Om Prakash Mehta And Ors. vs State And Anr.
2005 Latest Caselaw 1114 Del

JUDGMENT

Manju Goel, J.

Page 1677

1. Petitioners were summoned vide order dated 27.1.97 for offence Under Section 342/354/323/328/506/147/149 IPC. The complaint on the basis of which the order on summoning was passed was as under:

The complainant/respondent No. 2 is the wife of the petitioner No. 1. She had certain litigations against the petitioner No. 1 as also members of his family. On 16.4.91, the respondent No. 2 was sitting in the chamber of her counsel. The accused 1 to 10 namely the present petitioners and one Sanjeev Mehta came to the chamber and bolted the door of the chamber. They used foul language against the complainant. Petitioner Jatinder pulled her saree while the petitioner No. 1 handed over a capsule to petitioner Santosh Mehta asking her to put the capsule in her mouth in order to make her unconscious. The complainant fell down from the chair while resisting the effort to put the capsule in her mouth. The accused/petitioner Rajeev Mehta tried to overpower the complainant and brought out a big knife. The accused/petitioner L.D. Mehta and others kicked her and demanded withdrawal of the cases against them or to face dire consequences. She was eventually rescued by her mother.

Page 1678

2. After examining two witnesses, the Metropolitan Magistrate summoned the petitioners. The petitioners thereafter made the application Under Section 245(2) Cr.P.C. on which the impugned order was passed. It is contended in the application that the complainant has played fraud and misrepresentation on the court by obtaining the impugned order without placing the real facts of the case before the court. Denying the allegations made by the complainant, the petitioners alleged that the petitioner Krishna Devi was an aged lady of about 85 years and under constant medical care and therefore could not have participated in the alleged acts. Similarly, it is contended, that the petitioner Jatinder Parkash and others except the accused No. 2 were residents of Faridabad and they could not have been present at the scene of the offence. Further, it is submitted that there are several cases pending against each other and that the complaint is actuated by mala fide motives. There are other allegations to the effect that the complaint is false.

3. In the impugned order, the Trial Court has observed that after the order of summoning was passed, the stage of discharge will come only after the accused had appeared and that till then the Court had no power to recall the order of summoning.

4. The revisional court found that the order of summoning was made Under Section 204 Cr.P.C. and that the stage of discharge Under Section 245(2) will come only when further evidence is led before the Magistrate. Both the orders are now under challenge before this Court.

5. This Court has the benefit of the judgment in the case of Adalat Prasad v. Rooplal Jindal and Ors. , the judgment delivered on 25th August, 2004 i.e. after passing of the two impugned orders. The Supreme Court categorically held that the Magistrate had no power of review and therefore once the Magistrate had issued process he could not reconsider the evidence on which the process was issued and recall the order of summoning. In this case what is prayed for is exactly the same. The petitioners have not shown any infirmity in the complaint like want of jurisdiction in the court or want of capacity of the complainant or any bar of limitation or of some such kind. All that is being said is that the complaint is entirely false. This cannot be taken to be ground under Section 245(2) for the simple reason that the truth or falsity of the allegations can be established only after evidence recorded Under Section 244 and not before that.

6. It is true that Section 245(2) as well as Section 245(1) empowers the Magistrate to discharge the accused. But Section 245(1) makes it possible to discharge the accused only after evidence is recorded Under Section 244 after the appearance of the accused. Section 245(2) prescribes that the accused can be discharged even at some other earlier stage. But obviously such a prayer can be made only when some inherent infirmity as mentioned above is shown or if something is brought on the record to prove the charge to be groundless. Thus, in my opinion, no ground for recalling of process has Page 1679 at all been made out. Nor has any ground for discharge has been made out by the petitioners.

7. The second question is whether Under Section 482 Cr.P.C. this Court can give any relief to the petitioners. The facts of the case have already been mentioned above. The petitioners' case lies in proving the allegations in the complaint to be false. This is a question for trial. This Court cannot adjudicate upon the facts of the case and hold that the complaint is false and dismiss the same or discharge the accused on that ground. The oft quoted judgment on this point are that of State of Haryana v. Bhajan Lal 1992 Supplement (1) SCC 335 and Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr. . The latest judgment on the same line is in the case of S.V. Mazumdar and Ors. v. Gujarat State Fertilizers Co. Ltd. and Anr. 2005 V AD (SC) 494. The petition Under Section 482 Cr.P.C. therefore cannot be entertained by this Court.

8. In view of the above, the petition is bound to fail. The petition is accordingly dismissed.