Ashok Kumar Gulati vs Sat Pal Singh, Process Server, and anr.

K.P.S. Sandhu, J. (Oral)

This is a revision petition filed by Ashok Kumar against the order of the Chief Judicial Magistrate, Chandigarh, dated 19.1.1984 by which he dismissed the complaint held by the petitioner against Sat Pal Singh and Miss Harsimran Kaur respondents.

Petitioner Ashok Kumar had filed a complaint in the Court of Chief Judicial Magistrate, Chandigarh under Sections 193/196/197/198/199/204/210 and 120B I.P.C., alleging therein that he was a tenant of Miss Harsimran Kaur respondent No. 2 in shopcumflat No. 4, Sector 28C Chandigarh and that respondent No. 2 had filed a petition for eviction against the petitioner which was pending in the Court of Shri L.R. Roojam, Rent Controller, Chandigarh. 16th September, 1981 was fixed for notice; that respondent No. 1 Satpal Singh proces server after conspiring with Miss Harsimran Kaur respondent No. 2 and at the instance of respondent No. 2 falsely reported on summons that the petitioner had refused to accept the service and on the basis of the report of respondent No. 1 an ex parte decree for ejectment from the business premises was passed against the petitioner on 16.10.1981 by the Rent Controller and that the petitioner only came to know through a telephonic message about the decree on 20.10.1981, since he was not present at Chandigarh in those days as he had gone to `Pehlgam'' and stayed there in Government tourist bungalow. It was further alleged by the complainant that the report made by Satpal Singh respondent was absolutely false and that later on respondent No. 1 destroyed the summons which were attached with the ejectment file. The complainant himself appeared as PW1 and testified the facts given in the complaint. He examined Mohinder Singh PW2, a neighbour who stated before the Court that on 8/9.9.1981, petitioner Ashok Kumar was not in station and that one process server during those days had come and enquired about the complainant and that he was told about the absence of the petitionercomplainant. PW3 Sudhir Kumar stated on oath that he along with the petitioner had gone to Pehlgam on 10.9.1981 and both of them came back on 17.9.1981 and they stayed in a Government tourist bungalow at Pehlgam and that due entry to that effect was made in the register maintained by the Tourist bungalow, PW4 Bhim Sen stated on oath that Satpal respondent, process server had made an extra judicial confession before him stating that he had charged Rs. 500/ from Miss Harsimran Kaur, respondent No. 2 for removing the summons from the file. PW5 Ved Parkash Record Keeper stated that file of ejectment case was in the High Court and not in the Record room. PW6 Mushtaq Ahmed, Ahlmad in the Court of Shri L.R. Roojam stated that while ejectment proceedings were pending in the Court of Rent Controller, Satpal Singh, process server, respondent No. 1 had a free access to the record room where this file was kept and it was very likely that he removed the summons. Assistant Director Tourism, Pehlam, Shri Mohammad Aslam who was examined on commission proved about the stay of the petitioner in the Government tourist Bungalow during the relevant period and also proved the entries to the effect contained in the register.

I have gone through the impugned order of the learned Magistrate. He has written a seven page judgment and has discussed the merit of the evidence led by the petitionercomplainant threadbare as if he was disposing of the case at a final stage. Enquiry under Section 202 Cr.P.C. is extremely limited. To find out prima facie a case, the Court has only to see as to whether what ever has been stated by the witnesses, if believed, would make out an offence or not. It appears that the learned Magistrate has acted as if he was holding a regular trial adjudicating upon the guilt of the respondent. In view of the aforesaid evidence produced by the petitionercomplainant, I think the order of the learned Magistrate cannot be sustained. Consequently, I allow this petition set aside the impugned order and send the case back to the learned Chief Judicial Magistrate to hold a further enquiry in the matter.