Punjab-Haryana High Court
Raja And Others vs State Of Haryana And Another on 13 April, 2023
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
263
CRM-M-10164-2020 (O&M)
Date of decision: 13.04.2023
RAJA AND OTHERS
....Petitioners
Versus
STATE OF HARYANA AND ANOTHER
...Respondents
CRM-M-15257-2022 (O&M)
RAMAKANT SHARMA
....Petitioner
Versus
STATE OF HARYANA AND ANR
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr.MadhurPanwar, Advocate for
Mr. Aman Pal, Advocate for the petitioners
Mr. DhruvSihag, AAG Haryana
Mr. S.N. Pillania, Advocate for respondent No.2
*****
AMAN CHAUDHARY. J.
1. This common order shall dispose of the above-mentioned two
criminal miscellaneous petitions, as both the petitions arise out of the same FIR.
2. Present petitions have been filed for quashing the protest
petition/criminal complaint No.COMI/88/2014 dated 07.07.2015, Annexure P-7
and protest petition/criminal complaint No. SC 226 of 2018 dated 07.07.2015,
Annexure P-7, in FIR No.180 dated 04.04.2012, Annexure P-1 under Sections
306,34IPC and for setting aside the summoning order dated 16.07.2018, Annexure
P-5, whereby the learned Magistrate had summoned the petitioners and to quash
1 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 2-
all subsequent proceedings arising therefrom.
3. Learned counsel for the petitioners would contend that the
complainant had initially got lodged FIR, which was thoroughly investigated by
the Special Investigation Team headed by DSP, Jind, wherein all the allegations
levelled against the petitioner were found to be false and the cancellation report
dated 28.06.2012 was submitted before the Court. The learned Magistrate vide
order dated 16.07.2018, wrongly summoned the petitioners, while recording that
the complainant was not satisfied with the investigation and referring to facts of
some other case that was not related with the present one, shows complete non-
application of mind. Even the cancellation report was not taken into consideration
as required under Section 210 CrPC. The Magistrate merely mentioned that
sufficient ground is established for proceeding against the petitioners without
stating as to what was the sufficient evidence available. The order is non-speaking
as it records no reasons. Reliance has been placed on the judgments of this Court
in the case of Kuldip Raj Mahajanvs. Hukam Chand, (2008) 1 RCR (Cri) 370,
andSaveraSidhuvs. HarleenSidhu and another, (2011) 2 RCR (Cri) 442.
4. Learned counsel appearing for the State stated the order summoning
the petitioners has been rightly passed. However, learned counsel for the
complainant, faced with the fact that the Magistrate had taken into notice the facts
of some different case, submits that he has no objection for remand of the case for
fresh decision.
5. Heard learned counsel for the parties.
6. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot possibly be set into motion as a matter of course. The order
2 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 3-
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 would that be sufficient for the complainant
to succeed in bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence before
summoning of the accused. Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie committed by all or any
of the accused, as held by Hon'ble The Supreme Court in the case of M/s Pepsi
Limited vs. Special Judicial Magistrate, (1998) 5 SCC 749.
7. It may be accentuated that the FIR lodged under Sections 306, 34 IPC
contained allegations against the present petitioners with regard to harassment of
the deceased by levelling false allegations of he having not repaid the debt, which
was investigated by a Special Investigation Team consisting of five police officers
and a cancellation report was submitted, with which the complainant felt
discontented.
8. Upon having fileda protest petition, the Magistrate summoned the
petitioners, however in the impugned order it has been observed that, "Moreover
perusal of oral as well as documentary evidence available on case file prima facie
discloses that alleged vehicle has been registered in name of two persons." These
surely were not the facts of the case.
9. It would be profitable to make a reference to the judgment of the
3 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 4-
Delhi High Court in the case of Ajay Khandelwal vs. State and another, 2003
(6) AD (Del) 485, followed in Atma Ram Singhal vs. State, 2007 (5) AD (Del)
717, wherein while setting aside the summoning order and remitting the case to
learned Metropolitan Magistrate to consider the same afresh and pass appropriate
orders, it held that in case the Magistrate decides to proceed further in the case
wherein cancellation report has been submitted, it is incumbent upon him to deal
with the conclusion of the said report instead of dismissing the same brusquely,
and it was the duty of the Magistrate to at least indicate his mind as to why he still
wanted to proceed in the matter and summon the accused persons.
10. This Court in the case of Kuldip Raj Mahajan(supra), quashed the
summoning order passed by the Magistrate the cancellation report had not been
taken into consideration by holding thus:-
"10. In the aforesaid context, learned counsel for the petitioner
submitted that inspite of having called report from the Investigating
Officer vide order date 1.9.2000 (Annexure P-18), the learned
Magistrate, while passing the impugned summoning order dated
19.9.2002, did not take into consideration the
cancellation/investigation report of the police. Perusal of impugned
summoning order (Annexure P-2) reveals that there is no reference at
all to the investigation report/cancellation report of the police in the
summoning order. Without considering the investigation
report/cancellation report of the police, the impugned summoning
order could not have been legally passed by the learned Magistrate.
The respondent, despite knowledge, concealed the cancellation report
of the police from the learned Magistrate. This is another indicator of
mala fide on the part of the respondent.
x xxxxx
13. Learned counsel for the respondent emphasized that
disputed questions of fact cannot be adjudicated upon in the instant
petition under Section 482 of the Code. Reliance in support of this
contention has been placed on judgment in the case of
T.BanamberPatra and others v. Vinod Kumar Sethi and another,
reported as 2007 (1) Law Herald (P&H) 54 and also on an unreported
order dated 12.1.2006 of this Court in Crl. Misc. No. 2052-M of 2006
titled as Ranjit Singh and others v. Sharda Devi. There cannot be any
quarrel with this legal proposition. Disputed questions of fact cannot
4 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 5-
be gone into in a petition under Section 482 of the Code. However,
this Court cannot be a helpless spectator when it is made out that the
criminal prosecution is mala fide and an abuse of the process of the
Court. In fact, this Court has inherent power and corresponding duty
to prevent abuse of the process of any court or otherwise to secure the
ends of justice. In the instant case, the impugned complaint in result
of mala fide as the respondent was nursing grudge against the
petitioner as discussed herein above. The witnesses cited by the
respondent were also aggrieved against the petitioner. The alleged
incidents dated 9/10.9.1999 were not mentioned in letter dated
10.9.1999 (Annexure R-4) sent by the respondent. There was long
and unexplained delay in reporting the matter to the police. After
investigation by Gazetted Officer, the FIR lodged in the same matter
was found to be false and cancellation report was submitted by the
police. The respondent, despite being aware of the cancellation
report, concealed the same from the learned Magistrate. The
impugned summoning order has also been passed without
considering or even referring to the cancellation report. Keeping in
view all these circumstances, it is a fit case in which this Court has to
exercise its inherent powers under Section 482 of the Code by
quashing the impugned complaint and summoning order so as to
prevent the abuse of process of court and to secure the ends of justice.
In addition to it, the alleged offences are also not made out from the
allegations in the impugned complaint."
11. This Court in the case of SaveraSidhu (supra), observed that, "The
argument that violation of Section 210 Cr.P.C does not vitiate the proceedings in
the facts of the present case as both the complaint and State case stand committed
to the Court of Sessions, has no merit. In case, a charge sheet is presented under
Section 173 Cr.P.C and the Magistrate, on the basis of the complaint without
taking into consideration the report under Section 173 Cr.P.C, on the same set of
allegations, comes to the conclusion that no offence is made out, the same is liable
to cause prejudice to the complainant, whereas, in case, a cancellation report is
submitted in the FIR and the Magistrate without taking into consideration the
cancellation report comes to the conclusion that a prima-facie case is made out,
the same is likely to prejudice the accused. Thus, ignoring the pendency of the
5 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 6-
investigation in an FIR, shall prejudice one of the two parties in either of the two
situations. As such, the violation of Section 210 Cr.P.C will vitiate the
proceedings. Hence, the provisions of Section 210 Cr.P.C requiring the Magistrate
to stay the proceedings of an enquiry or a trial and call for a report on the matter
from the police officer conducting the investigation was equally mandatory."
12. Further still, there is nothing that would reveal from the order
impugned in the case in hand, that the cancellation report submitted by the SIT
was considered by the Magistrate, it being a mandate of Section 210 CrPC, as
explicated in the afore-referred judicial pronouncements.
13. The Magistrate while summoning in a case wherein the complainant
has expressed his dissatisfaction with the investigation carried out, must take into
consideration that it is natural for the complainant, being an interested party, to not
concur with the investigation carried out, particularly if it does not result as
envisioned by him.
14. Having meticulously considered the facts and circumstances of the
case, statement made by the learned counsel for the complainant and in light of the
enunciation of law, the impugned order summoning the petitioners deserves to be
set aside.
15. As a sequel thereto, the instant petitions are partly accepted. The
impugned summoning order dated 16.07.2018, Annexure P-5 is set aside, and the
case is remitted to the Magistrate for consideration of the same afresh, in
accordance with law.
16. The observations made hereinabove are only for the purpose of
adjudication of the present petitions and shall not be construed as an expression of
6 of 7
Neutral Citation No:=2023:PHHC:051917
CRM-M-10164-2020 (O&M) N.C. No.2023:PHHC:051917
CRM-M-15257-2022 (O&M) - 7-
opinion on the merits of the case.
17. A photocopy of the judgment be placed on the file of the connected
case.
(AMAN CHAUDHARY)
JUDGE
April 13, 2023
S.Sharma(syr)
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:051917
7 of 7
