Arjun Singh And Ors vs Balbir Singh And Another

Javed Iqbal Wani, J

Inherent jurisdiction of this Court under Section 561-A (now 482 Cr.PC) is being invoked by the petitioners seeking quashment of criminal complaint (for short impugned complaint) titled as “Balbir Singh Vs. Arjun Singh and Ors” as also order dated 16.09.2016 (for short the impugned order) pending before the court of Additional Mobile Magistrate, Samba (for short the trial court).

The respondent No. 1 herein is stated to have filed impugned complaint against the petitioners herein alleging therein the commission of offences covered in the complaint. The filing of the impugned complaint is traceable to a dispute having arisen between the petitioners and the respondents herein in respect of land measuring 23 marlas covered under Khasra No. 368 situated at village Meen Charkan, Bari Brahmana, claimed to have purchased by the petitioner No. 1 from brothers of respondent No. 1 who are stated to have executed a sale deed in favour of the petitioner No. 1 in respect of the land in question and the execution of sale deed is stated to have avoided by the respondent herein being a share holder in the said land.

It is being stated that upon execution of the sale deed with the brothers of respondent No. 1 herein, the petitioner No. 1 with their consent raised a boundary wall and constructed chowkidar room along with two temporary rooms over the land in question.

It is being stated that on 13.09.2016 one of son of the respondent No. 1 at around 11:00 am with the help of the respondents and goons of the area encroached upon the land in question and demolished the boundary wall, as also gate of the plot resulting into registration of an FIR against the 7 persons being FIR No. 118/2016 with Police Station Bari Brahmana.

It is being stated that in order to pressurize the petitioners to withdraw the said FIR inasmuch as to stop from laying a claim over the land in question, the impugned complaint came to be filed by the respondent No. 1 against the petitioners alleging the date of incident therein as 12.09.2016.

The impugned compliant as also impunged order are being challenged inter-alia on the grounds that the same is an act of vendetta of the respondent No. 1 against the petitioners in order to pressurize the petitioners to withdraw the criminal case against the respondent and others and that process has been issued in a routine manner by the trial court without following the mandate of law laid down by the Apex court in case titled as “ Lalita Kumari Vs. State of U.P” and that respondent No. 1, as such, has misused the process of law.

Heard learned counsel for the parties and perused the record.

Perusal of the record would reveal that impugned complaint has been instituted on 16.09.2016 before the trial court and trial court has taken cognizance thereof and issued process while summoning petitioners/accused persons herein in terms of impugned order dated 16.09.2016.

The law relating to the summoning of the accused in a criminal case is settled by the Apex court in case titled as “Pepsi Food Ltd and Another Vs. Special Judicial Magistrate and Others” reported in 1998 (5) SCC 749, wherein at para 28 following has been laid down:

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order 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. The 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.

Reverting back to the case in hand, in so far the challenge thrown by the petitioners to the impugned complaint is concerned, the allegation leveled in the complaint are based on the facts which cannot appropriately be dealt with or adjudicated upon by this court in exercise of inherent jurisdiction so much so whether the allegations are true or false cannot be determined by this court in exercise of its inherent jurisdiction However, in so far as the impugned order is concerned, having regard to the position of law laid down by the Apex court in the judgement supra it prima-facie is evident that the impugned order has been passed in a routine manner by the trial court. The impugned order patently and seemingly is passed overlooking the aforesaid principle of law. The order therefore, is not legally sustainable and is liable to be set aside. The petition therefore, is allowed to the extent of setting aside the impugned order alone. The trial court is directed to re-visit and re-consider the matter afresh and proceed in accordance with law.

It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the merits of the case.

Disposed of.