Gudoo Bai Vs. Kulwinder Kaur and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1159034
CourtPunjab and Haryana High Court
Decided OnJul-25-2014
AppellantGudoo Bai
RespondentKulwinder Kaur and ors.
Excerpt:
crl. misc. no.12507 of 2014 1 in the high court of punjab & haryana at chandigarh crl. misc. no.12507 of 2014(o&m) date of decision : 25.07.2014 gudoo bai .....petitioner versus kulwinder kaur & ors..respondents coram:- hon'ble mrs.justice anita chaudhry1whether reporters of local papers may be allowed to see the judgment?. yes/no 2.to be referred to the reporters or not?. yes/no 3.whether the judgment should be reported in the digest?. yes/no present: mr.parvesh sachdeva, advocate for the petitioner. anita chaudhry, j. crl. misc. no.22043 of 2014 application is allowed, as prayed for and annexures p- 3 to p-6 are taken on record. crl. misc. no.m-12507 of 2014 this is a petition for invoking powers under section 482 cr.p.c.for quashing the order dated 15.09.2012 (annexure p-1) passed by sub divisional judicial magistrate, jalalabad (west).whereby the accused were summoned only under sections 323 read with section 34 ipc. in order to appreciate the issue raised by the petitioner, it is necessary to refer to the facts. the complainant filed a complaint before the magistrate on the allegations that on 30.06.2006 at about 7:30 pm she and her son were alone in the sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 2 house when some ladies and men came to her and called her out of the house to settle the controversy. the complainant resisted saying that her husband was not at home, then agreed to accompany the accused in a jeep. after covering some distance, the jeep was stopped and the accused got down on the pretext of drinking water. the complainant was also asked to alight. the son of the complainant remained sitting in the jeep along with driver. accused chiman singh caught hold of the complainant, muffled her face with a cloth. he pointed out a pistol at her and asked her to remove her clothes. the complainant refused to accede to the directions and then the accused removed her salwar and started fiddling and committed rape. the accusations made by the complainant are that accused kulwinder kaur caught her from her hair while accused jeeto caught her hands and the remaining accused committed rape and indecent acts. the complainant was dumped on the spot and the accused fled away leaving her son behind. the incident took place on 30.06.2006. the petitioner filed an application before the magistrate and went to the hospital for her examination. she had pleaded that she had remained in the hospital for 8-9 days and intimation was also given to the police, but they refused to take any action and thereafter the complaint was filed in the court. preliminary evidence was recorded and the trial magistrate vide order dated 15.09.2012 summoned all the accused to face trial only under section 323 read with section 34 sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 3 ipc. the trial magistrate had made the following observations:- “after evaluating oral and documentary evidence available on record, this court is of the opinion that accused have voluntarily caused hurt to complainant and as such they have primarily committed offence punishable under section 323 read with section 34 of indian penal code. although complainant has raised allegation that accused have committed ornal intercours.against the order of nature with her but said allegation of complainant are neither believable nor substantiate on record by medical evidence. though dr. sonia gulati has stated in her deposition that complainant was directed to take surgical advise with regard to her complaint of pain in anal region but complainant has not brought any evidence on record to prove said advise. in the opinion of the court, no male can dare to do such overt act in presence of ladies of his own family, which is being claimed by complainant in the present complaint.”. aggrieved with the order, the complainant preferred a revision as the magistrate had refused to summon the accused under the other sections. the revision was dismissed noticing that there were mere allegations and there was no evidence to substantiate the same. sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 4 aggrieved with the same, the instant petition under section 482 cr.p.c.has been filed assailing the orders passed by the court below. the petitioner was asked to place on record her mlr and the same have been filed and taken on record as annexures p-3 to p-6. i have heard learned counsel for the petitioner and have gone through the paper book carefully. the medical officer in mlr annexure p-3 noticed only a reddish brown abrasion 28 cm x3cm on the neck extending backward on both sides. it is also mentioned in the report that no redness, no swelling and no bleeding was found. however, the patient was complaining of pain in anal region and she was advised surgical consultation. the patient was asked to get herself admitted in the female ward, but it appears that she had failed to do so. the question would arise, as to where a party has availed remedy of filing a revision petition under section 397 cr.p.c., can still approach this court with a petition under section 482 cr.p.c.before dealing with the ambit of both the sections i.e.s.397 & s.482 of the code, it would be worthwhile to reproduce them for the purpose of their applicability. section 397 of the code reads as under: "397. calling for records to exercise powers of revision.- sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 5 (1) the high court or any sessions judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) the powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) if an application under this section has been made by any person either to the high court or to the sessions judge, no further 8 application by the same person shall be entertained by the other of them."section 482 of the code reads thus: “482. saving of inherent power of high court.- nothing in this code shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."a bare reading of section 397(1) of the code states sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 6 that record of any proceeding of any inferior court can be examined by the high court or the sessions judge with regard to its correctness, legality or propriety of any finding, sentence or order, recorded or passed and also its regularity. under sub- section (2).a bar has been imposed for exercise of such power in relation to interlocutory order passed in any appeal, inquiry, trial or other proceeding and sub-section (3) bars further revision by the same person. thus, on a cumulative reading of these three sub-sections, it is clear that except in interlocutory orders or second revision by the same person, the correctness, legality and propriety of the impugned sentences or orders may be examined either by the high court or by the sessions judge, whereas under section 482 of the code, while exercising inherent powers.the high court may make such orders.as may be necessary to give effect to any order under this code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. though, on broad reading of both the sections, it can be said that exercise of powers under sec.397 and section 482 of the code are by and large similar in granting relief to the aggrieved party, except that of interlocutory order and of second revision by the same party. if the order is of such a nature as contemplated under sub-sections (2) and (3) of section 397 of the code, then the only remedy available to the aggrieved party is by way of a petition under section 482 of the code within its four corners.but, if these two sections are looked into in the light of the words used, section 397 is confined to the extent of sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh crl. misc. no.12507 of 2014 7 examining the correctness, legality or propriety of the order, whereas inherent powers can be exercised to give effect to any order given under this code or to prevent abuse of the process of any court or to secure the ends of justice under section 482 cr.p.c.under section 397 cr.p.c.the court is confined to the extent of examining the correctness, legality or propriety of the order. powers under section 482 cr.p.c.are to be exercised very sparingly and to prevent abuse of process of any court and to secure ends of justice. both the courts below had examined the evidence which was made available by the complainant. there was no evidence to support the oral version given by the complainant. there is no explanation why the complainant failed to get herself admitted for surgical examination. the courts below have correctly examined the evidence and had summoned the accused finding it a prima facie case for summoning them under sections 323 read with section 34 ipc. the legality and correctness of the order was challenged in the revision which too has been dismissed. it is not a case where the inherent powers of this court can be invoked under section 482 cr.p.c.the petition is dismissed. july 15, 2014 (anita chaudhry) jiten judge sharma jiten 2014.08.01 11:32 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

Crl.

Misc.

No.12507 of 2014 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.

Misc.

No.12507 of 2014(O&M) Date of decision : 25.07.2014 Gudoo Bai .....Petitioner versus Kulwinder Kaur & Ors..Respondents CORAM:- HON'BLE MRS.JUSTICE ANITA CHAUDHRY1Whether Reporters of local papers may be allowed to see the judgment?.

Yes/No 2.To be referred to the Reporters or not?.

Yes/No 3.Whether the judgment should be reported in the digest?.

Yes/No Present: Mr.Parvesh Sachdeva, Advocate for the petitioner.

ANITA CHAUDHRY, J.

Crl.

Misc.

No.22043 of 2014 Application is allowed, as prayed for and Annexures P- 3 to P-6 are taken on record.

Crl.

Misc.

No.M-12507 of 2014 This is a petition for invoking powers under Section 482 Cr.P.C.for quashing the order dated 15.09.2012 (Annexure P-1) passed by Sub Divisional Judicial Magistrate, Jalalabad (West).whereby the accused were summoned only under Sections 323 read with Section 34 IPC.

In order to appreciate the issue raised by the petitioner, it is necessary to refer to the facts.

The complainant filed a complaint before the Magistrate on the allegations that on 30.06.2006 at about 7:30 PM she and her son were alone in the Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 2 house when some ladies and men came to her and called her out of the house to settle the controversy.

The complainant resisted saying that her husband was not at home, then agreed to accompany the accused in a jeep.

After covering some distance, the jeep was stopped and the accused got down on the pretext of drinking water.

The complainant was also asked to alight.

The son of the complainant remained sitting in the jeep along with driver.

Accused Chiman Singh caught hold of the complainant, muffled her face with a cloth.

He pointed out a pistol at her and asked her to remove her clothes.

The complainant refused to accede to the directions and then the accused removed her Salwar and started fiddling and committed rape.

The accusations made by the complainant are that accused Kulwinder Kaur caught her from her hair while accused Jeeto caught her hands and the remaining accused committed rape and indecent acts.

The complainant was dumped on the spot and the accused fled away leaving her son behind.

The incident took place on 30.06.2006.

The petitioner filed an application before the Magistrate and went to the hospital for her examination.

She had pleaded that she had remained in the hospital for 8-9 days and intimation was also given to the police, but they refused to take any action and thereafter the complaint was filed in the Court.

Preliminary evidence was recorded and the trial Magistrate vide order dated 15.09.2012 summoned all the accused to face trial only under Section 323 read with Section 34 Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 3 IPC.

The trial Magistrate had made the following observations:- “After evaluating oral and documentary evidence available on record, this court is of the opinion that accused have voluntarily caused hurt to complainant and as such they have primarily committed offence punishable under Section 323 read with Section 34 of Indian Penal Code.

Although complainant has raised allegation that accused have committed ornal intercouRs.against the order of nature with her but said allegation of complainant are neither believable nor substantiate on record by medical evidence.

Though Dr.

Sonia Gulati has stated in her deposition that complainant was directed to take surgical advise with regard to her complaint of pain in anal region but complainant has not brought any evidence on record to prove said advise.

In the opinion of the court, no male can dare to do such overt act in presence of ladies of his own family, which is being claimed by complainant in the present complaint.”

.

Aggrieved with the order, the complainant preferred a revision as the Magistrate had refused to summon the accused under the other sections.

The revision was dismissed noticing that there were mere allegations and there was no evidence to substantiate the same.

Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 4 Aggrieved with the same, the instant petition under Section 482 Cr.P.C.has been filed assailing the orders passed by the Court below.

The petitioner was asked to place on record her MLR and the same have been filed and taken on record as Annexures P-3 to P-6.

I have heard learned counsel for the petitioner and have gone through the paper book carefully.

The Medical Officer in MLR Annexure P-3 noticed only a reddish brown abrasion 28 cm X3cm on the neck extending backward on both sides.

It is also mentioned in the report that no redness, no swelling and no bleeding was found.

However, the patient was complaining of pain in anal region and she was advised surgical consultation.

The patient was asked to get herself admitted in the female ward, but it appears that she had failed to do so.

The question would arise, as to where a party has availed remedy of filing a revision petition under Section 397 Cr.P.C., can still approach this Court with a petition under Section 482 Cr.P.C.Before dealing with the ambit of both the Sections i.e.S.397 & S.482 of the Code, it would be worthwhile to reproduce them for the purpose of their applicability.

Section 397 of the Code reads as under: "397.

Calling for records to exercise powers of revision.- Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 5 (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further 8 application by the same person shall be entertained by the other of them."

Section 482 of the Code reads thus: “482.

Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

A bare reading of Section 397(1) of the Code states Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 6 that record of any proceeding of any inferior court can be examined by the High Court or the Sessions Judge with regard to its correctness, legality or propriety of any finding, sentence or order, recorded or passed and also its regularity.

Under sub- section (2).a bar has been imposed for exercise of such power in relation to interlocutory order passed in any appeal, inquiry, trial or other proceeding and sub-section (3) bars further revision by the same person.

Thus, on a cumulative reading of these three sub-sections, it is clear that except in interlocutory orders or second revision by the same person, the correctness, legality and propriety of the impugned sentences or orders may be examined either by the High Court or by the Sessions Judge, whereas under Section 482 of the Code, while exercising inherent poweRs.the High Court may make such ordeRs.as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

Though, on broad reading of both the Sections, it can be said that exercise of powers under Sec.397 and Section 482 of the Code are by and large similar in granting relief to the aggrieved party, except that of interlocutory order and of second revision by the same party.

If the order is of such a nature as contemplated under sub-sections (2) and (3) of Section 397 of the Code, then the only remedy available to the aggrieved party is by way of a petition under Section 482 of the Code within its four corneRs.But, if these two Sections are looked into in the light of the words used, Section 397 is confined to the extent of Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Misc.

No.12507 of 2014 7 examining the correctness, legality or propriety of the order, whereas inherent powers can be exercised to give effect to any order given under this Code or to prevent abuse of the process of any Court or to secure the ends of justice under Section 482 Cr.P.C.Under Section 397 Cr.P.C.the Court is confined to the extent of examining the correctness, legality or propriety of the order.

Powers under Section 482 Cr.P.C.are to be exercised very sparingly and to prevent abuse of process of any court and to secure ends of justice.

Both the Courts below had examined the evidence which was made available by the complainant.

There was no evidence to support the oral version given by the complainant.

There is no explanation why the complainant failed to get herself admitted for surgical examination.

The Courts below have correctly examined the evidence and had summoned the accused finding it a prima facie case for summoning them under Sections 323 read with Section 34 IPC.

The legality and correctness of the order was challenged in the revision which too has been dismissed.

It is not a case where the inherent powers of this Court can be invoked under Section 482 Cr.P.C.The petition is dismissed.

July 15, 2014 (ANITA CHAUDHRY) Jiten JUDGE Sharma Jiten 2014.08.01 11:32 I attest to the accuracy and integrity of this document High Court Chandigarh