Gurwinder Singh Vs. State of Punjab and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1070476
CourtPunjab and Haryana High Court
Decided OnNov-20-2012
AppellantGurwinder Singh
RespondentState of Punjab and Another
Excerpt:
crl.misc.not m- 6141 of 2012 (o&m) 1 in the high court of punjab and haryana at chandigarh crl.misc.not m- 6141 of 2012 (o&m) date of decision:20. 11.2012 gurwinder singh ......petitioner versus state of punjab and another .......respondent coram: hon'ble mrs.justice sabina present: mr.h.p.s.ghuman, advocate, for the petitioner. mr.k.d.s.sidhu, addl.a.g.punjab. mr.achin gupta, advocate, for respondent no.2. **** sabina, j. this petition has been filed under section 482 of the code of criminal procedure, 1973 for quashing of impugned order dated 23.1.2012 (annexure p-2).whereby application moved by the petitioner for discharge/ recalling the summoning order was dismissed. learned counsel for the petitioner has submitted that the trial court had erred in dismissing the application moved by the petitioner for his discharge on the ground that the court had no jurisdiction to recall the summoning order. in view of the decision crl.misc.not m- 6141 of 2012 (o&m) 2 given by the apex court in ajoy kumar ghose versus state of jharkhand and another n2009 (3) rcr (criminal) 345, the magistrate has the power to discharge the accused under section 245 (2) cr.p.c.even before the evidence was recorded under section 244 (1) cr.p.c.learned counsel for respondent no.2, on the other hand, has submitted that the petitioner by way of an application, had sought his discharge or recalling of the summoning order dated 1.4.2003 and dismissal of the complaint. as per the decision of the apex court in adalat prasad versus rooplal jindal 2004 (4) rcr (criminal) 1, the magistrate was not competent to recall the summoning order. after hearing learned counsel for the parties, i am of the opinion that the present petition deserves to be dismissed. complainant-respondent no.2 has filed the complaint in question against the petitioner with regard to dishonour of cheque dated 21.2.2011 in the sum of ` 9,14,157/-. complainant led his preliminary evidence in support of his complaint and vide order dated 1.4.2011, accused were ordered to be summoned to face the trial qua commission of offence punishable under section 138 of the negotiable instruments act, 1881 . a perusal of the impugned order reveals that the petitioner had moved an application for his discharge under section 245 cr.p.c.or for recalling of the summoning order dated 1.4.2011 and dismissal of the complaint. the trial court dismissed the said application, while crl.misc.not m- 6141 of 2012 (o&m) 3 basing reliance on the decision of the apex court in adalat prasad's cased (supra).wherein, it was held that the magistrate had no power to review or recall the summoning order issued by it. by way of the application moved by the petitioner, the petitioner had virtually sought recalling of the summoning order. since the application was not maintainable as the trial court had no power to review or recall its own order, the trial court had rightly dismissed the application filed by the petitioner. the judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. no ground for interference by this court is made out. accordingly, this petition is dismissed. (sabina) judge november 20, 2012 anita
Judgment:

Crl.Misc.not M- 6141 of 2012 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.not M- 6141 of 2012 (O&M) Date of decision:

20. 11.2012 Gurwinder Singh ......Petitioner Versus State of Punjab and another .......Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.H.P.S.Ghuman, Advocate, for the petitioner.

Mr.K.D.S.Sidhu, Addl.A.G.Punjab.

Mr.Achin Gupta, Advocate, for respondent No.2.

**** SABINA, J.

This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of impugned order dated 23.1.2012 (Annexure P-2).whereby application moved by the petitioner for discharge/ recalling the summoning order was dismissed.

Learned counsel for the petitioner has submitted that the trial Court had erred in dismissing the application moved by the petitioner for his discharge on the ground that the court had no jurisdiction to recall the summoning order.

In view of the decision Crl.Misc.not M- 6141 of 2012 (O&M) 2 given by the Apex Court in Ajoy Kumar Ghose versus State of Jharkhand and another n2009 (3) RCR (Criminal) 345, the Magistrate has the power to discharge the accused under Section 245 (2) Cr.P.C.even before the evidence was recorded under Section 244 (1) Cr.P.C.Learned counsel for respondent No.2, on the other hand, has submitted that the petitioner by way of an application, had sought his discharge or recalling of the summoning order dated 1.4.2003 and dismissal of the complaint.

As per the decision of the Apex Court in Adalat Prasad versus Rooplal Jindal 2004 (4) RCR (Criminal) 1, the Magistrate was not competent to recall the summoning order.

After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed.

Complainant-respondent No.2 has filed the complaint in question against the petitioner with regard to dishonour of cheque dated 21.2.2011 in the sum of ` 9,14,157/-.

Complainant led his preliminary evidence in support of his complaint and vide order dated 1.4.2011, accused were ordered to be summoned to face the trial qua commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 .

A perusal of the impugned order reveals that the petitioner had moved an application for his discharge under Section 245 Cr.P.C.or for recalling of the summoning order dated 1.4.2011 and dismissal of the complaint.

The trial Court dismissed the said application, while Crl.Misc.not M- 6141 of 2012 (O&M) 3 basing reliance on the decision of the Apex Court in Adalat Prasad's cased (supra).wherein, it was held that the Magistrate had no power to review or recall the summoning order issued by it.

By way of the application moved by the petitioner, the petitioner had virtually sought recalling of the summoning order.

Since the application was not maintainable as the trial Court had no power to review or recall its own order, the trial Court had rightly dismissed the application filed by the petitioner.

The judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case.

No ground for interference by this Court is made out.

Accordingly, this petition is dismissed.

(SABINA) JUDGE November 20, 2012 anita