
criminal complaint for demand of dowry as well as cruelty by
husband, his parents, brother and sister was filed under Sections
498A, 506, 406 read with Section 34, and Sections 3 and 4 of the
Dowry Prohibition Act, 1961. Charges were framed against the
husband, his parents, brother and sister. The accused persons filed
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a Revision Petition seeking quashing of charge. The High Court
partly allowed the Revision and quashed the charge framed against
the brother and sister of the husband but dismissed the same
against others. Special Leave Petition was also dismissed by the
Hon’ble Supreme Court. Thereafter the accused filed a petition for
quashing the charge which was allowed by the High Court. So, in
that case, when the matter has already been decided by the High
Court and confirmed by the Supreme Court, in those
circumstances, the Supreme Court has held that the High Court
should not have invoked the provisions of Section 482 Cr.P.C.
There was no abuse of process of the Court in that case. So, the
Supreme Court has held that the High Court should not have
invoked the provisions of Section 482 Cr.P.C in the same set of
litigation. In the present case, as discussed above, to check the
abuse of process of Court, order dated 22.1.2008 has to be set aside
by invoking the provisions of Section 482 Cr.P.C.
While issuing notice of motion vide order dated
15.2.2008, the operation of order dated 22.1.2008, was kept in
abeyance.
Therefore, the complaint, referred to above, shall be
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tried by the same Court which is dealing with the criminal case
vide First Information Report No.146 dated 7.10.2006, under
Sections 326, 324, 323, 34 IPC, Police Station Dehriwal.
This petition stands disposed of, in the above terms.
November 18,2008. ( K. C. Puri ) Jaggi Judge