IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. 11145-M of 2008 (O/M).
Date of Decision : July 07, 2009.
Ram Dhan son of Shri Hazari, r/o Village and Post Office Sanghi, Tehsil and
District Rohtak, and others.
...... Petitioners.
Versus.
Wazir Chander son fo Shri Ramdhan r/o Village Sanghi, Police Station
Sadar, Tehsil and District Rohtak.
..... Respondent.
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present:- Mr. K.D.S. Hooda, Advocate,
for the petitioners.
Mr. Sandeep Sharma, Advocate,
for the respondent.
AUGUSTINE GEORGE MASIH, J. (ORAL).
This petition under Section 482 Cr.P.C. has been filed by the
petitioners, praying for quashing of complaint dated 02.09.2002 (Annexure-
P-1) titled as Wazir Chand Versus Ram Dhan and others, under Section
382/392/341/506/34 I.P.C., order dated 06.12.2006 (Annexure-P-4), passed
by Additional Sessions Judge, Rohtak, as well as order dated 20.09.2007
(Annexure-P-7), passed by Judicial Magistrate 1st Class, summoning the
petitioners in complaint case and all subsequent proceedings arising there
from.
Complaint dated 02.09.2002 (Annexure-P-1) was presented in
the Court of Judicial Magistrate 1st Class, Rohtak, by Wazir Chand-
respondent against the petitioners for prosecuting them under Section
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382/392/341/506/34 I.P.C. The matter was referred to S.H.O. P.S. Sadar,
Rohtak, under Section 156(3) Cr.P.C. for registration of a case and for
investigation of the matter. F.I.R. No. 273 dated 16.09.2002 under Section
382/392/341/506/34 I.P.C. P.S. Sadar, Rohtak, was registered. On
completion of the investigation, a cancellation report in the F.I.R. was
submitted. The complainant filed a protest petition on notice being issued to
him. The Court treated this protest petition filed by the complainant as a
complaint and thereafter asked the complainant to lead preliminary evidence.
The complainant appeared as P.W.1 and supported his allegations made in
the complaint. Apart from his oral evidence, he proved copy of the F.I.R. as
Ex. P.1, Jamabandi as Ex.P.2 and Khasra Girdwari as Ex. P.3. Order passed
by the Additional Sessions Judge, Rohtak, dated 15.03.2002 was also
produced before the Court. On consideration of the evidence led by the
complainant, Judicial Magistrate 1st Class, Rohtak, vide his order dated
04.02.2005 (Annexure-P-3), dismissed the complaint. Thereafter, Wazir
Chand-respondent preferred a revision petition, which was decided vide
order dated 06.12.2006 (Annexure-P-4), by the Additional Sessions Judge,
Rohtak, wherein the Revisional Court came to a conclusion that the criminal
court during inquiry under Section 202 Cr.P.C. was only required to see as
to whether whatever has been stated by the witness, if believed, would make
out an offence or not and the Magistrate could not proceed and adjudicate
the matter upon merit of the complaint at the preliminary stage. It further
came to a conclusion that the allegations made by Wazir Chand-
complainant, prima-facie, made out an offence under Section 392/447/34
I.P.C. against all the respondents/petitioners. Accordingly, order dated
04.02.2005 (Annexure-P-3), passed by the Magistrate was set aside and the
Criminal Misc. No.11145-M of 2008. -3-
Magistrate was directed to proceed further in accordance with law and the
complainant was directed to appear before the Magistrate on 11.02.2006.
On 11.02.2006, the complainant failed to appear before the
Magistrate and after calling the case several times, the Court dismissed the
complaint for non-prosecution. Again a revision petition was preferred
against the order dated 11.02.2006. This revision petition was decided vide
order dated 22.02.2007 (Annexure-P-6) and this order was set aside and the
complainant was directed to appear before the Magistrate on 16.03.2007.
The complainant appeared before the Magistrate and thereafter vide order
dated 20.09.2007 (Annexure-P-7), Judicial Magistrate 1st Class, relying upon
earlier order dated 06.12.2006 (Annexure-P-4), passed by the Revisional
Court, wherein it was held that the allegations made by the complainant,
prima-facie, makes out an offence punishable under Section 392/447 read
with Section 34 I.P.C., summoned the present petitioners to face trial.
Counsel for the petitioners submits that no prima-facie case was
made out against the petitioners on the basis of allegations made in the
complaint or on the basis of evidence, which has been led by the
complainant before the Magistrate. He further submits that the Magistrate is
required to apply his independent mind on the basis of evidence led by the
complainant to come to a conclusion as to whether there is sufficient
material on record to proceed against the petitioners. He submits that the
evidence, which has been led by the complainant goes beyond doubt to show
that the said complaint is false as the same is belied by documentary
evidence produced by the complainant himself. He submits that the criminal
proceeding, which have been initiated against the petitioners is an abuse of
process of Court and has been initiated only to harass, humiliate and malign
Criminal Misc. No.11145-M of 2008. -4-
the petitioners. He, therefore, prays that the Court in the interest of justice
must exercise its powers under Section 482 Cr.P.C. to prevent abuse of
process of the Court.
On the other hand, counsel for the respondent submits that the
complaint clearly makes out an offence, which has been committed by the
petitioners. He further submits that the statement given by the complainant
before the Magistrate, supporting the allegations against the petitioners
further fortifies the assertion made by the complainant in the complaint. He
submits that the requirement of law is that the evidence, which has been
produced on record during the examination of the complainant before the
Magistrate has to only prima-facie establish the commission of an offence
and has not to be tested on the anvil of proof to the extent of holding the
accused guilty whether the accused were liable for the alleged offence,
would not be relevant consideration for the Court at that stage. The
Magistrate was not holding a regular trial on the question of adjudication of
the guilt of the accused at that stage. He on this basis submits that neither
the complaint nor the order summoning the petitioners call for any
interference by this Court.
The complaint preferred by Wazir Chand-respondent contained
the averments that on 07.04.2002 at night he was in his fields for keeping a
watch on his mustard crop and he slept there at about 09:00 P.M. All the
accused came there at about 01:00 A.M. They were all armed with deadly
weapons. Surinder son of Ram Lubhaya-petitioner No. 6 put his barrel of
gun on the tempal of the complainant and threatened that if he raised any
hue and cry, he would be done to death. Complainant due to fear acted
accordingly. He heard the noise of some women reaping the mustard crop
Criminal Misc. No.11145-M of 2008. -5-
from his field. This process continued for three to four hours. The crop was
thereafter loaded in a trolley and they left the spot. The allegation, therefore,
of the complainant was that his mustard crop was harvested by the
accused/petitioners alongwith several women forcibly by giving threat to kill
him. The complainant reported the matter to the police on 08.04.2002, but
no action was taken by the police against the accused persons.
Section 200 Cr.P.C. provides that a Magistrate, who is taking
cognizance of an offence on a complaint, shall examine upon oath the
complainant and the witnesses present, if any. The substance of the said
examination has to be reduced in writing and signed by the complainant and
the witnesses and also by the Magistrate. Exceptions thereof have been
carved out but that would not be applicable to the present case. Under
Section 203 Cr.P.C., Magistrate, if after considering the statements on oath
(if any) of the complainant and of the witnesses and the result of the inquiry
or investigation (if any) under section 202, is of opinion that there is no
sufficient ground for proceeding, he shall dismiss the complaint, and for
doing so, he is required briefly to record his reasons for so doing. However,
as per Section 204 Cr.P.C., if in the opinion of the Magistrate, taking
cognizance of an offence, there is sufficient ground for proceeding, he can
proceed as per procedure provided therein. What, therefore, comes out of
the above is that, it is the opinion of the Magistrate with regard to
sufficiency of the grounds for proceeding in the matter, which would
determine as to whether the complaint would be dismissed or proceeded
with further. The power to dismiss the complaint in a case the Magistrate
formulates an opinion that there is no sufficient ground for proceeding as
provided under Section 203 Cr.P.C.
Criminal Misc. No.11145-M of 2008. -6-
In the present case, therefore, for summoning the petitioners the
statement, which has been made by the complainant alongwith documents
produced in support thereof would be relevant. The facts mentioned above
are not in dispute nor is it in dispute that the complainant, while making his
statement before the Magistrate has placed on record during his preliminary
evidence, F.I.R. No. 273 dated 16.09.2002 as Ex. P.1, copy of the jamabandi
as Ex.P.2 and copy of the khasra girdwari as Ex. P.3 and also photocopy of
order dated 15.03.2002, passed by the Additional Sessions Judge, Rohtak, in
the attachment proceedings. It could not be disputed by counsel for the
respondent-complainant that jamabandi Ex.P.2 showed the land as Shamlat
Pana Dudiyan Hasab Rasad Araji, which was attached vide rapat No. 95
dated 01.12.2000, and the Tehsildar, Rohtak, was appointed as a Receiver
and the said land was released from attachment, vide order dated
15.03.2002, passed by the Additional Sessions Judge, Rohtak, (photocopy of
the order produced by the complainant before the Magistrate). He also could
not dispute that there is no evidence, which could suggest that order dated
15.03.2002 was implemented or the possession of the land was delivered to
the complainant or anybody else after passing of order dated 15.03.2002. In
view of the above, the land cannot be said to be in possession of the
complainant at the time of alleged occurrence, which is dated 07.04.2002.
Even assuming that order dated 15.03.2002 was indeed implemented
immediately and the possession of the land was delivered to the petitioners,
the period between handing over of the possession, which would obviously
be on or after 15.03.2002 and the date of occurrence i.e. 07.04.2002, is
hardly 23 days and within this short span of time, cultivation, sowing, and
removal of the mustard crop by the accused persons, cannot be believed. It
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is a common knowledge that the mustard crop cannot be sown and reaped
within one month. The allegations, therefore, made against the petitioners
cannot be said to be correct. It cannot, therefore, be said that there is
sufficient ground for the Magistrate, taking cognizance of the offence to
form an opinion for proceeding in the case against the accused. The
Magistrate, while exercising powers is not merely required to tow the line of
the complainant blindly, whatever he states in his preliminary evidence. The
law enjoins the Magistrate to apply its mind and formulate an opinion, which
should be based on preliminary evidence, which has been led by the
complainant so as to say that there is sufficient ground for proceeding
against the accused. If the Magistrate forms an opinion that there is no
sufficient ground for proceeding, he has been empowered under Section 203
Cr.P.C. to dismiss the complaint and in doing so, he is required to briefly
record his reasons.
In the present case, when the preliminary evidence led by the
complainant itself on evaluation, leads only to a conclusion that the
allegations made by the complainant are not true, the continuation of such
proceedings before the Magistrate would be an abuse of process of Court.
The Magistrate, therefore, is required to apply his independent mind to the
preliminary evidence led by the complainant and then form an opinion as to
whether there is sufficient ground for proceeding further in the matter or not.
Present is a case where the preliminary evidence led by the
complainant and that too documentary, clearly leads to only one conclusion
that the same is not true. The complaint and preliminary evidence led by the
complainant, when considered show that the allegations are absurd and
inherently improbable on the basis of which no prudent person can ever
Criminal Misc. No.11145-M of 2008. -8-
reach a just conclusion that there is sufficient ground for proceeding against
the accused/petitioners. These proceedings are manifestly initiated with
malafide and without any basis. It is a fit case where this Court should
exercise its powers under Section 482 Cr.P.C. to prevent the abuse of
process of Court. Allowing continuation of such proceedings in the Court,
would be encouraging fictitious litigation, which would be against the basic
canons of justice, which stand for truth and truth alone must prevail.
Thus, to secure the ends of justice and to prevent the abuse of
process of Court, the present petition is allowed. Order dated 20.09.2007
(Annexure-P-7), passed by the Judicial Magistrate 1st Class, Rohtak,
summoning the accused/petitioners to face trial under Section 392/447/34
I.P.C., is hereby quashed and the complaint dated 02.09.2002
(Annexure-P-1) is hereby dismissed.
(AUGUSTINE GEORGE MASIH)
JUDGE
July 07, 2009.
sjks.
Whether referred to the Reporter : Yes / No.