IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.26382-M of 2007
DATE OF DECISION : AUGUST 11, 2008
JAI SINGH ETC. ....... PETITIONER(S)
VERSUS
KHEM CHAND .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Rajnish Narula, Advocate, for the petitioner(s).
Mr. VB Aggarwal, Advocate, for the respondent.
AJAI LAMBA, J. (Oral)
Prayer in this petition under Section 482, Code of Criminal
Procedure, is to quash summoning order dated 4.8.2005 (Annexure P-8).
The contention of the learned counsel for the petitioners is that
the petitioners were arrayed as accused and FIR No.96 dated 24.1.1998
under Sections 148, 149, 447, 448, 506, 511, Indian Penal Code, Police
Station, Sadar Thanesar, came to be lodged. The matter was investigated
by the C.I.D. under the directions of this Court in CRM 1611 of 1999 in
CRM 20678-M of 1998. After thorough investigation, a report was
submitted on 31.7.1998 recommending cancellation of the case. Further, it
was recommended that proceedings under Section 182, Code of Criminal
Procedure, be carried against Khem Chand (respondent-complainant) for
Criminal Misc.26382-M of 2007 2
registering a false case.
It seems that subsequently a criminal complaint came to be
filed with regard to the same incident. The Chief Judicial Magistrate
without dealing with the reasons given for cancellation of the FIR, has
proceeded to summon the petitioners vide the impugned order (Annexure
P-8). Detailed reasons have not been given on the strength of the
judgment rendered by the Hon’ble Supreme Court of India in U.P.
Pollution Control Board v. M/s. Mohan Meakins Ltd., 2000 (2) RCR
(Criminal) 421.
Learned counsel for the petitioners has contended that in the
absence of any reasons for summoning the petitioners, a prejudice has
been caused to the petitioners as without knowing the reasons and
material that indicates the commission of the offences, the petitioners can
not effectively bring out their defence. It is also pleaded that summoning
is a serious matter and the Hon’ble Supreme Court of India in M/s Pepsi
Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761,
has held (in para-26) in the following terms:-
“26. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. it is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have
the criminal law set into motion. The order of the magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in
support thereof and, that would be sufficient for the
complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at
the time of recording of preliminary evidence before
summoning of the accused. Magistrate has to carefully
scrutinise the evidence brought on record and may even
himself put questions to the complainant and his
Criminal Misc.26382-M of 2007 3witnesses to elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any offence is
prima facie committed by all or any of the accused.”
Having regard to the facts and circumstances of the case and
considering that a cancellation report had been filed assigning reasons and
the fact that the investigation had been conducted on the directions of this
Court, learned counsel for the respondent concedes that the matter be
referred back to he Chief Judicial Magistrate, Kurukshetra, to pass a fresh
and reasoned order.
In view of the above, the petition is allowed. Order dated
4.8.2005 (Annexure P-8) is hereby set aside and the matter is remanded to
the Chief Judicial Magistrate, Kurukshetra, for adjudication.
August 11, 2008 ( AJAI LAMBA ) Kang JUDGE