Bhagat Ram and ors. vs Gurbhej Singh

B.S. Nehra, J. (Oral)

The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated 81190, copy Annexure P4 and summoning order dated 14121991, copy Annexure P5, passed by the Additional Chief Judicial Magistrate, Hoshiarpur. It has been contended on behalf of the petitioners that earlier on a complaint filed by the respondent before the police, report under Section 173 of the Code of Criminal Procedure was filed in the Court. Eventually, the case is stated to have been cancelled. On 8111990, the respondent filed a fresh complaint for the same incident. The trial Court vide order dated 14121991 summoned the petitioners in exercise of powers under section 204 of the Code of Criminal Procedure.

The learned counsel for the respondent has raised a preliminary objection that the petitioners should first approach the trial court for seeking appropriate relief and in support of his contention, he has placed reliance on K.M. Mathew v. State of Kerala and another, 1992(1) Recent Criminal Reports 232 (SC) : 1992(1) Chandigarh Law Reporter 695 , in which the apex Court has ruled that a summoning order passed P2 under Section 204 of the Code of Criminal Procedure is an interim order and not a judgment. It can be varied or recalled by the Magistrate and proceedings against accused can be dropped if the complaint on the face of it does not disclose any offence against the aggrieved person. The Supreme Court further ruled that the proceeding can be dropped by the trial court if upon a reconsideration of complaint, it does not disclose even a prima facie case against the accused. It was contended by the learned counsel for the respondent that the petitioners should exhaust their remedy before the trial court keeping in view the principle of law enunciated in K.M. Mathew''s case (supra).