Full Judgment
In the High Court of Punjab and Haryana at Chandigarh .....Criminal Misc.
No.M-28837 of 2012 (O&M) ....Date of decision:27.1.2014 Shiv Kumar Patwari and others ...Petitioners v.
Subhash Chander ...Respondent ...Coram: Hon'ble Mr.Justice Inderjit Singh ....Present: Mr.Sunil Chadha, Advocate for the petitioneRs.Mr.Rajeev Dev Sharma, Advocate for the respondent....Inderjit Singh, J.
Shiv Kumar Patwari, Sham Partap and Krishna Rani- petitioners have filed this petition under Section 482 Cr.P.C.against Subhash Chander seeking quashing of Criminal Complaint No.1 dated 3.1.2004 (RBT No.25 of 2.6.2005) titled as Subhash Chander versus Shiv Kumar Patwari and others (Annexure-P.2) now having been committed to the Court of Session, Gurdaspur as well as all the subsequent proceedings taken in pursuance thereof including the summoning order dated 21.3.2012 (Annexure-P.5) as well as the commitment order dated 22.8.2012 (Annexure-P.6) passed by the learned Judicial Magistrate Ist Class, Gurdaspur.
Briefly the facts as stated in the petition are that marriage of Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [2].petitioner No.1 Shiv Kumar was solemnized on 19.11.1995 with Saroj Rani (since deceased) (sister of the respondent-complainant Subhash Chander) in accordance with Hindu rites and ceremonies.
On 7.7.1996, both petitioner No.1 and his wife Saroj Rani had gone to the parental house of Saroj Rani and at that time she was pregnant.
During the night intervening 7/8.7.1996 Saroj Rani felt pain in her stomach and in view of her deteriorating condition, she was taken to Civil Hospital, Gurdaspur, but unfortunately, she breathed her last on the way.
As per the version of the respondent-complainant, which came in light after a fortnight of the said incident, his deceased sister Saroj Rani told him at 1.00 a.m.on the night intervening 7/8.7.1996, petitioner No.1 had given some poisonous medicine to her on account of which she was feeling some trouble and burning in her stomach and thereafter, she started vomiting.
Upon the advice of Dr.
Joginder Pal and Rajiv Kumar Tewari, respondent- complainant took her sister to Civil Hospital, Gurdaspur, but she breathed her last on the way.
It is also the case of the respondent-complainant that at the time of cremation of his deceased sister Saroj Rani, petitioner No.1 met Gurdial Chand Sharma, who confessed before him that he had committed the murder of his wife and thereafter, he ran away from the cremation ground.
It is further stated in the petition that the complainant reported the matter to the SHO, Police Station Kahnuwan on 21.7.1996 through written complaint and when no FIR was registered, he filed petition before the High Court and during the pendency of the said petition, the Police registered FIR No.44 dated 27.5.1997 at Police Station Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [3].Kahnuwan, District Gurdaspur for the offences under Sections 304-B and 201 IPC against all the three petitioneRs.It is also stated in the petition that cancellation report was submitted, which was accepted by the learned Judicial Magistrate Ist Class, Gurdaspur vide order dated 30.5.2003.
It is also stated that the dead body of Saroj Rani was cremated without post- mortem.
While accepting the cancellation report, the learned Judicial Magistrate observed that the complainant is at liberty to file complaint, if he so desires.
It is also stated in the petition that earlier the learned Judicial Magistrate dismissed the complaint filed by the complainant on 3.1.2004 by passing detailed and well reasoned order.
The complainant filed revision petition before the Court of Sessions Judge, Gurdaspur and vide order dated 20.8.2009 while accepting the said revision petition, the Court of learned Additional Sessions Judge (Ad hoc).Fast Track Court, Gurdaspur set aside the order of the learned Judicial Magistrate Ist Class and remanded the case back to the Court with the direction to hear the respondent-complainant/his counsel and to pass appropriate order.
The petitioners filed criminal revision petition before the High Court and notice of motion was issued but later on this revision petition was dismissed vide order dated 15.11.2010 for want of prosecution.
After the dismissal of the revision petition, learned Judicial Magistrate Ist Class without recording any further preliminary evidence of the respondent- complainant directed the petitioners to be summoned to face trial for the offences under Sections 304-B and 201 IPC.
Reply has been filed on behalf of the respondent, in which the Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [4].facts have been admitted regarding the registration of the FIR and cancellation report and the revision petition etc.but contested this petition.
At the time of arguments, learned counsel for the petitioners contended that the petitioners have been falsely implicated by the respondent in the said complaint.
The summoning order passed by the Court is not as per law.
The petitioners have already undergone the ordeal of criminal prosecution for the last more than 16 yeaRs.The earlier order dated 25.1.2006 passed by the learned Judicial Magistrate was well reasoned.
He further argued that the impugned complaint and subsequent order passed thereafter are liable to be set aside.
On the other hand, learned counsel for the respondent contested the petition.
I have gone through the record and have heard learned counsel for the petitioner and learned counsel for the respondent.
From the record, I find that the FIR was got registered by the complainant-respondent in which the Police filed cancellation report, which was accepted by the learned Judicial Magistrate Ist Class.
The complainant-respondent has the remedy to file independent complaint if he is not satisfied with the cancellation report or aggrieved from the cancellation report.
On the basis of preliminary evidence, the Judicial Magistrate did not pass the summoning order but in the revision petition that order had been set aside.
The revision petition had been filed by the present petitioners against the order of learned Additional Sessions Judge Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [5].before the High Court which was dismissed for want of prosecution, which means that the order of the learned Additional sessions Judge for remanding the complaint before the Judicial Magistrate for reconsideration was not set aside and became final.
The learned Judicial Magistrate on the basis of preliminary evidence on record has passed the summoning order.
Therefore, the complaint is not liable to be quashed on the basis of earlier order dated 25.1.2006 passed by the Judicial Magistrate Ist Class because that order had already been set aside.
Now coming to the merits of the case, the delay in reporting the matter to the Police by filing a written complaint about 12/13 days is also no ground to quash the complaint nor any inference can be drawn that on this basis the complaint is false.
As per the facts given in the petition, the marriage of Saroj Rani was performed with Shiv Kumar on 19.11.1995 and she died on 8.7.1996 i.e.just within less than eight months.
From the perusal of the petition itself, it looks that there is oral dying declaration of the deceased with the complainant.
There is also extra-judicial confession.
Saroj Rani had been taken to the hospital.
A perusal of the record shows that copy of the complaint has not been placed on the record by the complainant nor anything has been argued that no offence is made out from the perusal of the complaint.
The complaint and the summoning order have been challenged only on the ground that unnatural death has not been proved.
At the time of arguments, it has been brought to my notice that Dr.
Joginder Pal (since deceased) had been cited as a witness in the Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [6].complaint.
In the quashing/revision petition, the Court is not to appreciate the evidence to form an opinion like the Court of appeal.
The complaint and the summoning order can be quashed on the ground that no offence is made out from the perusal of the complaint or from the preliminary evidence on record.
Neither it has been argued nor copy of the complaint or the preliminary evidence has been placed on record to show the same.
Secondly, the complaint and the summoning order can be quashed on the ground that it is counter-blast or filed with mala fide intention and the complaint is false one.
But, there is no cogent material on record to hold that at this stage.
As regards the delay or the fact whether unnatural death has been proved or not, is to be determined by the Court on the basis of evidence which is to be produced by the complainant there.
As regards the complaint and the summoning order also, it cannot be quashed on the ground that earlier order dated 25.1.2006 passed by the learned Judicial Magistrate was in favour of the petitioners as that order has already been set aside by the learned Additional Sessions Judge and the revision petition filed against the order of learned Additional Sessions Judge has already been dismissed by the High Court for want of prosecution.
As regards the quashing of the commitment order, I find that if the accused have been summoned to face trial for the offences triable by the Sessions Court, then that complaint is to be committed to the Court of Session and while committing this complaint to the Court of Session, as Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [7].the offence under Section 304-B IPC is triable by the Court of Session, no illegality has been committed in passing the commitment order.
Learned counsel for the petitioners placed reliance on the decision of this Court in Malkiat Singh v.
Mehar Singh, 1979 C.L.R.(Pb.
& Har.) 203.
This case having distinguished facts will not apply in the present case, as in that case the trial Court was directed to reconsider the matter in the light of the material already placed or any other further material as the complainants might like to produce, and then proceed in accordance with law.
It is no where held in this case that the Court cannot consider the material already placed on the record.
Learned counsel for the petitioners further placed reliance on the judgment of the Hon'ble Supreme Court in M/s Pepsi Foods Ltd.v.Special Judicial Magistrate, 1997 (4) R.C.R.(Cr.) 761.
I have gone through the law laid down in this judgment.
This case having distinguished facts will not apply in the present case, as in that case the Hon'ble Supreme Court had quashed the complaint as prima facie no case was made out from the complaint, which are not the facts in the present case.
Learned counsel for the petitioners further placed reliance on the judgment of this Court in Pritam Singh v.
State of Punjab and another, 2009 (1) R.C.R.(Cr.) 497, in which it is held that the accused had right to speedy trial and the FIR was quashed in that case.
I have gone through this judgment.
This case having distinguished facts will not apply in the present case, as the delay in the present case has been caused as the Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh Cr.
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No.M-28837 of 2012 (O&M) [8].petitioners also filed revision petition before the High Court for setting aside the order of the Additional Sessions Judge and then had not pursued those proceedings which was dismissed for want of prosecution later on.
Learned counsel for the petitioners further placed reliance on the judgment of Hon'ble Supreme Court in Moti Lal Saraf v.
State of Jammu and Kashmir and another, 2006 (4) R.C.R.(Cr.) 637.
This case having distinguished facts will not apply in the present case, as in that case the accused was facing trial for 26 years in corruption case and not a single witness was examined by the prosecution.
On that account, the criminal proceedings were quashed for want of prosecution, which is not the position in the present case.
Therefore, from the above discussion, no ground is made out for quashing the criminal complaint or the summoning order or the commitment order.
Therefore, finding no merit in this quashing petition, the same is dismissed.
January 27, 2014.
(Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.02.21 10:32 I attest to the accuracy and integrity of this document Chandigarh