V. P. Wadhwa vs C.S. Parasher
2011 Latest Caselaw 2486 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. M.C.1502/2011

                                        Date of Decision : 10.05.2011

V. P. WADHWA                                      ...... Petitioner
                                 Through:   Mr. Aman Jain, Adv.

                                   Versus

C.S. PARASHER                                   ....Respondent

Through: counsel for the respondent (appearance not given).

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in the Digest ? YES

V.K. SHALI, J. (oral)

1. This is a petition filed by the petitioner for quashing the order

of summoning dated 19.02.2010 passed by the learned

Metropolitan Magistrate in complaint case no. 479/1999

(5202/1) titled C. S. Parasher Vs. Suresh Kaushik & Ors.

Under Section 220/341/342/357/506/500/120B IPC and

Section 124 of Delhi Police Act and also to quash the said

complaint.

2. Briefly stated the facts of the case are that the respondent no.

2 filed a complaint under Section

220/341/342/357/506/500/120B IPC read with section 124

of Delhi Police Act against Suresh Kaushik, Ved Pal

Singh and V. P. Wadhwa. It was alleged in the complaint that

on 23.05.1999 the complainant was sitting in the office of Mr.

R. K. Saini, Advocate at 114-A and 115-A, Ekta Enclave,

Peera Garhi, Rohtak Road, Delhi who is also a partner in

M/s C.S. Parasher & Co. It is alleged that R. K. Saini had

some dispute with his neighbour V. P. Wadhwa/petitioner

who is running the business of property dealing from his flat

bearing no. 112A Ekta Enclave, Peera Garhi, Delhi. It is

alleged that the flats of R. K. Saini and V. P. Wadhwa are

facing each other. It is alleged that the present petitioner

who is an accused in the complaint had put up a big shutter

on the main door of his flat and he opens his office from 8.00

A.M. till 11.00 P.M., which causes disturbance, annoyance

and inconvenience to Mr. R. K. Saini, Advocate. On

23.05.2009, a complaint was lodged by Mr.R.K.Saini with

P.S. Paschim Vihar, Delhi regarding the unlawful and illegal

activities carried out by the present petitioner as he was

creating public inconvenience and annoyance etc.

3. It is alleged that on learning this fact that a complaint has

been made by the complainant against the petitioner, on

23.05.2009 that V.P.Wadhwa along with some police officials

barged into the office of R.K.Saini in the afternoon and

manhandled them. The exact sequence of allegations made in

the complaint in para (7) and (8), reads as under:

(vii) That to utter shock and surprise Mr. Suresh Kaushik Incharge P.P. Mianwali himself along with a posse of policemen including Mr. Ved Pal Singh constable barged into the office of Mr. R. K Saini advocate on 23.05.1999 in the afternoon and asked all of us to accompany him to the police post Mianwali. When we protested and wanted to know the reason and asked for the warrant, he himself manhandled complainant and dragged him by holding the collar and the shirt while uttering filthy language and saying "SALE MAN TERE KO ABHI DEKHATA HUN WARRANT". He further threatened all of us to kill saying, "JO MERA MUH LAGTA HAIN WAHA JINDA NAHI BACHTA TUMEHE TO ENCOUNTER DIKHAKAR KABHI BHI KHATAM KAR DOONGA". The other policemen Mr. Ved Pal Singh dragged and pushed the colleagues of the complainant Mr. R. K. Saini and Mr. Sunial Kumar Shahi into the police van and took all of us to the above said police post and kept us in illegal detention for six hours without any rhyme and reason and provocation. The complainant and his colleague were let out by the accused only after the intervention of Mr. H. R. Banga, Advocate of Sales and Tax Bar Association.

(viii) That complainant thereafter made representation to the Delhi Bar Association on 24.05.1999 and Delhi Bar Council. In response to the complaint Mr. Rajender Rana Executive Member Delhi Bar Council also made complaint to the Commissioner of Police on 25.05.1999 against the highhandedness and illegal detention of the Advocates by the police Sub Inspector and accused no. 1 in conspiracy with the accused no. 3. No action has however been taken so far. The complainant is therefore constrained to move this Hon'ble Court for justice having no other efficacious remedy against the illegal and unjust detention and the defamation caused by the accused persons of the complainant and his colleagues in addition to other illegal acts as stated in the complaint.

4. The complainant examined himself as CW-1 and supported

the averments made in the complaint and also examined

Sunil Kumar as CW-2. The learned Magistrate after hearing

the arguments and examining the record summoned the

present petitioner and the other police officials as accused

persons to face the trial for an offence under Section 220,

341, 357 and 506 IPC read with 34 IPC. This order was

passed on 19.02.2010. The petitioner feeling aggrieved by

the said order of summoning has assailed the same. It has

been contended by the learned counsel for the petitioner that

the order of summoning has been passed in a mechanical

manner without an application of mind, and therefore, the

summoning order deserves to be set aside. In this regard, the

petitioner has placed reliance on Pepsi Foods Ltd. & Anr. Vs.

Special Judicial Magistrate & Ors. (1998) 5 SCC 749.

5. I have considered the submissions made by the learned

counsel for the petitioner and have gone through the record.

At the very outset, it may be pointed out that normally a

petition challenging the order of summoning and a revision

petition can be filed in three months from the date of passing

of the order of summoning or alternatively if within three

months from the date when the petitioner learnt about the

order of summoning. But in the instant case not only the

petitioner has not chosen to file the revision petition but has

also filed the present petition challenging the order of

summoning under Section 482 Cr.P.C. after a lapse of more

than a year, therefore, prima facie the present petition under

Section 482 against the summoning order is not only highly

belated but ought not to be entertained on account of an

inordinate delay challenging the order of summoning so as to

circumvent the period of limitation within which a revision

petition ought to have been filed. On this ground itself, the

petition deserves to be dismissed.

6. Even if the petition is seen on its merit no doubt the learned

counsel for the petitioner has referred to Pepsi Foods case

(Supra) wherein the Apex Court has observed that the order

of 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 also 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 whether that be

sufficient for the complainant to succeed in bringing charge

home to the accused. Similar is the observation passed by

the Apex Court in Punjab National Bank & Ors. Vs.

Surendra Prasad Sinha AIR 1992 SC 1815 wherein it has

been observed that the process should not be issued

mechanically as a vendetta to harass a person.

7. There is no dispute about these propositions of law that the

order of summoning must reflect application of mind on the

part of the learned Magistrate or that summoning order

should not be issued mechanically.

8. The question which arises for consideration is that as to

whether the order of summoning which has been passed by

the learned Magistrate reflects application of mind on the part

of the learned Magistrate or not. I find that the order of

summoning which has been passed by the learned Magistrate

shows due application of mind after examining the complaint

as well as the witnesses examined by the complainant. The

learned Magistrate has also taken note of the fact that at the

stage of passing a summoning order minute dissection of

evidence is not required to be done as is normally done at the

stage of final decision. At the stage of order of summoning,

the Court has to only see as to whether the prima facie

ingredients are satisfied or not. While doing so the learned

Magistrate has also considered the question as is warranted

under Section 197 Cr.P.C. It has been observed by the

learned Magistrate that when a public official does something

which is beyond the scope of his official duties he does not

enjoy the protection of Section 197 Cr.P.C. In the instant

case the complainant has deposed as witness that the police

official has connived with the petitioner in extending not only

threat but also in committing various other offences. The

exact sequence of the complaint is produced in para (7) and

(8) of the complaint. Therefore, I feel that in the light of the

order passed by the learned Magistrate, by no stretch of

imagination, it could be said that the learned Magistrate has

not applied his judicial mind. A minute dissection of

evidence is not required to be done at this stage. I,

accordingly, feel that there is no ground for quashing the

summoning order.

9. So far as the quashing of the complaint is concerned, no

argument has been addressed by the learned counsel for the

petitioner. However, I have considered the question of

quashing of the complaint also with reference to the ground

which has been taken. The law regarding the quashing of

the complaint or the FIR has been laid down exhaustively by

Apex Court in case titlted State of Haryana Vs. Bhajan Lal

1992 Supp. (1) SCC 335 wherein the Apex Court has given

seven illustrative contingencies in which the FIR can be

quashed. The only contingency which could have been

raised by the present petitioner is the fact as to whether the

averments made in the complaint prima facie satisfied the

ingredients of the offence or in other words that a prima facie

case against the petitioner is not made out. I do not think

that on a perusal of the complaint and the testimony adduced

by the complainant, it can be said that no prima facie case for

the various offences in respect of which summons have been

issued, is not made out against the present petitioner. The

question of previous enmity and various other things raised

by the petitioner are in the nature of defence which he can

take during the course of trial as these are disputed question

of fact. In addition to this in Bhajan lal case (Supra) the

Apex Court has also put the High Court on caution by stating

that the ousting power must be exercised very sparingly and

not as a matter of course. I do not find that this is a case

which warrants the quashing of the summoning order and

complaint. For the reasons mentioned above, I do not find

any merit in the petition, and accordingly, the same is

dismissed.

V.K. SHALI, J.

MAY     10th,   2011
KP