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”