JUDGMENT
J.R. Chopra, J.
1. This petition under Section 482 Cr.PC has been filed against the order of the learned Munsif and Judicial Magistrate, Surat-Garh dated 29-2-1988, whereby the learned Magistrate has taken cognizance against the accused-petitioners Gurmail Singh and Baljeet Singh for the offences under Sections 302 read with Section 34, IPC on a private complaint which was filed by one Kaluram father of deceased Ramlal on 17-9-1986.
2. The facts necessary to be noticed for the disposal of this petition briefly stated are that deceased Ramlal son of complainant Kaluram and one Chetram were working as Labourers with the accused-petitioner. It is alleged that on 5-8-1986, Ramlal went to the field of the accused-petitioners but did not return. Initially, Kaluram lodged a FIR on 7-8-1986 at about 5 p.m. at Police Station, Pilibanga to the effect that on 5 8 1986, his son Ramlal went to the field of the accused petitioners but he did not return. In the evening, he went to accused Gurmail Singh to enquire as to why his son Ramu has not returned. Accused Gurmail Singh informed him that he was in the field upto 11 a.m. with Baljeet Singh. At that time, Ramu and Chet Ram were working in the field. Thereafter, Chetram came to him at about 3.30 p.m. and informed him that Ramu has left the field informing him that he was feeling pain in his stomach. On this, Kalu went to Ayalki and enquired from his grant niece as to whether Ramu has come there but she informed him that Ramu has not come there. On this, he came back to his village and again approached Gurmail Singh and he along with Gurmail Singh, Sohan Singh and Prabhu etc. went to the house of Chetram and enquired from him as to where Ramu has gone because he has not gone to Ayalki. On persuation, he confessed his guilt and told that on the date of the occurrence, he prepared tea for himself and Ramu but it was not prepared properly on which Ramu slapped him. Amarjeet Singh rescued him. He got highly enraged on account of this beating and about 1 p.m., when Ramu was sleeping, he inflicted a Kassi blow on his neck which resulted in his death. Thereafter, he threw his body in the high-standing cotton crop.
3. It is alleged that Chetram accompanied all these persons and pointed out the dead body of Ramu lying in the cotton field. He had several injuries on his person. On the information of Chetram, the blood stained Kassiya was also recovered and his blood stained Payjama and Shirt were recovered. His shoes were blood stained and so he threw them in the water channel and these shoes have been recovered at his instance. The person who rescued him from beating by Ramu i.e. Amarjeet Singh has also been examined. After usual investigation, the case was challaned before the learned Magistrate, who after taking cognizance of the offence committed it to the court of learned Sessions Judge for trial. Accused Chetram is now facing trial for the murder of Ramu before the learned Additional Sessions Judge No. 2, Hanumangarh. How ever, it appears that after some time, Kalu changed his mind and lodged this private complaint on 17-9-1986 alleging therein that Ramu has established illicit relations with the wife of Baljeet Singh and that fact came to the notice of the accused-petitioners and, therefore, it is alleged that accused petitioners Gurmail Singh and Baljeet Singh have actually killed him. At the time of the occurrence, accused Chetram was there and he was sent to fetch water. When he came back, he found that they have killed Ramu. Chetram asked from them as to what they have done they have stated that he should not open his mouth, otherwise he will be killed. Complainant Kalu has submitted that a report about this incident was lodged by him under misconception. In this complaint he has cited Birbal and Chetram as eyewitnesses. Accused Chetram is the same person who is facing trial for the murder of Ramu and Birbal is the father of accused Chetram.
4. On the basis of this complaint, the learned Magistrate has taken cognizance against the accused-petitioners Gurmail Singh and Baljeet Singh for the offences under Section 302 read with Section 34, IPC. Hence this petition.
5. Mr. M.L. Garg, the learned Counsel appearing for the accused-petitioners has submitted that initially the report of the incident was lodged in the Police by complainant Kalu himself and that report mentions certain facts which cannot be based on any misconception. He has submitted that in that report, the complainant has stated that he approached Gurmail Singh, who told him that Chetram informed him that Ramu has gone to Ayalki and in pursuance of that information, he went to Ayalki, enquired from his grand niece as to whether Ramu came there and when he was informed that Ramu did not come there, he again went to Gurmail Singh and from there, he along with Gurmail Singh and certain other persons went to the house of Chetram. On persuation, Chetram informs him that he has killed Ramu on account of some small dispute about prepartion of tea and the beating given by Ramu to him for preparation of bad tea. So much as, the dead body was recovered at his instance. His blood stained Kassiya and clothes were also recovered. The Chemical Examination report has not been received so far but this much is clear that these articles including the dead body were recovered at his instance. Now in the complaint, it is stated by these witnesses that Ramu was killed by throttling his neck, whereas it is mentioned in the injury report that he had sharp weapon injuries on his neck and other parts or his body and he has died because of these sharp weapon injuries. It is not at all a case of throttling. The learned Magistrate, while taking cognizance has sent for the record of the Sessions case but he refrained to examine the record on the ground that as the case is pending trial before the learned Sessions Judge, he will not to comment. He was not to comment on the case that was pending against Chetram but in the light of the evidence that has been collected in that case he could have scrutinised the evidence of this case. That was not prohibited by law. Actually, that record was required to be considered before the cognizance was taken. Mr. Garg has submitted that in this case it appears that Chetram being a community-fallow of Kalu and Kalu thought that employers should be involved in this case as that they may extract money-compensation from them on account of this false case and, therefore, taking cognizance against the accused-petitioners on the basis of the evidence of Chetram, who himself is facing trial for the murder of Ramu and Chetram’s father of Birbal is an abuse of the process of the Court. Neither Kalu has seen the accused petitioners killing Ramu nor Chetram has seen it. Chetram and Birbal stated Ramu was killed by throttling of the neck and that fact is clearly negatived by the post-mortem report. How can a man be allowed to initiate two contradictory prosecutions in one of them, he accused Chetram for the alleged murder of Ramu and in the other, he accused the petitioners for murder of Ramu. In the facts and circumstances of this case and keeping in view that entire evidence that has been collected in both these cases, I feel that taking cognizance against the accused-petitioners Gurmail Singh and Baljeet Singh on the complaint of Kalu amounts to an abuse of the process of the Court and, therefore the impugned order of the learned Munsif and Judicial Magistrate, Suratgarh dated 29-2-1988 deserves to be set aside. If during the trial against accused Chetram pending before the learned Additional Sessions Judge, Hanumangarh, same evidence is brought on record with prima facie raises a suspicion that Chetram has not killed Ramu but actually, the accused-petitioners Gurmail Singh and Baljeet Singh have killed Ramu then the learned Additional Sessions Judge No. 2, Hanumangarh will be free to pass appropriate orders about it but at this stage, the taking of cognizance against the accused petitioners Gurmal Singh and Baljeet Singh has resulted in grave and substantial injustice to the accused-petitioners and it is likely to prejudice the trial pending before the learned Additional Sessions Judge against Chetram.
6. In the result, I accept–this-petition and set aside the order of the learned Munsif Judicial Magistrate, Suratgarh dated 29-2-1988, taking cognizance against the accused-petitioners Gurmail Singh and Baljeet Singh for the offences under Sections 302/34, IPC.