High Court Punjab-Haryana High Court

Smt. Nirmala And Others vs Smt. Bhateri on 10 March, 2009

Punjab-Haryana High Court
Smt. Nirmala And Others vs Smt. Bhateri on 10 March, 2009
Criminal Misc. No. M-33608 of 2008                                       1




        In the High Court of Punjab and Haryana, at Chandigarh.


                   Criminal Misc. No. M-33608 of 2008

                      Date of Decision: 18.3.2009


Smt. Nirmala and Others
                                                              ...Petitioners
                                  Versus
Smt. Bhateri
                                                             ...Respondent


CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.


Present: Mr. N.R. Dahiya, Advocate
         for the petitioners.

           Mr. Surender Lamba, Advocate
           for the respondent.


Kanwaljit Singh Ahluwalia, J. (Oral)

The present petition has been filed under Section 482 Cr.P.C.

seeking quashing of complaint (Annexure P2) pending in the Court of

the Judicial Magistrate Ist Class, Charkhi Dadri and the summoning

order (Annexure P3) whereby accused/petitioners have been

summoned under Sections 147, 323, 452 read with Section 149 IPC.

Counsel for the petitioners has raised various contentions.

One of the arguments raised before this Court is that a

complaint was also submitted to the police and the police found that no

offence under Sections 323 & 452 IPC is made out and, therefore, they

had submitted a kalandera under Sections 107/151 Cr.P.C.

Counsel for the petitioners rely upon a Single Bench judgment
Criminal Misc. No. M-33608 of 2008 2

of this Court rendered in Surinder Kaur v. Rajinder Singh 1993

Criminal Court Judgments 729 (P&H) to say that once petitioner has

faced proceedings under Section 107/151 Cr.P.C. he cannot be tried for

the offences for which he has been summoned by the trial Court.

Counsel submits that this will amount to double jeopardy and no

cognizance can be taken because of bar under Section 300 Cr.P.C.

read with Article 20(3) of the Constitution of India. This contention

cannot be accepted as it is well settled law that proceedings under

Section 107/151 Cr.P.C. are not punitive in nature but are preventive.

They are initiated only to allay apprehension of breach of peace.

Surinder Kaur’s judgment (supra) was the judgment on the facts of

that case.

Counsel for the petitioners further submits that as laid in S.I.

Rooplal and Another v. Lt. Governor through Chief Secretary, Delhi

and Others AIR 2000 Supreme Court 594, precedent demanded that

the trial Court after issuance of the summoning order should have

accepted the application of petitioner for discharge. The summoning

Court has no such power. It has been held in Adalat Prasad v. Rooplal

Jindal 2004(4) Recent Criminal Reports 1 that after the summoning

order has been passed the order could only be set aside under Section

482 Cr.P.C. or by the revisional Court.

It has been further stated that there were number of cases

pending between the parties and, therefore, a compromise has been

arrived between the parties. The compromise has been annexed with

the petition as Annexure P8. A perusal of the alleged compromise show

that this compromise has been addressed to the Incharge Police Post
Criminal Misc. No. M-33608 of 2008 3

Adampur. The letter has been signed by the parties in presence of the

police officials.

Any document addressed to the Incharge, Police Post

Adampur, cannot be said to be executed according to free will.

Counsel for the respondent has stated that compromise was

not signed b y Smt. Bhateri, complainant.

Counsel for the petitioners has further submitted that in the

present case offence under Section 452 IPC is not attracted as the

parties were co-sharer and were residing in a joint undivided house.

Whether the parties were living in the joint undivided house or not is

question of fact, which is a subject matter of evidence which can only be

proved before the trial Court by leading evidence.

Counsel for the petitioners further states that the petitioners

are Government servants and they are facing the proceedings for the

last 18 years. Therefore, taking the right of speedy trial into

consideration, the present proceedings should be quashed.

In the present case, earlier application was filed by the

accused for discharge. Thereafter, this Court has been approached. It is

well settled law that any time which has been consumed, by any party

for approaching various authorities cannot be considered for the benefit

of that party.

Any observation made in this order will not foreclose the

Petitioner from raising all arguments before the trial Court at appropriate

stage.

Taking into consideration long pendency of the complaint, trial

Court is directed to conclude the trial within one year from the receipt of
Criminal Misc. No. M-33608 of 2008 4

certified copy of this order.

Counsel for the petitioners states that petitioners No.1 and 2

are ladies, therefore, their personal appearance before the trial Court be

exempted.

I find merit in this submission of counsel for the petitioners.

Accordingly, personal appearance of the petitioners is

exempted before the trial Court 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.

With the observations made above, the present petition is

disposed off.

(Kanwaljit Singh Ahluwalia)
Judge
March 18, 2009
“DK”