Krishan Kathuria vs State & Anr
2013 Latest Caselaw 1625 Del

$-31
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      DECIDED ON : 10th APRIL, 2013

+      CRL.M.C. 549/2012 & CRL.M.A.1922/2012 (Stay)

       KRISHAN KATHURIA                                  ..... Petitioner
                          Through :   Mr.Jayant Kr.Sud with Mr.Vishal
                                      Dabas, Advocates.

                          versus

       STATE & ANR                                     ..... Respondents

Through : Mr.M.N.Dudeja, APP for the State.

Complainant present in person.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. Petitioner- Krishan Kathuria has filed the present petition

under Section 482 Cr.P.C. for quashing Complaint Case No.790/2010

filed by respondent No.2 in which he was summoned to appear for

committing offences punishable under Sections 341/323/506/34 IPC.

2. I have heard the learned counsel for the petitioner and the

respondent No.2/ complainant in person. Counsel urged that the

respondent No.2 filed the false complaint case against the petitioner to

wriggle out of the compromise/ settlement agreed to before this Court in

civil proceedings. Respondent No.2/ complainant made false allegations

that on 29.01.2010, he was beaten by the petitioner and others. There was

no material before the Trial Court to proceed against the petitioner for

committing any offence. Action taken report/ status report was called

from the Police Station Tilak Marg in which it was specifically mentioned

that no such incident took place and the allegations were false. Neither did

the complainant inform PCR nor medically examined himself. The

complaint did not disclose commission of any cognizable offence. No

independent public witness was examined in the pre-summoning

evidence. The complainant made vital improvements in his deposition

before the Trial Court. He is already involved in number of other

litigations. The respondent controverted the submissions and stated that

the petitioner's intention is to grab his property. He had lodged twenty

complaints against him. Police did not take any action on his complaints

due to the pressure of the petitioner.

3. The complainant/ respondent No.2 lodged report dated

29.01.2010 to Station House Officer, Tilak Marg alleging that at about

11.00 A.M. when he came out of Court No.7, Krishan Kathuria and

Madan Mohan caught hold of him from the collar and pushed him

violently. They were joined by 2-3 other persons and they started abusing

and threatening him. He was manhandled and slapped. His brother

threatened him of dire consequences and even hinted to eliminate him.

They threatened him to withdraw the case or to consequences. However,

no action was taken by the police. The respondent sent representation

dated 19.05.2010 to Assistant Commissioner of Police to direct SHO,

Tilak Marg to take necessary action. He did not receive any response. He

filed complaint case on 10.06.2010. Action taken report was submitted by

the concerned Police Station was contested by the complainant. The

learned Metropolitan Magistrate after perusing the record and on the basis

of the material took cognizance and directed the complainant to lead pre-

summoning evidence. Vide order dated 28.09.2011, considering the

deposition of the complainant, the Trial Court was of the prima facie view

that there was sufficient material to proceed against the petitioner and

Mr.Madan Mohan @ Madan Lal @ Maddi for the aforesaid offences. The

petitioner appeared before the Trial Court and vide order dated 04.01.2012

he was admitted to bail. The complainant did not object to grant of bail if

condition was imposed that he would not threaten him. The Trial Court

accordingly directed the petitioner not to temper with the evidence and not

threaten the witnesses or otherwise.

4. The Metropolitan Magistrate under Section 202 Cr.P.C. may

disagree with the report of investigation and take cognizance. This Section

does not compel the Magistrate to accept the result of the enquiry or

investigation. The Magistrate may apply his judicial mind to the materials

on which he has to form his judgment. In arriving at his judgment, he is

not fettered in any way except by judicial considerations; he is not bound

to accept what the enquiry officer says, provided always there are

satisfactory and reliable materials on which he can base his judgment as to

whether there is sufficient ground for proceeding on the complaint or not.

Íf the police had taken an attitude not acceptable to the complainant, his

right to examine himself and/ or his witness cannot be taken away in view

of the said report of the investigating officer. Under Section 202 Cr.P.C.,

an enquiry is held in order to enable the Court to come of a conclusion as

to whether any prima facie case has been made out as against the accused

persons named in the complaint or some of them. The criteria for

summoning of the accused is whether the un-rebutted evidence makes out

a prima facie offence against the accused or not. The scope of enquiry is

extremely limited only to the ascertainment of truth or falsehood of the

allegations made in the complaint. The Magistrate is not expected to

embark upon detailed discussion of the merits/ demerits of the case.

Again, there is no invariable rule that independent public witnesses are to

be examined to establish a case as there is no reason to disbelieve the

evidence of the complainant at the stage of issuing process on a private

complaint. The case is to be judged solely on the allegations made in the

complaint and the evidence led by the complainant and it is not within the

scope or authority of the Magistrate to make a meticulous or detailed

examination of the evidence.

5. In the instant case, the complainant lodged complaint with

the police soon after the alleged incident on 29.01.2010. When the police

did not take any action, he made representation to the senior officers to

direct the SHO concerned to investigate the complaint. It appears that no

enquiry was conducted by the concerned Police Station. In action taken

report/ status report called in the complaint case, the police informed that

no such incident had taken place. Valuable time was lost by the concerned

Police Station to make enquiries on the complaint of the complainant soon

after it was lodged. The Trial Court did not agree with the report and

opted to examine the complainant in pre-summoning evidence. The

complainant on oath proved the allegations in the complainant and

specifically deposed as to how and under what circumstances, the incident

took place in which he was beaten and threatened. The averments in the

complaint on oath cannot be brushed-aside at this stage. The arguments

put forth by the counsel are on merits of the case which the Trial Court

would consider during trial. I find no illegality or irregularity in the

impugned order to interfere with.

6. The petition lacks merits and is dismissed. Pending

application also stands disposed of being infructuous.

(S.P.GARG) JUDGE

APRIL 10, 2013 tr