IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRL.
MISC.
not M-9323 OF 201.DATE OF DECISION :
22. d JANUARY, 2013 S.C.Aggarwal & others ….
Petitioners Versus Dr.
(Miss) Malti Batra ….
Respondent CORAM : HON’BLE Mr.JUSTICE L.N.MITTAL **** Present : Mr.R.S.
Cheema, Senior Advocate with Mr.Arshdeep Singh Cheema, Advocate for the petitioneRs.Respondent in person.
**** L.N.MITTAL, J.
(ORAL) S.C.Aggarwal and four otheRs.who have been arrayed as accused Nos.1 to 3, 5 and 6 in criminal complaint No.179 of 2011 Annexure P-1 instituted by respondent-complainant Dr.
(Miss) Malti Batra against petitioners and two others i.e.Dharma Singh accused No.4 and Balkrishan accused No.7 under Sections 465, 467, 468, 471/419, 420 and 506 IPC, have filed this petition under Section 482 of the Code of Criminal Procedure (in short, Cr.P.C.) for quashing the said criminal complaint Annexure P-1 and summoning order dated 03.01.2012 Annexure P-9 passed by learned Chief Judicial Magistrate, Roopnagar thereby summoning all the seven accused to face trial for offences under Sections 420, 467, 468, 471 and 120-B IPC.
CRL.
MISC.
not M-9323 OF 201.-2- The complainant was recruited as school lecturer and was ultimately functioning as District Education Officer in State of Punjab.
Her date of birth was recorded as 19.10.1950 in her service record.
According to her, her actual date of birth is 19.11.1955.
Case of respondent-complainant is that she had unearthed scandal worth over `157 crores and therefore, as whistle blower, she became victim of the wrong doeRs.who had committed the said scandals.
Consequently harassment of the complainant started at the hands of the accused.
The complainant was compulsorily retired w.e.f.14.10.2004.
To further harm the complainant, the accused persons tore off fiRs.page of her service book depicting her correct date of birth as 19.11.1955 and substituted another page depicting her date of birth as 19.10.1950.
This act was primarily committed by accused Nos.4 to 7 who are being patronized by accused Nos.1 to 3.
I have heard learned senior counsel for the petitioners and the respondent in person and perused the case file.
Counsel for the petitioners referring to various documents annexed with the petition, contended that the complainant herself has been depicting her date of birth as 19.10.1950 or 21.10.1950 or 19.11.1950 till as late as in the years 2008 and 2009 and therefore, it cannot be said that her date of birth had been recorded as 19.11.1955 in the service record.
It was also pointed out that writ petition filed by the petitioner, assailing order of her compulsory retirement, stands dismissed by this Court vide order dated 11.11.2008 Annexure P-10.
It was also CRL.
MISC.
not M-9323 OF 201.-3- argued that no role has been attributed to the petitioners and therefore, their prosecution would be abuse of process of the Court.
On the other hand, respondent-complainant contended that she was advised to fill her date of birth of the year 1950 in the pension papers so as to get whatever the State would give her and to agitate the remaining claim later on.
It was also argued that vide order dated 26.10.1992 Annexure R-1 of District Education Officer, her date of birth was ordered to be corrected as 19.11.1955 and necessary correction was ordered to be made in the service book.
The respondent has also relied on judgments of Hon’ble Supreme Court in the cases of Amit Kapoor versus Ramesh Chander& another, 2012(3) Apex Court Judgment 512 (SC) and Helios & Matheson Information Technology LTD.and others versus Rajeev Sawhney and another, 2012(1) RCR (Criminal) 354 and judgment of this Court in the case of Sanjay Gupta versus Food Inspector Railways and another, 2011(5) RCR (Criminal) 609 to contend that in proceedings under Section 482 Cr.
P.C.or in criminal revision, criminal prosecution involving disputed questions of fact cannot be quashed.
I have carefully considered the rival contentions.
Even as per averments in the impugned complaint, no role has been attributed to petitioner Nos.1 to 3 (accused Nos.1 to 3) except casual, vague and general allegation that they have been patronizing accused Nos.4 and 7.
On the basis of this casual, vague and general allegation, petitioner Nos.1 to 3 cannot be directed to face prosecution for any criminal offences.
CRL.
MISC.
not M-9323 OF 201.-4- There is not even averment that accused Nos.4 to 7 committed the alleged offences in conspiracy with accused Nos.1 to 3 or at their instance.
Consequently taking the averments made in the complaint as well as preliminary evidence led by the complainant at face value, no case for prosecuting accused Nos.1 to 3 for any criminal offence whatsoever is made out.
I would not comment anything regarding accused Nos.4 and 7, who are not before this Court.
As regards accused Nos.5 and 6 (petitioners No.4 and 5).thee is no direct evidence led by the complainant regarding any role played by them.
Labh Singh CW-4 has been examined as eye witness vide statement Annexure P-8.
He stated that accused No.7 Balkrishan had torn off the fiRs.page of service book of the complainant and at that time, two more persons were sitting on the big sofa and one more person was sitting on left side seat of the sofa.
On the basis of this statement, the complainant contended that the said other three persons were accused Nos.4 to 6.
However, no such statement has been made by Labh Singh that the said three persons were accused Nos.4 to 6.
He has not stated that accused Nos.4 to 6 were present at that time.
Moreover, even mere presence of accused Nos.4 to 6 at that time would not make them criminally liable for any offence for the alleged acts of accused No.7.
It is thus manifest that there is no case for proceeding against petitioners No.4 and 5 also for any criminal offence on the basis of the preliminary evidence led by the complainant.
CRL.
MISC.
not M-9323 OF 201.-5- It would not be out of place to notice here with some significance that the respondent-complainant stated that she passed her M.Sc.
examination in the year 1972 and joined service in the year 1974.
However, if date of birth of the complainant was 19.11.1955, then she passed M.Sc.
examination while she was still under the age of 17 yeaRs.Theoretically as well as practically it seems highly improbable.
Respondent referred to the instance of the famous noble laureate scientist C.V.Raman.
Comparison of respondent herself with C.V.Raman appears to be completely uncalled-for.
It thus appears that correct date of birth of the respondent-complainant was No.19.11.1955.
However, any observation made in this paragraph shall not have any bearing on other litigation, if any, of the respondent pertaining to her date of birth.
It may be added that writ petition filed by respondent to challenge order of her compulsory retirement has already been dismissed by Division Bench of this Court vide order Annexure P-10.
It is well settled that in exercise of inherent power under Section 482 Cr.P.C., this Court not only has power but also has the duty to quash the criminal prosecution if no case for proceeding against the accused for any offence is made out from the averments of the prosecution/complainant.
In the instant case, from the averments and preliminary evidence of the complainant, no case whatsoever for proceeding against petitioner Nos.1 to 3 for any offence is made out.
Similarly from the preliminary evidence led by the complainant, no case for proceeding against petitioner Nos.4 and 5 is also made out.
CRL.
MISC.
not M-9323 OF 201.-6- Consequently, prosecution of the petitioneRs.pursuant to impugned complaint and summoning order would be abuse of process of law and would result in miscarriage of justice.
The same has to be prevented by this Court by exercising inherent power under Section 482 Cr.P.C.In this view of the matter, judgments in the cases of Amit Kapoor (supra).Helios & Matheson Information Technology LTD.(supra) and Sanjay Gupta (supra) have no applicability to the facts of the instant case.
For the reasons aforesaid, the instant petition is allowed.
Impugned criminal complaint Annexure P-1 and summoning order Annexure P-9 are quashed as against the petitioners (accused Nos.1 to 3, 5 and 6) only.
Nothing in this order shall have any bearing regarding accused Nos.4 and 7.
22nd January, 2013 (L.N.MITTAL) ‘raj’ JUDGE